EXHIBIT 10.7
REGISTRATION RIGHTS AGREEMENT
December 29, 2000
The parties to this agreement are MedSource Technologies, Inc. a
Delaware corporation (the "Company"), and each of the other individuals or
entities executing a signature page to this agreement (collectively, the
"Stockholders").
Simultaneously with the execution and delivery of this Agreement, the
Stockholders are acquiring shares of the Company's series D 6% cumulative
convertible preferred stock, par value $.0l per share ("Series D Preferred
Stock"), which is convertible into shares of the Company's common stock, par
value $.0l per share (the "Common Stock"). All of the shares of Common Stock
that any Stockholder may acquire by conversion of his, her or its shares of
Series D Preferred Stock, as applicable, are the only shares of capital stock of
the Company entitled to the rights and benefits, and subject to the terms and
conditions, of this Agreement, and are collectively referred to herein as the
"Shares."
Subject to the terms and conditions set forth in that certain
stockholders agreement dated this date between the parties hereto (the
"Stockholders Agreement"), the Company desires to provide to the Stockholders
certain rights regarding the registration of the Shares, all upon the terms and
conditions set forth below.
It is therefore agreed as follows:
1. Piggyback Registration.
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1.1 Right to Include Registrable Securities.
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(a) Subject to Section 1.1(b) hereof, if the Company at any time
proposes to register any of its securities under the Securities Act (as defined
below) by registration on Forms SB-2, S-l, S-2, S-3 (but not Forms S-4 or S-8)
or any successor or similar form(s) (except registrations of securities in
connection with (i) an employee benefit plan or dividend reinvestment plan or a
merger, consolidation or other business combination, (ii) debt securities that
are not convertible into Common Stock, or (iii) the Company's initial public
offering), whether or not for sale for its own account, it shall, each such
time, give written notice to the Holders (as defined below) of its intention to
do so and of the Holders' rights under this Section 1 at least 30 days prior to
the filing of a registration statement with respect to such registration with
the Commission (as defined below). Upon the written request of any Holder made
within 20 days after the receipt of that notice; which request shall specify the
Registrable Securities (as defined below) intended to be registered and disposed
of by such Holder, the Company shall, subject to the provisions hereof, use its
best efforts to effect the registration under the Securities Act of all
Registrable Securities that the Company has been so requested to register by
such Holder.
(b) If, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Holder and upon giving that notice (i) in the case of a
determination not to register, the Company shall be relieved of its obligation
to register any Registrable Securities in connection with such registration (but
not from any obligation of the Company to pay the Registration Expenses (as
defined below) in connection therewith), without prejudice; and (ii) in the case
of a determination to delay registering, the Company shall be permitted to delay
registering any Registrable Securities for the same period as the delay in
registering such other securities.
(c) The Company shall pay all Registration Expenses (as defined below)
in connection with registration of Registrable Securities requested pursuant to
this Section 1.
(d) As used in this Agreement (i) "Registrable Securities" means the
Registrable Shares and any other securities issuable or issued with respect
thereto by way of a dividend, distribution, recapitalization, exchange, merger,
consolidation, reorganization or other similar transaction, (ii) "Registrable
Shares" includes the Shares held by the Stockholders, and their permitted
transferees under the Stockholders Agreement; provided that any such Share shall
cease to be a Registrable Share when (A) it shall have been sold or otherwise
disposed of pursuant to an effective registration statement or as permitted by,
and in compliance with, Rule 144 (or successor provision) promulgated under the
Securities Act, (B) the Holder thereof (other than any Holder that owns Shares
(on an as converted basis) that represent at least 1% of the total number of
then outstanding Shares held by all stockholders of the Company (on an as
converted basis)) may dispose of all Shares then held by the Holder as permitted
by, and in compliance with, Rule 144k (or successor provision) or (C) it shall
have ceased to be outstanding; (iii) "Holder" means the Stockholders and their
permitted transferees who hold shares; and (iv) "Securities Act" shall mean the
Securities Act of 1933, as amended, or any subsequent similar federal statute,
and the rules and regulations of the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act (the "Commission").
