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EXHIBIT 10.1
SECOND AMENDED & RESTATED
REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDED & RESTATED REGISTRATION RIGHTS AGREEMENT
dated as of May 31, 2000 (this "Agreement") is made by and among MDMI Holdings,
Inc., a Colorado corporation formerly known as Medical Device Manufacturing,
Inc. (the "Company"), KRG Capital Fund I, L.P., a Delaware limited partnership,
KRG Capital Fund I (FF), L.P., a Delaware limited partnership, KRG Capital Fund
I (PA), L.P., a Delaware limited partnership, KRG Co-Investment, L.L.C., a
Delaware limited liability company, and the other Holders listed on Schedule I
hereto, as such schedule may be amended from time to time. This Agreement shall
amend, supersede and replace that certain Registration Rights Agreement dated
July 6, 1999 and subsequently amended and restated January 11, 2000.
The parties agree as follows:
Section 1. Definitions. As used in this Agreement:
(a) Common Stock. The term "Common Stock" shall mean the
voting common stock, par value $.01 per share, of the Company.
(b) DLJ Holders. The term "DLJ Holders" shall mean
collectively DLJ Investment Partners II, L.P., DLJ Investment Funding II, Inc.,
DLJ ESC II L.P. and DLJ Investment Partners, L.P. and their permitted successors
and transferees that are holders of the Company's Class AA Convertible Preferred
Stock (the "DLJ Preferred") issued in conjunction with the Company's senior
subordinated notes and the senior notes of Medical Device Manufacturing, Inc., a
Colorado corporation and a wholly owned subsidiary of the Company.
(c) Exchange Act. The term "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
(d) Holder. The term "Holder" or "Holders" means any person or
entity that is a party to this Agreement and to which or whom Registrable
Shares, or rights to issuance of Registrable Shares have been issued, assigned
or transferred, in accordance with the Shareholders' Agreement and this
Agreement.
(e) Initial Public Offering. The term "Initial Public
Offering" shall mean a firm commitment underwritten initial public offering of
Common Stock of the Company that is effected pursuant to a registration
statement filed and declared effective by the SEC under the Securities Act.
(f) Prospectus. The term "Prospectus" shall mean the
prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information
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previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Shares covered by such
Registration Statement and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
(g) Register. The term "register," "registered" and
"registration" refer to a registration effected by preparing and filing a
Registration Statement or similar document in compliance with the Securities Act
and the declaration or ordering of effectiveness of such Registration Statement
or document;
(h) Registrable Shares. The term "Registrable Shares" shall
mean the shares of Common Stock held by the Holders, including any rights,
options or warrants to purchase Common Stock and securities of any type
whatsoever that are, or may become, convertible into Common Stock and any
capital stock for which such Common Stock is exchanged or into which it is
converted until such time as such shares (i) are effectively registered under
the Securities Act and disposed of in accordance with the Registration Statement
covering such shares, (ii) at any time after the third anniversary of a Initial
Public Offering are salable by the holder thereof pursuant to Rule 144(k) or
(iii) are distributed for resale pursuant to Rule 144.
(i) Registration Statement. The term "Registration Statement"
shall mean any registration statement of the Company filed with the SEC for the
purpose of facilitating the public offering and sale of equity securities of the
Company, including the Prospectus, amendments and supplements to such
Registration Statement (including post-effective amendments), all exhibits and
all material incorporated by reference in such Registration Statement.
(j) SEC. The term "SEC" shall mean the Securities and Exchange
Commission or any successor thereof.
(k) Securities Act. The term "Securities Act" shall mean the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
(l) Shareholders' Agreement. The term "Shareholders'
Agreement" shall mean the Shareholders' Agreement dated July 6, 1999 among the
Company and the parties listed on Schedule I thereto, as amended from time to
time.
(m) Underwritten. The term "underwritten registration" or
"underwritten offering" shall pertain to a registration or an offering in which
securities of the Company are sold to an underwriter for reoffering to the
public.
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Section 2. Registration Rights.
(a) At any time subsequent to the earlier to occur of (i) May 31, 2005 or (ii)
the six-month period following a Initial Public Offering, Holders who, in the
aggregate, own 20% of the total number of Registrable Shares (the "Demand
Investors") may request that the Company prepare and file a Registration
Statement on Form S-1 or any similar long-form registration ("Long-Form
Registration") to permit the public offering and sale of the Registrable Shares.
