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EXHIBIT 10.3.4
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is made as of [SEE ITEM
1 ANNEX A] by and between MDMI Holdings, Inc., a Colorado corporation (the
"Company") and [SEE ITEM 2 ANNEX A] ("Holder").
RECITALS
WHEREAS, the Company wishes to issue, and Holder wishes to acquire [SEE
ITEM 3 ANNEX A] shares of Class A-5 Preferred Stock (collectively, the "Shares")
in exchange for the contribution in cash to the capital of the Company in an
amount equal to [SEE ITEM 4 ANNEX A] (the "Purchase Price").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto do hereby agree as follows:
1. SUBSCRIPTION & ACCEPTANCE; AMOUNT AND PAYMENT OF PURCHASE PRICE.
(a) Holder hereby irrevocably subscribes for and agrees to acquire
from the Company the Shares in exchange for the contribution of the Purchase
Price to the capital of the Company. The Company will countersign this Agreement
to accept Holder's subscription. Notwithstanding the foregoing, Holder
understands this Agreement will be returned promptly to Holder and all of the
Purchaser's obligations under this Agreement will terminate if the Company does
not accept this Agreement.
(b) The Purchase Price required to purchase the Shares subscribed
for hereunder shall be payable in full on or before the closing date (the
"Closing Date") as shall be established by the Company.
(c) Subject to the Company's acceptance of Holder's subscription
hereunder, the Shares subscribed for herein shall not be deemed issued to, and
owned by, the Holder until the Purchase Price has been remitted to the Company.
Once the payment of the Purchase Price for all Shares to be purchased by the
Holder is received by the Company, then on the Closing Date the Company shall
issue and deliver to the Holder a certificate evidencing such Holder's ownership
of the Shares subscribed for herein.
2. REPRESENTATIONS OF HOLDER. In connection with the acquisition of the
Shares hereunder, Holder represents and warrants to the Company that the
statements contained in this paragraph 2 are true, accurate, correct and
complete in all material respects.
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(a) The Shares to be acquired by Holder pursuant to this Agreement
will be acquired for Holder's own account and not with a view to, or intention
of, distribution thereof in violation of the Securities Act of 1933, as amended
(the "Securities Act"), or any applicable state securities laws, and none of the
Shares will be disposed of in contravention of the Securities Act or any
applicable state securities laws.
(b) Holder is an accredited investor, as such term is defined
under Rule 501 of Regulation D promulgated under the Securities Act, and Holder
is sophisticated and (i) able to fend for himself, (ii) able to evaluate the
risks and benefits of the investment in the Shares and (iii) is familiar with,
and has been afforded full access to the Company and its management and has had
an opportunity to ask questions and receive answers concerning the terms and
conditions of the offering of Shares and such other information concerning the
Company that Holder has requested and is required in Holder's judgment to make
an informed decision to acquire the Shares.
(c) Holder is able to bear the economic risk of Holder's
investment in the Shares for an indefinite period of time because the Shares
have not been registered under the Securities Act and cannot be sold unless
subsequently registered under the Securities Act and any applicable state
securities acts or an exemption from such registration is available.
(d) Holder will not sell, assign or otherwise transfer the Shares
subscribed for herein unless such sale, assignment or other transfer is made in
compliance with the terms of that Shareholders' Agreement dated July 6, 1999,
among the Company, Holder and certain other investors named therein, as amended
by the First Amendment to Shareholders' Agreement dated as of May 31, 2000 (the
"Shareholders' Agreement").
(e) Holder has full corporate or individual power, as applicable,
and authority to execute and deliver this Agreement and to perform its, his or
her obligations hereunder. This Agreement constitutes the legal, valid and
binding obligation of Holder, enforceable in accordance with its terms, except
that (i) such enforcement may be subject to applicable bankruptcy, insolvency or
other similar laws, now or hereafter in effect, affecting creditors' rights
generally, and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought. The
execution, delivery and performance of this Agreement and such other agreements
by Holder does not and will not (A) conflict with or result in any breach of any
provision of the certificate of incorporation or bylaws or similar
organizational documents of Holder, as applicable, (B) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any Governmental Agency (as defined below) to which
Holder is subject or (C) conflict with, violate or constitute a breach or
default (or an event that, with notice or lapse of time, or both, would
constitute a default) under, or of any agreement, contract or instrument to
which Holder is a party or result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, note, bond, mortgage,
deed of trust, or other arrangement to which Holder is a party or by which he is
bound or to which any of its, his or her assets is subject. Holder further
represents and warrants that Holder is not now in breach of any such agreement,
contract or instrument to which Holder is a party. Holder need not give any
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notice to, make any filing with, or obtain any authorization, consent or
approval of any Governmental Authority in order to consummate the transactions
contemplated hereby.