(e) As used in this Agreement, "Registration Expenses" means all
expenses incident to the Company's performance of or compliance with the
provisions of Sections 1, 2 and 3 hereof including, without limitation, all
registration, filing and National Association of Securities Dealers, Inc. fees,
all listing fees, all fees and expenses of complying with securities or blue sky
laws (including, without limitation, reasonable fees and disbursements of
counsel for the underwriters in connection with blue sky qualifications of the
Registrable Securities), all printing expenses, the fees and disbursements of
counsel for the Company and of its independent public accountants, including the
expenses of "comfort" letters required by or incident to such performance and
compliance, and any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities; provided, however that Registration Expenses
shall exclude, and the Holders shall pay, underwriters fees and underwriting
discounts and commissions and transfer taxes in respect
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of the Registrable Securities being registered as well as any fees and expenses
of counsel or other advisors to the Holders of the Registrable Securities other
than as provided in Section 2(x) hereof.
1.2 Priority in Piggyback Registrations. Anything in Section 1.1 hereof
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to the contrary notwithstanding, if the managing underwriter or underwriters of
any underwritten offering shall inform the Company in writing of its belief that
the number of Registrable Securities requested to be included in such
registration would materially and adversely affect such offering, then the
Company shall include in such registration, to the extent of the number that the
Company is so advised can be sold in (or during the time of) such offering:
(i) first, all securities proposed by the Company to be sold
for its own account;
(ii) then, shares of Common Stock being sold in the
underwritten offering by stockholders exercising any demand
registration rights they may have with respect to such offering; and
(iii) then, the number of Registrable Securities to be sold by
the Holders and Other Securities (as defined below) to be sold by other
stockholders of the Company proposed to be included in such
underwritten offering in proportion to the respective number of shares
of Common Stock owned by each such person and its affiliates
(determined on an as converted basis) at the time of such registration.
"Other Securities" means, at any time, those shares of Common Stock,
and of any other class or series of capital stock of the Company or other
securities of the Company representing the right to acquire Common Stock, that
the Company is required to, or has determined to, register pursuant to a
registration statement filed by the Company with the Commission pursuant to this
or any other agreement.
2. Registration Procedures. In connection with the registration of any
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Registrable Securities under the Securities Act as provided in Section 1 hereof,
the Company shall as expeditiously as possible:
(i) prepare and file with the Commission the requisite
registration statement to effect such registration and thereafter use
its best efforts to cause such registration statement to become and
remain effective (subject to clause (ii) below); provided, however,
that the Company may discontinue any registration of its securities
that are not Registrable Securities at any time prior to the effective
date of the registration statement relating thereto;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used
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in connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities
covered by such registration statement for such period as shall be
required for the disposition of all of such Registrable Securities;
provided, that such period need not exceed 90 days; and provided,
further, that any period of discontinuance period pursuant to the last
paragraph of this Section 2 shall not be counted toward such 90 days;
(iii) furnish to the Holders such number of conformed copies
of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number
of copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as the Holders may reasonably request;
(iv) use its best efforts (x) to register or qualify all
Registrable Securities and other securities covered by such
registration statement under such other securities or blue sky laws of
such states of the United States of America where an exemption is not
available and as the Holders shall reasonably request, (y) to keep such
registration or qualification in effect for so long as such
registration statement remains in effect, and (z) to take any other
action that may reasonably be necessary or advisable to enable the
Holders to consummate the disposition in such jurisdictions of the
securities to be sold by the Holders, except that the Company shall not
for any such purpose be required to qualify generally to do business as
a foreign corporation in any jurisdiction wherein it would not, but for
the requirements of this paragraph (iv), be obligated to be so
qualified or to consent to general service of process in any such
jurisdiction;
(v) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the
Company to consummate the disposition of such Registrable Securities in
accordance with their intended method of disposition;
(vi) furnish to each seller of Registrable Securities and the
Holders' underwriters, if any, (x) an opinion of counsel for the
Company, and (y) a "comfort" letter signed by the independent public
accountants who have certified the Company's financial statements
