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EXHIBIT 10.2
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT dated as of July 6, 1999 (this
"Agreement") is made by and among Medical Device Manufacturing, Inc., a Colorado
corporation (the "Company"), KRG Capital Partners, LLC, a Delaware limited
liability company ("KRG"), Xxxx Xxxxxxx ("X.Xxxxxxx"), Xxxxxx Xxxxxxx
("X.Xxxxxxx"), the Xxxxxx Xxxxxxx Irrevocable Spousal Trust No. 1, the Xxxxxx
Xxxxxxx Irrevocable Spousal Trust No. 2 (collectively, the "Xxxxxxx Trusts"),
Xxxxxx Xxxxxxxxxxx ("Xxxxxxxxxxx"), Xxxxxxxx Xxxxxxxx ("Xxxxxxxx"), Xxxxxx
Xxxxxxx ("Xxxxxxx"), First Analysis Corporation and its affiliated investment
funds, Infrastructure and Environmental Private Equity Fund III, L.P. and
Environmental and Information Technology Private Fund III, a civil partnership
with limitation of liability established under the laws of the Federal Republic
of Germany (collectively, "First Analysis"), CMS Companies and any affiliated
investment fund to which it may assign all or part of its interest in the
Company (collectively, "CMS") and such other investors as may from time to time
become a party to this Agreement (such other investors, together with First
Analysis and CMS, the "Invited Investors").
WITNESSETH
WHEREAS, the parties listed on Schedule I, as amended from time to
time, hereto own the number and type of Shares (as defined below) set forth
opposite their names;
WHEREAS, the parties desire to set forth certain rights and
restrictions related to the ownership and disposition of their Shares in the
Company;
WHEREAS, the parties desire to establish the composition of the board
of directors;
NOW, THEREFORE, in consideration of the premises and the mutual
promises set forth in this Agreement, the parties agree as follows:
AGREEMENT
1. Definitions.
(a) Affiliate. The term "Affiliate" shall mean any natural
person, corporation, trust, joint venture, association, company, firm,
partnership, limited liability company or other entity or government or
governmental authority which, directly or indirectly, controls, is controlled by
or is under common control with a Holder, where "control" (including
"controlling," "controlled by" and "under common control with") of a such a
person or entity means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such person or
entity, whether through the ownership of equity, by contract or otherwise.
(b) Common Stock. The term "Common Stock" shall mean the
common stock of the Company, $.01 par value per share.
(c) Preferred Stock. The term "Preferred Stock" shall mean the
Series A-1 5% Convertible Preferred Stock of the Company, $.01 par value per
share; the Series B-1
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Convertible Preferred Stock of the Company, $.01 par value per share and any
other future issuances of preferred stock authorized under the Articles of
Incorporation of the Company.
(d) Holders. The term "Holders" shall mean the persons or
entities who have acquired Equity Securities.
(e) New Securities. The term "New Securities" shall mean any
capital stock of the Company (whether now authorized or not), rights, options or
warrants to purchase such capital stock and securities of any type whatsoever
that are, or may become, convertible into capital stock; provided, however, that
the term "New Securities" does not include:
(i) securities issued pursuant to the acquisition of
stock or assets of another entity or business segment of any such entity by the
Company or its subsidiaries; provided, that such securities are issued to the
owners of such acquired stock or assets;
(ii) securities issued to employees, consultants,
officers or directors of the Company pursuant to any stock option, stock
purchase or stock bonus plan, agreement or arrangement approved by the Board (as
defined below);
(iii) securities issued to vendors or customers or to
other persons in similar commercial situations with the Company if such issuance
is approved by the Board;
(iv) securities issued in connection with obtaining
lease financing, whether issued to a lessor, guarantor or other person if such
issuance is approved by the Board;
(v) securities issued in a firm commitment,
underwritten public offering pursuant to a registration under the Securities Act
of 1933, as amended (the "Securities Act");
(vi) securities issued in connection with any stock
split, stock dividend or recapitalization of the Company; and
(vii) any right, option or warrant to acquire any
security convertible into the securities excluded from the definition of New
Securities pursuant to subsections (i) through (vii) above.