(f) Holder has no liability or obligation to pay any fees or
commissions to any broker, finder or agent with respect to the transactions
contemplated hereby for which the Company could become liable or obligated.
(g) There are no bankruptcy, reorganization or arrangement
proceedings pending against, being contemplated by, or, to the knowledge of
Holder, threatened against him.
3. REPRESENTATIONS OF THE COMPANY. In connection with the issuance of
the Shares hereunder, the Company represents and warrants to Holder that the
statements contained in this paragraph 3 are true, accurate, correct and
complete in all material respects.
(a) The Company was incorporated on July 2, 1999 and is duly
organized, validly existing and in good standing under the laws of the State of
Colorado with all requisite power and authority (corporate and otherwise) to
own, lease and operate its respective properties and assets and to carry on its
business as now being conducted and is duly qualified or licensed to do business
as a foreign corporation in good standing in the jurisdictions in which the
ownership, lease or operation of its property or the conduct of its business
requires such qualification. As of the Closing, except for G&D, Inc. d/b/a Star
Guide Corporation, Noble-Met, Ltd., Noble-Met Foreign Sales Corporation, Medical
Engineering Resources, Ltd., Medical Device Manufacturing, Inc. formerly known
as MDMI Newco, Inc., UTI Feinmechanik GmbH, Spectrum Manufacturing Inc. and UTI
Corporation, a Pennsylvania corporation, the Company (i) has no Subsidiaries,
where Subsidiary means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company and (ii) does not have a direct
or indirect ownership interest in any other person or entity.
(b) The Company has full power and authority to execute, deliver
and perform its obligations under this Agreement and the documents and
instruments contemplated hereby and to carry out the transactions contemplated
hereby and thereby. The Company has duly approved and authorized the execution
and delivery of this Agreement and the documents and instruments contemplated
hereby and the consummation of the transactions contemplated hereby and thereby,
and no other corporate proceedings or other action on the part of the Company is
necessary to approve and authorize the execution, delivery and performance by
the Company of this Agreement and the documents and instruments contemplated
hereby or the consummation by the Company of the transactions contemplated
hereby or thereby. This Agreement constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except that (i) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
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(c) The Shares to be issued pursuant to this Agreement have been
duly authorized by all necessary corporate action and are authorized by the
Articles of Incorporation and have been validly issued and, when paid for in
accordance with this Agreement, will be fully paid and nonassessable equity
interests in the Company.
(d) As of the date hereof, the authorized capital stock of the
Company consists of (a) 50,000,000 shares of common stock, par value $0.01 per
share, of which 150,000 shares of voting common stock are issued and outstanding
and no shares of non-voting convertible common stock are issued and outstanding
and (b) 50,000,000 shares of preferred stock, par value $0.01 per share, of
which (i) 2,500,000 shares have been designated as Class A-1 5% Convertible
Preferred Stock, of which 868,372 shares are issued and outstanding, (ii)
1,400,000 shares have been designated as Class A-2 5% Convertible Preferred
Stock, of which 1,125,000 shares are issued and outstanding, (iii) 26,456 shares
have been designated as Class A-3 5% Convertible Preferred Stock, of which
26,456 shares are issued and outstanding, (iv) 300,000 shares have been
designated as Class B-1 Convertible Preferred Stock, of which 300,000 shares are
issued and outstanding, (v) 6,250,000 shares have been designated Class A-4 5%
Convertible Preferred Stock, of which 3,437,500 shares are issued and
outstanding, (vi) 200,000 shares have been designated Class B-2 Convertible
Preferred Stock of which 100,000 shares are issued and outstanding, and (vii)
1,000,000 shares have been designated Class AA Convertible Preferred Stock, of
which 515,882 shares are issued and outstanding. All such outstanding shares are
duly and validly issued, were not issued in violation of any preemptive rights,
are fully paid, and nonassessable, and each of such shares has been issued in
compliance with all applicable federal and state securities laws.
4. RESTRICTIONS ON TRANSFERABILITY.
(a) RESTRICTED SECURITIES.