included or incorporated by reference in such registration statement,
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each covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of the accountant's comfort letter, with respect to events
subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountant's comfort
letters delivered to the underwriters in underwritten public offerings
of securities (and dated the dates such opinions and comfort letters
are customarily dated);
(vii) notify the Holders when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that,
or upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, in the light of the circumstances under which
they were made, and at the request of the Holders promptly prepare and
furnish to them a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made;
(viii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least 12 months, but not more than
18 months, beginning with the first full calendar month after the
effective date of such registration statement, which earnings statement
shall satisfy the provisions of section 11(a) of the Securities Act and
Rule 158 promulgated thereunder, and promptly furnish the same to the
Holders;
(ix) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Company) for all Registrable
Securities covered by such registration statement from and after a date
not later than the effective date of such registration;
(x) pay the reasonable fees and expenses of one counsel on
behalf of the Holders whose Registrable Securities are included in the
registration statement, together with any other selling security
holders, with such counsel selected by a majority-in-interest
(according to the number of shares of Common Stock each such Holder and
other selling
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security holder is registering for sale in such registration statement)
of such Holders and other selling security holders; and
(xi) use its commercially reasonable efforts to list all
Registrable Securities covered by such registration statement on the
Nasdaq National Market or any national securities exchange in which the
Common Stock of the Company is then listed.
The Company may require the Holders to furnish the Company such
information regarding the Holders and the distribution of the Holders'
Registrable Securities as the Company may from time to time reasonably request
in writing.
Upon receipt of any notice from the Company of the happening of an
event of the kind described in item (vii) of this Section 2, the Holders will
forthwith discontinue their disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities until the
Holders' receipt of the copies of the supplemented or amended prospectus
contemplated by item (vii) and, if so directed by the Company, the Holders will
deliver to the Company all copies, other than permanent file copies, then in the
Holders' possession, of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
3. Underwritten Offerings.
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3.1 Piggyback Underwritten Offering. If the Company proposes to
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register any of its securities under the Securities Act as contemplated by
Section 1 and such securities are to be distributed by or through one or more
underwriters, the Company will, subject to Section 1 hereof (including, without
limitation, the provisions of Section 1.2 hereof), if requested by the Holders,
arrange for such underwriters to include all the Registrable Securities to be
offered and sold by the Holders with and among the securities of the Company to
be distributed by such underwriters. The Holders shall become a party to the
underwriting agreement negotiated between the Company and such underwriters and
shall make all representations and warranties to and shall enter into all
agreements with the Company and/or the underwriters as shall be reasonably
requested of them, including all representations, warranties and agreements
required by law or customarily given by selling shareholders in an underwritten
public offering.
3.2 Holdback Agreements. If the Company at any time shall register
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shares of Common Stock under the Securities Act for sale to the public (other
than on Forms S-4 or S-8 or a shelf registration), the Holders shall not sell
pursuant to an effective registration `statement, publicly make any short sale
of, publicly grant any option for the purchase of, or otherwise publicly dispose
of any Shares (other than those Shares included in such registration pursuant to
Section 1 hereof) or other securities of the Company exercisable for or
convertible into shares of Common Stock without the prior written consent of the
managing underwriter for a period required by the underwriters and designated by
the Company, which period shall not begin more than thirty (30) days prior to
the effectiveness of the registration statement pursuant to which such public
offering shall be made and shall
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not last more than one hundred eighty (180) days after the effective date of
such registration statement in the case of the Company's initial public
offering, or ninety (90) days after the effective date of such registration
statement in the case of any such other offering; provided, that the
restrictions set forth in this Section 3.2 shall only apply if the officers,
directors and any holders of at least 5% of the issued and outstanding shares of
Common Stock are restricted in the same manner. The Company may legend and
impose stop transfer instructions on any certificate evidencing Registrable
Securities relating to the restrictions provided in this Section 3.2.
