Exhibit 10.1


 


EXECUTION VERSION


 


STOCK PURCHASE AGREEMENT


 


This
Stock Purchase Agreement (“Agreement”) is entered into as of November 21, 2022 (the “Execution
Date”), by and between Surgery Partners, Inc., a Delaware corporation
(“Surgery”), and Bain Capital Fund XI, L.P., a Cayman Islands limited partnership (“Bain Capital”).
Surgery and Bain Capital may individually be referred to as a “Party” and together as the “Parties”.


 


Agreement


 


For good and valuable consideration,
the Parties agree as follows:


 


Section 1.Sale
and Purchase of Stock


 


1.1          Purchase
of Stock. Subject to the terms and conditions of this Agreement, at the Closing, Surgery will
issue and sell to Bain Capital, and Bain Capital will purchase from Surgery, 9,183,673 shares of Common Stock, par value $0.01 per share
(the “Shares”), at a price equal to $24.50 per share, for an aggregate purchase price of $224,999,988.50 (the
 “Purchase Price”).


 


1.2          Payment;
Delivery of Shares. At the Closing, Bain Capital will pay the Purchase Price by wire transfer
of immediately available funds in accordance with wire instructions provided by Surgery to Bain Capital at least one (1) Business
Day prior to the Closing, and Surgery will deliver the Shares in book-entry form to Bain Capital.


 


1.3          Closing.


 


(a)           The
closing of the transactions contemplated by this Section 1 (the “Closing”) will be held through
the electronic exchange of documents and signatures, as promptly as practicable, and in no event later than the first Business Day after
the conditions to closing set forth in Section 5 are satisfied or waived (other than those conditions that by their nature
are to be satisfied or waived at the Closing but subject to the satisfaction or waiver of those conditions) or at such other place, time
and/or date as may be jointly designated by Bain Capital and Surgery (the “Closing Date”); provided, that in
no event will the Closing occur prior to December 23, 2022 without the prior written consent of Bain Capital.


 


(b)           Closing
Deliverables.


 


(i)            At
the Closing, Surgery shall deliver to Bain Capital:


 


(1)            a
certificate of the secretary of Surgery dated as of the Closing Date certifying that attached thereto is a true and complete copy of
all resolutions adopted by Surgery’s Board of Directors (the “Board”) authorizing the execution, delivery
and performance of this Agreement and the transactions contemplated respectively herein and that all such resolutions are in full force
and effect and are all the resolutions adopted in connection with such transactions as of the Closing Date;


 


(2)            a
written statement of Surgery’s transfer agent, indicating issuance of the Shares in the name of Bain Capital or its designee.


 






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(ii)           At
the Closing, Bain Capital will deliver to Surgery:


 


(1)            a
certificate in form and substance reasonably satisfactory to Surgery and duly executed on behalf of Bain Capital by an authorized officer
of Bain Capital, certifying that the conditions to Closing set forth in Section 5.1 of this Agreement have been fulfilled;
and


 


(2)            the
Purchase Price for the Shares by wire transfer of immediately available federal funds to an account designated in writing by Surgery
at least one (1) Business Day in advance of the Closing.


 


Section 2.Representations
and Warranties of Surgery


 


Surgery hereby represents
and warrants to Bain Capital as of the date hereof and as of the Closing Date as follows:


 


2.1          Private
Placement. Neither Surgery nor any person acting on its behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under any circumstances that would
require registration of the Shares under the Securities Act of 1933, as amended (the “Securities Act”). Subject
to the accuracy of the representations made by Bain Capital in Section 3, the Shares will be issued and sold to Bain
Capital in compliance with applicable exemptions from the registration and prospectus delivery requirements of the Securities Act
and the registration and qualification requirements of all applicable securities laws of the states of the United States. Surgery
has not engaged any brokers, finders or agents, or incurred, nor will it incur, directly or indirectly, any liability for brokerage
or finder’s fees or agents’ commissions or any similar charges in connection with this Agreement and the transactions
contemplated hereby.


 


2.2          Organization
and Qualification. Surgery is duly incorporated, validly existing and in good standing under
the laws of the State of Delaware with full corporate power and authority to conduct its business as currently conducted.


