EXHIBIT 2.2
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VOTING AGREEMENT
BY AND AMONG
UTI CORPORATION,
PINE MERGER CORPORATION
AND
CERTAIN STOCKHOLDERS OF MEDSOURCE TECHNOLOGIES, INC.
DATED AS OF APRIL __,
2004
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VOTING AGREEMENT, dated as of April __, 2004 (this "Agreement"), by
and
among UTI Corporation, a Maryland
corporation ("Parent"), Pine Merger
Corporation, a Delaware corporation formed
for the purpose of effecting the
Merger (as defined below) ("Merger Sub"),
and the parties listed on Annex A
hereto (each, a "Stockholder" and
collectively, the "Stockholders").
WHEREAS, simultaneously with the execution of this Agreement,
Medical
Device Manufacturing, Inc., a Colorado
corporation and a wholly owned subsidiary
of Parent ("Purchaser"), Merger Sub and
MedSource Technologies, Inc., a Delaware
corporation (the "Company"), are entering
into an Agreement and Plan of Merger
(the "Merger Agreement") (with all
capitalized terms used but not defined herein
having the meanings set forth in the Merger
Agreement), pursuant to which Merger
Sub will merge with and into the Company,
with the Company continuing as the
surviving corporation and a wholly owned
subsidiary of Purchaser (the "Merger"),
which Merger Agreement has been approved by
the Boards of Directors of the
Company, Parent, Merger Sub and
Purchaser;
WHEREAS, each Stockholder owns the number of shares of Common Stock
set
forth opposite such Stockholder's name on
Annex A hereto (such shares of Common
Stock, together with any other shares of
capital stock of the Company acquired
by such Stockholder after the date hereof
and during the term of this Agreement,
including any shares issued upon the
exercise of any warrants or options, the
conversion of any convertible securities or
otherwise, being collectively
referred to herein as the "Subject
Shares");
WHEREAS, upon completion of the transactions contemplated by the
Merger
Agreement, the Subject Shares will be
converted into the right to receive the
Merger Consideration; and
WHEREAS, as a condition to the willingness of Purchaser and Merger
Sub
to enter into the Merger Agreement,
Purchaser has required that each Stockholder
agree and, in order to induce Purchaser and
Merger Sub to enter into the Merger
Agreement, each Stockholder has agreed, to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective
representations, warranties, covenants and
agreements set forth in this
Agreement and intending to be legally
bound, the parties hereto agree as
follows:
ARTICLE 1.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents
and
warrants to Parent and Merger Sub as
follows:
SECTION 1.1. ORGANIZATION. If such Stockholder is not an
individual,
such Stockholder is duly organized, validly
existing and in good standing under
the laws of the jurisdiction of its
organization. If such Stockholder is an
individual, such Stockholder is a natural
Person residing in the United States.
SECTION 1.2. AUTHORITY. If such Stockholder is not an individual,
such
Stockholder has all necessary power and
authority to execute and deliver this
Agreement, to perform its obligations
hereunder and to consummate the
transactions contemplated by this Agreement
to be consummated by such
Stockholder, all without the need for
consent from any other Person. If such
Stockholder is an individual, such
Stockholder has the capacity to execute and
deliver this Agreement, to perform such
Stockholder's obligations hereunder and
to consummate the transactions contemplated
by this Agreement to be consummated
by such Stockholder, all without the need
for spousal or other consent. If such
Stockholder is not an individual, the
execution and delivery of this Agreement
by such Stockholder and the consummation by
it of the transactions contemplated
hereby have been duly and validly
authorized by all necessary corporate, limited
liability company, partnership or other
ownership action and no other
proceedings on the part of such Stockholder
and no stockholder or other votes or
similar consents are necessary to authorize
this Agreement or to consummate the
transactions contemplated hereby. This
Agreement has been validly executed and
delivered by such Stockholder and
constitutes a legal, valid and binding
obligation of such Stockholder, enforceable
against such Stockholder in
accordance with its terms (except as
enforceability may be limited by
bankruptcy, insolvency or other laws
affecting the enforcement of creditors'
rights generally, and except that the
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availability of the remedy of specific
performance or other equitable relief is
subject to the discretion of the court
before which any proceedings may be
brought).