Holders who, in the aggregate, own 20% of the total number of Registrable Shares
may also request that the Company prepare and file a Registration Statement on
Form S-2 or S-3, if available, to permit the public offering and sale of
Registrable Shares (each, a "Short-Form Registration" and, together with
Long-Form Registrations, each a "Registration"). The Holders may request a
maximum of two Registrations. A request for a registration shall specify the
approximate number of Registrable Shares requested to be registered and the
anticipated per share price range for such offering. Within ten days after
receipt of any such request, the Company will give written notice of such
requested registration to all other Holders and will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice.
(b) In addition to the rights of the Holders set forth in
Section 2(a), at any time subsequent to the earlier to occur of (i) May 31, 2005
or (ii) the six-month period following a Initial Public Offering, the DLJ
Holders who, in the aggregate, own 50% of the total number of DLJ Preferred (the
"DLJ Demand Investors") may request that the Company prepare and file a
Registration to permit the public offering and sale of the Registrable Shares.
The DLJ Holders, as a class, may request a maximum of one Registration. A
request for a registration by the DLJ Holders shall specify the approximate
number of Registrable Shares requested to be registered and the anticipated per
share price range for such offering. Within ten days after receipt of any such
request, the Company will give written notice of such requested registration to
all other Holders and will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice.
Nothing set forth in this Section 2(b) shall be interpreted as limiting the
rights of the DLJ Holders as Holders generally.
(c) Any such registration of Registrable Shares requested
pursuant to this Section 2 shall be referred to as a Demand Registration. No
Demand Registration shall be deemed to have been effected if (i) such
Registration Statement, after it has become effective, is the subject of any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason not primarily attributable to the
selling Holders, (ii) the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
Registration Statement are not satisfied, other than by reason of a failure on
the part of the selling Holders; or (iii) the Holders (or, in the event of a
Demand Registration pursuant to Section 2(a), the Holders other than the DLJ
Holders) are not able to register and sell at least fifty percent (50%) of the
Registrable Shares requested to be included in such registration.
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(d) Whenever the Company shall effect a registration pursuant
to this Section 2 in connection with a public offering of Registrable Shares,
securities (i) other than the Registrable Shares shall be reduced pro rata on
the basis of the number of shares to be registered by all shareholders (other
than Holders) participating in such offering and (ii) then Registrable Shares
shall be reduced pro rata on the basis of the number of Registrable Shares to be
registered by all Holders participating in such offerings, to the extent
determined necessary by the managing underwriter of such offering if such
managing underwriter shall have advised the selling Holders in writing (with a
copy to the Company) that, in their opinion, the number of securities requested
to be included in such registration exceeds the number which can be sold within
a price range acceptable to the selling Holders of a majority of the Registrable
Shares requested to be included in such registration. Notwithstanding the
foregoing, in the event the managing underwriter of an offering in connection
with either (i) the first Demand Registration effected under this Section 2 or
(ii) a Demand Registration initiated by the DLJ Demand Investors in accordance
with Section 2(b) advises the selling Holders in writing that a reduction in the
number of securities requested to be included in such registration is necessary,
then any reduction of securities to be included in such offering shall be made
based on the following criteria: (x) first, to the extent necessary, securities
other than the Registrable Shares shall be reduced pro rata with all other
holders (other than the Holders) participating in such offering on the basis of
the number of shares to be registered by all shareholders participating in such
offering; (y) second, to the extent necessary, Registrable Shares other than
Registrable Shares underlying or otherwise resulting from the conversion of the
DLJ Preferred shall be reduced pro rata with all other Holders participating in
such offering other than the DLJ Holders on the basis of the number of shares to
be registered by all such Holders of Registrable Shares other than the DLJ
Preferred or any Registrable Shares underlying or otherwise resulting from the
conversion thereof participating in such offering; and (z) third, to the extent
necessary, Registrable Shares underlying or otherwise resulting from the
conversion of the DLJ Preferred shall be reduced pro rata with all other DLJ
Holders participating in such offering on the basis of the number of shares to
be registered by all such DLJ Holders of Registrable Shares participating in
such offering If no such notice or letter of reduction is provided by such
managing underwriter, the Company may include Common Stock for its own account
or for the account of other shareholders of the Company, if and to the extent
consented to by the Holders of at least a majority of the Registrable Shares
included in such offering.
