Exhibit 10.42
SHARE ESCROW AGREEMENT
March 30, 1999
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The parties to this agreement are (i) MedSource Technologies, Inc., a
Delaware corporation (the "Company"), (ii) the stockholders of the Company named
on Schedule A to this agreement (collectively, the "Stockholders"), (iii) J. H.
Whitney III, L.P., a Delaware limited partnership ("J. H. Whitney"), and Whitney
Strategic Partners III, L.P., a Delaware limited partnership (together with J.
H. Whitney, the "Investors"), and (iv) Parker Chapin Flattau & Klimpl, LLP, a
limited liability partnership (the "Escrow Agent").
The Stockholders, the Investors and the Company are entering into a
share transfer agreement dated this date (the "Share Transfer Agreement")
pursuant to which the Stockholders have agreed to deposit with the Escrow Agent
certain shares of the capital stock of the Company to be held and disposed of
pursuant to the terms of this agreement.
It is therefore agreed as follows:
1. Deposit of Escrow Shares.
(a) Simultaneously with the execution of this agreement, each of the
Stockholders is delivering to the Escrow Agent a certificate or certificates
representing the number of shares of the Company's common stock, par value $.01
per share (the "Common Stock"), set forth opposite that Stockholder's name on
Schedule A to this agreement, together with duly executed, undated, blank stock
transfer powers with respect thereto (together with all dividends, payments,
earnings, proceeds or other distributions (collectively, "Proceeds") in respect
thereof or in respect of such Proceeds, the "Escrow Shares"), and the Escrow
Agent hereby acknowledges receipt thereof. The Escrow Agent shall hold in
accordance with the terms of this agreement the Escrow Shares and shall not
release the Escrow Shares except in accordance with this agreement. The
Stockholders shall have the right to vote or give consents with respect to the
Escrow Shares on all matters at all times prior to delivery of any such Escrow
Shares to the Investors pursuant to this agreement.
(b) The Escrow Agent shall receive any funds paid as dividends or
otherwise in respect of the Escrow Shares and shall deposit such funds in an
interest bearing money market account in a New York City commercial bank or
shall otherwise invest such funds as jointly directed by a majority in interest
of the Investors and a majority in interest of the Stockholders.
2. Release of Escrow Shares.
(a) If at any time the Escrow Agent receives a written statement
purporting to be signed by a majority in interest of the Investors (an "Investor
Delivery Statement") and stating:
(i) that, in accordance with the Share Transfer Agreement, the
Investors are entitled to a number/amount of Escrow Shares (and/or any
amount of funds held in connection with the Escrow Shares); and
(ii) the aggregate number/amount of Escrow Shares to which the
Investors are entitled;
then the Escrow Agent shall forthwith deliver a copy of the Investor Delivery
Statement to the Stockholders. If, within 15 days after delivery of the Investor
Delivery Statement to the Stockholders, the Escrow Agent receives a written
objection to the Investor Delivery Statement purporting to be signed by
Stockholders owning at least 50% of the Escrow Shares, then the provisions of
section 4 shall apply. If the Escrow Agent does not receive such a written
objection within that 15-day period, then the Escrow Agent shall promptly
deliver the stock certificates representing the Escrow Shares and shall make
arrangements for the Company to prepare stock certificates registered in the
respective names of the Investors and the Stockholders, as applicable, in
accordance with section 3, for the aggregate number of Escrow Shares specified
in the Investor Delivery Statement and, after receipt from the Company, shall
promptly (i) transfer to the Investors the number/amount of Escrow Shares,
including, without limitation, the funds, specified in the Investor Delivery
Statement and shall deliver to the Investors the certificates registered in the
names of the Investors, as set forth above in this section 2(a) and (ii)
transfer to the Stockholders the balance, if any, of such Escrow Shares,
including, without limitation, any funds, and deliver to the Stockholders the
certificates, if any, registered in the names of the Stockholders, as set forth
above in this section 2(a).
(b) If at any time the Escrow Agent receives a written statement
purporting to be signed by Stockholders owning at least 50% of the Escrow Shares
(a "Stockholder Delivery Statement") and stating that, in accordance with the
Share Transfer Agreement (whether pursuant to section 1 or section 2 of the
Share Transfer Agreement), the Stockholders are entitled to any or all of the
Escrow Shares (and any funds held in connection herewith), then the Escrow Agent
shall forthwith deliver a copy of the Stockholder Delivery Statement to the
Investors. If, within 15 days after delivery of the Stockholder Delivery
Statement to the Investors, the Escrow Agent receives a written objection to the
Stockholder Delivery Statement purporting to be signed by the Threshold
Investors, then the provisions of section 4 shall apply. If the Escrow Agent
does not receive such a written objection within that 15-day period, then the
Escrow Agent shall promptly transfer the Escrow Shares and such funds to the
Stockholders and deliver each stock certificate registered in the name of a
Stockholder (and/or the funds) to such
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Stockholder. The parties acknowledge that the Stockholders may be entitled to
deliver a Stockholder Delivery Statement pursuant to either section 1 or section
2 of the Share Transfer Agreement.