(f) Equity Securities. The term "Equity Securities" shall mean
any securities, including without limitation the Common Stock, the Preferred
Stock and any securities convertible into or exercisable for any shares of the
foregoing, or any option, agreement or commitment to issue any of the foregoing.
2. Prohibited Transfers. Each Holder shall not sell, assign, transfer,
pledge, hypothecate, mortgage, encumber or otherwise dispose of, including
without limitation, transfers pursuant to the laws of testate or intestate
succession, marital dissolution, legal separation or otherwise by operation of
law ("Transfer") all or any shares of Equity Securities he currently owns or
hereafter acquires ("Shares") except as expressly provided in this Agreement;
provided, however, that (i) each Holder may Transfer all or any of his Shares by
way of gift to any member
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of his family or to any trust for the benefit of any such family member of the
Holder (ii) each Holder may Transfer all or any of his Shares to an Affiliate
and (iii) KRG may Transfer all or any of its Shares to each of KRG Capital Fund
I, L.P., KRG Capital Fund I(PA), L.P., KRG Capital Fund I(FF), L.P. and to the
Limited Partners of each of such funds; and provided, further, that any such
transferee of a Holder shall agree in writing with the parties to this
Agreement, as a condition to such transfer, to be bound by all of the provisions
of this Agreement (each a "Permitted Transfer"). As used herein, the word
"family" shall include any spouse, lineal ancestor or descendant, brother or
sister.
3. Right of First Refusal. Other than a Permitted Transfer, before any
Equity Securities may be Transferred by a Holder (the "Selling Holder") such
Equity Securities (the "Selling Holder Shares") shall first be offered to the
Company and then to the Holders in the following manner:
(a) Notice by the Selling Holder. The Selling Holder shall
deliver a notice by certified mail ("Notice") to the principal business office
of the Company and to each of the Holders stating (i) his bona fide intention to
sell or Transfer the Selling Holder Shares, (ii) the number of Selling Holder
Shares to be Transferred, (iii) the price and terms, if any, for which he
proposes to Transfer the Selling Holder Shares and (iv) the name and address of
the proposed purchaser or transferee and that such purchaser or transferee is
committed to acquire the stated number of shares on the stated price and terms.
(b) Company's Right to Purchase Selling Holder Shares. The
Company shall have the right at any time within thirty (30) days of receipt of
the Notice to purchase some or all of the Selling Holder Shares at the price per
share specified in the Notice.
(c) Notice by the Company. If the Company (or its designee(s))
desires to purchase all or any part of the Selling Holder Shares, the Company
(or its designee(s)) shall communicate in writing of its election to purchase
the Selling Holder Shares to the Selling Holder and Holders ("Company Election")
which communication shall state the number of Selling Holder Shares the Company
desires to purchase and shall be given in accordance with the notice
requirements of this Agreement.
(d) Holders' Right to Purchase Selling Holder Shares. If the
Company (or its designee(s)) does not purchase all of the Selling Holder Shares,
each Holder or a designated Affiliate shall have the right within ten (10) days
of receipt of the Company Election to purchase that number of the balance of the
Selling Holder Shares as shall be equal to the number of Selling Holder Shares
multiplied by a fraction, the numerator of which shall be the number of Shares
then owned by such Holder and its Affiliates and the denominator of which shall
be the aggregate number of Shares then owned by all of the Holders who have
delivered an election to purchase the Selling Holder Shares. The amount of
Selling Holder Shares that each Holder and its Affiliates is entitled to
purchase under this Section 3(d) shall be referred to as the "Pro Rata
Fraction." Each Holder desiring to purchase the Selling Holder Shares under this
Section 3 shall communicate in writing of its election to purchase the Selling
Holder Shares to the Selling Holder ("Shareholder Election") which communication
shall state the number of Selling Holder
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Shares such Holder and its Affiliates desire to purchase and shall be given in
accordance with the notice requirements of this Agreement.
(e) Oversubscription. Each Holder shall have the right of
oversubscription such that if a Holder fails to purchase all of his Pro Rata
Fraction, the other Holder shall have the right to purchase the balance of
Selling Holder Shares not so purchased. Such right of oversubscription may be
exercised by the Holder by offering to purchase more than his Pro Rata Fraction.
