Exhibit 10.8
FORM OF
MANAGEMENT STOCKHOLDER’S
AGREEMENT
This Management Stockholder’s
Agreement (this “ Agreement ”) is entered into
as of November , 2005 (the “ Effective
Date ”) between Accellent Holdings Corp., a Delaware
corporation (“ Accellent Holdings ”), and the
undersigned person (the “ Management Stockholder
”) (Accellent Holdings and the Management Stockholder being
hereinafter collectively referred to as the “ Parties
”). All capitalized terms not immediately defined are
hereinafter defined in Section 7(c) of this
Agreement.
WHEREAS, on October 7, 2005,
Accellent Acquisition Corp. (“ AAC ”), a
Delaware corporation, and Accellent Inc., a Maryland corporation
(the “ Company ”), entered into an Agreement and
Plan of Merger, as amended on October 18, 2005 (the “
Merger Agreement ”), pursuant to which Accellent
Merger Sub Inc., a Maryland corporation and wholly-owned subsidiary
of AAC, will merge with and into the Company (the “
Merger ”) with the Company continuing as the surviving
corporation (the date of such Merger, the “ Closing
Date ”).
WHEREAS, in connection with the
Merger, the Management Stockholder has entered into a Rollover
Agreement with Accellent Holdings, such agreement dated as of the
date hereof (the “ Rollover Agreement ”),
pursuant to which the Management Stockholder and Accellent Holdings
agreed that certain options to acquire shares of common stock, par
value $0.01 per share, of the Company held by the Management
Stockholder and granted pursuant to the Amended and Restated
Accellent Inc. 2000 Stock Option and Incentive Plan (the “
Existing Accellent Plan ”), will be converted into
options to acquire (the “ Rollover Option ”)
shares of common stock, par value $0.01 per share, of Accellent
Holdings (the “ Common Stock ”);
WHEREAS, in connection with the
Merger, in addition to entering into the Rollover Agreement, the
Management Stockholder has agreed to purchase shares of Common
Stock;
WHEREAS, the Management Stockholder
has been selected by Accellent Holdings to receive an option to
purchase shares of Common Stock (the “ New Option
”, together with the Rollover Option, an “
Option ,” or collectively the “ Options
”) pursuant to the terms set forth below and the terms of the
2005 Equity Plan for Key Employees of Accellent Inc. and Its
Subsidiaries and Affiliates (the “ Option Plan
”) and the Stock Option Agreement dated as of the date
hereof, entered into by and between Accellent Holdings and the
Management Stockholder (the “ Stock Option Agreement
”); and
WHEREAS, this Agreement is one of
several other agreements (“ Other Management
Stockholders’ Agreements ”) which have been, or
which in the future will be, entered into between Accellent
Holdings and other individuals who are or will be key employees of
Accellent Holdings or one of its Subsidiaries or Affiliates
(collectively, the “ Other Management Stockholders
”).
NOW THEREFORE, to implement the
foregoing and in consideration of the grant of the Options and of
the mutual agreements contained herein, the Parties agree as
follows:
1.
Issuance of
Purchased Stock; New Options; Rollover
Options .
(a)
The Management
Stockholder hereby subscribes for and shall purchase, as of the
Effective Date, and the Company shall issue and deliver to the
Management Stockholder, as of the Effective
Date, shares
of Common Stock, at a purchase price of $5.00 (the “ Base
Price ”) (all such shares acquired by the Management
Stockholder, the “ Purchased Stock ”). The
aggregate purchase price for all shares of Purchased Stock is
$ .
For purposes of clarification, if a Management Stockholder does not
purchase any shares of Purchased Stock, all references to Purchased
Stock shall be null and void with respect to such Management
Stockholder for all purposes of this Agreement.
(b)
Subject to the
terms and conditions hereinafter set forth and as set forth in the
Option Plan, as of the Effective Date, Accellent Holdings will
issue to the Management Stockholder a New Option to acquire shares
of Common Stock at an exercise price equal to the Base Price, and
the Parties shall execute and deliver to each other copies of the
Stock Option Agreement concurrently with the issuance of the New
Option.
