This Stockholders’ Agreement (this “Agreement”), is entered into as of November 22, 2005 by and among Accellent Holding Corp., a Delaware corporation (the “Company”), Bain Capital Integral Investors, LLC (“Bain”), BCIP TCV, LLC (“BCIP”) and Accellent Holding LLC, a Delaware limited liability company (the “KKR Investor”).
WHEREAS, Accellent Acquisition Corp., a Delaware corporation (“AAC”), and Accellent Inc., a Delaware corporation, have entered into that certain Agreement and Plan of Merger dated as of October 7, 2005 (the “Merger Agreement”), pursuant to which a wholly owned subsidiary of AAC will merge (the “Merger”) with and into Accellent Inc. with Accellent Inc. continuing as the surviving corporation after the merger;
WHEREAS, pursuant to the terms of the Merger Agreement, AAC will acquire 100% of the outstanding shares of common stock, par value $.01 per share, of Accellent Inc. (the “Common Stock”);
WHEREAS, at the effective time of the Merger, the Company will own 100% of AAC, AAC will own 100% of Accellent Inc., and (i) the KKR Investor and (ii) Bain and BCIP (taken together) will collectively own 75% and 25%, respectively, of the aggregate outstanding shares of Common Stock of the Company held by Bain, BCIP and the KKR Investor; and
WHEREAS, Bain, BCIP, the KKR Investor and the Company wish to enter into this Agreement providing for certain rights and obligations of Bain, BCIP the KKR Investor and the Company.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and for other good and valuable consideration, the parties hereto agree as follows:
As used in this Agreement, the following capitalized terms shall have the following meanings:
Affiliate: When used with respect to a specified Person, another Person that, either directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified.
Bain: Bain Capital Integral Investors, LLC; provided, that at such time as Bain and its Affiliates own no shares of Common Stock, for all purposes of this Agreement other than Section 5(a), “Bain” shall mean the Bain Holder holding the greatest percentage of Bain Shares, so long as such Bain Holder holds at least 10% of the shares of Common Stock held by Bain at the effective time of the Merger (as appropriately adjusted for stock splits, reverse stock splits,
recapitalization and similar transactions). Under no circumstances will any person other than Bain Capital Integral Investors LLC have any rights under Section 5(a).
Bain Holder: Bain, BCIP and any Person to whom Bain or BCIP transfers shares of Common Stock and any transferee thereof, in either case who is required by this Agreement to be bound by the provisions of this Agreement.
Bain Shares: As of any date of determination, the shares of Common Stock then held by the Bain Holders.
Board: The Board of Directors of the Company.
Exempt Transaction: Has the meaning set forth in Section 2(c) hereof.
KKR Affiliate: With respect to the KKR Investor shall mean a Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with the KKR Investor.
KKR Holder: The KKR Investor and any Person to whom the KKR Investor transfers shares of Common Stock and any transferee thereof, in either case who is required by this Agreement to be bound by the provisions of this Agreement.
KKR Shares: As of any date of determination, the shares of Common Stock then held by the KKR Holders.
Person: An individual, partnership, limited liability company, joint venture, corporation, trust or unincorporated organization, a government or any department, agency or political subdivision thereof or other entity.
Private Sale: Any sale of securities other than a sale made in a public distribution pursuant to an effective registration statement under the Securities Act.
Public Offering: Any sale of the issued and outstanding shares of Common Stock made in a public distribution pursuant to an effective registration statement under the Securities Act (other than a registration statement on Form S-4 or Form S-8 or any similar or successor forms).
Securities Act: The Securities Act of 1933, as amended from time to time and the rules and regulations promulgated thereunder.
2. (a) ”Tag-Along” Right With Respect to Private Sales by KKR Holders. (i) Private Sales of Shares by KKR Holders. Subject to the last sentence of Section 3(a), with respect to any proposed Private Sale of any KKR Shares by a KKR Holder or KKR Holders (collectively, for purposes of this Section 2, the “KKR Holder”) during the term of this Agreement to a Person (a “Proposed Purchaser”), other than pursuant to an Exempt Transaction (as defined in Section 2(c)), Bain and the other Bain Holders (collectively, for purposes of this Section 2, “Bain”) shall have the right and option, but not the obligation, to participate in such