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EXHIBIT 10.3.3
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made as of
[SEE ITEM 1 ANNEX A], by and between MDMI Holdings, Inc., a Colorado corporation
formerly known as Medical Device Manufacturing, Inc. (the "Company") and [SEE
ITEM 2 ANNEX A] ("Holder").
RECITALS
WHEREAS, the Company wishes to issue, and Holder wishes to
acquire [SEE ITEM 3 ANNEX A] (collectively, the "Shares") in exchange for the
contribution in cash to the capital of the Company in an amount equal [SEE ITEM
4 ANNEX A] (the "Purchase Price").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties hereto do hereby agree as follows:
1. SUBSCRIPTION & ACCEPTANCE; AMOUNT AND PAYMENT OF PURCHASE
PRICE.
(a) Holder hereby irrevocably subscribes for and
agrees to acquire from the Company the Shares in exchange for the contribution
of the Purchase Price to the capital of the Company. The Company will
countersign this Agreement to accept Holder's subscription. Notwithstanding the
foregoing, Holder understands this Agreement will be returned promptly to Holder
and all of the Purchaser's obligations under this Agreement will terminate if
the Company does not accept this Agreement.
(b) The Purchase Price required to purchase the
Shares subscribed for hereunder shall be payable in full on or before the
closing date (the "Closing Date") as shall be established by the Company.
(c) Subject to the Company's acceptance of Holder's
subscription hereunder, the Shares subscribed for herein shall not be deemed
issued to, and owned by, the Holder until the Purchase Price has been remitted
to the Company. Once the payment of the Purchase Price for all Shares to be
purchased by the Holder is received by the Company, then on the Closing Date the
Company shall issue and deliver to the Holder a certificate evidencing such
Holder's ownership of the Shares subscribed for herein.
2. REPRESENTATIONS OF HOLDER. In connection with the
acquisition of the Shares hereunder, Holder represents and warrants to the
Company that the statements contained in this paragraph 2 are true, accurate,
correct and complete in all material respects.
(a) The Shares to be acquired by Holder pursuant to
this Agreement will be acquired for Holder's own account and not with a view to,
or intention of, distribution
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thereof in violation of the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws, and none of the Shares will be
disposed of in contravention of the Securities Act or any applicable state
securities laws.
(b) Holder is an accredited investor, as such term is
defined under Rule 501 of Regulation D promulgated under the Securities Act, and
Holder is sophisticated and able to (i) fend for himself, (ii) evaluate the
risks and benefits of the investment in the Shares and (iii) is familiar with,
and has been afforded full access to and has had an opportunity to ask questions
and receive answers concerning the terms and conditions of the offering of
Shares and such other information concerning the Company that Holder has
requested and is required in Holder's judgment to make an informed decision to
acquire the Shares.
(c) Holder is able to bear the economic risk of
Holder's investment in the Shares for an indefinite period of time because the
Shares have not been registered under the Securities Act and, therefore, cannot
be sold unless subsequently registered under the Securities Act and any
applicable state securities acts or an exemption from such registration is
available.
(d) Holder will not sell, assign or otherwise
transfer the Shares subscribed for herein unless such sale, assignment or other
transfer is made in compliance with the terms of that Shareholders' Agreement
dated July 6, 1999, among the Company, Holder and certain other individuals as
such agreement may be amended from time to time (the "Shareholders' Agreement").
(e) Holder has full corporate or individual power, as
applicable, and authority to execute and deliver this Agreement and to perform
its, his or her obligations hereunder. This Agreement constitutes the legal,
valid and binding obligation of Holder, enforceable in accordance with its
terms, and the execution, delivery and performance of this Agreement and such
other agreements by Holder does not and will not (A) conflict with or result in
any breach of any provision of the certificate of incorporation or bylaws or
similar organizational documents of Holder, as applicable (B) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any Governmental Agency (as defined
below) to which Holder is subject or (C) conflict with, violate or constitute a
breach or default (or an event that, with notice or lapse of time, or both,
would constitute a default) under, or of any agreement, contract or instrument
to which Holder is a party or result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, note, bond, mortgage,
deed of trust, or other arrangement to which Holder is a party or by which he is
bound or to which any of its, his or her assets is subject and Holder further
represents and warrants that Holder is not now in breach of any such agreement,
contract or instrument to which Holder is a party. Holder need not give any
notice to, make any filing with, or obtain any authorization, consent or
approval of any Governmental Authority in order to consummate the transactions
contemplated hereby.