(d) In the event of a Demand Registration, the Company, if
requested by the Holders of at least 25% of the Registrable Shares to be
included in such Demand Registration, (i) shall agree not to, and shall cause
its executive officers and directors not to, effect any public sale or
distribution of the Common Stock held by the Company or similar securities or
securities convertible into, or exchangeable or exercisable for, Common Stock
during the 180-day period following the effective date of a Registration
Statement relating to a public offering of Registrable Shares if the managing
underwriter or underwriters determine such public sale or distribution would
have a material adverse effect on such offering and (ii) shall use its
reasonable best efforts to (x) cause each security holder of the Company's
privately placed equity securities
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issued in connection with a financing transaction involving at least 5% of the
Company's then outstanding equity securities at any time after the date hereof
and (y) cause each other security holder of the Company owning at least 10% of
the Company's then outstanding equity securities (other than a security holder
permitted to file a Schedule 13G under the Exchange Act) to agree, not to effect
a public sale or distribution of the Common Stock during the 180-day period
following the effective date of a Registration Statement relating to a public
offering of the Registrable Shares if the managing underwriter or underwriters
determine such public sale or distribution would have a material adverse effect
on such offering.
Section 3. Piggyback Registration
(a) Participation. Subject to Section 3(b) below, if at any
time from and after the date hereof, the Company proposes to file or files a
Registration Statement under the Securities Act with respect to any offering of
securities of the same type as the Registrable Shares for its own account (other
than a Registration Statement in connection with an initial public offering of
the Company or a Registration Statement on Form S-8 or Form S-4 or any successor
form thereto), or for the account of any security holder of securities of the
same type as the Registrable Shares, then, as promptly as practicable, the
Company shall give written notice of such proposed filing to each Holder and
such notice shall offer the Holders the opportunity to include in such
registration such number of Registrable Shares as each such Holder may request
(a "Piggyback Registration"). The Company shall include in such Registration
Statement all Registrable Shares requested within 20 days after the receipt of
any such notice (which request shall specify the Registrable Shares intended to
be disposed of by such Holder) to be included in the registration for such
offering pursuant to a Piggyback Registration. Each Holder electing to
participate in such Piggyback Registration shall do so pursuant to the terms of
such proposed registration and shall execute such usual and customary custody
agreements, powers of attorney, underwriting agreements or other documents as
are reasonably requested or required by the Company and any underwriter of such
offering; provided, however, that such Holders shall not be required to
represent and warrant to, or to indemnify, any party with respect to any matters
other than as to the Holder's ownership of the Registrable Shares and with
respect to any other information provided by Holder and required to be included
in the Registration Statement pursuant to SEC rules and regulations. Each Holder
of Registrable Shares shall be permitted to withdraw all or part of such
Holder's Registrable Shares from a Piggyback Registration at any time prior to
the effective date thereof.
(b) Underwriter's Cutback. The Company shall use its best
efforts to cause the managing underwriter or underwriters of a proposed public
offering to permit the Registrable Shares requested to be included in the
registration for such offering under Section 3(a) (collectively, the "Piggyback
Securities") to be included on the same terms and conditions as any similar
securities included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters participating in such offering advises each of the
Holders in writing (with a copy to the Company) that the total amount of
securities requested to be included in such Piggyback Registration exceeds the
amount which can be sold in (or during the time of) such offering
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without delaying or jeopardizing the success of the offering (including the
price per share of the securities to be sold), then, after including either (i)
all shares proposed to be sold by the Company in a Company-initiated
registration for which participation is sought by the Holders pursuant to
Section 3(a) or (ii) all shares proposed to be offered by any holder of
securities of the Company pursuant to any such security holder's priority rights
under a demand registration which such security holder has initiated for which
participation is sought by the Holders pursuant to Section 3(a), as the case may
be, the amount of securities to be offered for the account of the Holders shall
be reduced pro rata with all other holders participating in such offering on the
basis of the number of shares to be registered by all stockholders participating
in such offering.