If, as a result thereof, such oversubscription exceeds the total number of
Selling Holder Shares available in respect of such oversubscription rights, the
oversubscribing Holder shall be cut back with respect to his oversubscription on
a pro rata basis in accordance with his respective Pro Rata Fraction or as the
Holders may otherwise agree amongst themselves.
(f) Selling Holder's Right to Sell Selling Holders Shares.
Notwithstanding any of the foregoing subsections in this Section 3, if the
Company and/or the Holders do not purchase all of the Selling Holder Shares
pursuant to this Section 3, each of the Company's and the Holders' right to
purchase the Selling Holder Shares shall be forfeited and the Selling Holder may
Transfer all of the Selling Holder Shares to the proposed purchaser (identified
in the Notice) on terms no less favorable than as set forth in the Notice. In
the event the Selling Holder does not sell the Selling Holder Shares to the
proposed purchaser within 120 days after the date of the Notice, the Selling
Holder shall not sell any Selling Holder Shares without first offering to sell
the Selling Holder Shares to the Company and Holders pursuant to this Section 3.
(g) Notice Constitutes an Agreement to Purchase. If the
Company (or its designee(s)) or the Holders elect to purchase all or any portion
of the Selling Holder Shares, the Company Notice or a Shareholder Notice
delivered by the Company or any of the Holders shall be deemed to constitute a
valid, legally binding and enforceable agreement for the sale and purchase of
the Selling Holder Shares. Sales of Selling Holder Shares to be sold to the
Company (or its designee(s)) or to the Holders pursuant to this Section 3 shall
be made at the offices of the Company on the 45th day following the date of the
Notice (or if such 45th day is not a business day, then on the next succeeding
business day). Such sales shall be effected by the delivery to the Company of a
certificate or certificates evidencing the Selling Holder Shares to be purchased
by the Company (or its designee(s)) or the Holders, duly endorsed for transfer
to such party, in exchange for cash payment to the Selling Holder in the amount
of the purchase price therefor by the party purchasing such Selling Holder
Shares.
(h) Payment of Purchase Price by the Company. The consideration paid
for the Selling Holder Shares by the Company may be in the form of a promissory
note or notes secured by the Selling Holder Shares executed by the Company and
delivered to the Holder, which note or notes shall (i) bear interest at the rate
of the Federal Funds Rate per annum, (ii) be payable in two (2) equal annual
installments, (iii) shall provide for acceleration in the event of default in
the payment of interest or principal, and (iv) shall grant to the Company the
right to prepay the note in whole or in part at any time or times without
penalty. Such promissory note or notes shall be subordinated to the Company's
obligation to NationsCredit Commercial Corporation under the terms and
conditions set forth in the Credit Agreement dated as of July 1, 1999 among
Medical Device Manufacturing, Inc. and the Lenders referred to therein and
NationsCredit Commercial Corporation. For purposes of this Agreement, "Federal
Funds Rate" shall mean a fluctuating
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interest rate per annum equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is not a
business day, for the next preceding business day) by the Federal Reserve Bank
of New York.
4. Preemptive Right.
(a) General. If the Company issues any New Securities, it
shall offer to sell to each Holder, a Ratable Portion (defined below) of such
New Securities on the same terms and conditions and at the lowest price as such
New Securities are issued to any person. "Ratable Portion" shall mean that
portion of such New Securities that bear the same ratio (including for this
purpose all New Securities which may be purchased by the Holders pursuant to
this Section 4) as the number of Shares held by such Holder bears to all Shares
then outstanding. Notwithstanding anything herein to the contrary, the Ratable
Portion of any Invited Investor shall mean that portion of such New Securities
that is equal to fifty percent (50%) of the ratio of the number of Shares held
by such Invited Investor to all Shares then outstanding, with the remaining
(50%) being assigned to KRG or its designee, who will; in turn, and in its sole
discretion, retain, assign or waive such remainder.