3. Proportional Delivery of Shares. In each case where shares are
required to be delivered to the Investors or Stockholders pursuant to this
agreement, such shares shall be delivered (i) if to the Investors, in the
percentages set forth on Schedule A opposite each Investor's respective name
thereon, as such Schedule may be modified from time to time by notice to the
Stockholders and the Escrow Agent from the a majority in interest of the
Investors, and (ii) if to the Stockholders, in the percentages set forth on
Schedule B opposite each Stockholder's respective name thereon. Upon delivery to
the Company of certificates representing such shares, the Company shall (i)
cooperate with the Escrow Agent to reissue certificates in accordance with the
foregoing, (ii) reissue certificates with respect to any remaining shares in the
names of the original owners, and (iii) deliver all such certificates to the
Escrow Agent. In the event any delivery of Escrow Shares shall include shares,
cash and/or other assets (collectively the "Assets"), each Investor and/or
Stockholder entitled to such Escrow Shares (the "Subject Shares"), shall receive
Assets in all such categories, and the proportion that each category of the
Assets to be delivered to each such Investor and/or Stockholder bears to all the
Assets to be delivered to such Investor and/or Stockholder shall equal the
proportion that such category of Assets to be delivered to each other Investor
and/or Stockholder entitled to receive Subject Shares bears to all the Assets to
be delivered to such other Investor and/or Stockholder.
4. Conflicting Demands.
(a) If conflicting or adverse claims or demands are made or notices
are served upon the Escrow Agent with respect to the escrow provided for herein,
the Escrow Agents shall be entitled to refuse to comply with any such claim or
demand and to withhold and stop all further performance of this escrow so long
as such disagreement shall continue. In so doing, the Escrow Agent shall not be
liable for damages, losses, expenses or interest to any party hereto or any
other person for its failure to comply with such conflicting or adverse demands.
The Escrow Agent shall be entitled to continue to so refrain and refuse to so
act until (a) the rights of the adverse claimants have been finally adjudicated
in a court assuming and having jurisdiction and venue over the parties and/or
the documents, instruments or funds involved herein or affected hereby or (b)
the Escrow Agent shall have received an executed copy of a dispositive
settlement agreement to which the parties hereto and all other adverse
claimants, if any, are parties and signatories. The Escrow Agent may seek the
advice of legal counsel in any dispute or question as to the construction of any
of the provisions of this agreement or its duties hereunder, and it shall incur
no liability and shall be fully protected in respect of any action taken,
omitted or suffered by it in good faith in accordance with the opinion of such
counsel. In making calculations of any amounts pursuant to this agreement, the
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Escrow Agent shall be entitled to retain the services of such accountants as it
reasonably deems appropriate.
(b) If any controversy arises between one or more of the parties
hereto, the Escrow Agent shall not be required to resolve such controversy and
need not make any delivery of the Escrow Shares or any portion thereof but may
deposit the same with a court of competent jurisdiction in New York, New York
and, if it so commences and deposits the Escrow Shares, the Escrow Agent shall
be relieved and discharged from any further duties and obligations under this
agreement, or may retain the same without liability to anyone until the rights
of the parties to the dispute shall have finally been determined by mutual
agreement, or by final order, decree or judgment of a court of competent
jurisdiction, and the time for appeal has expired without an appeal having been
perfected, but the Escrow Agent shall be under no duty whatsoever to institute
or defend any such proceedings.
5. Term. The term of this agreement shall commence on the date of
this agreement and shall terminate on the date on which the all the Escrow
Shares have been delivered in accordance with this agreement.