(f) Holder has no liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated hereby for which the Company could become liable or
obligated.
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(g) There are no bankruptcy, reorganization or
arrangement proceedings pending against, being contemplated by, or, to the
knowledge of Holder, threatened against him.
3. REPRESENTATIONS OF THE COMPANY. In connection with the
issuance of the Shares hereunder, the Company represents and warrants to Holder
that the statements contained in this paragraph 3 are true, accurate, correct
and complete in all material respects.
(a) The Company was incorporated on July 2, 1999 and
is duly organized, validly existing and in good standing under the laws of the
State of Colorado with all requisite power and authority (corporate and
otherwise) to own, lease and operate its respective properties and assets and to
carry on its business as now being conducted and is duly qualified or licensed
to do business as a foreign corporation in good standing in the jurisdictions in
which the ownership, lease or operation of its property or the conduct of its
business requires such qualification. As of the Closing, except for G&D, Inc.
d/b/a Star Guide Corporation, Noble-Met, Ltd., Noble-Met Foreign Sales
Corporation, Medical Engineering Resources, Ltd., UTI Acquisition Corp. and
Medical Device Manufacturing, Inc., formerly known as MDMI Newco, Inc., the
Company (i) has no Subsidiaries, where Subsidiary means any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by the Company
and (ii) does not have a direct or indirect ownership interest in any other
person or entity.
(b) The Company has full power and authority to
execute, deliver and perform its obligations under this Agreement and the
documents and instruments contemplated hereby and to carry out the transactions
contemplated hereby and thereby. The Company has duly approved and authorized
the execution and delivery of this Agreement and the documents and instruments
contemplated hereby and the consummation of the transactions contemplated hereby
and thereby, and no other corporate proceedings or other action on the part of
the Company is necessary to approve and authorize the execution, delivery and
performance by the Company of this Agreement and the documents and instruments
contemplated hereby or the consummation by the Company of the transactions
contemplated hereby or thereby. This Agreement constitutes a legal, valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that (i) such enforcement may be subject to applicable
bankruptcy, insolvency or other similar laws, now or hereafter in effect,
affecting creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(c) The Shares to be issued pursuant to this
Agreement have been duly authorized by all necessary corporate action and are
authorized by the Articles of Incorporation and have been validly issued and,
when paid for in accordance with this Agreement, will be fully paid and
nonassessable equity interests in the Company.
(d) The authorized capital stock of the Company
consists of (i) 50,000,000 shares of common stock, $.01 par value per share
("Common Stock") of which
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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 (ii)
50,000,000 shares of preferred stock, $.01 par value per share ("Preferred
Stock"), of which (A) 2,500,000 shares have been designated as Class A-1 5%
Convertible Preferred Stock and 868,372 shares of such class are issued and
outstanding, (B) 1,400,000 shares have been designated as Class A-2 5%
Convertible Preferred Stock and 1,125,000 shares of such class are issued and
outstanding, (C) 26,456 shares have been designated as Class A-3 5% Convertible
Preferred Stock and 26,456 shares of such class will be issued and outstanding
upon Closing (D) 6,250,000 shares have been designated as Class A-4 5%
Convertible Preferred Stock and 3,437,500 shares of such class will be issued
and outstanding upon Closing, (E) 1,000,000 shares have been designated as Class
AA Convertible Preferred Stock and 515,882 shares of such class will be issued
and outstanding upon Closing (F) 300,000 shares have been designated as Class
B-1 Convertible Preferred Stock and 300,000 shares of such class are issued and
outstanding and (G) 200,000 shares have been designated as Class B-2 Convertible
Preferred Stock and 100,000 shares will be issued and outstanding upon Closing.
All such outstanding shares are duly and validly issued, were not issued in
violation of any preemptive rights, are fully paid, and nonassessable, and each
of such shares has been issued in compliance with all applicable federal and
state securities laws.
4. RESTRICTIONS ON TRANSFERABILITY.
(a) RESTRICTED SECURITIES.
