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EXHIBIT 2.2.1
FIRST AMENDMENT TO SHARE PURCHASE AGREEMENT
DATED AS OF JANUARY 11, 2000
BY AND AMONG
MEDICAL DEVICE MANUFACTURING, INC.
D/B/A RIVO TECHNOLOGIES,
(THE "PURCHASER")
NOBLE-MET, LTD.
(THE "COMPANY")
AND
THE SHAREHOLDERS OF NOBLE-MET LTD.
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FIRST AMENDMENT TO
SHARE PURCHASE AGREEMENT
This FIRST AMENDMENT TO SHARE PURCHASE AGREEMENT, (this "Amendment"),
dated as of January 11, 2000, is entered into by and among Medical Device
Manufacturing, Inc. (d/b/a Rivo Technologies), a Colorado corporation (the
"Purchaser"), Noble-Met Ltd., a Virginia corporation (the "Company"), and each
of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇," and together with
▇▇▇▇▇▇▇▇, the "Principal Shareholders") and the other shareholders of the
Company executing this Agreement: ▇▇▇▇▇ ▇. Page ("Page"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇ 1998 Trust (the Principal
Shareholders, together with such other shareholders are hereafter individually
referred to as a "Seller" and collectively referred to as "Sellers").
RECITALS
A. Purchaser, the Company and Sellers wish to amend the Share Purchase
Agreement by and among Purchaser, the Company and Sellers dated December 22,
1999 (the "Purchase Agreement") in accordance with Section 13.3 thereof.
B. In addition, Purchaser, the Company and Sellers wish to set forth
certain matters upon which they have agreed.
C. Unless otherwise amended herein, capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Purchase
Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto amend the Purchase Agreement as follows:
1. Each Seller and the Company are a party to the Buy-Sell Agreement,
dated December 31, 1998. Each Seller and the Company hereby waives any right of
first refusal to which they are entitled as a result of such agreement.
2. Section 2.1(d) of the Purchase Agreement is amended in its entirety
to read as follows:
"(d) Prior to the Closing Date, the Company shall redeem the
Shares in the ESOP Plan. The Company shall purchase the Shares from the
ESOP Plan for $7.04 per Share. The total purchase price is $256,917.76
and shall be payable by the Company's issuance of a promissory note in
such amount."
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3. Section 2.2(a) of the Purchase Agreement is amended in its entirety
to read as follows:
"(a) At Closing, Purchaser shall deliver a payment of
$21,243,082.24, subject to adjustment as provided in Section 2.3 (the
"Closing Cash Payment"), by wire transfer of immediately available
federal funds to Sellers, in accordance with their respective ownership
of the Shares as set forth on Annex I.
4. Section 2.2(b) of the Purchase Agreement is amended in its entirety
to read as follows:
"(b) (i) At Closing, Purchaser shall issue to each of
Freeland, Miller, Page, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (each of
whom is an "accredited investor" as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act) shares of Class A-2
5% Convertible Preferred Stock of Purchaser ("Convertible Preferred
Stock"), the number of which shares of Convertible Preferred Stock
shall be determined by multiplying such Seller's percentage interest of
Shares in the Company immediately prior to the Closing, but after
redemption of the Shares in the ESOP Plan by the Company as
contemplated in Section 2.1(d) above, as set forth on Annex I times
3,500,000 and dividing that product by twelve (12).
(ii) Because ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇") and the
▇▇▇▇▇▇ 1998 Trust (the "Trust") are not accredited investors, instead
of receiving 356 shares and 21,919 shares, respectively (which numbers
were determined in accordance with the formula set forth in the
immediately preceding Section 2.2(b)(i)), ▇▇▇▇▇▇▇▇▇ will receive an
additional $4,272 and the Trust will receive an additional $263,028. In
addition to ▇▇▇▇▇▇▇▇'▇ allocation of Convertible Preferred Stock as
determined in accordance with Section 2.2(b)(i), ▇▇▇▇▇▇▇▇ will receive
the 356 shares which would have been allocated to ▇▇▇▇▇▇▇▇▇ had
▇▇▇▇▇▇▇▇▇ been an accredited investor and ▇▇▇▇▇▇▇▇'▇ allocation of the
Cash Closing Payment shall be reduced $4,272. In addition to ▇▇▇▇▇▇'▇
allocation of Convertible Preferred Stock as determined in accordance
with Section 2.2(b)(i), ▇▇▇▇▇▇ will receive the 21,919 shares which
would have been allocated to the Trust had the Trust been an accredited
investor and ▇▇▇▇▇▇'▇ allocation of the Cash Closing Payment shall be
reduced by $263,028.