(c)
Pursuant to the
terms of the Rollover Agreement, the Rollover Option held by the
Management Stockholder shall be governed by the terms of the
Existing Accellent Plan and the applicable option agreement
thereunder, as modified as described in the Rollover
Agreement. The Management Stockholder hereby agrees that the
Management Stockholder shall retain the Rollover Option (which
shall hereafter be subject to the terms and conditions of this
Agreement) and that the Management Stockholder is not entitled to
receive, in connection with the Merger, the amount that would
otherwise be payable to the Management Stockholder in respect of
such Rollover Option by operation of the provisions of
Section 3.3 of the Merger Agreement.
(d)
Accellent
Holdings shall have no obligation to issue any Purchased Stock or
New Options to, or enter into a Rollover Agreement with, any person
who (i) is a resident or citizen of a state or other
jurisdiction in which the sale of the Common Stock to him or her
would constitute a violation of the securities or “blue
sky” laws of such jurisdiction or (ii) is not an
employee of Accellent Holdings or any of its Subsidiaries or
Affiliates, including the Company, on the date hereof.
2.
Management
Stockholder’s Representations, Warranties and
Agreements .
(a)
In addition to
agreeing to and acknowledging the restrictions on the transfer of
the Stock (as defined in Section 3) set forth in Sections 3
and 4, if the Management Stockholder is an Affiliate, the
Management Stockholder also agrees and acknowledges that he will
not transfer any shares of the Stock unless:
(i) the
transfer is pursuant to an effective registration statement under
the Securities Act of 1933, as amended, and the rules and
regulations in effect thereunder (the “ Act ”),
and in compliance with applicable provisions of state securities
laws or
(ii)
(A) counsel for the Management Stockholder (which counsel
shall be reasonably acceptable to Accellent Holdings) shall have
furnished Accellent Holdings with an opinion, satisfactory in form
and substance to Accellent Holdings, that no such registration is
required because of the availability of an exemption from
registration under the Act and (B) if the Management
Stockholder is a citizen or
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resident of any
country other than the United States, or the Management Stockholder
desires to effect any transfer in any such country, counsel for the
Management Stockholder (which counsel shall be reasonably
satisfactory to Accellent Holdings) shall have furnished Accellent
Holdings with an opinion or other advice reasonably satisfactory in
form and substance to Accellent Holdings to the effect that such
transfer will comply with the securities laws of such
jurisdiction.
Notwithstanding the foregoing, Accellent
Holdings acknowledges and agrees that any of the following
transfers are deemed to be in compliance with the Act and this
Agreement (including without limitation any restrictions or
prohibitions herein) and no opinion of counsel is required in
connection therewith: (x) a transfer permitted by or made pursuant
to Sections 3, 4, 5, 6 or 9 hereof, (y) a transfer upon the death
or Permanent Disability of the Management Stockholder to the
Management Stockholder’s Estate or a transfer to the
executors, administrators, testamentary trustees, legatees or
beneficiaries of a person who has become a holder of Stock in
accordance with the terms of this Agreement; provided that
it is expressly understood that any such transferee shall be bound
by the provisions of this Agreement, and (z) a transfer made after
the Effective Date in compliance with the federal securities laws
to a Management Stockholder’s Trust, provided that such
transfer is made expressly subject to this Agreement and that the
transferee agrees in writing to be bound by the terms and
conditions hereof.
(b)
The certificate
(or certificates) representing the Stock shall bear the following
legend:
“THE SHARES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION COMPLIES WITH THE PROVISIONS OF THE MANAGEMENT
STOCKHOLDER’S AGREEMENT DATED AS OF NOVEMBER 22, 2005
BETWEEN ACCELLENT HOLDINGS CORP. (THE “COMPANY”) AND
THE MANAGEMENT STOCKHOLDER NAMED ON THE FACE HEREOF (A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY).”
(c)
The Management
Stockholder acknowledges that he has been advised that (i) a
restrictive legend in the form heretofore set forth shall be placed
on the certificates representing the Stock and (ii) a notation
shall be made in the appropriate records of Accellent Holdings
indicating that the Stock is subject to restrictions on transfer
and appropriate stop transfer restrictions will be issued to
Accellent Holdings’ transfer agent with respect to the
Stock. If the Management Stockholder is an Affiliate, the
Management Stockholder also acknowledges that (1) the Stock
must be held indefinitely and the Management Stockholder must
continue to bear the economic risk of the investment in the Stock
unless it is subsequently registered under the Act or an exemption
from such registration is available, (2) when and if shares of
the Stock may be disposed of without registration in reliance on
Rule 144 of the rules and regulations promulgated under
the Act, such disposition can be made only in limited amounts in
accordance with the terms and conditions of such rule and
(3) if the Rule 144 exemption is not available, public
sale without registration will require compliance with some other
exemption under the Act.