(i) All securities transferred pursuant to
this Agreement are Restricted Securities (as defined below in subparagraph
4(a)(iii) below) that are transferable pursuant to (A) public offerings
registered under the Securities Act, (B) Rule 144 of the Securities and Exchange
Commission (or any similar rule then in force) if such rule is available and (C)
subject to the conditions specified in subparagraph 4(a)(ii) below, any other
legally available means of transfer.
(ii) In connection with the transfer of any
Restricted Securities (other than a transfer described in subparagraph 4(i)(A)
or (B) above), the holder thereof will deliver written notice to the Company
describing the transfer or proposed transfer, and, if requested by the Company,
will also deliver an opinion (reasonably satisfactory to the Company) of counsel
that (to the Company's reasonable satisfaction) is knowledgeable in securities
law matters to the effect that such Restricted Securities may be transferred
without registration of such Restricted Securities under the Securities Act.
(iii) For the purposes of this Agreement,
"Restricted Securities" means the Shares, and any securities issued with respect
thereto by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Restricted Securities, such securities will
cease to be Restricted Securities when they have (A) been effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering them or (B) become eligible for sale and have actually been
sold to the public pursuant to Rule 144 (or any similar provision then in force)
under the Securities Act. Whenever any particular securities cease
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to be Restricted Securities, the holder thereof will be entitled to receive from
the Company, without expense, new certificates therefor not bearing a Securities
Act legend of the character set forth in paragraph 5(a).
(b) SHAREHOLDERS' AGREEMENT. In addition to the
restrictions set forth in paragraph 4(a), Holder may not sell, assign or
otherwise transfer the Shares subscribed for herein unless such sale, assignment
or other transfer is made in compliance with the terms of the Shareholders'
Agreement.
5. MISCELLANEOUS.
(a) RESTRICTIVE LEGEND. In addition to any legend required by
the Shareholders' Agreement, each certificate for Restricted Securities will be
imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THE TRANSFER, ENCUMBRANCE, PLEDGE, ASSIGNMENT OR
OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE CONDITIONS AND RESTRICTIONS
SPECIFIED IN (1) A SUBSCRIPTION AGREEMENT, DATED AS OF
___________, 2000, BY AND BETWEEN THE COMPANY AND A CERTAIN
INVESTOR AND (2) A SHAREHOLDERS' AGREEMENT, DATED AS OF JULY
6, 1999, BY AND AMONG THE COMPANY AND CERTAIN SHAREHOLDERS,
AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF
SUCH SECURITIES UNTIL SUCH CONDITIONS AND RESTRICTIONS HAVE
BEEN FULFILLED OR LIFTED WITH RESPECT TO SUCH TRANSFER. A COPY
OF THE CONDITIONS OR AGREEMENTS REFERENCED ABOVE MAY BE
OBTAINED BY THE HOLDER HEREOF UPON WRITTEN REQUEST TO THE
SECRETARY OF THE COMPANY."
Each of the undersigned parties agrees that the Company may instruct its
transfer agent to impose transfer restrictions on the Shares represented by
certificates bearing the legend referred to in this paragraph 5(a) to enforce
the provisions of this Agreement. The legend shall be removed or modified upon
termination of the conditions or restrictions set forth therein or pursuant to
subparagraph 4(a)(iii).
(b) SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein or in any instruments of transfer or assignment, all covenants
and agreements contained in this Agreement by or on behalf of any of the parties
hereto will bind and inure to the benefit of the
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respective successors and assigns of the parties hereto whether so expressed or
not. In addition, and whether or not any express assignment has been made, the
provisions of this Agreement that are for Holder's benefit as a purchaser or
holder of the Shares are also for the benefit of, and enforceable by, any
subsequent holder of such Shares.
(c) WAIVER. The Holder hereby irrevocably waives, remises,
releases and forever discharges the Company and KRG Capital Partners, LLC, and
each of their officers, directors, agents and affiliates from any and all manner
of action and all actions, causes of action, suits, controversies, liabilities,
damages, judgments, claims or demands of whatsoever kind or nature, in law or in
equity relating to, or arising from, any statements, implications, inferences,
suggestions, predictions or hypotheses regarding the current or future value of
the Shares.