(b) Procedure. In the event that the Company proposes to
undertake an issuance of New Securities, it shall give to each Holder written
notice of its intention to issue New Securities (also referred to as the
"Notice"), describing the type of New Securities and the price and the general
terms upon which the Company proposes to issue such New Securities. Each Holder
shall have ten (10) days from the date of receipt of any such Notice to agree in
writing to purchase or allow an Affiliate to purchase his Ratable Portion of
such New Securities for the price and upon the general terms specified in the
Notice by giving written notice to the Company and stating therein the quantity
of New Securities to be purchased (not to exceed his Ratable Portion). If a
Holder fails to agree in writing within such ten day period to purchase or allow
an Affiliate to purchase his full Ratable Portion of an offering of New
Securities (a "Nonpurchasing Holder"), then such Nonpurchasing Holder shall
forfeit the right hereunder to purchase that part of his Ratable Portion of such
New Securities that he did not so agree to purchase and the Company shall
promptly give the remaining Holders who timely agreed to purchase their full
Ratable Portion of such offering of New Securities (a "Purchasing Holder")
written notice of the failure of the Nonpurchasing Holder to purchase his full
Ratable Portion of New Securities (the "Overallotment Notice"). A Purchasing
Holder shall have a right of overallotment such that the Purchasing Holder may
agree to purchase or allow an Affiliate to purchase the Nonpurchasing Holders'
unpurchased Ratable Portion at any time within five (5) days after receiving the
Overallotment Notice. If more than one Purchasing Holder wishes to purchase the
Nonpurchasing Holders' unpurchased Ratable Portion, the overallotment shall be
divided among the Purchasing Holders based on each such Purchasing Holder's
Ratable Portion.
(c) Failure to Exercise. In the event that a Holder fails to exercise
the rights granted to him in Sections 4(a) and (b) above (the "Preemptive
Right") within such ten (10) plus five (5) day period, then the Company shall
have 120 days thereafter to sell the New Securities with respect to which the
Holder's Preemptive Rights were not exercised, at a price and upon general terms
not materially more favorable to the purchasers thereof than specified in the
Company's
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Notice to the Holders. In the event that the Company has not issued and sold the
New Securities within such 120 day period, then the Company shall not thereafter
issue or sell any New Securities without again first offering such New
Securities to the Holders pursuant to this Section 4.
5. Tag-Along Rights. Subject to the provisions of Section 3 hereof and
except for a Permitted Transfer under Section 2, in the event a Holder (an
"Offering Holder") intends to Transfer Shares (also referred to as "Offered
Shares"), such Offering Holder shall notify each other Holder, in writing, of
such Transfer and its terms and conditions, including, without limitation, (i)
his bona fide intention to sell or Transfer the Offered Shares, (ii) the number
of Offered Shares to be Transferred, (iii) the price and terms, if any, for
which he proposes to Transfer the Offered Shares and (iv) the name and address
of the proposed purchaser or transferee and that such purchaser or transferee is
committed to acquire the stated number of shares on the stated price and terms
("Offering Holder Notice"). Within 20 days of the date of such notice, each
Holder (other than the Offering Holder) shall notify the Offering Holder in
writing (the "Co-Sale Notice") if it or he elects to participate in such
Transfer. Each Holder that so notifies the Offering Holder shall have the right
to sell, at the same price and on the same terms as the Offering Holder, an
amount of shares equal to the Shares the third party proposes to purchase
multiplied by a fraction, the numerator of which shall be the number of Shares
issued and owned by such Holder and the denominator of which shall be the
aggregate number of Shares issued and owned by the Offering Holder and each
Holder exercising its rights under this Section 5. Nothing contained in this
Section 5 shall in any way limit or restrict the Offering Holder's ability to
amend, modify or terminate any agreement with a third party with respect to any
Transfer of its Shares pursuant to this Section 5, and the Offering Holder shall
have no liability to any Holder with respect to such amendment, modification or
termination unless any of the foregoing breaches this Agreement. If no Co-Sale
Notice is received during the 20-day period referred to above (or if the Co-Sale
Notice does not cover all of the Shares proposed to be Transferred), the
Offering Holder shall have the right, for a 60-day period after the expiration
of the 20-day period referred to above, to Transfer the Shares specified in the
Offering Holder Notice (or the remaining Shares) on terms and conditions no more
favorable than those stated in the Offering Holder Notice, so long as the
proposed purchaser agrees to enter into a joinder of this Agreement whereby such
person shall become subject to the terms and conditions hereof.
