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EXHIBIT 10.33
NOTE REGISTRATION RIGHTS AGREEMENT
AMONG
MEDICAL DEVICE MANUFACTURING, INC.,
THE GUARANTORS NAMED HEREIN
and
THE PURCHASERS NAMED HEREIN
Dated as of May 31, 2000
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NOTE REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as
of May 31, 2000 (the "Issue Date") among Medical Device Manufacturing, Inc., a
Colorado corporation (the "Company"), the guarantors named on the signature
pages hereto (the "Guarantors" and, together with the Company, the "Issuers")
and the purchasers named on the signature pages hereto (together with their
respective successors and assigns, the "Holders").
Capitalized terms not defined herein shall have the meanings
assigned such terms in the Securities Purchase Agreement (the "Securities
Purchase Agreement") dated as of May 31, 2000 among MDMI Holdings, Inc., a
Colorado corporation, the Company and the purchasers named therein. The term
"Guarantor" shall include any person executing a Guarantee after the Date of
Closing.
WHEREAS, the Company proposes to issue an aggregate principal
amount of $21,500,000 of its 13.5% Senior Subordinated Notes due 2007 (the
"Notes"), which will be unconditionally guaranteed on an unsecured senior
subordinated basis by the Guarantors (the "Guarantees").
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Registration Rights.
(a) Demand Registration.
(1) Request for Registration. At any time on or after the
earlier of (x) six months following an initial public offering of the Company
and (y) the fifth anniversary of the Issue Date, the Holder or Holders of in
excess of 25% of the aggregate principal amount of the outstanding Notes may
make a written request for registration under the Securities Act ("Demand
Registration") of all or part of its or their Registrable Securities; provided
that the Issuers shall not be obligated to effect more than two Demand
Registrations in respect of the Registrable Securities. Such request will
specify the number of Registrable Securities proposed to be sold and will also
specify the intended method of disposition thereof. Within 10
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Business Days after receipt of such request, the Company will give written
notice of such registration request to all other Holders of Notes and include in
such registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein from the Holders thereof
within 15 Business Days after receipt by the applicable Holder of the Company's
notice. Each such request will also specify the aggregate number of Registrable
Securities to be registered and the intended method of disposition thereof.
Unless the Holder or Holders of a majority in aggregate number of the
Registrable Securities to be registered in such Demand Registration shall
consent in writing, no other party, including the Company or any Guarantor (but
excluding another Holder of a Note), shall be permitted to offer securities
under any such Demand Registration.
(2) Effective Registration and Expenses. A registration will
not count as a Demand Registration until it has become effective (unless the
Holders demanding such registration withdraw the Registrable Securities, in
which case such demand will count as a Demand Registration unless the Holders of
such Registrable Securities agree to pay all Registration Expenses (as
hereinafter defined) relating to such registration). Except as provided above,
the Company will pay all Registration Expenses in connection with any
registration initiated as a Demand Registration, whether or not it becomes
effective.
(3) Priority on Demand Registrations. If the Holders of a
majority of the Registrable Securities to be registered in a Demand Registration
so elect, the offering of such Registrable Securities pursuant to such Demand
Registration shall be in the form of an underwritten offering. In such event, if
the managing underwriter or underwriters (the "Underwriters") of such offering
advise the Company and the Holders in writing that in their opinion the amount
of Registrable Securities requested to be included in such offering is
sufficiently large to materially and adversely affect the success of such
offering, then (i) the Holders of Registrable Securities shall be entitled to
participate in such Demand Registration (pro rata on the basis of the amount of
Registrable Securities requested to be included in such registration by each
such
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Holder) first; and (ii) the Company and other security holders of the Company
entitled to participate will be entitled to participate in such registration
(with the holders of such securities being entitled to participate in accordance
with the relative priorities, if any, as shall exist among them), in each case
with further pro rata allocations to the extent any such person has requested
registration of fewer securities than such person is entitled to have registered
so that the number of securities to be included in such registration will not
exceed the amount that can, in the opinion of such Managing Underwriter or
Underwriters, be sold without any such material adverse effect. To the extent in
excess of 25% of the Registrable Securities so requested to be registered are
excluded from the offering, the Holders of Registrable Securities, as a group,
shall have the right to one additional Demand Registration under this section
(but in no event shall such additional Demand Registration be for less than
$1,000,000 principal amount of Registrable Securities).
