AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment"), dated as of
April 27, 2004, is between MedSource Technologies, Inc., a Delaware corporation
(the "Company"), and Wachovia Bank, National Association, as rights agent (the
"Rights Agent").
A. Recitals.
1. The Company and the Rights Agent are parties to a Rights Agreement,
dated as of August 12, 2003 (the "Rights Agreement").
2. The Company desires to amend the Rights Agreement as set forth
below.
3. Under Section 27 of the Rights Agreement, prior to the occurrence
of a Distribution Date, the Company may amend the Rights Agreement without
the approval of any holders of Rights and may direct the Rights Agent to
execute such amendment.
4. No Distribution Date has occurred.
5. The Company hereby directs the Rights Agent to execute the
Amendment.
B. Amendments to Rights Agreement.
1. Amendment of Section 1.
Section 1 of the Rights Agreement is amended by adding the following
definitions and relettering such Section 1 to include such definitions:
(p) "Merger Agreement" shall mean that certain Agreement and Plan of
Merger, dated as of April 27, 2004, by and among Medical Device Manufacturing,
Inc., a Colorado corporation ("MDM"), the Company, and Pine Merger Corporation,
a Delaware corporation, as it may be amended from time to time.
(mm) "Voting Agreements" shall mean those certain Voting Agreements
between MDM and certain stockholders of the Company entered into in connection
with the Merger Agreement.
2. Amendment of Section 7.
Paragraph (a) of Section 7 of the Rights Agreement is amended by:
(a) deleting the word "or" immediately preceding clause (iii),
(b) by adding a new clause (iv) immediately following clause (iii) that
reads as follows: "or (iv) immediately prior to the Effective Time (as defined
in the Merger Agreement)" and
(c) by changing the definition of "Expiration Date" in the parenthetical
following new clause (iv) to read as follows: "(the earliest of (i), (ii), (iii)
and (iv) being herein referred to as the "Expiration Date")."
3. Addition of New Section 35.
The Rights Agreement is amended by adding a Section 35, which reads as
follows:
"Section 35. Exception For Merger Agreement and Support Agreements.
Notwithstanding any provision of this Agreement to the contrary,
neither a Distribution Date nor a Stock Acquisition Date shall be
deemed to have occurred, none of MDM or any of its Affiliates or
Associates shall be deemed to have become an Acquiring Person, and no
holder of any Rights shall be entitled to exercise any Rights under,
or be entitled to any rights under, any of Sections 3, 7, 11 or 13 of
this Agreement, or any other Section of this Agreement, in any such
case by reason of (a) the approval, execution or delivery of the
Merger Agreement or Voting Agreements or any amendments thereof
approved in advance by the Board of Directors of the Company or (b)
the commencement or, prior to termination of the Merger Agreement, the
consummation of any of the transactions contemplated by the Merger
Agreement or Voting Agreements in accordance with their terms,
including the Merger (as defined in the Merger Agreement)."
4. Effectiveness.
This Amendment shall be deemed effective upon execution of the Merger
Agreement by the parties thereto as if executed by both parties hereto on such
date. Except as amended hereby, the Rights Agreement shall remain in full force
and effect and shall be otherwise unaffected hereby.
5. Defined Terms.
Any defined term used herein and not otherwise defined herein shall have
the meaning assigned to such term in the Agreement.
6. Miscellaneous.
This Amendment shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts to be made and
performed entirely within such state. This Amendment may be executed in any
number of counterparts, each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but
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one and the same instrument. If any term, provision, covenant or restriction of
this Amendment is held by a court of competent jurisdiction or other authority
to be invalid, illegal, or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date set forth above.
MEDSOURCE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: CEO and Chairman
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WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Assistant Vice President
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[Signature Page to Amendment No. 1 to Rights Agreement]