6. Drag-Along Rights.
(a) General. Subject to the provisions of Section 3 and the
prior approval of a majority of the directors of the Board, in the event a
Holder or Holders owning more than 662/3% of the issued and outstanding Shares
(the "Selling Group") wish to Transfer in a bona fide arms' length sale all of
the Shares then owned by them to any person who is not an affiliate of such
Selling Group (the "Proposed Transferee"), the Selling Group shall have the
right (the "Drag-Along Right") upon the approval of a majority of the directors
of the Board to require all of the Holders to sell to the Proposed Transferee
all of the Shares then owned by such Holders for the same per share
consideration and otherwise on the same terms received by the Selling Group.
Each Holder agrees to take all steps necessary to enable it or him to comply
with the provisions of this Section 6, including the delivery of certificates
for all such Shares duly endorsed or
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accompanied by appropriate instruments of transfer and free and clear of any
liens or other encumbrances.
(b) Procedure. To exercise a Drag-Along Right, the Selling
Group shall, after receiving Board approval in accordance with Section 6(a),
give each Holder a written notice (the "Drag-Along Notice") containing (i) the
name and address of the Proposed Transferee, and (ii) the proposed purchase
price, terms of payment and other material terms and conditions of the Proposed
Transferee's offer. Each Holder shall thereafter be obligated to sell its Shares
subject to such Drag-Along Notice, provided that the sale to the Proposed
Transferee is consummated within sixty (60) days of delivery of the Drag-Along
Notice. If the sale is not consummated within such 60-day period, then each
Holder shall no longer be obligated to sell such Holder's shares pursuant to
that specific Drag-Along Right, but each Holder's shares shall remain subject to
the provisions of this Section 6.
7. Legend. Each existing or replacement certificate for Shares now
owned by the Holders shall bear the following legend upon its face:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THE TRANSFER, ENCUMBRANCE, PLEDGE, ASSIGNMENT OR
OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE CONDITIONS AND RESTRICTIONS
SPECIFIED IN (1) A SUBSCRIPTION AGREEMENT, DATED AS OF JUNE
__, 1999, BY AND BETWEEN THE COMPANY AND A CERTAIN INVESTOR
AND (2) A SHAREHOLDERS' AGREEMENT, DATED AS OF JUNE __, 1999,
BY AND AMONG THE COMPANY AND CERTAIN SHAREHOLDERS, AND THE
COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER OF SUCH
SECURITIES UNTIL SUCH CONDITIONS AND RESTRICTIONS HAVE BEEN
FULFILLED OR LIFTED WITH RESPECT TO SUCH TRANSFER. A COPY OF
THE CONDITIONS OR AGREEMENTS REFERENCED ABOVE MAY BE OBTAINED
BY THE HOLDER HEREOF UPON WRITTEN REQUEST TO THE SECRETARY OF
THE COMPANY."
Each of the undersigned parties agrees that the Company may instruct
its transfer agent to impose transfer restrictions on the shares represented by
certificates bearing the legend referred to in this Section 7 to enforce the
provisions of this Agreement and the Company agrees to promptly do so. The
legend shall be removed or modified upon termination of the conditions or
restrictions set forth therein.
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8. Voting Agreements.
(a) Certificate Incorporation of the Company. The Holders
acknowledge that the Certificate of Incorporation attached to as Exhibit A will
be in effect as the Certificate of Incorporation, of the Company as of the date
hereof. The provisions of Exhibits A are hereby approved by, and made a part of
the agreement among, the parties hereto.
(b) By-Laws of the Company. The Holders acknowledge that the
By-Laws attached as Exhibit B will be in effect as the By-Laws of the Company as
of the date hereof. The provisions of Exhibit B are hereby made a part of the
agreement among the parties hereto.
(c) Board of Directors.