(iii) The Convertible Preferred Stock shall have the
rights and preferences set forth in the certificate of designation for
the Convertible Preferred Stock attached hereto as Exhibit A (the
"Certificate of Designation"), which shall be the same class of shares
as acquired in connection with this transaction by KRG Capital Fund I,
L.P. and its affiliated funds. In connection with the issuance of the
Convertible Preferred Stock to certain Sellers pursuant to this Section
2.2(b), such Sellers shall each be required to execute a subscription
agreement in the form attached hereto as Exhibit B (the "Subscription
Agreement")."
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5. Section 2.2(c)(i) and Section 2.2(c)(ii) of the Purchase Agreement
are amended in their entirety to read as follows:
"(c) (i) Within thirty (30) days after the delivery of audited
financial statements of the Company for the fiscal year ending December
31, 2000 and, in no event later than April 15, 2001, Purchaser shall
pay, or shall cause the Company to pay, to Sellers an amount not to
exceed $10,000,000 (the "Earnout Amount") equal to the product of
either (A) four (4) or (B) four and two tenths (4.2) if the MER
Acquisition occurs before March 31, 2000 and the amount, if any, by
which 2000 EBITDA exceeds 1999 EBITDA. In the event that the Earnout
Amount earned in accordance with the preceding sentence is less than
$10,000,000, then, for the twelve-month period ending December 31,
2001, Purchaser shall pay, or shall cause the Company to pay to Sellers
within thirty (30) days after the delivery of audited financial
statements of the Company for the fiscal year ending December 31, 2001
and, in no event later than April 15, 2002, the further Earnout Amount
of the product of either (X) three (3) or (Y) three and fifteen
hundredths (3.15) if the MER Acquisition occurs before March 31, 2000
and the amount, if any, by which 2001 EBITDA exceeds the greater of the
1999 EBITDA and the ▇▇▇▇ ▇▇▇▇▇▇; provided, however, that the aggregate
Earnout Amount paid or payable in accordance with this Section
2.2(c)(i) shall not exceed $10,000,000. The Earnout Amount shall be
allocated among Sellers on a pro rata basis based on their relative
ownership of the Shares on the Closing Date. Payment of the Earnout
Amount shall, at the option of each Seller be in the form of either (I)
one hundred percent (100%) cash or (II) in the case of the Sellers
other than ▇▇▇▇▇▇▇▇▇ and the Trust, up to twenty five percent (25%)
Convertible Preferred Stock at $12.00 per share and the balance in
cash.
(ii) An amount (A) not to exceed either (x)
$10,000,000 or (y) $11,000,000 if the MER Acquisition occurs before
March 31, 2000 and (B) calculated in the same manner as the Earnout
Amount allocated to the Sellers shall be paid to the Eligible Employees
in accordance with the provisions of the Employee Incentive Bonus
Agreements, which agreements shall be executed at the time of the
adoption of the stock appreciation rights plan as contemplated below,
provided, that in order to be eligible for the earnout amount under
this Section 2.2(c)(ii), Eligible Employees shall be required to
execute a confidentiality, noncompetition, nonsolicitation and
assignment of inventions agreement, the form of which shall be mutually
agreed to by Purchaser and the Sellers' Representative (the "Eligible
Employee Agreements"). The Employee Incentive Bonus Agreements shall be
mutually satisfactory to Purchaser and the Sellers' Representative. The
calculation and payment of the earnout amount under this Section
2.2(c)(ii) shall be made in accordance with the terms of the Earnout
Amount. Payment of the earnout amount under this Section 2.2(c)(ii) to
Eligible Employees shall, at the option of each Eligible Employee, be
in the form of either (I) one hundred percent (100%) cash or (II) up to
twenty five percent (25%) stock appreciation rights in the Company and
the remainder in cash. Such stock appreciation rights plan shall be
adopted within sixty (60) days of the Closing Date."
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6. Section 2.3(a)(i) of the Purchase Agreement is amended in its
entirety to read as follows:
"(i) if 1999 EBITDA exceeds the 1999 EBITDA Estimate, the
Purchase Price will be increased by an amount equal to the difference
between (A) the product of 6.50 and the amount by which the 1999 EBITDA
exceeds the 1999 EBITDA Estimate and (B) the aggregate amount of the
payments to be made for outstanding options in accordance with Section
2.1(b), and such amount of outstanding options shall be paid by the
Purchaser to the Company for use in making the cash payment referred to
in Section 2.1(b)."