Section 4. Registration Procedure. Whenever required under this
Agreement to effect the registration of any Registrable Shares, the Company
shall, as expeditiously as is reasonably possible:
(a) Prepare and file with the SEC such amendments and
supplements to such Registration Statement and the Prospectus used in connection
with such Registration Statement as may be required by the rules, regulations or
instructions applicable to the registration form utilized by the Company or by
the Securities Act or rules and regulations otherwise necessary to keep the
Registration Statement effective for a period of not less than 180 days (or such
shorter period which will terminate when all Registrable Shares covered by such
Registration Statement have been sold or withdrawn); and cause the Prospectus as
so supplemented to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act of 1934
with respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the selling Holders thereof set forth in such Registration
Statement or supplement to the Prospectus.
(b) Furnish to the Holders covered by such Registration
Statement such number of copies of a Prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as they may reasonably request in order to facilitate the
disposition of the Registrable Shares owned by them.
(c) Use its best efforts to register and qualify the
securities covered by such Registration Statement under such jurisdictions as
shall be reasonably requested by the Holders, provided that the Company has no
obligation to qualify Registrable Shares where such qualification would cause
any unreasonable delay or expenditure by the Company, but the Company may be
required to file a consent to service substantially in the form of the Uniform
Consent to Service of Process Form U-2.
(d) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering.
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(e) Notify each Holder of Registrable Shares covered by such
Registration Statement, (i) at any time when a Prospectus relating thereto
covered by such Registration Statement is required to be delivered under the
Securities Act, of 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 a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; (ii) of the issuance
by the SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose; and (iii) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(f) Furnish to each Holder of Registrable Shares on the date
that such Registrable Shares are delivered to the underwriters for sale in
connection with a registration pursuant to this Agreement, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the Registration Statement with respect
to such securities becomes effective (i) an opinion, dated such date, of the
counsel representing the Company for the purposes of such registration, in form
and substance as is customarily given to underwriters in an underwritten public
offering addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Shares and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Shares.
(g) Make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of any Registration Statement covering
Registrable Shares.
(h) Cooperate with the selling Holders of Registrable Shares
and the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Shares to be sold and not
bearing any restrictive legends; and enable such Registrable Shares to be in
such denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable Shares to
the underwriters.
(i) Use its best efforts to cause the Registrable Shares
covered by the applicable Registration Statement to be registered with or
approved by such other foreign governmental agencies or authorities, and the
NASD or any other applicable exchange or regulatory authority, as may be
necessary to enable the seller or selling Holders thereof or the underwriters,
if any, to consummate the disposition of such Registrable Shares.
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(j) Cause all Registrable Shares covered by the Registration
Statement to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(k) Cooperate and assist in any filings required to be made
with the NASD in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD).
(l) Make available for inspection by any seller of Registrable
Shares, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such Registration Statement.
(m) Permit any holder of Registrable Shares, which holder, in
the Company's reasonable judgment, might be deemed to be an underwriter or a
controlling Person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material furnished to the Company in writing, which in the reasonable judgment
of such holder and its counsel should be included.
Section 5. Furnish Information. The selling Holders shall promptly
furnish to the Company in writing such reasonable information regarding
themselves, the Registrable Shares held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Shares.
Section 6. Underwriting Requirements. The Company shall select the
investment bankers and managing underwriters in any registration, to administer
any offering pursuant to which the Company files a Registration Statement in
which any Holder is entitled to participate pursuant to this Agreement. In
connection with any underwritten offering of shares of Common Stock being issued
by the Company, the Company shall not be required to include any Registrable
Shares in such underwritten offering unless the Holders thereof accept the terms
of the underwriting as agreed upon between the Company and the underwriters
selected by the Company. No Holder may participate in any underwritten
registration pursuant to this Agreement unless such Holder agrees to the
inclusion of the Registrable Shares of such Holder on the basis provided in any
underwriting arrangements approved by the Company, and completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required by the terms of such underwriting
arrangements.
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Section 7. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, the expense of any
annual audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or
on, the NASD automated quotation system, fees and disbursements of custodians,
and fees and disbursements of counsel for the Company and all independent
certified public accountants, underwriters (excluding discounts and commissions)
and other persons and/or entities retained by the Company (all such expenses
being herein called "Registration Expenses"), shall be borne by the Company,
(b) In connection with each Demand Registration and each
Piggyback Registration, the Company shall reimburse the holders of Registrable
Shares included in such registration for the reasonable fees and disbursements
of one counsel chosen by the Holders of a majority of the Registrable Shares
included in such registration.