(d) COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed in counterparts, both of which need not contain the signatures of more
than one party, but both such counterparts taken together will constitute one
and the same Agreement. This Agreement may be executed and delivered by
facsimile transmission.
(e) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(f) GOVERNING LAW. This Agreement will be governed by the
internal law, and not the law of conflicts, of the State of Colorado.
(g) NOTICES. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable overnight
courier service (charges prepaid), mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid, or transmitted by
facsimile or electronic mail (with request for immediate confirmation of receipt
in a manner customary for communications of such type and with physical delivery
of the communication being made by one of the other means specified in this
paragraph 5(g) as promptly as practicable thereafter). Such notices, demands and
other communications shall be addressed (i) in the case of Holder, to his or her
address as is designated in writing from time to time by Holder, (ii) in the
case of the Company, to its principal office and (iii) in the case of any
transferee of a party to this Agreement or its transferee, to such transferee at
its address as designated in writing by such transferee to the Company from time
to time.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Holder has executed this Subscription
Agreement as of the date first written above.
HOLDER
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By:
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Name:
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Its:
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[SEE ITEM 5 ANNEX A]
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ANNEX A
[A-4 5% CONVERTIBLE PREFERRED STOCK]
The foregoing form of Subscription Agreement was entered into
by thirteen Investors. The information omitted from the foregoing form of
Subscription Agreement with respect to such Investors, which are designated
below as parties A through L, respectively, is set forth below:
ITEM 1
Party A: May 31, 2000
Party B: May 31, 2000
Party C: May 31, 2000
Party D: May 31, 2000
Party E: May 31, 2000
Party F: May 31, 2000
Party G: May 31, 2000
Party H: May 31, 2000
Party I: May 31, 2000
Party J: May 31, 2000
Party K: May 31, 2000
Party L: May 31, 2000
ITEM 2
Party A: CMS Co-Investment Subpartnership
Party B: CMS PEP XIV Co-Investment Subpartnership
Party C: Kleinwort Xxxxxx Holdings, Inc.
Party D: Reliastar Financial Corp.
Party E: DB Capital Investors, LP
Party F: The Phoenix Insurance Company
Party G: The Travelers Indemnity Company
Party H: AIG Private Equity Fund (Bermuda) Ltd.
Party I: Birmingham Fire Insurance Company of Pennsylvania
Party J: Environmental & Information Technology Private Equity Fund III, LP
Party K: Infrastructure & Environmental Private Equity Fund III, LP
Party L: BancBoston Investments, Inc.
ITEM 3
Party A: 375,000 shares of Class A-4 5% Convertible Preferred Stock
Party B: 125,000 shares of Class A-4 5% Convertible Preferred Stock
Party C: 31,250 shares of Class A-4 5% Convertible Preferred Stock
Party D: 31,250 shares of Class A-4 5% Convertible Preferred Stock
Party E: 234,375 shares of Class A-4 5% Convertible Preferred Stock
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Party F: 104,375 shares of Class A-4 5% Convertible Preferred Stock
Party G: 208,125 shares of Class A-4 5% Convertible Preferred Stock
Party H: 93,750 shares of Class A-4 5% Convertible Preferred Stock
Party I: 531,250 shares of Class A-4 5% Convertible Preferred Stock
Party J: 18,750 shares of Class A-4 5% Convertible Preferred Stock
Party K: 75,000 shares of Class A-4 5% Convertible Preferred Stock
Party L: 234,375 shares of Class A-4 5% Convertible Preferred Stock
