Exhibit 10.11
STOCK SUBSCRIPTION
AGREEMENT
STOCK SUBSCRIPTION AGREEMENT dated
as of November 16, 2005 (this “ Agreement
”) between Bain Capital Integral Investors, LLC (the “
Buyer ”) and Accellent Holdings Corp., a Delaware
corporation (“ Holdco ”).
RECITALS
:
WHEREAS, Accellent Acquisition Corp.
(“ AAC ”), a Delaware corporation and indirect
wholly-owned subsidiary of Holdco, and Accellent Inc., a Maryland
corporation (“Accellent”), entered into an Agreement
and Plan of Merger, dated October 7, 2005, as amended (the
“ Merger Agreement ”), pursuant to which
Accellent Merger Sub Inc., a Maryland corporation and wholly-owned
subsidiary of AAC, will merge with and into Accellent (the “
Merger ”) with Accellent continuing as the surviving
corporation.
WHEREAS, all of the issued and
outstanding common stock, par value $0.01 per share, of Holdco (the
“ Common Stock ”) will be owned immediately
before the Closing by Accellent Holdings LLC, a Delaware limited
liability company (“ Holdings LLC ”).
WHEREAS, KKR Millennium Fund L.P.
and KKR Partners III, L.P., each of which is an affiliate of
Kohlberg Kravis Roberts & Co. L.P. (collectively, the
“ KKR Partnerships ”), own 100% of the
membership interests of Holdings LLC.
WHEREAS, Holdco desires to issue,
and Buyer desires to purchase, newly issued shares of Common Stock,
subject to the terms and conditions of this Agreement.
WHEREAS, at or before the effective
time of the Merger, Holdings LLC, Holdco and Buyer will enter into
a Stockholders Agreement (the “ Stockholders Agreement
”) in the form attached hereto, setting forth certain
agreements with respect to Holdco.
NOW, THEREFORE, in consideration of
the promises and of the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND
SALE
Section 1.1
Purchase and Sale . Upon the terms and subject
to the conditions of this Agreement, Holdco agrees to issue and
sell to Buyer, and Buyer agrees to purchase from Holdco, the number
of shares of newly issued Common Stock (collectively, the “
Purchase Stock ”) equal to one-third the number of
shares of newly issued Common Stock held by Holdings LLC
immediately before the Closing. The purchase price for the
Purchase Stock is the same per share price paid by Holdings LLC for
shares of newly issued Common Stock immediately prior to the
Closing and the aggregate purchase price for all the Purchase Stock
is
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one-third of the
total amount of equity contributed to Holdco by Holdings LLC
immediately prior to the Closing (the “ Aggregate Purchase
Price ”). Holdco will notify Buyer in writing of
the actual amount of the Aggregate Purchase Price accompanied with
supporting documentation reasonably acceptable to Buyer. The
Aggregate Purchase Price and the monies contributed to Holdings LLC
will be used to fund the Merger Consideration (as defined in the
Merger Agreement) under the Merger Agreement and pay related fees
and expenses.
Section 1.2
Closing . The closing (the “
Closing ”) of the purchase and sale of the Purchase
Stock hereunder shall take place at the offices of Simpson
Thacher & Bartlett LLP, 425 Lexington Avenue, New York,
New York, immediately prior to the consummation of the
Merger. At the Closing, payment will be made by Buyer of the
Aggregate Purchase Price by wire transfer of immediately available
funds to an account designated by Holdco not later than one
business day prior to the date of Closing (the “ Closing
Date ”)
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF
HOLDCO
Holdco represents and warrants to
Buyer as of the date hereof that:
Section 2.1
Corporate Existence and Power; Newly Formed
Corporation . Holdco is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Delaware. Holdco was incorporated solely for the purpose
of effectuating the transactions contemplated in the Merger
Agreement (including the transactions contemplated by this
Agreement) and has not conducted any business or entered into any
agreements or commitments except with respect to the
foregoing.
Section 2.2
Authorization . (a) The execution,
delivery and performance by Holdco of this Agreement and the
Stockholders Agreement and the consummation of the transactions
contemplated hereby and thereby are within Holdco’s corporate
powers and have been duly authorized by all necessary action on the
part of the Holdco. Each of this Agreement and the
Stockholders Agreement has been duly executed and delivered by
Holdco. Assuming this Agreement and the Stockholders
Agreement valid and binding agreements of Buyer and that the
Stockholders Agreement is a valid and binding obligation of
Holdings LLC, each of this Agreement and the Stockholders Agreement
constitute valid and binding agreements of Holdco, enforceable
against Holdco in accordance with their terms, except (i) as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting
enforcement or creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies and
(iii) with respect to provisions relating to indemnification
and contribution, as limited by considerations of public
policy.