 


2.3          Authorization;
Enforcement. Surgery has all requisite corporate power and authority to enter into and to perform
its obligations under this Agreement, to consummate the transactions contemplated hereby and to issue the Shares in accordance with the
terms hereof. The execution, delivery and performance of this Agreement by Surgery and the consummation by it of the transactions contemplated
hereby (including the issuance of the Shares) have been duly authorized by the Board and no further consent or authorization of Surgery,
the Board or Surgery’s stockholders is required in connection therewith. This Agreement has been duly executed by Surgery and constitutes
a legal, valid and binding obligation of Surgery enforceable against Surgery in accordance with its terms.


 


2.4          Issuance
of Shares. The Shares are duly authorized and, upon issuance in accordance with the terms of
this Agreement, will be validly issued, fully paid and non-assessable and will not be subject to preemptive rights or other similar rights
of stockholders of Surgery.


 






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Section 3.Representations
and Warranties of Bain Capital.


 


Bain Capital hereby represents
and warrants to Surgery as of the Execution Date and as of the Closing Date as follows:


 


3.1          Authorization;
Enforcement.  Bain Capital has the requisite entity power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. Bain Capital has taken all necessary corporate or similar action to authorize
the execution, delivery and performance of this Agreement. Upon the execution and delivery of this Agreement, this Agreement will constitute
a valid and binding obligation of Bain Capital, enforceable against Bain Capital in accordance with its terms, except as (a) enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting
parties’ rights generally, and (b) enforceability may be subject to general principles of equity.


 


3.2          Investment
Purpose. Bain Capital is purchasing the Shares for its own account and not with a present view
toward the public distribution thereof and has no arrangement or understanding with any other persons regarding the distribution of such
Shares, except as would not result in a violation of the Securities Act.


 


3.3          Accredited
Investor; Access to Information. Bain Capital is an “accredited investor” as defined
in Regulation D under the Securities Act and is knowledgeable, sophisticated and experienced in making, and is qualified to make decisions
with respect to, investments in shares presenting an investment decision like that involved in the purchase of the Shares.


 


3.4          Brokers
and Finders. No person will have, as a result of the transactions contemplated by this Agreement,
any valid right, interest or claim against or upon Surgery for any commission, fee or other compensation pursuant to any agreement, arrangement
or understanding entered into by or on behalf of Bain Capital.


 


Section 4.Legends.


 


4.1          Legends.
Bain Capital understands the Shares will bear a restrictive legend in substantially the following
form (and a stop-transfer order may be placed against transfer of the Shares):


 


THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES
LAWS AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION THEREUNDER.


 






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Section 5.Conditions
to Closing


 


5.1          Conditions
to Obligations of Surgery. Surgery’s obligation to complete the purchase and sale of the
Shares and deliver the Shares to Bain Capital is subject to the fulfillment or waiver of the following conditions at or prior to the
Closing:


 


(a)           Receipt
of Funds. Surgery will have received immediately available funds in the full amount of the Purchase Price for the Shares being purchased
hereunder.


 


(b)           Representations
and Warranties. The representations and warranties made by Bain Capital in Section 3 will be true and correct in all
material respects as of the Closing Date, except to the extent such representations and warranties are made as of another date, in which
case such representations and warranties will be true and correct in all material respects as of such other date.


 


(c)           Closing
Deliverables. All closing deliverables as required under Section 1.3(b)(ii) shall have been delivered by Bain Capital
to Surgery.


 


5.2          Conditions
to Bain Capital’s Obligations at the Closing. Bain Capital’s obligation to complete
the purchase and sale of the Shares is subject to the fulfillment or waiver of the following conditions at or before the Closing:


 


(a)           Representations
and Warranties. The representations and warranties made by Surgery in Section 2 will be true and correct as of the Closing
Date, except to the extent such representations and warranties are made as of another date, in which case such representations and warranties
will be true and correct as of such other date.


 


(b)           Closing
Deliverables. All closing deliverables as required under Section 1.3(b)(i) shall have been delivered by Surgery
to Bain Capital.


 


(c)           Public
Offering. The concurrent underwritten public offering of at least $575 million of Common Stock of Surgery shall have been consummated
on or before the Closing.


 


(d)           Amendment
to Registration Rights Agreement. The Registration Rights Agreement, by and among Surgery Partners, Inc. and certain stockholders
party thereto, dated as of August 31, 2017, shall be amended to include the Shares as “Registrable Shares” (as defined
therein) at or before the Closing.