(i) All securities transferred pursuant to this Agreement are
Restricted Securities (as defined below in subparagraph 4(a)(iii) below) that
are transferable pursuant to (A) public offerings registered under the
Securities Act, (B) Rule 144 of the Securities and Exchange Commission (or any
similar rule then in force) if such rule is available and (C) subject to the
conditions specified in subparagraph 4(a)(ii) below, any other legally available
means of transfer.
(ii) In connection with the transfer of any Restricted
Securities (other than a transfer described in subparagraph 4(a)(i)(A) or (B)
above), the holder thereof will deliver written notice to the Company describing
the transfer or proposed transfer, and, if requested by the Company, will also
deliver an opinion (reasonably satisfactory to the Company) of counsel that (to
the Company's reasonable satisfaction) is knowledgeable in securities law
matters to the effect that such Restricted Securities may be transferred without
registration of such Restricted Securities under the Securities Act.
(iii) For the purposes of this Agreement, "Restricted
Securities" means the Shares, and any securities issued with respect thereto by
way of a stock dividend or stock
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split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular Restricted
Securities, such securities will cease to be Restricted Securities when they
have (A) been effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them or (B) become eligible
for sale and have actually been sold to the public pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act. Whenever any
particular securities cease to be Restricted Securities, the holder thereof will
be entitled to receive from the Company, without expense, new certificates
therefor not bearing a Securities Act legend of the character set forth in
paragraph 5(a).
(b) SHAREHOLDERS' AGREEMENT. In addition to the restrictions set
forth in paragraph 4(a), Holder may not sell, assign or otherwise transfer the
Shares subscribed for herein unless such sale, assignment or other transfer is
made in compliance with the terms of the Shareholders' Agreement, as amended
from time to time.
5. MISCELLANEOUS.
(a) RESTRICTIVE LEGEND. In addition to any legend required by the
Shareholders' Agreement, each certificate for Restricted Securities will be
imprinted with a legend in substantially the following form:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The
transfer, ENCUMBRANCE, PLEDGE, ASSIGNMENT OR OTHER DISPOSITION of
the securities represented by this certificate is subject to the
conditions AND RESTRICTIONS specified in (1) A Subscription
Agreement, dated as of ___________, _____, by and between the
Company and a certain investor AND (2) A SHAREHOLDERS' AGREEMENT,
DATED AS OF JULY 6, 1999, BY AND AMONG THE COMPANY AND CERTAIN
SHAREHOLDERS, and the Company reserves the right to refuse the
transfer of such securities until such conditions AND RESTRICTIONS
have been fulfilled OR LIFTED with respect to such transfer. A
copy of THE conditions or AGREEMENTS REFERENCED ABOVE MAY BE
OBTAINED BY THE HOLDER HEREOF UPON WRITTEN REQUEST TO THE
SECRETARY OF THE COMPANY."
Each of the undersigned parties agrees that the Company may instruct its
transfer agent to impose transfer restrictions on the Shares represented by
certificates bearing the legend referred to in this paragraph 5(a) to enforce
the provisions of this Agreement. The legend shall be removed or modified upon
termination of the conditions or restrictions set forth therein or pursuant to
subparagraph 4(a)(iii).
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(b) SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein or in any instruments of transfer or assignment, all covenants and
agreements contained in this Agreement by or on behalf of any of the parties
hereto will bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not. In addition, and
whether or not any express assignment has been made, the provisions of this
Agreement that are for Holder's benefit as a purchaser or holder of the Shares
are also for the benefit of, and enforceable by, any subsequent holder of such
Shares.
(c) WAIVER. The Holder hereby irrevocably waives, remises,
releases and forever discharges the Company and KRG Capital Partners, LLC, and
each of their officers, directors, agents and affiliates from any and all manner
of action and all actions, causes of action, suits, controversies, liabilities,
damages, judgments, claims or demands of whatsoever kind or nature, in law or in
equity relating to, or arising from, any statements, implications, inferences,
suggestions, predictions or hypotheses regarding the current or future value of
the Shares.
(d) COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed in counterparts, both of which need not contain the signatures of more
than one party, but both such counterparts taken together will constitute one
and the same Agreement. This Agreement may be executed and delivered by
facsimile transmission.
(e) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(f) GOVERNING LAW. This Agreement will be governed by the internal
law, and not the law of conflicts, of the State of Colorado.