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(d)
If any shares of
the Stock are to be disposed of in accordance with Rule 144
under the Act or otherwise, the Management Stockholder shall
promptly notify Accellent Holdings of such intended disposition and
shall deliver to Accellent Holdings at, or prior to, the time of
such disposition such documentation as Accellent Holdings may
reasonably request in connection with such sale and, in the case of
a disposition pursuant to Rule 144, shall deliver to Accellent
Holdings an executed copy of any notice on Form 144 required
to be filed with the SEC.
(e)
The Management
Stockholder agrees that, if any shares of the Stock are offered to
the public pursuant to an effective registration statement under
the Act (other than registration of securities issued under an
employee plan), the Management Stockholder will not effect any
public sale or distribution of any shares of the Stock not covered
by such registration statement from the time of the receipt of a
notice from Accellent Holdings that Accellent Holdings has filed or
imminently intends to file such registration statement to, or
within 180 days after, the effective date of such registration
statement, unless otherwise agreed to in writing by Accellent
Holdings.
(f)
The Management
Stockholder represents and warrants that (i) with respect to
the Stock, he has received and reviewed the available information
relating to the Stock, including having received and reviewed the
documents comprising the Information Memorandum, dated
November 18, 2005, relating to the Options and the documents
referred to therein, certain of which documents set forth the
rights, preferences and restrictions relating to the Options and
the Stock underlying the Options and (ii) he has been given
the opportunity to obtain any additional information or documents
and to ask questions and receive answers about such information,
Accellent Holdings and the business and prospects of Accellent
Holdings which he deems necessary to evaluate the merits and risks
related to his investment in the Stock and to verify the
information contained in the information received as indicated in
this Section 2(f), and he has relied solely on such
information.
(g)
The Management
Stockholder further represents and warrants that (i) his
financial condition is such that he can afford to bear the economic
risk of holding the Stock for an indefinite period of time and has
adequate means for providing for his current needs and personal
contingencies, (ii) he can afford to suffer a complete loss of
his or her Options and investment in the Stock, (iii) he
understands and has taken cognizance of all risk factors related to
the Options and investment in the Stock and (iv) his knowledge
and experience in financial and business matters are such that he
is capable of evaluating the merits and risks of his purchase of
the Stock as contemplated by this Agreement.
3.
Transferability of
Stock . The Management
Stockholder agrees that he will not directly or indirectly, offer,
transfer, sell, assign, pledge, hypothecate or otherwise dispose of
(any of the foregoing acts being referred to herein as a
“transfer”) any shares of Purchased Stock, Option
Stock, Net Settled Stock (as defined in Section 5(f)(i)) and
any other Common Stock otherwise acquired and/or held by the
Management Stockholder Entities (collectively referred to as
“ Stock ”) at any time during the period
commencing on the Effective Date and ending on the fifth
anniversary of the Effective Date; provided , however
, that the Management Stockholder may transfer shares of Stock
during such time pursuant to one of the following exceptions:
(a) transfers permitted by Section 5, 6 or 9;
(b) transfers permitted by clauses (y) and (z) of
Section 2(a); (c) a sale of shares of Common Stock
pursuant to an effective registration statement under the Act filed
by Accellent Holdings, including without limitation pursuant to
Section 9 (excluding any registration on Form S-8, S-4 or
any successor or similar form); (d) transfers permitted
pursuant to the Sale Participation
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Agreement; or (e) other
transfers permitted by the Board. No transfer of any such
shares in violation hereof shall be made or recorded on the books
of Accellent Holdings and any such transfer shall be void ab
initio and of no effect; and provided , however ,
that if a Section 5(a) Put Event occurs following a
Public Offering and prior to the fifth anniversary of the Effective
Date, Accellent Holdings shall immediately waive the restrictions
on transfer that would otherwise be imposed on the Management
Stockholder pursuant to this Section 3 solely with respect to
the Management Stockholder’s Purchased Stock and Option
Stock; and provided , further , that (1) if a
Section 5(b) Put Event occurs following a Public Offering
and prior to the fifth anniversary of the Effective Date, Accellent
Holdings shall immediately waive the restrictions on transfer that