SECTION 1.3. THE SUBJECT SHARES. Except as set forth on Annex A
hereto,
such Stockholder is the sole record and
beneficial owner of the Subject Shares
set forth opposite such Stockholder's name
on Annex A hereto. As of the date of
this Agreement, such Stockholder does not
own, of record or beneficially, any
shares of capital stock of the Company (or
rights to acquire any such shares)
other than the Subject Shares set forth
opposite such Stockholder's name on
Annex A hereto. Except as set forth on
Annex A hereto, such Stockholder has, and
will have through and including the
Effective Time, (a) the sole right to vote,
(b) the sole power of disposition, (c) the
sole power to issue instructions with
respect to the matters set forth in
Articles 3, 4 and 5 hereof, (d) the sole
power to demand dissenters' rights and (e)
the sole power to agree to all of the
matters set forth in this Agreement, in
each case with respect to all of such
Stockholder's Subject Shares with no
limitations, qualifications or restrictions
on such rights, subject to applicable
federal securities laws and the terms of
this Agreement. Except for this Agreement,
such Stockholder's Subject Shares are
free and clear of any pledge, lien,
security interest, mortgage, charge, claim,
equity, option, proxy, voting restriction,
voting trust, adverse claim of
ownership or other agreement, arrangement,
limitation or restriction with
respect to the voting or disposition of
such Subject Shares; provided, however,
that the failure of this representation to
be true and correct in all respects
shall not be a breach of this Agreement if
such failure does not, in any manner,
impair or the delay the ability of such
Stockholder to perform its obligations
under this Agreement.
SECTION 1.4. NO CONFLICTS. The execution and delivery of this
Agreement
by such Stockholder do not, and the
performance of this Agreement by such
Stockholder will not, (a) if such
Stockholder is not an individual, conflict
with or violate any provision of the
certificate or articles of incorporation or
bylaws, trust agreement or other similar
documents relating to a trust or any
equivalent organizational documents of such
Stockholder, (b) to such
Stockholder' knowledge, conflict with or
violate any Law applicable to such
Stockholder or by which any property or
asset of such Stockholder is bound or
affected, (c) require any consent or
approval under, result in any breach of, or
loss of any benefit under, or constitute a
change of control or default (or any
event which with notice or lapse of time or
both would become a default) under,
or give to others any right of termination,
vesting, amendment, acceleration or
cancellation of, or result in the creation
of a lien or other encumbrance on any
property or asset of such Stockholder
pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease,
license, permit or other instrument or
obligation to which such Stockholder is a
party; provided, however, that the
failure of this representation to be true
and correct in all respects shall not
be a breach of this Agreement if such
failure does not, in any manner, impair or
the delay the ability of such Stockholder
to perform its obligations under this
Agreement. The execution and delivery of
this Agreement by such Stockholder does
not, and the performance of this Agreement
by such Stockholder will not, require
any consent, approval, authorization or
permit of, or filing with or
notification to, any Governmental Entity or
other Person, except such as may be
required under the Exchange Act and the
rules and regulations of the SEC
promulgated thereunder; provided, however,
that the failure of this
representation to be true and correct in
all respects shall not be a breach of
this Agreement if such failure does not, in
any manner, impair or the delay the
ability of such Stockholder to perform its
obligations under this Agreement.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Each of Parent and Merger Sub, jointly and severally, hereby
represents
and warrants to each Stockholder as
follows:
SECTION 2.1. ORGANIZATION. Parent is a corporation duly
organized,
validly existing and in good standing under
the laws of the State of Maryland.
Merger Sub is a corporation duly organized,
validly existing and in good
standing under the laws of the State of
Delaware.
SECTION 2.2. AUTHORITY. Each of Parent and Merger Sub has all
necessary
corporate power and authority to execute
and deliver this Agreement, to perform
its obligations hereunder and to consummate
the transactions contemplated by
this Agreement to be consummated by Parent
and Merger Sub, respectively. The
execution and delivery of this Agreement by
Parent and Merger Sub and the
consummation by Parent and Merger Sub of
the transactions contemplated hereby
have been duly and validly authorized by
all necessary corporate action
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and no other corporate proceedings on the
part of Parent or Merger Sub and no
stockholder votes are necessary to
authorize this Agreement or to consummate the
transactions contemplated hereby. This
Agreement has been duly authorized and
validly executed and delivered by Parent
and Merger Sub and constitutes a legal,
valid and binding obligation of Parent and
Merger Sub, enforceable against
Parent and Merger Sub in accordance with
its terms (except as enforceability may
be limited by bankruptcy, insolvency or
other laws affecting the enforcement of
creditors' rights generally, and except
that the availability of the remedy of
specific performance or other equitable
relief is subject to the discretion of
the court before which any proceedings may
be brought).
ARTICLE 3.