(g) NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable overnight courier service
(charges prepaid), mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid, or transmitted by facsimile or
electronic mail (with request for immediate confirmation of receipt in a manner
customary for communications of such type and with physical delivery of the
communication being made by one of the other means specified in this paragraph
5(g) as promptly as practicable thereafter). Such notices, demands and other
communications shall be addressed (i) in the case of Holder, to his or her
address as is designated in writing from time to time by Holder, (ii) in the
case of the Company, to its principal office and (iii) in the case of any
transferee of a party to this Agreement or its transferee, to such transferee at
its address as designated in writing by such transferee to the Company from time
to time.
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IN WITNESS WHEREOF, the parties hereto have executed this Subscription
Agreement as of the date first written above.
HOLDER
[SEE ITEM 5 ANNEX A]
ACCEPTED:
MDMI HOLDINGS, INC.
By:
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President & Chief Executive Officer
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ANNEX A
[A-5 5% CONVERTIBLE PREFERRED STOCK]
The foregoing form of Subscription Agreement was enterd into by the
Investors listed in Item 2 below. The information omitted from the foregoing
form of Subscription Agreement with respect to such Investors is set forth
below:
ITEM 1:
Party A: December 21, 2000
Party B: December 21, 2000
Party C: December 21, 2000
Party D: December 21, 2000
Party E: December 21, 2000
Party F: December 21, 2000
Party G: December 21, 2000
Party H: December 21, 2000
Party I: December 21, 2000
Party J: December 21, 2000
Party K: December 21, 2000
Party L: December 21, 2000
Party M: December 21, 2000
Party N: December 21, 2000
Party O: December 21, 2000
Party P: December 21, 2000
Party Q: December 21, 2000
Party R: December 21, 2000
Party S: December 21, 2000
Party T: December 21, 2000
Party U: December 21, 2000
Party V: December 21, 2000
Party W: December 21, 2000
Party X: December 21, 2000
Party Y: December 21, 2000
Party Z: December 21, 2000
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Party AA: December 21, 2000
ITEM 2:
Party A: KRG Capital Fund I, L.P.
Party B: KRG Capital Fund I (PA), L.P.
Party C: KRG Capital I (FF), L.P.
Party D: KRG Capital Fund I (GER)
Party E: KRG Co-Investment, LLC
Party F: CMS Diversified Partner L.P.
Party G: CMS PEP XIV Co-Investment Subpartnership
Party H: Xxxxx X. Xxxxxxx
Party I: Xxx Xxxxx
Party J: Infrastructure & Environmental Private Equity Fund III, LP
Party K: Environmental & Information Technology Private Equity Fund
III, LP
Party L: Xxxxxx Xxxxxxx
Party M: 7:22 Investors LLC
Party N: Xxxx X. Xxxxxxxxx
Party O: Birmingham Fire and Insurance Company of Pennsylvania
Party P: AIG Private Equity (Bermuda) Ltd.
Party Q: The Travelers Indemnity Company
Party R: The Phoenix Insurance Company
Party S: BancBoston Investments, Inc.
Party T: DB Capital Investors, LP
Party U: Reliastar Financial Corp.
Party V: Xxxxxxxxxx Xxxxxx Holdings, Inc.
Party W: DLJ Investment Funding II, Inc.
Party X: DLJ ESC II L.P.
Party Y: The Xxxxx Xxxxxxx Xxxx Trust
Party Z: Xxxxx Xxxxx
Party AA: Xxxxxxx X. Xxxxxx
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ITEM 3:
Party A: 197,970 shares
Party B: 41,798 shares
Party C: 87,598 shares
Party D: 8,760 shares
Party E: 2,360 shares
Party F: 1,062 shares
Party G: 86,026 shares
Party H: 3,125 shares
Party I: 3,125 shares
Party J: 22,297 shares
Party K: 5,574 shares
Party L: 1,638 shares
Party M: 73,500 shares
Party N: 360 shares
Party O: 77,002 shares
Party P: 13,588 shares
Party Q: 30,167 shares
Party R: 15,129 shares
Party S: 33,972 shares
Party T: 28,094 shares
Party U: 8,060 shares
Party V: 4,530 shares
Party W: 50,308 shares
Party X: 7,214 shares
Party Y: 3,596 shares
Party Z: 10,706 shares
Party AA: 12,057 shares
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ITEM 4:
Party A: $3,167,520
Party B: 668,768
Party C: 1,401,568
Party D: 140,160
Party E: 37,760
Party F: 16,992
Party G: 1,376,416
Party H: 50,000
Party I: 50,000
Party J: 356,752
Party K: 89,184
Party L: 26,208
Party M: 1,176,000
Party N: 5,760
Party O: 1,232,032
Party P: 217,408
Party Q: 482,672
Party R: 242,064
Party S: 543,552
Party T: 449,504
Party U: 128,960
Party V: 72,480
Party W: 804,928
Party X: 115,424
Party Y: 57,536
Party Z: 171,296
Party AA: 192,912
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ITEM 5:
Party A: KRG CAPITAL FUND I, L.P.