Section 8. Indemnification.
(a) The Company shall, without limitation as to time,
indemnify and hold harmless, to the fullest extent permitted by law, each Holder
whose Registrable Shares are registered pursuant to this Agreement, the
officers, directors, agents and employees of each of them, each Person who
controls such Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) and the officers, directors, agents and
employees of any such controlling person, from and against all losses, claims,
damages, liabilities, costs (including, without limitation, the costs of
preparation and reasonable attorneys' fees) and expenses (collectively,
"Losses") to be reimbursed promptly, as incurred, arising out of or based upon
any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as the same are based solely upon information furnished in
writing to the Company by such Holder expressly for use therein; provided,
however, that the Company shall not be liable to any Holder to the extent that
(A) any such Losses arise out of or are based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any preliminary
prospectus if (i) such Holder failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale by such Holder
to the Person asserting the claim from which such losses arise and (ii) the
Prospectus would have corrected in all material respects such untrue statement
or alleged untrue statement or such omission or alleged omission; or (B) any
such Losses arise out of or are based upon an untrue statement or alleged untrue
statement or omission or alleged omission in the Prospectus, if (x) such untrue
statement or alleged untrue statement, omission or alleged omission is corrected
in all material
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respects in an amendment or supplement to the Prospectus and (y) having
previously been furnished by or on behalf of the Company with copies of the
Prospectus as so amended or supplemented, such Holder thereafter fails to
deliver such Prospectus as so amended and supplemented, prior to or concurrently
with the sale of a Registrable Share to the Person asserting the claim from
which such Losses arise.
(b) In connection with any Registration Statement in which a
Holder is participating, such Holder shall furnish to the Company in writing
such information relating to such Holder, as such, or the Registrable Shares
being sold by such Holder (the "Holder Information") as the Company reasonably
requests for use in connection with any Registration Statement or Prospectus and
agrees to indemnify, to the fullest extent permitted by law, the Company, its
directors, officers, agents and employees, each Person who controls the Company
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents or employees of such
controlling persons, from and against all Losses arising out of or based upon
any untrue statement of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or arising out of or based upon any
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, to the extent, but only to the extent,
that such untrue statement or omission is contained in any Holder Information so
furnished in writing by such Holder to the Company expressly for use in such
Registration Statement or Prospectus and that such Holder Information was solely
relied upon by the Company in preparation of such Registration Statement,
Prospectus or preliminary prospectus. In no event shall the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds (net of payment of all expenses) received by such Holder directly from
the sale of the Registrable Shares giving rise to such indemnification
obligation. The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution to the same extent as provided
above with respect to information so furnished in writing by such persons and/or
entities expressly for use in any Prospectus or Registration Statement.
(c) If any person or entity shall be entitled to indemnity
hereunder (an "indemnified party"), such indemnified party shall give prompt
notice to the party from which such indemnity is sought (the "indemnifying
party") of any claim or of the commencement of any proceeding with respect to
which such indemnified party seeks indemnification or contribution pursuant
hereto; provided, however, that the delay or failure to so notify the
indemnifying party shall not relieve the indemnifying party from any obligation
or liability except to the extent that the indemnifying party has been
prejudiced materially by such delay or failure. The indemnifying party shall
have the right, exercisable by giving written notice to an indemnified party
promptly after the receipt of written notice from such indemnified party of such
claim or proceeding, to assume, at the indemnifying party's expense, the defense
of any such claim or proceeding, with counsel reasonably satisfactory to such
indemnified party; provided, however, that an indemnified party shall have the
right to employ separate counsel in any such claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
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shall be at the expense of such indemnified party unless: (1) the indemnifying
party agrees to pay such fees and expenses; (2) the indemnifying party fails
promptly to assume the defense of such claim or proceeding or fails to employ
counsel reasonably satisfactory to such indemnified party; or (3) counsel for
the indemnified party advises the indemnifying party in writing that there are
issues that raise conflicts of interest between the indemnified party and the
indemnifying party; in which case the indemnified party shall have the right to
employ counsel and to assume the defense of such claim or proceeding; provided,
however, that the indemnifying party shall not, in connection with any one such
claim or proceeding or separate but substantially similar or related claims or
proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one firm of attorneys (together with appropriate local counsel) at any time for
all of the indemnified parties, or for fees and expenses that are not
reasonable.