3.3 Preparation; Reasonable Investigation. In connection with the
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preparation and filing of each registration statement under the Securities Act
pursuant to this agreement, the Company shall give the Holders, their
underwriters, if any, and their respective counsel and accountants the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment thereof or supplement thereto, and give each of them such access to
its books and records, such opportunities to discuss the business of the Company
with officers and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of the Holders' and
such underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
4. Indemnification.
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4.1 Indemnification by the Company. In the event of any registration
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statement filed pursuant to Section 1 hereof, the Company shall, and hereby
does, indemnify and hold harmless each of the Holders and each of their
directors, officers, partners, agents, attorneys, representatives and affiliates
and each other individual, group, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture or other
entity of whatever nature ("Person") who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who controls
any Holder or any such underwriter within the meaning of the Securities Act
(each of the foregoing, a "Holder Indemnitee") insofar as losses, claims,
damages, or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any such
registration statement, any preliminary prospectus, final prospectus, or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading or other violation of the
Securities Act or other laws in connection with such registration or disposition
other than directly resulting from voluntary actions by the Stockholder (other
than in accordance with Company advice, request or instruction), and the Company
shall reimburse each Holder Indemnitee for any legal or any other fees, costs
and expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided, that
the Company shall not be liable to a Holder or an underwriter in any such case
to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is
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based upon an untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder or such underwriter, as the case may be, expressly for use in the
preparation thereof; and provided, further, that the Company shall not be liable
to any Holder Indemnitee in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of such Person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Securities to such Person if such statement or omission was corrected in such
final prospectus so long as such final prospectus, and any amendments or
supplements thereto, have been furnished to such underwriter or any Holder, as
applicable.
4.2 Indemnification by the Holders. If any Registrable Securities are
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included in any registration statement, each Holder selling Shares thereunder
shall, and hereby does, severally and not jointly, indemnify and hold harmless
the Company, and each director, officer, agent, attorney, representative and
affiliate of the Company, each other Person, if any, who controls the Company
within the meaning of the Securities Act, and each Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any; who controls any such underwriter within the meaning of the Securities Act
with respect to all losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof ("Losses") to
which the Company or such other indemnified party becomes subject under the
Securities Act, insofar as such Losses arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or an
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, if
such statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by such Holder expressly for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; provided, however, in
no event shall the indemnity provided for in this Section 4.2 exceed the net
proceeds actually received by the Holder from the sale of the Registrable
Securities included in such registration statement.
4.3 Notice of Claims, Etc. Promptly after receipt by an indemnified
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party of notice of the commencement of any action or proceeding involving a
claim referred to in Sections 4.1 or 4.2 hereof, such indemnified party will, if
a claim in respect thereof is to be made against an indemnifying party,
immediately give written notice to the latter of the commencement of such
action; provided, however, that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its
indemnity obligations, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such
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indemnified and indemnifying parties may exist in respect of such claim (in
which case the indemnified party shall be entitled to retain separate counsel as
provided below), the indemnifying party shall be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs related to the
indemnified party's cooperation with the indemnifying party; provided, however,
that (i) if the indemnifying party fails to assume the defense of such claim
after a reasonable time the indemnified party may retain counsel to defend such
claim and the reasonable fees and expenses of such counsel shall be paid by the
indemnifying party, (ii) the indemnified party may, at its own expense, retain
separate counsel to participate in such defense, (iii) the indemnified party
shall have the right to employ separate counsel at the expense of the
indemnifying party and to control its own defense of such action, claim or
proceeding if, in the reasonable opinion of counsel to such indemnified party, a
material conflict or potential material conflict exists between the indemnified