6. Limitations Upon Liability of the Escrow Agent. The Escrow Agent
has been induced to accept its duties under this agreement by the following
terms and conditions:
(a) Except for its own willful misconduct and, except with respect to
claims based upon willful misconduct that are successfully asserted against the
Escrow Agent, the Escrow Agent and its designees, partners, officers, directors,
stockholders, employees and other agents and representatives and successors
(collectively, the "Protected Parties") shall not be liable with respect to, and
the Stockholders and the Investors jointly and severally shall indemnify the
Protected Parties and hold them harmless from and against, any and all claims,
liabilities, losses, damages, costs, reasonable attorneys' fees and other
expenses arising out of or in connection with this agreement including but not
limited to any such matter relating to the taking of any action in accordance
with the terms and provisions of this agreement, for any mistake or error in
judgment, for compliance with any applicable law or any attachment, order or
other directive of any court or other authority (irrespective of any conflicting
term or provision of this agreement), or for any act or omission of any other
person engaged by the Escrow Agent in connection with this agreement; and each
party hereto hereby waives any and all claims and actions whatsoever against the
Protected Parties arising out of or related directly or indirectly to any and
all of the foregoing acts, omissions and circumstances. Furthermore, the
Protected Parties shall not incur any liability (other than for a person's own
acts or omissions breaching a duty owed to the claimant and amounting to gross
negligence or willful misconduct) for other acts and omissions arising out of or
related directly or indirectly to this agreement or the Escrow Shares; and each
party hereto hereby expressly
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waives any and all claims and actions (other than those attributable to a
person's own acts or omissions breaching a duty owed to the claimant and
amounting to gross negligence or willful misconduct) against each of the
Protected Parties arising out of or related directly or indirectly to any and
all of the foregoing acts, omissions and circumstances. The foregoing
indemnities in this paragraph shall survive the resignation of the Escrow Agent
or the termination of this agreement.
(b) The Escrow Agent shall be entitled to rely upon any judgment,
certification, demand, notice, instrument or other writing delivered to it
hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. The Escrow Agent may act in reliance upon any instrument or
signature believed by it to be genuine and may assume that any person purporting
to give any notice or receipt or advice or make any statement or execute any
document in connection with the provisions hereof has been duly authorized to do
so.
7. Fees and Expenses of Escrow Agent. The costs and expenses of the
Escrow Agent shall be paid by the Company.
8. Additional Matters Regarding the Escrow Agent. This agreement
shall not in any way prohibit or in any way restrict the Escrow Agent's legal
representation of the Company or any of the Stockholders, any and all of which
may be advised by the Escrow Agent on any and all matters pertaining to this
agreement. To the extent the Company and/or the Stockholders are or have been
represented by the Escrow Agent, the Company and the Stockholders hereby
irrevocably waive any conflict of interest and authorize and direct the Escrow
Agent to carry out the terms and provisions of this agreement fairly as to all
parties, without regard to any such representation and irrespective of the
impact upon the Company and the Stockholders. The Escrow Agent's only duties are
those expressly set forth in this agreement, and each party hereto hereby
authorizes the Escrow Agent to perform those duties in accordance with its usual
practices in holding assets of its own or those of other escrows. The Escrow
Agent may exercise or otherwise enforce any of its rights, powers, privileges,
remedies and interests under this agreement and applicable law or perform any of
its duties under this agreement by or through its partners, employees,
attorneys, agents or designees.
9. Successor Escrow Agent. The Escrow Agent (and any successor
escrow agent) may, at any time, resign as such by (i) giving written notice to
the Stockholders, the Investors and the Company and (ii) delivering the Escrow
Shares to any successor escrow agent mutually designated in writing by the
Stockholders and the Investors, or to any court of competent jurisdiction,
whereupon the Escrow Agent shall be discharged of and from any and all further
obligations arising in connection with this agreement.
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10. Further Assurances. Each of the parties shall take such further
acts and execute and deliver such statements, assignments, agreements,
instruments and other documents as any other party from time to time reasonably
may request to effectuate the terms and provisions of this agreement, including
but not limited to such statements, assignments, agreements, instruments and
other documents as the Escrow Agent from time to time reasonably may request in
connection with the administration, maintenance, enforcement or adjudication of
this agreement in order to (a) give that Escrow Agent confirmation and assurance
of its rights, powers, privileges, remedies and interests under this agreement
and applicable law, (b) better enable the Escrow Agent to exercise any such
right, power, privilege or remedy, or (c) otherwise effectuate the purpose and
the terms and provisions of this agreement, each in such form and substance as
may be reasonably acceptable to the Escrow Agent.
11. Status of the Escrow Agent, Etc.
(a) Unless otherwise agreed to by the parties in writing, (i) the
duties and obligations of Escrow Agent shall be determined solely by the express
provisions of this agreement and (ii) the Escrow Agent shall not be bound in any
way by any agreement or contract among any of the parties, including the Share
Transfer Agreement (whether or not the Escrow Agent has knowledge thereof).