(4) Selection of Underwriters. If any Demand Registration is
in the form of an underwritten offering, the Holders of a majority of the
aggregate principal amount of the outstanding Registrable Securities shall
designate the Underwriter or a group of Underwriters to be utilized in
connection with the public offering of such Registrable Securities, which
selection shall be reasonably acceptable to the Company. The Company shall enter
into an underwriting agreement in customary form with such Underwriter or
Underwriters, which shall include, among other provisions, indemnities to the
effect and to the extent provided in Section 1(d) hereof. The holders of
Registrable Securities to be distributed by such Underwriters shall be parties
to such underwriting agreement and may, at their option, require that any or all
of the representations and warranties by, and the other agreements on the part
of, the Issuers to and for the benefit of such Underwriters also be made to and
for their benefit and that any and all of the conditions precedent to the
obligations of such Underwriters under such underwriting agreement also be
conditions precedent to their obligations. No holder of Registrable Securities
shall be required to make any representations or warranties to or agreements
with the Issuers or the Underwriters other than
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representations, warranties or agreements regarding such holder and its
ownership of the Registrable Securities being registered on its behalf and such
holder's intended method of distribution and any other representation required
by law.
(5) Deferral. Notwithstanding anything to the contrary
contained herein, the Issuers shall not be obligated to prepare and file, or
cause to become effective, any registration statement pursuant to this Section
1(a) at any time when, in the good faith judgment of the Company's Board of
Directors, the filing thereof at the time requested or the effectiveness thereof
after filing should be delayed to permit the Company to include in the
registration statement the Company's financial statements (and any required
audit opinion thereon) for the then immediately preceding fiscal year or fiscal
quarter, as the case may be. The filing of a registration statement by the
Company cannot be deferred pursuant to the provisions of the immediately
preceding sentence beyond the time that such financial statements (or any
required audit opinion thereon) would be required to be filed with the
Commission as part of the Company's Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, if the Company were then obligated to
file such reports. Notwithstanding anything to the contrary contained herein,
the Issuers shall not be obligated to cause a registration statement previously
filed pursuant to this Section 1(a) to become effective, and may suspend sales
by the Holders of Registrable Securities under any registration that has
previously become effective, at any time when, in the good faith judgment of the
Company's Board of Directors, it reasonably believes that the effectiveness of
such registration statement or the offering of securities pursuant thereto would
materially adversely affect a pending or proposed acquisition, merger,
recapitalization, consolidation, reorganization or similar transaction or
negotiations, discussions or pending proposals with respect thereto; provided
that deferrals pursuant to this sentence shall not exceed, in the aggregate, 90
days in any calendar year. The filing of a registration statement, or any
amendment or supplement thereto, by the Company cannot be deferred, and the
rights of Holders of Registrable Securities to make sales pursuant to an
effective registration statement cannot be suspended, pursuant to the provisions
of
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the immediately preceding sentence for more than 15 days after the abandonment
or 30 days after the consummation of any of the foregoing proposals or
transactions or, in any event, for more than 30 days after the date of the
Company's Board of Directors' determination pursuant to the immediately
preceding sentence of this Section 1(a)(5). In no event shall the Holders be
entitled to request a Demand Registration (i) within 180 days from the
effectiveness of a registration statement filed pursuant to the exercise of a
Demand Registration Statement or (ii) within 60 days of the filing of any
registration statement by the Company under which the Holders would be entitled
to piggy-back registration rights hereunder.