Whether or not such defense is assumed by the indemnifying
party, such indemnified party will not be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably
withheld). All such fees and expenses (including any reasonable fees and
expenses incurred in connection with investigating or preparing to defend such
action or proceeding) shall be paid to the indemnified party, as incurred,
within five days of written notice thereof to the indemnifying party (regardless
of whether it is ultimately determined that an indemnified party is not entitled
to indemnification hereunder). The indemnifying party shall not consent to entry
of any judgment or enter into any settlement or otherwise seek to terminate any
proceeding in which any indemnified party is or could be a party and as to which
indemnification or contribution could be sought by such indemnified party under
this Section 8, unless such judgment, settlement or other termination includes
as an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance reasonably satisfactory to
the indemnified party, from all liability in respect of such claim or litigation
for which such indemnified party would be entitled to indemnification hereunder.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or 8(b) hereof in respect
of any Losses or is insufficient to hold such indemnified party harmless, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall, jointly and severally, contribute to the amount paid or payable by
such indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or
indemnifying parties, on the one hand, and such indemnified party, on the other
hand, in connection with the actions, statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations. The relative
fault of such indemnifying party or indemnifying parties, on the one hand, and
such indemnified party, on the other hand, shall be determined by reference to,
among other things, whether any action in questions, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
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action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include any legal or other fees or expenses
incurred by such party in connection with any proceeding.
Notwithstanding the provision of this Section 8(d), an
indemnifying party that is a selling Holder shall not be required to contribute
any amount in excess of the amount by which the net proceeds (after deducting
the aggregate underwriters' discount) received by such indemnifying party from
the sale of such Registrable Shares exceeds the amount of any damages that such
indemnifying party has otherwise been required to pay (including, without
limitation, pursuant to any other indemnification or contribution obligation
such indemnifying party may have) by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement
obligations of the Company hereunder shall be in addition to any liability the
Company may otherwise have hereunder or otherwise. The provisions of this
Section 8 shall survive so long as Registrable Shares remain outstanding,
notwithstanding any transfer of the Registrable Shares by any Holder or any
termination of this Agreement.
Section 9. Miscellaneous.
(a) Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the original parties hereto and each person who
becomes a party hereto, and their respective successors and assigns.
(b) Notices. Except as otherwise provided herein, 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 Section 9(b) as promptly as practicable thereafter).
Such notices, demands and other communications shall be addressed (i) in the
case of a Holder, to his address as is designated in writing from time to time
by such 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.
(c) Integration. This instrument contains the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all other agreements between or
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among any of the parties with respect to the subject matter hereof and cannot be
altered or otherwise amended except pursuant the terms of Section 9(e) below.
The section and paragraph headings contained in this Agreement are for the
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(d) Counterparts. This Agreement may be executed in
counterparts, 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) Amendment. Except as otherwise provided herein, any term
of this Agreement may be amended and the observance thereof may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the Holders of
a majority of all Registrable Shares; provided, however, that no amendment
hereto shall be made that adversely impacts the rights of a specific Holder
without the prior written consent of such Holder. Any amendment or waiver
effected in accordance with this Section 9(e) shall be binding upon the Company
and the Holders.
(f) Governing Law. This Agreement shall be interpreted under
the laws of the State of Colorado without reference to its principles of
conflicts of laws.
(g) Specific Performance. Each of the parties acknowledges and
agrees that the other parties would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the parties
agrees that the other Parties shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the parties and the matter, in addition to any other remedy to
which they may be entitled, at law or in equity.
(h) Rule 144. The Company covenants that it will file the
reports required to be filed by it under the Exchange Act of 1934 and the rules
and regulations adopted by the SEC thereunder, all to the extent required from
time to time to enable such Holder to sell Registrable Shares without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of any Holder of Registrable Shares, the Company will
deliver to such Holder a written statement as to whether it has complied with
such information and requirements.
(i) No Inconsistent Agreements. The Company shall not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Shares in this Agreement.