ITEM 4
Party A: $6,000,000
Party B: $2,000,000
Party C: $500,000
Party D: $500,000
Party E: $3,750,000
Party F: $1,670,000
Party G: $3,330,000
Party H: $1,500,000
Party I: $8,500,000
Party J: $300,000
Party K: $1,200,000
Party L: $3,750,000
ITEM 5
Party A: CMS CO-INVESTMENT SUBPARTNERSHIP, a Delaware general partnership
By: CMS Co-Investment Partners, L.P., a Delaware limited
partnership
By: CMS/Co-Investment Associates, L.P., a Delaware limited
partnership
By: MSPS/Co-Investment, Inc., a Delaware corporation
By: /s/ AUTHORIZED SIGNATURE
Its: Vice President
By: CMS 1997 Investment Partners, L.P., a Delaware limited
partnership
By: CMS 1997, Inc., a Delaware corporation
By: /s/ AUTHORIZED SIGNATURE
Its: Vice President
By: CMS Co-Investment Partners I-Q, L.P., a Delaware limited
partnership
By: CMS/Co-Investment Associates, L.P., a Delaware limited
partnership
By: MSPS/Co-Investments, Inc., a Delaware
corporation
By: /s/ AUTHORIZED SIGNATURE
Its: Vice President
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By: CMS 1997 Investment Partners, L.P., a Delaware limited
partnership
By: CMS 1997, Inc., a Delaware corporation
By: /s/ AUTHORIZED SIGNATURE
Its: Vice President
Party B: CMS PEP XIV CO-INVESTMENT SUBPARTNERSHIP, a Delaware general
partnership
By: CMS Private Equity Partners XIV, L.P., a Delaware limited
partnership
By: CMS PEP XIV Associates, L.P., a Delaware limited
partnership
By: MSPS PEP XIV, Inc., a Delaware corporation
By: /s/ AUTHORIZED SIGNATURE
Its: Vice President
By: CMS 1999 Investment Partners, L.P., a Delaware limited
partnership
By: CMS 1999, Inc., a Delaware corporation
By: /s/ AUTHORIZED SIGNATURE
Its: Vice President
By: CMS Private Equity Partners XIV-Q, L.P., a Delaware limited
partnership
By: CMS PEP XIV Associates, L.P., a Delaware limited
partnership
By: MSPS PEP XIV, Inc., a Delaware corporation
By: /s/ AUTHORIZED SIGNATURE
Its: Vice President
By: CMS 1999 Investment Partners, L.P., a Delaware limited
partnership
By: CMS 1999, Inc., a Delaware corporation
By: /s/ AUTHORIZED SIGNATURE
Its: Vice President
Party C: KLEINWORT XXXXXX HOLDINGS, INC.
By: /s/ XXXXXXXX X. XXXXXX /s/ XXXXX XXXXX
Name: Xxxxxxxx X. Xxxxxx Xxxxx Xxxxx
Title: Director & SVP CFO & Director
Party D: RELIASTAR FINANCIAL CORP.
By: /s/ XXXX X. XXXXXXX
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Party E: DB CAPITAL INVESTORS, LP
By: /s/ XXXXXXX XXXXX
Name: Xxxxxxx Xxxxx
Title: Managing Director
Party F: THE PHOENIX INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Investment Officer
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Party G: THE TRAVELERS INDEMNITY COMPANY
By: /s/ XXXXXX X. XXXXX
Name: Xxxxxx X. Xxxxx
Title: Investment Officer
Party H: AIG PRIVATE EQUITY FUND (BERMUDA) LTD.
By: /s/ X.X. XXXXXX
Name: X.X. Xxxxxx
Title: Vice President & Secretary
Party I: BIRMINGHAM FIRE INSURANCE COMPANY OF PENNSYLVANIA
By: /s/ XXXXX XXXXXXXXX
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Party J: ENVIRONMENTAL & INFORMATION TECHNOLOGY PRIVATE EQUITY
FUND III, LP, a civil partnership with limitation of liability
established under the laws of the Federal Republic of Germany
By: Infrastructure and Environmental Private Equity Management,
L.L.C., its General Partner
By: First Analysis IEPEF Management Company III, LLC, A Member
By: First Analysis Corporation, A Member
By: /s/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx, Vice-Chairman
Party K: INFRASTRUCTURE AND ENVIRONMENTAL PRIVATE EQUITY FUND III, L.P.
By: Infrastructure and Environmental Private Equity Management,
L.L.C., its General Partner
By: First Analysis IEPEF Management Company III, LLC, A Member
By: First Analysis Corporation, A Member
By: /s/ XXXX X. XXXXXXX
Xxxx X. Xxxxxxx, Vice-Chairman
Party L: BANCBOSTON INVESTMENTS, INC.
By: /s/ XXXXXXX X. XXXX
Name: Xxxxxxx X. Xxxx
Title: Director
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