would otherwise be imposed on the Management Stockholder pursuant
to this Section 3 solely with respect to a number of shares of
Purchased Stock and Option Stock (rounded up to the nearest whole
number) which when multiplied by the Fair Market Value Per Share on
the date of such Section 5(b) Put Event is as equal as
possible to the remaining tax liability (above the minimum required
withholding tax liability) that would be incurred by the Management
Stockholder upon the exercise of the Management Stockholder’s
Rollover Options; (2) if a Section 5(c) Put Event
occurs following a Public Offering and prior to the fifth
anniversary of the Effective Date, Accellent Holdings shall
immediately waive the restrictions on transfer that would otherwise
be imposed on a Management Stockholder pursuant to this
Section 3 if the Statutory Withholding (as defined in
Section 5(e)(i)) on such Management Stockholder’s
Rollover Options is less than or equal to
$[ ](1)
(the “ Original Liability Amount ) and then
solely with respect to a number of shares of Purchased Stock and
Option Stock (rounded up to the nearest whole number) which when
multiplied by the Fair Market Value Per Share on the date of such
Section 5(c) Put Event is as equal as possible to the
difference between the Original Liability Amount and the Statutory
Withholding that has been withheld by Accellent Holdings and
(3) if a Section 5(d) Put Event occurs following a
Public Offering and prior to the fifth anniversary of the Effective
Date, Accellent Holdings shall immediately waive the restrictions
on transfer that would otherwise be imposed on the Management
Stockholder pursuant to this Section 3 solely with respect to
a number of shares of Purchased Stock and Option Stock (rounded up
to the nearest whole number) which when multiplied by the Fair
Market Value Per Share on the date of such
Section 5(d) Put Event is as equal as possible to the
Rollover Tax Liability (as defined in Section 5(d)).
Notwithstanding anything in this Agreement to the contrary, this
Section 3 shall terminate and be of no further force or effect
upon the occurrence of a Change in Control.
4.
Right of First
Refusal . (a)
If, at any time
after the fifth anniversary of the Effective Date and prior to the
date of consummation of a Qualified Public Offering, the Management
Stockholder receives a bona fide offer to purchase any or all of
his Stock (the “ Third Party Offer ”) from a
third party (the “ Offeror ”), which the
Management Stockholder wishes to accept, the Management Stockholder
shall cause the Third Party Offer to be reduced to writing and
shall notify Accellent Holdings in writing of his wish to accept
the Third Party Offer. The Management Stockholder’s
notice to Accellent Holdings shall contain an irrevocable offer to
sell such Stock to Accellent Holdings (in the manner set forth
below) at a purchase price equal to the price contained in, and on
the same terms and conditions of, the Third Party Offer, and shall
be accompanied by a copy of the Third Party Offer (which shall
identify the Offeror). At any time within 15 days after
the date of the receipt by
(1) Note: this amount will be equal to the
actual tax liability, as calculated by Deloitte & Touche LLP,
on the original value of the Rollover Options received by the
Management Stockholders.
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Accellent Holdings of the
Management Stockholder’s notice, Accellent Holdings shall
have the right and option to purchase, or to arrange for a third
party to purchase, all (but not less than all) of the shares of
Stock covered by the Offer, pursuant to
Section 4(b).
(b)
Accellent
Holdings shall have the right and option to purchase, or to arrange
for a third party to purchase, all of the shares of Stock covered
by the Third Party Offer at the same price and on substantially the
same terms and conditions as the Third Party Offer (or, if the
Third Party Offer includes any consideration other than cash, then
at the sole option of Accellent Holdings, at the equivalent all
cash price, determined in good faith by the Board), by delivering a
certified bank check or checks in the appropriate amount (or by
wire transfer of immediately available funds, if the Management
Stockholder Entities provide to Accellent Holdings wire transfer
instructions) (and any such non-cash consideration to be paid) to
the Management Stockholder at the principal office of Accellent
Holdings against delivery of certificates or other instruments
representing the shares of Stock so purchased, appropriately
endorsed by the Management Stockholder. If at the end of the
15-day period, Accellent Holdings has not tendered the purchase
price for such shares in the manner set forth above, the Management
Stockholder may, during the succeeding 60-day period, sell not less
than all of the shares of Stock covered by the Third Party Offer,
to the Offeror on terms no less favorable to the Management
Stockholder than those contained in the Third Party Offer.