party and the indemnifying party that would make such separate representation
advisable, except that in no event shall the indemnifying party be required to
pay fees and expenses under this Section 4 for more than one separate firm of
attorneys in any one legal action or group of related legal actions. No
indemnifying party shall be liable for any settlement of any action or
proceeding effected without its written consent, which consent shall not be
unreasonably withheld. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
4.4 Contribution. If indemnification shall for any reason be held by a
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court to be unavailable to an indemnified party under Section 4.1 or Section 4.2
hereof in respect of any loss, claim, damage or liability, or any action in
respect thereof, then, in lieu of the amount paid or payable under Section 4.1
or Section 4.2 hereof, as applicable, the indemnified party and the indemnifying
party shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating the same), (i) in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Holders on the other hand
that resulted in such loss, claim, damage or liability, or action in respect
thereof, with respect to the statements or omissions that resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations or (ii) if the allocation provided by item (i)
above is not permitted by applicable law, in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and the Holders on the other. No Person guilty of fraudulent
misrepresentation (within the meaning of the Securities Act) shall be entitled
to contribution from any Person who was not guilty of such fraudulent
misrepresentation. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim,
effected without such Person's consent, which consent shall not be unreasonably
withheld. In no event shall the
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contribution provided for in this Section 4.4 exceed the net proceeds actually
received by such Holder from the sale of the Registrable Securities included in
such registration statement. In addition, any Holder's obligation to contribute
as provided in this Section 4.4 shall be several in proportion to the number of
Registrable Securities covered by such registration statement and not joint.
4.5 Other Indemnification. Indemnification and contribution similar to
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that specified in the preceding provisions of this Section 4 (with appropriate
modifications) shall be given by the Company and the Holders with respect to any
required registration or other qualification of securities under any federal or
state law or regulation of any governmental authority other than the Securities
Act.
5. Rule 144. With a view to making available the benefits of certain
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rules and regulations of the Commission that may at any time permit the sale of
the Registrable Securities to the public without registration, after such time
as a public market exists for its Common Stock, the Company shall:
(a) use its best efforts to facilitate the sale of the Registrable
Securities to the public, without registration under the Securities Act,
pursuant to Rule 144 promulgated under the Securities Act, provided that this
shall not require the Company to file reports under the Securities Act and the
Securities Exchange Act of 1934 as amended, or any similar federal statute, and
the rules and regulations of the Commission thereunder (" Exchange Act"), at any
time prior to the Company's being otherwise required to file such reports;
(b) make and keep public information available, as those terms are
understood and defined in Rule 144 promulgated under the Securities Act at all
times after 90 days after the effective date of the first registration under the
Securities Act filed by the Company for an offering of its securities to the
general public;
(c) use its best efforts to then file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(d) deliver a written statement as to whether it has complied with such
requirements of this section, to the Holders upon any Holder's request.
6. Miscellaneous.
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(a) Notices. All notices, instructions and other communications in
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connection with this Agreement shall be in writing and may be given by personal
delivery or mailed,certified mail, return receipt requested, postage prepaid or
by a nationally recognized overnight courier to the parties at the address of
the Company as follows, and at the address of the Holders as set forth on the
signature page to this Agreement (or at such other address as the Company or the
Holders may specify in a notice to the Company):
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If to the Company:
MedSource Technologies, Inc.
110 Cheshire Lane, Suite 100
Minneapolis, Minnesota 55305
Attention: Richard J. Effress
Facsimile: (612) 807-1235
With a copy to:
Faegre & Benson LLP
90 South Seventh Street
Minneapolis, Minnesota 55402
Attn: David B. Miller
Facsimile: (612) 336-3026
If to a Stockholder:
to the address specified below such
Stockholder's signature
with a copy to:
Choate, Hall & Stewart
52 State Street
Boston, MA 02109
Attn: Roslyn G. Daum, Esq.
Facsimile: (6 17) 248-4000
(b) No Waiver. No course of dealing and no delay on the part of any
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party hereto in exercising any right, power or remedy conferred by this
Agreement shall operate as a waiver thereof or otherwise prejudice such party's
rights, powers and remedies conferred by this Agreement or shall preclude any
other or further exercise thereof or the exercise of any other right, power and
remedy.