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(j) Other Registration Rights. Except as provided in this
Agreement, the Company shall not grant to any persons or entities the right to
request the Company to register any equity securities of the Company, or any
securities convertible or exchangeable into or exercisable for such securities,
without the prior written consent of the Holders of a majority of the
Registrable Shares; provided, that any person or entity to which or whom
Registrable Shares, or rights to issuance of Registrable Shares have been
issued, assigned or transferred, in accordance with or as otherwise permitted by
the Shareholders' Agreement and this Agreement, shall be allowed to become a
Holder with respect to Registrable Shares held by such person or entity that are
an authorized series of stock designated as (i) Class A which (A) has a per
share purchase price equal to the per share liquidation value thereof (where the
purchase price and liquidation value are as determined in the reasonable good
faith judgment of the Board of Directors of the Company) and (B) is otherwise
identical to the then outstanding series of Class A Convertible Preferred Shares
with respect to priority, voting powers, dividend rights and conversion features
or (ii) Class AA which (A) has been issued in connection with obtaining debt
financing from a recognized financial institution (where the purchase price and
liquidation value are as determined in the reasonable good faith judgment of the
Board of Directors of the Company) and (B) is otherwise identical to the then
outstanding series of Class AA Convertible Preferred Shares with respect to
priority, voting powers, dividend rights and conversion features.
(k) Adjustments Affecting Registrable Shares. The Company
shall not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the holders of
Registrable Shares to include such Registrable Shares in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Shares in any such in any such registration
(including, without limitation, effecting a stock split or a combination of
shares that would preclude the exercise rights hereunder on a fully-adjusted
basis).
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, this Agreement has been executed effective as of
the date first above written.
MDMI HOLDINGS, INC.
By: /s/ XXXX XXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxx
--------------------------------------
Title: President & CEO
--------------------------------------
KRG CAPITAL FUND I, L.P.
By: KRG Capital Partners, LLC
Its: General Partner
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
KRG CAPITAL FUND I (FF), L.P.
By: KRG Capital Partners, LLC
Its: General Partner
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
KRG CAPITAL FUND I (PA), L.P.
By: KRG Capital Partners, LLC
Its: General Partner
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
KRG CO-INVESTMENT, L.L.C.
By: Xxxxxx Management Company
Its: Managing Member
By: /s/ XXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
16
CMS DIVERSIFIED PARTNERS L.P.
By: /s/ AUTHORIZED SIGNATURE
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
CMS CO-INVESTMENT SUBPARTNERSHIP
By: /s/ AUTHORIZED SIGNATURE
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
/s/ XXXXX X. XXXXXXX
---------------------------------------------
Xxxxx X. Xxxxxxx
/s/ XXX X. XXXXX
---------------------------------------------
Xxx X. Xxxxx
17
INFRASTRUCTURE & ENVIRONMENTAL
PRIVATE EQUITY FUND III, L.P.
By: /s/ AUTHORIZED SIGNATURE
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
ENVIRONMENTAL & INFORMATION
TECHNOLOGY PRIVATE EQUITY FUND III,
L.P.
By: /s/ AUTHORIZED SIGNATURE
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
18
7:22 INVESTORS, LLC
By: /s/ XXXX XXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxx
--------------------------------------
Title: Manager
--------------------------------------
/s/ XXXX XXXXXXX
---------------------------------------------
Xxxx Xxxxxxx
/s/ XXXXXX XXXXXXXXXXX
---------------------------------------------
Xxxxxx Xxxxxxxxxxx
/s/ XXXX XXXXXXX LEVY
---------------------------------------------
Xxxx Xxxxxxx Xxxx
THE ELP TRUST
By: /s/ XXXX XXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxx
--------------------------------------
Title: Trustee
--------------------------------------
THE CRP TRUST
By: /s/ XXXX XXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxx
--------------------------------------
Title: Trustee
--------------------------------------
19
/s/ XXXX X. XXXXXXXX
---------------------------------------------
Xxxx X. Xxxxxxxx
/s/ XXXXXXX X. XXXXXX
---------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ XXXXX X. PAGE
---------------------------------------------
Xxxxx X. Page
/s/ XXXXXX X. XXXXXX
---------------------------------------------
Xxxxxx X. Xxxxxx
/s/ XXXX X. XXXXXXXXX
---------------------------------------------
Xxxx X. Xxxxxxxxx
20
[DLJ ENTITY]
By: /s/ AUTHORIZED SIGNATURE
--------------------------------------
Name:
--------------------------------------
Title:
--------------------------------------