(6) The Company agrees that after the Issue Date, it shall not
grant any Person registration rights of the type set forth in Section 1(a)
hereof with respect to any class of debt security of the Company without the
consent of the Holders of a majority in aggregate principal amount of the
Registrable Securities, which consent shall not be unreasonably withheld. The
Company and the Holders agree that the Holders shall be entitled to the consent
right set forth in the immediately preceding sentence so long as the Holders
continue to hold 50% of the Registrable Securities acquired by them on the Date
of Closing.
(b) Piggy-Back Registration.
(1) If the Company proposes to file a registration statement
under the Securities Act with respect to an offering by the Company for its own
account or for the account of any of its security holders of any class of debt
security, then the Company shall give written notice of such proposed filing to
the Holders of Registrable Securities as soon as practicable (but in no event
less than 20 Business Days before the anticipated filing date), and such notice
shall offer such Holders the opportunity to register such number of Registrable
Securities as each such Holder may request (a "Piggy-Back Registration").
(2) The Issuers shall use their best efforts to cause the
managing Underwriter or Underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in the registration
statement for such
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offering to be included on the same terms and conditions as any similar
securities of the Company or of such other security holders included therein.
Notwithstanding the foregoing, if the managing Underwriter or Underwriters of
such offering deliver a written opinion to the Company that either because of
(i) the kind or combination of securities which the Holders, the Company and any
other persons or entities intend to include in such offering or (ii) the size of
the offering which the Holders, the Company and such other persons intend to
make, are such that the success of the offering would be materially and
adversely affected by inclusion of the Registrable Securities requested to be
included, then (a) in the event that the size of the offering is the basis of
such managing Underwriter's opinion, the amount of securities to be offered for
the accounts of Non-Priority Persons (as defined below) shall be reduced pro
rata (according to the Registrable Securities and other securities proposed for
registration by Persons ("Non-Priority Persons") other than the Person or
Persons for whose account such registration was initially to be filed) to the
extent necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such managing Underwriter or Underwriters;
provided that if securities are being offered for the account of Non-Priority
Persons other than holders of Registrable Securities, then with respect to the
Registrable Securities intended to be offered by Holders, the proportion by
which the amount (taking into account the initial net proceeds to the Company on
issuance of such securities and not the face amount thereof) of such class of
securities intended to be offered by Holders is reduced shall not exceed the
proportion by which the amount of such class of securities intended to be
offered by Non-Priority Persons other than holders of Registrable Securities is
reduced; and (b) in the event that the kind (or combination) of securities to be
offered is the basis of such managing Underwriter's opinion, (x) the Registrable
Securities to be included in such offering shall be reduced as described in
clause (a) above (subject to the proviso in clause (a)) or (y) if the actions
described in clause (x) would, in the judgment of the managing Underwriter, be
insufficient to substantially eliminate the adverse effect that inclusion of the
Registrable Securities requested to be
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included would have on such offering, such Registrable Securities will be
excluded from such offering.
The Company will pay all Registration Expenses (as defined
herein) in connection with each registration of Registrable Securities.
(c) Registration Procedures.