(b) The Escrow Agent is acting under this agreement as a stakeholder
only and shall be considered an independent contractor with respect to each
party hereto. The relationship of the parties with the Escrow Agent for this
purpose shall be governed solely by the terms hereof and no term or provision of
this agreement is intended to create, nor shall any such term or provision be
deemed to have created, any principal-agent, trust, joint venture, partnership,
debtor-creditor or attorney-client relationship between or among the Escrow
Agent and any of the parties hereto.
(c) The obligations of the Escrow Agent under this agreement shall
terminate at such time as the term of this agreement expires in accordance with
the provisions of section 5 or in the event the Escrow Agent deposits the Escrow
Shares (and any funds in connection therewith) with a court in accordance with
section 5.
12. Miscellaneous.
(a) Notices. All notices, instructions and other communications in
connection with this agreement shall be in writing and shall be given by (and
effective when received by) (i) fax (with evidence of receipt) followed by
letter or other delivery, (ii) personal delivery or (iii) by a nationally
recognized overnight courier in each case to the parties at the address set
forth below (or at such other address as a party may specify in a notice to the
others):
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If to the Company:
MedSource Technologies, Inc.
Two Carlson Parkway
Plymouth, Minnesota 55447
Fax no.: 612-535-2049
Attention: Chief Executive Officer
and
Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, CT 06830
Fax no.: 203-661-1839
Attn: Richard J. Effress
With a copy to:
Edward R. Mandell
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036-8735
Fax no.: 212-704-6288
If to an Investor or any Stockholder:
To the address of such Investor or such Stockholder specified under the
signature of such Investor or Stockholder at the end of this agreement.
If to the Escrow Agent:
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
Fax no.: 212-704-6288
Attention: Edward R. Mandell
(b) No Waiver. No course of dealing and no delay on the part of any
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.
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(c) Binding Effect. This agreement shall be binding upon and, except as
otherwise provided herein, shall inure to the benefit of the respective parties
and their permitted successors and assigns.
(d) Assignability. The rights of each Investor under this agreement
shall be assignable upon the express written direction of such Investor. Neither
this Agreement nor any interest herein may be assigned by any Stockholder
without the prior written consent of the Threshold Investors. Any purported
assignment in violation of this section 11(d) shall be void ab initio.
(e) Severability. Any provision of this agreement that is prohibited or
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 law, the parties
hereby waive any provision of law which renders any provisions hereof prohibited
or unenforceable in any respect.
(f) Modification. No term or provision of this agreement may be
amended, altered, modified, rescinded or terminated, except upon the express
written consent of the party against whom the same is sought to be enforced.
(g) Law Governing. This agreement shall be governed by and construed in
accordance with the law of the state of New York applicable to agreements made
and to be performed entirely in New York without regard to the conflicts of law
principles thereof.
(h) Jurisdiction and Venue. Each of the parties hereto hereby
irrevocably consents and submits to the exclusive jurisdiction of the United
States District Court for the Southern District of New York in connection with
any proceeding arising out of or relating to this agreement or the transactions
contemplated hereby and waives any objection to venue in such courts; provided,
however, that if such court lacks jurisdiction with respect to such proceeding,
in which case, each of the parties hereto irrevocably consents to the
jurisdiction of the courts of the state of New York in connection with such
proceeding and waives any objection to venue in New York County, state of New
York. Service of any summons, complaint, notice or other process relating to
such Proceeding may be effected in the manner provided by section 12(a).
(i) Headings. All headings and captions in this agreement are for
purposes of reference only and shall not be construed to limit or affect the
substance of this agreement.
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(j) Entire Agreement. This agreement contains, and is intended as, a
complete statement of all the terms of the arrangements between the parties with
respect to the matters provided for and supersedes any previous agreements and
understandings between the parties with respect to those matters.
MEDSOURCE TECHNOLOGIES, INC.