AGREEMENT TO VOTE
Each Stockholder, severally and not jointly, agrees that:
SECTION 3.1. AGREEMENT TO VOTE IN FAVOR OF THE ADOPTION OF THE
MERGER
AGREEMENT. During the period commencing on
the date of this Agreement and ending
on the Expiration Date (as defined below),
at any meeting of stockholders of the
Company called to vote upon the Merger
Agreement (as amended from time to time)
and the transactions contemplated thereby,
however called, or at any adjournment
thereof or in connection with any written
consent of the holders of Common Stock
or in any other circumstances upon which a
vote, consent or other approval with
respect to the Merger Agreement and the
transactions contemplated thereby is
sought, such Stockholder shall be present
(in Person or by proxy) and shall vote
(or cause to be voted) all Subject Shares
then owned by such Stockholder (i) in
favor of the Merger and adoption of the
Merger Agreement and the transactions
contemplated thereby and (ii) in favor of
any other matter necessary for the
consummation of the transactions
contemplated by the Merger Agreement. Each
Stockholder acknowledges receipt and review
of a copy of the Merger Agreement.
SECTION 3.2. AGREEMENT TO VOTE AGAINST ACQUISITION PROPOSALS.
During
the period commencing on the date of this
Agreement and ending on the Expiration
Date, at any meeting of stockholders of the
Company, however called, or at any
adjournment thereof or in connection with
any written consent of the holders of
Common Stock or in any other circumstances
upon which a vote, consent or other
approval is sought, such Stockholder shall
be present (in Person or by proxy)
and shall vote (or cause to be voted) all
Subject Shares then owned by such
Stockholder against any of the following
(to the extent such a vote, consent or
approval is sought): (a) any Acquisition
Proposal or other extraordinary
corporate transaction involving the Company
or its Subsidiaries (other than the
Merger); (b) a sale, lease, license or
transfer of a material amount of assets
of the Company or its Subsidiaries or a
reorganization, recapitalization,
dissolution, winding up or liquidation of
the Company or its Subsidiaries; (c)
any change in the management or board of
directors of the Company, except as
contemplated by the Merger Agreement or
otherwise agreed to in writing by
Purchaser; (d) any material change in the
present capitalization or dividend
policy of the Company; (e) any material
change in the Company's corporate
structure, business, certificate of
incorporation or bylaws (each as currently
in effect); or (f) any action or agreement
that would, to such Stockholder's
knowledge, result in a breach of any
representation, warranty, covenant,
agreement or other obligation of the
Company under the Merger Agreement or which
could result in any of the conditions to
the Company's obligations under the
Merger Agreement not being fulfilled.
ARTICLE 4.
GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY
SECTION 4.1. GRANT OF PROXY. Each Stockholder hereby irrevocably
grants
to and appoints Parent and its successors
and assigns, such Stockholder's proxy
and attorney-in-fact (with full power of
substitution and resubstitution), for
and in the name, place and stead of such
Stockholder, to vote such Stockholder's
Subject Shares, or grant a consent or
approval in respect of such Subject
Shares, (a) in favor of the Merger and
adoption of the Merger Agreement and the
transactions contemplated thereby and (b)
against any of the following (to the
extent such a vote, consent or approval is
sought): (i) any Acquisition Proposal
or other extraordinary corporate
transaction involving the Company or its
Subsidiaries (other than the Merger); (ii)
a sale, lease, license or transfer of
a material amount of assets of the Company
or its Subsidiaries or a
reorganization, recapitalization,
dissolution, winding up or liquidation of the
Company or its Subsidiaries; (iii) any
change in the board of directors of the
Company, except as contemplated by the
Merger Agreement or otherwise agreed to
in writing by Purchaser; (iv) any material
change in the present capitalization
or dividend policy of the Company; (v) any
material change in the Company's
corporate
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structure, business, certificate of
incorporation or bylaws (each as currently
in effect) or (vi) any action or agreement
that would, to such Stockholder's
knowledge, result in a breach of any
representation, warranty, covenant,
agreement or other obligation of the
Company under the Merger Agreement or which
could result in any of the conditions to
the Company's obligations under the
Merger Agreement not being fulfilled.
SECTION 4.2. REVOCATION OF PRIOR PROXIES. Each Stockholder
represents
that any proxies heretofore given in
respect of such Stockholder's Subject
Shares with respect to matters covered by
this Agreement are revocable, that
such Stockholder has taken any and all
action necessary to revoke all such
proxies, and that all such proxies are
hereby revoked.
SECTION 4.3. IRREVOCABLE PROXY COUPLED WITH AN INTEREST. Such
Stockholder hereby affirms that the
irrevocable proxy set forth in this Article
4 is intended to secure the obligations of
the Stockholder under Article 3
hereof, given to induce the Purchaser to
enter into the M