(b)
The execution,
delivery and performance by Holdings LLC of the Stockholders
Agreement and the consummation of the transactions contemplated
hereby and thereby are within Holdings LLC’s limited liabilty
company powers and have been duly authorized by all necessary
action on the part of the Holdings LLC. Assuming the
Stockholders
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Agreement is a
binding obligation of Holdco and Buyer, the Stockholders Agreement
constitutes a valid and binding agreement of Holdings LLC,
enforceable against Holdings LLC in accordance with its terms,
except(i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application
affecting enforcement or creditors’ rights generally,
(ii) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable
remedies and (iii) with respect to provisions relating to
indemnification and contribution, as limited by considerations of
public policy.
Section 2.3
Governmental Authorization . The execution,
delivery and performance by Holdco of this Agreement and the
Stockholders Agreement require no order, license, consent,
authorization or approval of, or exemption by, or action by or in
respect of, or notice to, or filing or registration with, any
governmental body, agency or official except such as have been
obtained or will be obtained prior to the Closing or except where
the failure to obtain any such order, license, consent,
authorization, approval or exemption or give any such notice or
make any filing or registration would not reasonably be expected to
adversely affect the ability of Holdco to perform its obligations
hereunder or thereunder.
Section 2.4
Noncontravention . The execution, delivery and
performance by Holdco of this Agreement and the Stockholders
Agreement do not and will not (i) violate the certificate of
incorporation or bylaws of Holdco, (ii) violate any law, rule,
regulation, judgment, injunction, order or decree applicable to or
binding upon Holdco, (iii) require any consent or other action
by any person under, constitute a default under (with due notice or
lapse of time or both), or give rise to any right of termination,
cancellation or acceleration of any right or obligation of Holdco
or to a loss of any benefit to which Holdco is entitled under any
provisions of any agreement or other instrument binding upon Holdco
or any of its assets or properties or (iv) result in the
creation or imposition of any material mortgage, lien, pledge,
charge, security interest or encumbrance (each, a “
Lien ”) on any property or asset of
Holdco.
Section 2.5
Capitalization . The authorized capital stock
of Holdco consists of 1,000 shares of Common Stock and no shares of
preferred stock. Immediately prior to the Closing,
(i) the authorized capital stock of Holdco will consist of
1000 shares of Common Stock and no shares of preferred stock and
(ii) the outstanding capital stock of Holdco will consist of
75 shares of Common Stock and no shares of preferred stock.
Immediately prior to the Closing, Holdings LLC will own all of the
issued and outstanding shares of capital stock of Holdco.
Immediately prior to the Closing, the KKR Partnerships will own
100% of the membership interests of Holdings LLC.
Immediately after the Closing, but prior to the effective time of
the Merger (the “ Effective Time ”), the
outstanding capital stock of Holdco will be 100 shares of Common
Stock (75 shares of which will be held by Holdings LLC and 25 of
which will be held by Buyer) and no shares of preferred
stock. Except as set forth in this Section 2.5 there
are, and immediately after the Closing but prior to the Merger
there will be, no outstanding (i) shares of capital stock or
voting securities of Holdco, (ii) securities of Holdco
convertible into or exchangeable for shares of capital stock or
voting securities of Holdco, (iii) options or other rights to
acquire from Holdco, or other obligation of Holdco to issue, any
capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of Holdco or
(iv) obligation of Holdco to repurchase or otherwise acquire
or retire any shares of capital stock or any convertible
securities, rights or options of the type described in clause
(i),
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(ii), or
(iii). After the Effective Time, Accellent will be a wholly
owned subsidiary of AAC and AAC will be a wholly owned subsidiary
of Holdco.
Section 2.6
Litigation . There is no action, suit,
investigation or proceeding pending against, or to the knowledge of
Holdco, threatened against or affecting Holdco before any court or
arbitrator or any governmental body, agency or official which in
any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement or
the Stockholders Agreement or which would reasonably be expected to
have a material adverse effect on the ability of Holdco to perform
its obligations under this Agreement or the Stockholders Agreement
or to consummate the Merger or on the business, properties,
financial condition or results of operations of Accellent after the
Merger.
Section 2.7
Valid Issuance of Securities . The shares of
Purchase Stock which are being issued to Buyer hereunder have been
duly and validly authorized and when issued, sold and delivered in
accordance with the terms hereof for the consideration expressed
herein, will be fully paid and nonassessable.
ARTICLE 3
REPRESENTATION AND WARRANTIES OF
BUYER
Buyer represents and warrants to
Holdco as of the date hereof that:
Section 3.1
Existence and Power . Buyer is a limited
liability company duly organized, validly existing and in good
standing under the laws of its jurisdiction of
organization.
Section 3.2
Authorization . (a) The execution, delivery and
performance by Buyer of this Agreement and the Stockholders
Agreement and the consummation of the transactions contemplated
hereby and thereby are within its limited liability company power
and have been duly authorized by all necessary action on the part
of Buyer. Each of this Agreement and the Stockholders
Agreement has been duly executed and delivered by Buyer.
Assuming this Agreement and the Stockholders Agreement are valid
and binding agreements of Holdco and the Stockholders Agreement is
a valid and binding obligation of Holdings LLC, this Agreement and
the Stockholders Agreement constitute valid and binding agreements
of Buyer, enforceable against Buyer in accordance with their terms,
except (i) as limited by applicable b
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