Promptly after such sale, the Management Stockholder shall notify
Accellent Holdings of the consummation thereof and shall furnish
such evidence of the completion and time of completion of such sale
and of the terms thereof as may reasonably be requested by
Accellent Holdings. If, at the end of 60 days following the
expiration of the 15-day period during which Accellent Holdings is
entitled hereunder to purchase the Stock, the Management
Stockholder has not completed the sale of such shares of the Stock
as aforesaid, all of the restrictions on sale, transfer or
assignment contained in this Agreement shall again be in effect
with respect to such shares of the Stock.
(c)
Notwithstanding
anything in this Agreement to the contrary, this Section 4
shall terminate and be of no further force or effect upon the
occurrence of a Change in Control.
5.
The Management
Stockholder’s Right to Resell Stock and Options to Accellent
Holdings .
(a)
Except as
otherwise provided herein, if, prior to a Public Offering, the
Management Stockholder is still in the employ of Accellent Holdings
(and/or, if applicable, its Subsidiaries or Affiliates) and
the Management Stockholder’s employment is terminated as a
result of the death or Permanent Disability of the Management
Stockholder (the “ Section 5(a) Put Event
”), then with respect to the Purchased Stock and Option
Stock, the applicable Management Stockholder Entity shall, for one
hundred and eighty (180) days (the “ Put Period
”) following the date of such death or Permanent Disability,
have the right to sell to Accellent Holdings, and Accellent
Holdings shall be required to purchase, on one occasion, all of the
shares of Purchased Stock and Option Stock then held by the
applicable Management Stockholder Entities, at a per share price
equal to the Fair Market Value Per Share on the applicable
repurchase date (the “ Section 5 Repurchase Price
”).
(b)
Except as
otherwise provided herein, if, prior to the Public Offering, the
Management Stockholder is still in the employ of Accellent Holdings
(and/or, if applicable, its Subsidiaries or Affiliates) and (x) the
Management Stockholder’s employment is terminated by
(i) the Accellent Holdings (or its Subsidiaries or Affiliates)
without Cause or
6
(ii) by the Management
Stockholder for Good Reason (collectively, a “
Section 5(b) Put Event ”), and (y) Accellent
Holdings has not exercised its rights pursuant to
Section 6(d), then the applicable Management Stockholder
Entity shall have 30 days from the end of the Call Period (as
defined below) (the “ Rollover Put Period ”) to
exercise its rights pursuant to the Rollover Options through the
use of the Modified Option Put Right (as defined in
Section 5(e)(ii)).
(c)
Except as
otherwise provided herein, if, prior to a Public Offering, the
Management Stockholder is still in the employ of Accellent Holdings
(and/or, if applicable, its Subsidiaries or Affiliates) and (x) the
Management Stockholder’s employment is terminated by the
Management Stockholder without Good Reason (and other than on
account of death or Permanent Disability) (the “
Section 5(c) Put Event ”) and (y) Accellent
Holdings has not exercised its rights pursuant to
Section 6(d), then, during the Rollover Put Period, the
applicable Management Stockholder Entity shall have the ability to
exercise its rights pursuant to the Rollover Options through the
use of the Modified Option Put Right.
(d)
Except as
otherwise provided herein, if, prior to a Public Offering, the
Management Stockholder is still in the employ of Accellent Holdings
(and/or, if applicable, its Subsidiaries or Affiliates) and a
Management Stockholder Entity receives a notice (a “ Tax
Notice ”) from the Internal Revenue Service that taxes
are due and payable in connection with the Rollover Options (other
than in connection with the exercise or lapse of restrictions
thereof) (the “ Rollover Tax Liability ”) (the
“ Section 5(d) Put Event ”), the
applicable Management Stockholder Entity shall have a period of 30
days following the notification to Accellent Holdings of the
receipt of the Tax Notice (the “ Tax Put Period
”), to exercise its rights with respect to the Rollover
Options through the use of the Modified Option Put
Right.