(c) Binding Effect; Assignability. This Agreement shall be binding upon
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and, except as otherwise provided herein, shall inure to the benefit of the
respective parties and their permitted successors and assigns. This Agreement
shall not be assignable by a Holder except with respect to transfers permitted
by the Stockholders Agreement and provided that the transferee owns at least
15,000 Registrable Shares (on an as converted basis) after such transfer.
(d) Severability. Any provision of this Agreement that is prohibited or
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unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable
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law, the parties hereby waive any provision of law which renders any provisions
hereof prohibited or unenforceable in any respect.
(e) Modification. This Agreement may be amended upon the express
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written consent of the Company and Stockholders holding in the aggregate at
least 66 2/3% of the then outstanding Registrable Securities (computed on an as
converted basis).
(f) Legal Fees. If any action at law or in equity is necessary to
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enforce the terms of this Agreement, the prevailing party shall be entitled to
receive from the other party or parties to such action all reasonable attorneys'
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
(g) Law Governing. This agreement shall be governed by and construed in
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accordance with the law of the State of Delaware applicable to agreements made
and to be performed entirely in Delaware.
(h) Headings. All headings and captions in this Agreement are for
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purposes of reference only and shall not be construed to limit or affect the
substance of this Agreement.
(i) Confidentiality. Each Stockholder agrees to hold all information
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provided to the Stockholder pursuant to Section 1 of this Agreement in
confidence, and to refrain from trading in any securities of the Company prior
to the Company making any such information publicly available.
(j) Entire Agreement. This Agreement contains, and is intended as, a
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complete statement of all the terms of the arrangements between the parties with
respect to the matters provided for, supersedes any previous agreements and
understandings between the parties with respect to those matters and cannot be
changed or terminated orally.
-12-
COMPANY:
MEDSOURCE TECHNOLOGIES, INC.
By: /s/ RICHARD J. EFFRESS
------------------------------------------------
Richard J. Effress
Chairman of the Board and
Chief Executive Officer
Registration Rights Agreement
Stockholder: 1995 KRAUS MARITAL TRUST
DATED SEPTEMBER 18, 1995
/s/ JEFF L. KRAUS
---------------------------------------------------
By: Jeff L. Kraus
Its: Trustee
Address: 14716 Golf Links Road
Los Galos, CA 95030
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder: 1995 MATANI MARITAL TRUST
DATED SEPTEMBER 18, 1995
/s/ Tricia P. Matani
---------------------------------------------------
By:
Its: Trustee
Address: 6473 Pfeiffer Ranch Ct.
San Jose, CA 95120
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder:
/s/ ROBERT C. ALLMAN
---------------------------------------------------
Robert C. Allman
Address: 62 Ski Bowl Road
Bellows Falls, VT 05101
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder:
/s/ FERNANDO ALVAREZ DE TOLEDO
---------------------------------------------------
Fernando Alvarez de Toledo
Address: 229 Fairhaven Hill
Concord, MA 01742
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder:
/s/ FREDRIC ALVAREZ DE TOLEDO
---------------------------------------------------
Fredric Alvarez de Toledo
Address: 139 West 72nd St.
Apt. 5 RW
New York, NY 10023
Facsimile: on request
Phone: (212) 787-3531
Registration Rights Agreement
Stockholder:
/s/ LIVIA ALVAREZ DE TOLEDO
---------------------------------------------------
Livia Alvarez de Toledo
Address: 229 Fairhaven Hill
Concord, MA 01742
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder: BANTAM GROUP
/s/ JOSEPH J. CARUSO
---------------------------------------------------
By: Joseph J. Caruso
Its: President
Address: 50 Bay Colony Drive
Westwood, MA 02090
Facsimile: 781-329-2238
Registration Rights Agreement
Stockholder:
/s/ RAHUL BHAGAT
---------------------------------------------------
Rahul Bhagat
Address: 642 Cree Drive
San Jose, CA 95123
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder:
/s/ JOSEPH J. CARUSO
---------------------------------------------------
Joseph J. Caruso
Address: 50 Bay Colony Drive
Westwood, MA 02090
Facsimile: 781-329-2238
Registration Rights Agreement
Stockholder:
/s/ CAROL L. CEKALA
---------------------------------------------------
Carol L. Cekala
Address: 338 South Ave.