(i) The Board of Directors of the Company (the
"Board") shall initially be comprised of eight directors. During the term of
this Agreement and at any special or annual meeting of the Holders at which
directors are to be elected to the Board, (A) KRG shall be entitled to designate
three directors to sit on the Board; (B) the other investors listed on Schedule
I shall be entitled to designate two directors to sit on the Board; (C)
X.Xxxxxxx, X.Xxxxxxx and the Xxxxxxx Trusts shall be entitled to designate one
director to sit on the Board; and (D) the remaining directors shall be
designated by a majority vote of the directors. The rights granted with respect
to the Holders pursuant to this Section 8(c) shall continue with respect to such
Holders until such time as the applicable Holders own none of the Shares that
were originally issued to it.
(d) Replacement and Removal of Directors. In the event of
resignation, death, removal or disqualification of a director selected in
accordance with Section 8(c), the shareholders entitled to designate such
director shall promptly designate a replacement director and in all other cases
the directors by a majority vote shall promptly designate a replacement
director. The shareholders entitled to designate a director in accordance with
Section 8(c) may remove their designated director(s) at any time and from time
to time, with or without cause (subject to the By-Laws of the Company as in
effect from time to time and any requirements of law), in their sole discretion,
and after written notice to each of the Holders hereto of the new person to
replace such director. A director designated by a majority vote of the directors
may be removed at any time and from time to time, with or without cause (subject
to the By-Laws of the Company as in effect from time to time and any
requirements of law) by a majority vote of the directors.
(e) Agreement to Cooperate. In order to effectuate the
provisions of this Section 8, when any action or vote is required to be taken by
any Holder pursuant to this Section 8 each Holder shall (i) use such Holder's
best efforts and take all actions necessary to call, or cause the Company and
the appropriate officers and directors of the Company to call, a special or
annual meeting of shareholders of the Company, or execute or cause to be
executed a consent in writing in lieu of any such meeting pursuant to the
Colorado Business Corporation Act or any other governing law, to effectuate such
shareholder action; and (ii) vote such Holder's Shares (either in person, by
proxy or by written consent and whether owned or held of record) to take
whatever action is consistent with the terms and intent of this Section 8 and is
required to be taken pursuant to this Agreement.
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(f) Conflicting Charter or By-Law Provisions. Each Holder
shall vote his, her or its Shares, and shall take all actions necessary, to
ensure that the Company's Certificate of Incorporation and By-Laws do not, from
time to time, conflict with the provisions of this Agreement. No Holder shall
grant any proxy or enter into or agree to be bound by any voting trust with
respect to his, her or its Shares, nor shall any Holder enter into any
shareholders agreement or arrangement of any kind with any person with respect
to his, her or its Shares, inconsistent with the provisions of this Agreement
(whether or not such trust, agreement or arrangement is with other shareholders
of Shares that are not parties to this Agreement).
9. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid), mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid, or transmitted by facsimile or electronic
mail (with request for immediate confirmation of receipt in a manner customary
for communications of such type and with physical delivery of the communication
being made by one of the other means specified in this Section 9 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.
10. Assignment of Rights. This Agreement and the rights and obligations
of the parties hereunder shall inure to the benefit of, and be binding upon, the
parties' respective successors, permitted assigns and legal representatives.
11. Term. This Agreement shall terminate upon the earlier of (i)
immediately before (and conditioned upon) the closing of the first underwritten
sale of Common Stock to the public that is effected pursuant to a registration
statement filed and declared effective by the Securities and Exchange Commission
under the Securities Act of 1933, as amended, and the rules and regulations
thereunder or (ii) immediately before (and conditioned upon) the closing of the
merger of the Company with and into a company that is publicly traded on a
nationally recognized stock exchange or over-the-counter market and the Company
is not the surviving entity.
12. Entire Agreement. This instrument contains the entire understanding
of the parties with respect to the subject matter hereof, supersedes all other
agreements between or 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 17 below. This Agreement shall be interpreted under the laws of
the State of Colorado without reference to its principles of conflicts of laws.
13. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable
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attorneys' fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.