(e)
(i) Prior
to a Public Offering and during (x) the Put Period following a
Section 5(a) Put Event, with respect to vested New
Options and all Rollover Options, (y) the Rollover Put Period,
following a Section 5(b) Put Event, or a
Section 5(c) Put Event, with respect to the Rollover
Options, or (z) the Tax Put Period, following a
Section 5(d) Put Event, with respect to the Rollover
Options, the applicable Management Stockholder Entities have the
right to receive from Accellent Holdings, on one occasion, in
exchange for all of the exercisable Options or Rollover Options, as
applicable, then held by the applicable Management Stockholder
Entities, if any, a number of shares of Stock equal to the quotient
of (x) the product of (A) the excess, if any, of the
Section 5 Repurchase Price over the Option Exercise Price and
(B) the number of Exercisable Option Shares, divided by (y)
the Section 5 Repurchase Price, which Options shall be
terminated in exchange for such payment in shares (the “
Net Settled Stock ”). Such number of shares of
Net Settled Stock shall be further reduced by the number of shares
equal in Fair Market Value Per Share to the amount of the
applicable withholding taxes which Accellent Holdings is required
to withhold in respect of the income recognized as a consequence of
the exercise of the Options or Rollover Options, as applicable (the
“ Statutory Withholding ”); provided ,
however , that the value of the Net Settled Stock for this
purpose will be determined using the Section 5 Repurchase
Price. In the event the foregoing Option Excess Price is zero
or a negative number, such outstanding exercisable Options shall be
automatically terminated without any payment in respect
thereof. In the event that the applicable Management
Stockholder Entity does not exercise the foregoing rights, all
exercisable but unexercised Options shall terminate pursuant to the
applicable terms of the Stock Option Agreement. All
unexercisable Options held by the applicable Management Stockholder
Entities shall terminate without payment immediately upon
termination of employment; and
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(ii)
For 30 days
following the receipt by the applicable Management Stockholder
Entities of the Net Settled Stock (the “ Settled Stock Put
Period ”) (which period may, for the avoidance of doubt,
extend after the expiration of the applicable put period), the
applicable Management Stockholder Entities shall have the right to
sell to Accellent Holdings, and Accellent Holdings shall be
required to purchase, on one occasion, all such Net Settled Stock
held by the applicable Management Stockholder Entity, at a per
share price equal to the applicable Section 5 Repurchase Price
(the right set forth herein, the “ Modified Option Put
Right ”); provided , however , (x) for Net
Settled Stock received by the applicable Management Stockholder
Entities pursuant to a Section 5(b) Put Event, Accellent
Holdings shall only be required to purchase a number of shares of
Net Settled Stock equal to the remaining tax liability (above the
minimum required withholding tax liability) incurred by each such
Management Stockholder Entity upon such exercise; (y) for Net
Settled Stock received by the Management Stockholder Entity
pursuant to a Section 5(c) Put Event, Accellent Holdings
will only be required to purchase shares of Net Settled Stock if
the amount of the Statutory Withholding is less than or equal to
the Original Liability Amount and then only up to the Statutory
Withholding that has been withheld by Accellent Holdings and (z)
for Net Settled Stock received by the applicable Management
Stockholder Entities pursuant to a Section 5(d) Put
Event, Accellent Holdings will only be required to purchase a
number of shares of Net Settled Stock equal to the Rollover Tax
Liability.
(f)
In the event the
applicable Management Stockholder Entities intend to exercise their
rights pursuant to Sections 5(a) – (d), such
Management Stockholder Entities shall send written notice to
Accellent Holdings, (i) at any time during the Put Period, of
their intention to sell shares of Stock in exchange for the payment
referred to in Section 5(a) or (ii) at any time
during the Settled Stock Put Period, Rollover Put Period or Tax Put
Period, as applicable, of their intention to sell the Net Settled
Stock or Option Stock, as applicable, in exchange for the payment
referred to in Sections 5(a) – (d) (the “
Redemption Notice ”). The completion of the applicable
purchases or exchanges shall take place at the principal office of
Accellent Holdings on the tenth business day after the giving of
the applicable Redemption Notice. The applicable Repurchase
Price shall be paid by delivery to the applicable Management
Stockholder Entities of a certified bank check or checks in the
appropriate amount payable to the order of each of the applicable
Management Stockholder Entities (or by wire transfer of immediately
available funds, if the Management Stockholder Entities provide to
Accellent Holdings wire transfer instructions) and the Net Settled
Stock shall be delivered to the applicable Management Stockholder
Entities, both against delivery of certificates or other
instruments representing the Stock so purchased and appropriate
documents canceling the Options so terminated appropriately
endorsed or executed by the applicable Management Stockholder
Entities or any duly authorized representative.