By: /s/ RICHARD J. EFFRESS
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Name: Richard J. Effress
Title: Chairman
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/s/ WILLIAM J. KIDD
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William J. Kidd
Address: 51 Clapboard Ridge Road
Greenwich, CT 06830
Fax No.: 203-625-2632
/s/ CARLA G. KIDD
-----------------------------------------
Carla G. Kidd
Address: 51 Clapboard Ridge Road
Greenwich, CT 06830
Fax No.: 203-625-2632
/s/ EDWARD R. MANDELL
-----------------------------------------
Edward R. Mandell, as Trustee under
the Catherine M. Kidd Trust
Address: c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, Connecticut 06830
Fax no.: 203-661-1839
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/s/ EDWARD R. MANDELL
-----------------------------------------
Edward R. Mandell, as Trustee under
the Cara E. Kidd Trust
Address: c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, Connecticut 06830
Fax no.: 203-661-1839
/s/ EDWARD R. MANDELL
-----------------------------------------
Edward R. Mandell, as Trustee under
the Thomas C. Kidd Trust
Address: c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, Connecticut 06830
Fax no.: 203-661-1839
/s/ CLARICE E. WEBB
-----------------------------------------
Clarice E. Webb
Address: 217 Bridge Street
Stamford, Connecticut 06905
Fax no.:
/s/ JOHN P. NEAFSEY
-----------------------------------------
John P. Neafsey
Address: John P. Neafsey
13 Valley Road
Wilson Pt.
South Norwich, CT 06854
Fax no.: 203-831-8455
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/s/ RICHARD J. EFFRESS
-----------------------------------------
Richard J. Effress
Address: c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, Connecticut 06830
Fax no.: 203-661-1839
/s/ ANDREW D. LIPMAN
-----------------------------------------
Andrew D. Lipman
Address: c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, Connecticut 06830
Fax no.: 203-661-1839
/s/ ADAM D. LEHRHOFF
-----------------------------------------
Adam D. Lehrhoff
Address: c/o Kidd & Company, LLC
Three Pickwick Plaza
Greenwich, Connecticut 06830
Fax no.: 203-661-1839
/s/ JOHN C. HERTIG
-----------------------------------------
John C. Hertig
Address: 124 Lamberts Lane
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Cohasset, MA 02025
Fax No.: 781-682-0308
/s/ WILLIAM ALTIERI
-----------------------------------------
William Altieri
Address: c/o Thayer Advisory Group
115 Broad Street
Boston, Massachusetts 02110
Fax No.: 617-350-5595
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J. H. WHITNEY III, L.P.
By: J. H. Whitney Equity Partners III,
LLC, its General Partner
By: /s/
-------------------------------------
Name:
Title: A Managing Member
Address: 177 Broad Street
Stamford, Connecticut 06901
Attention: Mr. Michael R. Stone
Mr. Daniel J. O'Brien
Fax no.: (203) 973-1422
With a copy to
Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue
New York, New York 10022
Attention: David A. Scherl, Esq.
Fax no.: 212-735-8708
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WHITNEY STRATEGIC PARTNERS III,L.P.
By: J. H. Whitney Equity Partners III,
LLC
By: /s/
-------------------------------------
Name:
Title: A Managing Member
Address: 177 Broad Street
Stamford, Connecticut 06901
Attention: Mr. Michael R. Stone
Mr. Daniel J. O'Brien
Fax no.: (203) 973-1422
With a copy to
Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue
New York, New York 10022
Attention: David A. Scherl, Esq.
Fax no.: 212-735-8708
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PARKER CHAPIN FLATTAU & KLIMPL, LLP
By: /s/ TIMOTHY I. KAHLER
-------------------------------------
Timothy I. Kahler,
a Partner
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SCHEDULE A
To Share Escrow Agreement
List of Stockholders and Escrow Shares
Name of Stockholder Number of Escrow Shares Percentage
- ------------------- ----------------------- ----------
William J. Kidd 30,380 20.253%
Carla G. Kidd 30,380 20.252%
Edward R. Mandell, as Trustee under
the Catherine M. Kidd Trust 10,126 6.751%
Edward R. Mandell, as Trustee under
the Cara E. Kidd Trust 10,126 6.751%
Edward R. Mandell, as Trustee under
the Thomas C. Kidd Trust 10,126 6.751%
Clarice Webb 1,350 0.900%
John P. Neafsey 1,350 0.900%
Richard J. Effress 16,877 11.252%
Andrew D. Lipman 16,877 11.252%
Adam D. Lehrhoff 7,425 4.950%
John C. Hertig 12,000 8.000%
William Altieri 2,983 1.988%
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Total Escrow Shares 150,000 100.000%
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SCHEDULE B
To Share Escrow Agreement
List of Investors and Shares of Series B Preferred Stock
Name of Stockholder Number of Shares Purchase Price Percentage
- ------------------- ---------------- -------------- ----------
J. H. Whitney III L.P. 292,941.18 21,481,376 97.64%
Whitney Strategic
Partners III, L.P. 7,058.82 518,624 2.36
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Total 300,000 $ 22,000,000 100.00%
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