Weston, MA 02193
Facsimile: 781-891-6731
Registration Rights Agreement
Stockholder:
/s/ RICHARD C. FORTIER
---------------------------------------------------
Richard C. Fortier
Address: 150 Old Pickard Road
Concord, MA 01742
Facsimile: 617-964-2660
Registration Rights Agreement
Stockholder:
/s/ GAIL M. FREEL
---------------------------------------------------
Gail M. Freel
Address: 153 Darrow Street
Quincy, MA 02169
Facsimile: 617-773-6081
Registration Rights Agreement
Stockholder:
/s/ WILLIAM F. GASKO
---------------------------------------------------
William F. Gasko
Address: CTC, Mass. Technology Park
1400 Computer Drive
Westborough, MA 01581
Facsimile: 508-366-0101
Registration Rights Agreement
Stockholder:
/s/ ALAN L. HERSHEY
---------------------------------------------------
Alan L. Hershey
Address: 91 Three Corners Road
Guilford, CT 06437
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder:
/s/ MIKE HORZEWSKI
---------------------------------------------------
Mike Horzewski
Address: 6032 Running Springs Street
San Jose, CA 95135
Facsimile: 408-528-7181
Registration Rights Agreement
Stockholder: HORZEWSKI 1997 LIVING TRUST
DATED OCTOBER 10, 1997
/s/ MICHAEL J. HORZEWSKI
---------------------------------------------------
By: Michael J. Horzewski
Its: Trustee
Address: 6032 Running Springs Street
San Jose, CA 95135
Facsimile: 408-528-7181
Registration Rights Agreement
Stockholder:
/s/ JACOB L. JACOBSON
---------------------------------------------------
Jacob L. Jacobson
Address: 91 Exeter Street
Newton, MA 02165
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder:
/s/ JONATHAN R. LEAVY
---------------------------------------------------
Jonathan R. Leavy
Address: 4 Eden Avenue
Newton, MA 02465
Facsimile: 617-964-0858
Registration Rights Agreement
Stockholder:
/s/ ZBIGNIEW MASLANKA
---------------------------------------------------
Zbigniew Maslanka
Address: 3101 Erin Lane
Santa Cruz, CA 95065
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder:
/s/ PAUL G. MILDE
---------------------------------------------------
Paul G. Milde
Address: 18 Church Street
PO Box 1211
Mattapoisett, MA 02739
Facsimile: 508-758-3020
Registration Rights Agreement
Stockholder:
/s/ STUART A. RANDLE
---------------------------------------------------
Stuart A. Randle
Address: 359 Pope Road
Concord, MA 01742
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder:
/s/ CAROL RAYMOND
---------------------------------------------------
Carol Raymond
Address: 6 Richard Road
Wayland, MA 01778
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder:
/s/ CHARLES W. SCHELLHORN
---------------------------------------------------
Charles W. Schellhorn
Address: Argus Health Systems
715 Hereford Drive
Kansas City, MO 64015
Facsimile:_________________________________________
Registration Rights Agreement
Stockholder: THE TOLKOFF FAMILY LIMITED
PARTNERSHIP
/s/ M. JOSHUA TOLKOFF
---------------------------------------------------
By: M. Joshua Tolkoff
Its: General Partner
Address: 39 Jordan Road
Brookline, MA 02446
Facsimile: 617-566-3037
Registration Rights Agreement
Stockholder:
/s/ ROBERT ZOLLARS
---------------------------------------------------
Robert Zollars
Address: Neoforma
3061 Zanker Road
San Jose, CA 95134-2127
Facsimile: 408-468-4050