By:
Party B: KRG CAPITAL FUND I (PA), L.P.
By:
Party C: KRG CAPITAL FUND I (FF), L.P.
By:
Party D: KRG CAPITAL FUND I (GER)
By:
Party E: KRG CO-INVESTMENT, LLC
By:
Party F: CMS DIVERSIFIED PARTNER L.P.
By: /S/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
Party G: CMS PEP XIV CO-INVESTMENT
SUBPARTNERSHIP
By: /S/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
Party H: XXXXX X. XXXXXXX
By: /S/ XXXXX XXXXXXX
Xxxxx Xxxxxxx
Party I: XXX XXXXX
By: /S/ XXX XXXXX
Xxx Xxxxx
Party J: INFRASTRUCTURE & ENVIRONMENTAL
PRIVATE EQUITY FUND III, LP
By: /S/ F. XXXXXX XXXXXXX, XX.
F. Xxxxxx Xxxxxxx, Xx.
Party K: ENVIRONMENTAL & INFORMATION
TECHNOLOGY PRIVATE EQUITY FUND III, LP
By: /S/ F. XXXXXX XXXXXXX, XX.
F. Xxxxxx Xxxxxxx, Xx.
Party L: XXXXXX XXXXXXX
By: /S/ XXXXXX XXXXXXX
Xxxxxx Xxxxxxx
Party M: 7:22 INVESTORS LLC
By: /S/ XXXX XXXXXXX
Xxxx Xxxxxxx
Manager
Party N: XXXX X. XXXXXXXXX
By: /S/ XXXX X. XXXXXXXXX
Xxxx X. Xxxxxxxxx
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Party O: BIRMINGHAM FIRE AND INSURANCE
COMPANY OF PENNSYLVANIA
By: /S/ XXXXX XXXXXXXXX
Xxxxx Xxxxxxxxx
Vice President
Party P: AIG PRIVATE EQUITY (BERMUDA) LTD.
By: /S/ XXXXXX XXXXXXX
Xxxxxx Xxxxxxx
Treasurer
Party Q: THE TRAVELERS INDEMNITY COMPANY
By: /S/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
Investment Officer
Party R: THE PHOENIX INSURANCE COMPANY
By: /S/ XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
Investment Officer
Party S: BANCBOSTON INVESTMENTS, INC.
By: /S/ XXXXXXX X. XXXX
Xxxxxxx X. Xxxx
Party T: DB CAPITAL INVESTORS, LP
By: DB CAPITAL PARTNER, L.P.,
ITS GENERAL PARTNER
By: DB Capital Partner, Inc.,
Its General Partner
By: /S/ XXXXXXXX XXXXXXX
Xxxxxxxx XxXxxxx
Party U: RELIASTAR FINANCIAL CORP.
By: /S/ XXXXXXX X. XXXXX
Xxxxxxx X. Xxxxx
Senior Vice President, General Counsel and Secretary
Party V: KLEINWORT XXXXXX HOLDINGS, INC.
By: /S/ XXXXXXXXXXX XXXXXX
AND XXXXXX X. XXXXXX
Xxxxxxxxxxx Xxxxxx
and Xxxxxx X. Xxxxxx
Party W: DLJ INVESTMENT FUNDING II, INC.
By: /S/ XXX XXXXX
Xxx Xxxxx
Principal
Party X: DLJ ESC II L.P.
By: /S/ XXX XXXXX
Xxx Xxxxx
Principal
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Party Y: THE XXXXX XXXXXXX XXXX TRUST
By: /S/ XXXXX XXXXXXX
Xxxxx Xxxxxxx
Trustee
Party Z: XXXXX XXXXX
By: /S/ XXXXX XXXXX
Xxxxx Xxxxx
Party AA: XXXXXXX X. XXXXXX
By: /S/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