If and whenever the Issuers are required to use their best
efforts to effect the registration of any Registrable Securities under the
Securities Act, the Issuers will promptly:
(1) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such securities,
make all required filings with the NASD and use commercially reasonable
efforts to cause such registration statement to become effective;
(2) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement
until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement, but in no
event for a period of more than one year after such registration
statement becomes effective;
(3) furnish to counsel (if any) elected by holders of a
majority (by aggregate principal amount) of the Registrable Securities
covered by such registration statement copies of all documents proposed
to be filed with the Securities and Exchange Commission in connection
with such registration, which documents will be subject to the review
of such counsel;
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(4) furnish to each seller of such securities such number of
conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits,
except that none of the Issuers shall be obligated to furnish any
seller of securities with more than two copies of such exhibits), such
number of copies of the prospectus included in such registration
statement (including such preliminary prospectus and any summary
prospectus), in conformity with the requirements of the Securities Act,
and such other documents, as such seller may reasonably request in
order to facilitate the disposition of the securities owned by such
seller;
(5) use its commercially reasonable efforts to register or
qualify such securities covered by such registration statement under
such other securities or Blue Sky Laws of such jurisdictions as each
seller shall request, and do any and all other acts and things which
may be necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the securities owned by such
seller, except that none of the Issuers for any such purpose be
required to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it is not so qualified, or to consent to
general service of process in any such jurisdiction;
(6) furnish to each seller a signed counterpart, addressed to
the sellers, of
(i) an opinion of counsel for the Company and the
Guarantors, dated the effective date of the registration
statement, reasonably satisfactory in form and substance to
such holders' counsel referred to in Section 1(c)(3) hereof,
and
(ii) subject to the accountants obtaining the
necessary representations as specified in Statement on
Auditing Standards No. 72, a "comfort" letter signed by the
independent public accountants who have certified the
Company's financial statements included in the registration
statement,
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covering substantially the same matters with respect to the
registration statement (and the prospectus included therein)
and, in the case of such accountants' letter, with respect to
changes subsequent to the date of such financial statements,
as are customarily covered in opinions of issuer's counsel and
in accountants' letters delivered to the Underwriters in
underwritten public offerings of securities;
(7) notify each seller of any securities covered by such
registration statement, at any time when a prospectus relating thereto
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 any material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and at the
request of any such seller prepare and furnish to such seller a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(8) otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Securities and
Exchange Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months,
beginning with the first month after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
(9) in any underwritten offering, use its best efforts to
cause the indemnity and contribution terms between the sellers and the
Underwriters to be no more
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burdensome to the sellers than the indemnity and contribution terms
between the sellers and the Issuers set forth in Section 1(d) hereof;
(10) cause the Senior Subordinated Note Indenture relating to
the Securities to be qualified under the Trust Indenture Act of 1939,
as amended; and
(11) promptly notify each Holder and the Underwriter or
Underwriters, if any:
(i) when such registration statement or any
prospectus used in connection therewith, or any amendment or
supplement thereto, has been filed and, with respect to such
registration statement or any post-effective amendment
thereto, when the same has become effective;
(ii) of any written comments from the Securities and
Exchange Commission with respect to any filing referred to in
clause (i) above and of any written request by the Securities
and Exchange Commission for amendments or supplements to such
registration statement or prospectus;
(iii) of the notification to any Issuer by the
Securities and Exchange Commission of its initiation of any
proceeding with respect to the issuance by the Securities and
Exchange Commission of, or of the issuance by the Securities
and Exchange Commission of, any stop order suspending the
effectiveness of such registration statement; and
(iv) of the receipt by any Issuer of any notification
with respect to the suspension of the qualification of any
Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction.
The Company may require each seller of any securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the
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distribution of such securities as the Company may from time to time reasonably
request in writing and as shall be required by law in connection therewith. Each
such holder agrees to furnish promptly to the Company all information required
to be disclosed in order to make the information previously furnished to the
Company by such holder not materially misleading.
By acquisition of Registrable Securities, each holder of such
Registrable Securities shall be deemed to have agreed that upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 1(c)(7) hereof, such holder will promptly discontinue such holder's
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such holder's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 1(c)(7)
hereof. If so directed by the Company, each holder of Registrable Securities
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such holder's possession of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the period
mentioned in Section 1(c)(2) hereof shall be extended by the number of days
during the period from and including the date of the giving of such notice to
and including the date when each seller of any Registrable Securities covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by Section 1(c)(7) hereof.
In connection with any underwritten offering, all Registrable
Securities to be included in such registration shall be subject to the related
underwriting agreement and no person may participate in such registration unless
such person agrees to sell such person's securities on the basis provided in the
underwriting arrangement approved by the persons for whose account such
underwritten registration is initially filed and completes and executes all
customary questionnaires, indemnities, underwriting agreements and other
reasonable documents which must be executed under the terms of such underwriting
arrangements.
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(d) Indemnification and Contribution.
