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EXHIBIT 10.32
NOTE REGISTRATION RIGHTS AGREEMENT
AMONG
MDMI HOLDINGS, INC.
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 MDMI HOLDINGS, INC., a Colorado
corporation (the "Company"), and the purchasers named on the signature page
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 the Company, Medical Device
Manufacturing, Inc., a Colorado corporation, and the purchasers named therein.
WHEREAS, the Company proposes to issue an aggregate principal
amount of up to $44,313,137 of its Senior Notes due 2008 (the "Notes"), of which
$21,500,000 aggregate principal amount of Notes will be issued on the Issue
Date.
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 Company 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 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
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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 (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 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
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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 Company 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 Company or the Underwriters other than 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 Company shall not be obligated to
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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
its 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 Company 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 its
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 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
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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 Company shall use its 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 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
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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 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.
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(c) Registration Procedures.
If and whenever the Company is required to use its best
efforts to effect the registration of any Registrable Securities under the
Securities Act, the Company 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;
(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 the Company shall not 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
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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 the Company shall not 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, 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,
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;
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(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 burdensome to the sellers than the indemnity
and contribution terms between the sellers and the Company set forth in
Section 1(d) hereof;
(10) cause the Senior Note Indenture relating to the Notes to
be qualified under the Trust Indenture Act of 1939, as amended; and
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(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 the Company 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 the Company 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 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.
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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.
(d) Indemnification and Contribution.
(1) Indemnification. The Company 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
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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, such
Indemnified Holder shall promptly notify the Company in writing, and the Company
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 shall be responsible for the reasonable fees and expenses of such
counsel if (but only if) (a) the Company has agreed to pay such fees and
expenses or (b) the Company 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, and there are one or more
legal defenses available to such Indemnified Holder which are different
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from or additional to those available to the Company (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, the Company 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 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 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 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
Company, 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 Company on the one hand and of
the Indemnified Holder on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of the Company 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.
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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 Company 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
The City of New York are authorized by law, regulation or
executive order to remain closed.
(ii) "Registrable Securities" means the Notes and any
other securities issued or issuable in exchange for the Notes.
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
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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 Company's 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 of its
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 Company and Note Holders. Any notice or
demand authorized by this Agreement to be given or made by the registered holder
of any Note to or on the Company 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:
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MDMI HOLDINGS, INC.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
KRG Capital Partners, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tower One, Suite 1500
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Any notice pursuant to this Agreement to be given by the
Company 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 Company and each Holder of Notes.
SECTION 4. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company shall bind and inure to the
benefit of its respective successors and assigns hereunder.
SECTION 5. Termination. This Agreement (except for Section
1(d)) shall terminate at 5:00 p.m., New York City time, on June 1, 2008.
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.
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SECTION 7. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than the
Company 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 Company and the registered holders of the Notes.
Nothing herein shall prohibit or limit the Company from entering into an
agreement providing holders of securities which may hereafter be issued by the
Company 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 of its
obligations under such other agreement will not cause the Company to breach its
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.
MDMI HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
PURCHASERS
DLJ INVESTMENT PARTNERS II, L.P.
By: DLJ INVESTMENT PARTNERS II,
INC., as managing general
partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ INVESTMENT FUNDING II, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ ESC II L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, as general
partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
20
DLJ INVESTMENT PARTNERS, L.P.
By: DLJ INVESTMENT PARTNERS, INC.,
as managing general partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
RELIASTAR FINANCIAL CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President