(g)
Notwithstanding
anything in Sections 5(a) – (d) to the contrary and
subject to Section 10(a), if there exists and is continuing a
default or event of default on the part of Accellent Holdings or
any Subsidiary under any loan, guarantee or other agreement under
which Accellent Holdings or any Subsidiary has borrowed money,
which default or event of default would prevent Accellent Holdings
from repurchasing any of the Stock or the Options from the
applicable Management Stockholder Entities or if the repurchase
referred to in Sections 5(a) – (d) would result in
a default or an event of default on the part of Accellent Holdings
or any Subsidiary under any such agreement or if a repurchase would
not be permitted under the Delaware General Corporation Law (the
“ DGCL ”) or would otherwise violate the DGCL
(or if Accellent Holdings reincorporates in another state, the
business corporation law of such state) (each such occurrence being
an “ Event ”), Accellent Holdings
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shall not be obligated to
repurchase any of the Stock or the Options from the applicable
Management Stockholder Entities, until the first business day which
is 10 calendar days after all of the foregoing Events have ceased
to exist (the “ Repurchase Eligibility Date ”);
provided , however , that the number of shares of
Stock subject to repurchase under this Section 5(g) shall
be that number of shares of Stock as specified in the Redemption
Notice and held by the applicable Management Stockholder Entities
at the time of delivery of the Redemption Notice in accordance with
Section 5(f) hereof.
(h)
Effect of
Change in Control . Notwithstanding
anything in this Agreement to the contrary, except for any payment
obligation of Accellent Holdings, which has arisen prior to such
termination pursuant to this Agreement, this Section 5 shall
terminate and be of no further force or effect upon the occurrence
of a Change in Control.
(i)
Stock Transfer
Election . Notwithstanding
anything in this Agreement to the contrary, upon the occurrence of
an event giving rise to the Management Stockholder Entities’
ability to exercise the Modified Option Put Right, the Management
Stockholder Entities may, in lieu of exercising the Modified Option
Put Right, at any time during the Put Period instead elect to
(i) exercise the Options in the manner set forth in
Section 5(f)(i) above and receive the Net Settled Stock
and (ii) sell or otherwise dispose of all or any portion of
the Net Settled Stock other than to Accellent Holdings pursuant to
Section 5(a) (such election, the “ Transfer
Election ”). The Management Stockholder Entities
may make such a Transfer Election by sending written notice to
Accellent Holdings of their election to waive the ability to
exercise the Modified Option Put Right and of their intention to
instead exercise the rights provided in this
Section 5(i). Upon receipt by Accellent Holdings of the
Transfer Election, Accellent Holdings shall immediately waive the
restrictions on transfer that would otherwise be imposed on such
shares of Net Settled Stock pursuant to Section 3 of this
Agreement, solely with respect to such shares of Net Settled Stock;
provided, however, that the Management Stockholder Entities hereby
acknowledge that Accellent Holdings’ waiver of such
restrictions on transfer does not constitute a waiver of, among
other things, any of the requirements otherwise imposed on the
Management Stockholder’s Agreement with respect to the sale
or other disposition of Stock set forth in Section 2 of this
Agreement or any of the Accellent Holdings’ rights under
Section 4 of this Agreement. For purposes of this
Section 5(i), the transfer restrictions referenced in the
preceding sentence shall be deemed to have been waived by Accellent
Holdings on the tenth business day following the giving of the
Transfer Election.
(j)
Definitions
. Solely
for purposes of this Section 5, “Stock” shall not
include shares of Common Stock acquired after the Effective Date
(i) in the public markets or (ii) in privately negotiated
transactions that do not violate the Other Management Stockholders
Agreements.
6.
Accellent
Holdings’ Option to Purchase Stock and Options of Management
Stockholder Upon Certain Terminations of Employment
.
(a)
Termination
for Cause by Accellent Holdings and other Call Events
. Except as
otherwise provided herein, if, prior
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