(1) Indemnification. Each of the Company and the Guarantors,
jointly and severally, agrees to indemnify and hold harmless each Holder of
Registrable Securities, its officers, directors, employees and agents and each
Person who controls such Holder within the meaning of either Section 15 of the
Securities Act or Section 20(a) of the Exchange Act (each such person being
sometimes hereinafter referred to as an "Indemnified Holder") from and against
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation and legal expenses) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement or 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, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any such untrue statement or omission or allegation thereof based upon
information relating to such Indemnified Holder and furnished in writing to the
Company by such Indemnified Holder expressly for use therein. This indemnity
will be in addition to any liability which the Company may otherwise have.
If any action or proceeding (including any governmental
investigation or inquiry) shall be brought or asserted against an Indemnified
Holder in respect of which indemnity may be sought from the Company or any
Guarantor, such Indemnified Holder shall promptly notify the Company in writing,
and the Company or such Guarantor shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Holder and
the payment of all expenses. Such Indemnified Holder shall have the right to
employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Holder except that the Company or such Guarantor shall be
responsible for the reasonable fees and expenses of such counsel if (but only
if) (a) the Company or such Guarantor has agreed to pay such fees and expenses
or
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(b) the Company or such Guarantor shall have failed to assume the defense of
such action or proceeding and has failed to employ counsel reasonably
satisfactory to such Indemnified Holder in any such action or proceeding or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both such Indemnified Holder and the Company or such Guarantor,
and there are one or more legal defenses available to such Indemnified Holder
which are different from or additional to those available to the Company or such
Guarantor (in which case, if such Indemnified Holder notifies the Company in
writing that it elects to employ separate counsel at the expense of the Company
or such Guarantor, the Company or such Guarantor shall not have the right to
assume the defense of such action or proceeding on behalf of such Indemnified
Holder, it being understood, however, that the Company or such Guarantor shall
not, in connection with any one such action or proceeding or separate but
substantially similar or related actions 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 separate firm of attorneys at any time for
such Indemnified Holder and any other Indemnified Holders, which firm shall be
designated in writing by such Indemnified Holders). The Company or such
Guarantor shall not be liable for any settlement of any such action or
proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the Company or such Guarantor agrees to indemnify and hold harmless
such Indemnified Holders from and against any loss or liability by reason of
such settlement or judgment.
(2) Contribution. If the indemnification provided for in
Section 1(d)(1) hereof is unavailable to an Indemnified Holder in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then the
Issuers, in lieu of indemnifying such Indemnified Holder, shall contribute to
the amount paid or payable by such Indemnified Holder as a result of such
losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the Issuers on the one hand and of
the Indemnified Holder on the other in connection with the statements or
omissions which
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resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the Issuers
on the one hand and of the Indemnified Holder on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Indemnified Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 1(d)(1)
hereof, any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Issuers and each Holder of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this Section
1(d)(2) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. Notwithstanding the provisions of
this Section 1(d)(2), an Indemnified Holder shall not be required to contribute
any amount in excess of the amount by which the total net proceeds received by
such Indemnified Holder or its affiliated Indemnified Holders from the sale to
the public of Registrable Securities exceeds the amount of any damages which
such Indemnified Holder, or its affiliated Indemnified Holders, has otherwise
been required to pay 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.
(3) Certain Definitions.
(i) "Business Day" means any day other than a
Saturday, a Sunday or a day on which banking institutions in
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The City of New York are authorized by law, regulation or
executive order to remain closed.
(ii) "Registrable Securities" means the Notes and
Guarantees and any other securities issued or issuable in
exchange for the Notes and Guarantees. As to any particular
Registrable Securities, once issued such securities shall
cease to be Registrable Securities after (A) a registration
statement with respect to the sale of such securities shall
have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such
registration statement, (B) they shall have been distributed
to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (C) the third anniversary
of an initial public offering of the Company, so long as
disposition of them shall not require registration or
qualification of them under the Securities Act or any similar
state law then in force, or (D) they shall have ceased to be
outstanding.