 


Section 6.Governing
Law; Miscellaneous.


 


6.1          Business
Day. For the purposes of this Agreement, a “Business Day” means any
day, other than any Saturday, Sunday, or any day that banks are authorized or required to be closed in Brentwood, Tennessee or Boston,
Massachusetts.


 


6.2          Governing
Law; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the
laws of the State of Delaware without regard to the principles of conflict of laws.


 


6.3          Counterparts;
Signatures by Facsimile. This Agreement may be executed in two counterparts, both of which are
considered one and the same agreement and will become effective when the counterparts have been signed by each Party and delivered to
the other Party hereto. This Agreement, once executed by a Party, may be delivered to the other Party hereto by electronic PDF of a copy
of this Agreement bearing the signature of the Party so delivering this Agreement.


 






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6.4          Headings.
The headings of this Agreement are for convenience of reference only, are not part of this Agreement
and do not affect its interpretation.


 


6.5          Severability.
If any provision of this Agreement should be held invalid, illegal or unenforceable in any jurisdiction,
the parties will negotiate in good faith a valid, legal and enforceable substitute provision that most nearly reflects the original intent
of the parties and all other provisions hereof will remain in full force and effect in such jurisdiction and will be liberally construed
in order to carry out the intentions of the parties hereto as nearly as may be possible. Such invalidity, illegality or unenforceability
will not affect the validity, legality or enforceability of such provision in any other jurisdiction.


 


6.6          Further
Assurances; Survival. Each Party will do and perform, or cause to be done and performed, all
such further acts and things, and will execute and deliver all other agreements, certificates, instruments and documents, as the other
Party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby. The representations and warranties contained in this Agreement shall survive the Closing of the transactions
contemplated by this Agreement.


 


6.7          Construction.
The Parties acknowledge and agree that (a) each Party and its counsel reviewed and negotiated
the terms and provisions of this Agreement and have contributed to its revision; (b) the rule of construction to the effect
that any ambiguities are resolved against the drafting Party shall not be employed in the interpretation of this Agreement; and (c) the
terms and provisions of this Agreement shall be construed fairly as to each Party and not in a favor of or against either Party, regardless
of which Party was generally responsible for the preparation of this Agreement.


 


6.8          Amendment
and Waiver. Any provision of this Agreement
may be amended or modified only by a written instrument signed by each Party. No waiver hereunder shall be valid or binding unless set
forth in writing and duly executed by the Party against whom enforcement of the waiver is sought. Any such waiver shall constitute a
waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the Party granting
such waiver in any other respect or at any other time. Neither the waiver by any Party of a breach of or a default under any provision
of this Agreement, nor the failure by any Party, on one or more occasions, to enforce any provision of this Agreement or to exercise
any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of
any such provision, right or privilege hereunder.


 


6.9          Assignment.
Neither this Agreement nor any rights, interests or obligations hereunder shall be assigned
by any Party (whether by operation of law or otherwise) without the prior written consent of the other Party, and any purported assignment
without such consent shall be null and void ab initio. Notwithstanding
the foregoing, Bain Capital shall have the right to assign all or a portion of its rights pursuant to this Agreement, or any interest
herein, and may delegate any duty or obligation hereunder, without the consent of Surgery, to any affiliate of Bain Capital; provided
that, no such assignment or delegation shall relieve Bain Capital of any of its obligations hereunder.


 






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In
Witness Whereof, Bain Capital and Surgery have caused this Agreement to be duly executed as of the date first above written.


 


	 	Surgery Partners Inc.
	 	 
	 	By:	/s/ David T. Doherty
	 	 	Name:	David T. Doherty
	 	 	Title:	Executive Vice President and Chief Financial Officer




 






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EXECUTION VERSION


 


	 	Bain Capital Fund XI, L.P.  
	 	 
	 	By:	Bain Capital Partners XI, L.P., its General Partner
	 	By:	Bain Capital Investors, LLC, its General Partner  
	 	 
	 	By:	/s/ Andrew Kaplan
	 	 	Name:	Andrew Kaplan
	 	 	Title:	Managing Director, Private Equity





 


Signature
Page to Stock Purchase Agreement