7. Section 2.3(a)(ii) of the Purchase Agreement is amended in its
entirety to read as follows:
"(ii) if the 1999 EBITDA Estimate exceeds 1999 EBITDA, the
Purchase Price will be decreased by an amount equal to the sum of (A)
the product of 6.50 and the amount by which the 1999 EBITDA Estimate
exceeds the 1999 EBITDA and (B) the aggregate amount of the payments to
be made for outstanding options in accordance with Section 2.1(b)."
8. A new section, Section 2.3(a)(vi), is hereby added to the Purchase
Agreement and Section 2.3(a)(vi) shall read its entirety as follows::
"(vi) Notwithstanding the foregoing Section 2.3(a)(v), in the
event of an adjustment to the Purchase Price pursuant to Section
2.3(a)(ii)(B), Sellers shall pay the amount of the downward adjustment
to the Purchase Price due thereunder to Purchaser within thirty days of
delivery of the audited balance sheet for FY 1999 and audited
statements of income and cash flow for FY 1999."
9. The penultimate sentence of Section 2.3(c)(iii) is amended in its
entirety to read as follows:
"The Auditor's Report will be conclusive and binding on the
upon both Purchaser and Sellers and any adjustments to the Purchase
Price shall be paid in accordance with Sections 2.3(a)(iv), 2.3(a)(v),
2.3(a)(vi) and/or 2.3(b)(iv), as applicable."
10. Section 3.2(b)(i) of the Purchase Agreement is amended in its
entirety to read as follows:
"(i) Stock certificates for a total of 291,667 shares of
Convertible Preferred Stock;"
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11. Section 5.4 of the Purchase Agreement is amended in its entirety to
read as follows:
"Section 5.4 Capital Stock. As of the date hereof, the
authorized capital stock of Purchaser consists of (a) 30,000,000 shares
of common stock, par value $0.01 per share, of which 150,000 shares of
voting common stock are issued and outstanding and 0 shares of
non-voting convertible common stock are issued and outstanding and (b)
20,000,000 shares of preferred stock, par value $0.01 per share, of
which (i) 2,500,000 shares have been designated as Class A-1 5%
Convertible Preferred Stock of which 868,372 shares are issued and
outstanding (ii) 1,400,000 shares have been designated Convertible
Preferred Stock of which 1,125,000 shares will be issued and
outstanding upon the Closing and (iii) 300,000 shares have been
designated as Class B-1 Preferred Stock of which 300,000 shares are
issued and outstanding. Except for warrants issued to NationsCredit
Commercial Corporation for 85,000 shares of non-voting convertible
common stock, which will be cancelled upon Closing and will be
exchanged for warrants issued to Banc of America Commercial Finance
Corporation f/k/a NationsCredit Commercial Corporation for 88,656
shares of non-voting convertible common stock, there are no outstanding
subscriptions, options, warrants, calls, rights, contracts,
commitments, understandings, restrictions or arrangements relating to
the issuance, sale, transfer or voting of any capital stock of
Purchaser, including any rights of conversion or exchange under any
outstanding securities or other instruments. All outstanding shares of
capital stock have been validly issued and are fully paid,
nonassessable and free of preemptive or similar rights."
12. Section 8.8 of the Purchase Agreement is amended in its entirety to
read as follows:
"Section 8.8 Sellers' and Officer's Certificates. Sellers
shall have delivered to Purchaser a certificate, executed by the
Sellers' Representative, to the effect that each of the conditions
specified above in Sections 8.1 through 8.7 have been satisfied."
13. Section 9.8 of the Purchase Agreement is amended in its entirety to
read as follows:
"Section 9.8 Officer's Certificate. Purchaser shall have
delivered to Sellers' Representative a certificate by its Chief
Executive Officer to the effect that each of the conditions specified
above in Sections 9.1 through 9.4 have been satisfied."
14. Other than the amendments and modifications specifically contained
herein, the Purchase Agreement remains in full force and effect.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURES
IN WITNESS WHEREOF, Purchaser and the Company have caused this
Amendment to be signed by their respective officers thereunto duly authorized
and each of Sellers has signed this Amendment as of the date first written
above.
PURCHASER
MEDICAL DEVICE MANUFACTURING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
COMPANY
NOBLE-MET, LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
SELLERS
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ 1998 Trust, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Trustee