14. Spousal Consent. The spouses of the individual Holders are fully
aware of, understand and fully consent and agree to the provisions of this
Agreement and its binding effect upon any community property interests or
similar marital property interests in Equity Securities they may now or
hereafter own, and agree that the termination of their marital relationship with
any Holder for any reason shall not have the effect of removing any Equity
Securities otherwise subject to this Agreement from the coverage of this
Agreement and that their awareness, understanding, consent and agreement are
evidenced by their signing this Agreement. Furthermore, each individual Holder
agrees to cause his or her spouse (and any subsequent spouse) to execute and
deliver, upon the request of the company, a counterpart of this Agreement, or an
Adoption Agreement in a form satisfactory to the Company.
15. Remedy. Any Transfer or attempted Transfer in breach of this
Agreement shall be void and of no effect; provided, that the Company may
determine to treat any attempted Transfer in breach of this Agreement, as an
offer pursuant to Section 3. Additionally, the time periods set forth in Section
3 shall begin to run as of the date the Company receives evidence satisfactory
to it of such attempted Transfer. In connection with any attempted Transfer in
breach of this Agreement, the Company may hold and refuse to transfer any Equity
Securities or any certificate therefor tendered to it for transfer, in addition
to and without prejudice to any and all other rights or remedies which may be
available to it or the Holders. Each party to this Agreement acknowledges that a
remedy at law for any breach or attempted breach of this Agreement will be
inadequate, agrees that each other party to that Section 3 shall be entitled to
specific performance and injunctive and other equitable relief in case of any
such breach or attempted breach and further agrees to waive (to the extent
legally permissible) any legal conditions required to be met for the obtaining
of any such injunctive or other equitable relief.
16. Further Instruments and Actions. The parties agree to execute such
further instruments and to take such further action as may reasonably be
necessary to carry out the intent of this Agreement. The parties further agree
to cooperate affirmatively with the Company, to the extent reasonably requested
by the Company to enforce rights and obligations to this Agreement.
17. Amendments and Waivers. 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 a majority in interest of the Holders. Any amendment or waiver
effected in accordance with this Section 17 shall be binding upon the Company
and the Holders.
18. Rights; Severability. Unless otherwise expressly provided herein, a
Holder's rights hereunder are several rights, not rights jointly held with any
other Holder. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
19. Counterparts; Facsimile Signatures. This Agreement may be executed
in counterparts, both of which need not contain the signatures of more than one
party, but both such
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counterparts taken together will constitute one and the same Agreement. This
Agreement may be executed and delivered by facsimile transmission.
* * * * *
[SIGNATURE PAGE FOLLOWS]
-11-
12
IN WITNESS WHEREOF, this Agreement has been duly executed effective as
of the date and year first written above.
COMPANY
Medical Device Manufacturing, Inc.
By: /s/ XXXXX XXXXXX
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
HOLDERS
KRG Capital Partners, L.C.
By: /s/ XXXXX XXXXXX
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
Xxxxxx Xxxxxxx Irrevocable Spousal Trust No. 1
By: /s/ XXXXX XXXXXXX
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Trustee
Xxxxxx Xxxxxxx Irrevocable Spousal Trust No. 2
By: /s/ XXXXX XXXXXXX
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Trustee
/s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
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/s/ XXXX XXXXXXX
----------------------------------------------
Xxxx Xxxxxxx
/s/ XXXXXX XXXXXXXXXXX
----------------------------------------------
Xxxxxx Xxxxxxxxxxx
/s/ XXXXXXXX XXXXXXXX
----------------------------------------------
Xxxxxxxx Xxxxxxxx
/s/ XXXXXX XXXXXXX
----------------------------------------------
Xxxxxx Xxxxxxx
/s/ XXXXX X. XXXXXXX
----------------------------------------------
Xxxxx X. Xxxxxxx
/s/ XXX X. XXXXX
----------------------------------------------
Xxx X. Xxxxx
CMS Diversified Partners, L.P.
By: /s/ AUTHORIZED SIGNATURE
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
CMS Co-Investment Subpartnership
By: /s/ AUTHORIZED SIGNATURE
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
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Infrastructure & Environmental Private
Equity Fund III, LP
By: /s/ AUTHORIZED SIGNATURE
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Environmental & Information Technology Private
Equity Fund III
By: /s/ AUTHORIZED SIGNATURE
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