(iii) "Registration Expenses" means all expenses
incident to the Issuers' performance of or compliance with
Section 1 hereof, including, without limitation, all
registration and filing fees, all fees and expenses of
complying with securities or blue sky laws, fees and other
expenses associated with filings with the National Association
of Securities Dealers, Inc. (including, if required, the
reasonable fees and expenses of any "qualified independent
underwriter" and its counsel), all printing expenses, the fees
and disbursements of counsel for the Company and the
Guarantors and of the Company's independent public
accountants, the fees and disbursements of one counsel
retained by the holders of Registrable Securities, the
expenses of any special audits made by such accountants
required by or incident to such performance and compliance,
but not including (a) fees and disbursements of more than one
counsel retained by the holders of Registrable Securities, or
(b) such holders' proportionate share of underwriting
discounts and commissions.
SECTION 2. Notices to Issuers and Note Holders. Any notice or
demand authorized by this Agreement to be given or
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made by the registered holder of any Note to or on the Issuers shall be
sufficiently given or made when and if deposited in the mail, first class or
registered, postage prepaid, addressed to the office of the Company expressly
designated by the Company at its office for purposes of this Agreement (until
the Note holders are otherwise notified in accordance with this Section by the
Company), as follows:
MEDICAL DEVICE MANUFACTURING, INC.
c/o MDMI Holdings, Inc.
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
with a copy to:
KRG Capital Partners, LLC
Xxx Xxxx Xxxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Tower One, Suite 1500
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Any notice pursuant to this Agreement to be given by the
Issuers to the registered holder(s) of any Note shall be sufficiently given when
and if deposited in the mail, first class or registered, postage prepaid,
addressed (until the Company is otherwise notified in accordance with this
Section by such holder) to such holder at the address appearing on the Note
register of the Company.
SECTION 3. Supplements and Amendments. This Agreement may not
be amended without the consent of the Issuers and each Holder of Notes.
SECTION 4. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Issuers shall bind and inure to the
benefit of their respective successors and assigns hereunder.
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SECTION 5. Termination. This Agreement (except for Section
1(d)) shall terminate at 5:00 p.m., New York City time, on June 1, 2007.
SECTION 6. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF SAID STATE.
SECTION 7. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than the
Issuers and the registered holders of the Notes any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Issuers and the registered holders of the Notes.
Nothing herein shall prohibit or limit the Company or any Guarantor from
entering into an agreement providing holders of securities which may hereafter
be issued by the Company or such Guarantor with such registration rights
exercisable at such time or times and in such manner as the Board of Directors
of the Company shall deem in the best interests of the Company so long as the
performance by the Company or such Guarantor of its obligations under such other
agreement will not cause the Issuers to breach their obligations hereunder to
the Holders.
SECTION 8. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
19
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
COMPANY
MEDICAL DEVICE MANUFACTURING, INC.
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
GUARANTORS
G & D, INC., d/b/a STAR GUIDE
CORPORATION
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
MEDICAL ENGINEERING RESOURCES,
LTD.
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
NOBLE-MET, LTD.
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
UTI CORPORATION
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
20
UTI ACQUISITION CORP.
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SPECTRUM MANUFACTURING, INC.
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice Xxxxxxxxx
00
XXXXXXXXXX
XXX INVESTMENT PARTNERS II, L.P.
By: DLJ INVESTMENT PARTNERS II,
INC., as managing general
partner
By: /s/ XXX XXXXX
-------------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ INVESTMENT FUNDING II, INC.
By: /s/ XXX XXXXX
-------------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ ESC II L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, as general
partner
By: /s/ XXX XXXXX
-------------------------------------
Name: Xxx Xxxxx
Title: Vice President
DLJ INVESTMENT PARTNERS, L.P.
By: DLJ INVESTMENT PARTNERS, INC.,
as managing general partner
By: /s/ XXX XXXXX
-------------------------------------
Name: Xxx Xxxxx
Title: Vice President
RELIASTAR FINANCIAL CORP.
By: /s/ XXXX X. XXXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
