EXHIBIT 10.52
[FORM OF] CONSENT AND
TERMINATION AGREEMENT dated as of
November __, 2001 (the "AGREEMENT"), by and
among DONJOY, L.L.C., a Delaware limited
liability company (the "COMPANY") and the
members (and collectively, the "MEMBERS")
of the Company.
RECITALS
WHEREAS, the Company and each of the Members are parties to a Members'
Agreement, dated as of June 30, 1999 (the "MEMBERS' AGREEMENT");
WHEREAS, dj Orthopedics, Inc., a Delaware corporation (the "PARENT")
has filed a registration statement with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended, relating to the initial
public offering of shares of its common stock, $.01 par value per share (the
"PARENT COMMON STOCK")(such offering, the "IPO");
WHEREAS, in order to facilitate the IPO, the Parent, DJ Acquisition
Corporation, a Delaware corporation and wholly owned subsidiary of the Parent
(the "MERGER SUBSIDIARY"), and the Company have entered into an Agreement and
Plan of Merger, dated as of November __, 2001 (the "MERGER AGREEMENT"), pursuant
to which, immediately prior to the consummation of the IPO, the Merger
Subsidiary will be merged with and into the Company, with the Company being the
surviving entity (the "MERGER");
WHEREAS, pursuant to the Merger Agreement, the Members will receive
shares of Parent Common Stock and the other consideration specified in the
Merger Agreement in exchange for the common units and preferred units of the
Company held by the Members; and
WHEREAS, in connection with the transactions contemplated by the Merger
Agreement and the IPO, the Company and the Members mutually and amicably wish to
terminate the provisions of the Members' Agreement on the terms and conditions
set forth herein.
Now, therefore, in consideration of the mutual covenants and agreements
contained in this Agreement, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. CONSENT TO THE MERGER AND APPROVAL OF THE MERGER AGREEMENT. Each of the
Members hereby consents to the Merger and hereby approves the form, terms and
provisions of the Merger Agreement substantially in the form attached hereto as
EXHIBIT A.
2. TERMINATION OF MEMBERS' AGREEMENT. Effective upon the filing of the
Certificate of Merger (as defined in the Merger Agreement) pursuant to, and in
accordance with, the terms of the Merger Agreement, the Members' Agreement is
hereby fully and finally terminated, and all rights and obligations of each of
the parties thereunder shall terminate forever and be of no further force and
effect.
3. ADOPTION OF REGISTRATION RIGHTS AGREEMENT. The agreement of the Members
in SECTION 2 is conditioned upon the adoption by the Parent of the registration
rights agreement in substantially the form attached hereto as EXHIBIT B.
4. ENTIRE AGREEMENT. This Agreement and the other writings referred to
herein or therein or delivered pursuant hereto or thereto, contain the entire
agreement among the Members and the Company with respect to the subject matter
hereof and supersede all prior and contemporaneous arrangements or
understandings with respect thereto.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware, without giving
effect to any choice or conflict of law provision or rule (whether in the State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
6. BINDING. The terms and provisions of this Agreement shall be binding
upon, and will inure to the benefit of, the parties hereto and their respective
estates, heirs, personal representatives, successors and assigns.
7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement. Facsimile counterpart signatures to this Agreement shall be
acceptable and binding.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Termination Agreement to be executed as of the date first written above.
DONJOY, L.L.C.
By:______________________________________
Name:
Title:
▇.▇. ▇▇▇▇▇▇ DJ PARTNERS, LLC
BY: ▇.▇. ▇▇▇▇▇▇ FAIRFIELD PARTNERS,
LLC, ITS MANAGING MEMBER
By: ___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Managing Member
▇.▇. ▇▇▇▇▇▇ PARTNERS (23A SBIC), LLC
BY: ▇.▇. ▇▇▇▇▇▇ PARTNERS (23A SBIC
MANAGER), INC.,
ITS MANAGING MEMBER
By: ___________________________________
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Consent and
Termination Agreement as of the date first above written.
DJ INVESTMENT, LLC
BY: FIRST UNION INVESTORS, INC.,
AS MANAGER
By: ___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Principal
FIRST UNION CAPITAL PARTNERS, LLC
By: ___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Principal
IN WITNESS WHEREOF, the parties hereto have executed this Consent and
Termination Agreement as of the date first above written.
DJC, INC.
By: _________________________________
Name:
Title:
TCW/CRESCENT MEZZANINE TRUST II
BY: TCW/CRESCENT MEZZANINE II, L.L.C.,
ITS INVESTMENT MANAGER
BY: TCW/CRESCENT MEZZANINE, L.L.C.,
ITS MANAGING OWNER
By: _________________________________
Name:
Title:
TCW LEVERAGED INCOME TRUST II, L.P.
BY: TCW (▇▇▇▇ ▇▇), L.P.,
ITS GENERAL PARTNER
BY: TCW ADVISERS (BERMUDA), LTD.,
ITS GENERAL PARTNER
By: _________________________________
Name:
Title:
BY: TCW INVESTMENT MANAGEMENT
CORPORATION, AS INVESTMENT ADVISER
By: _________________________________
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Consent and
Termination Agreement as of the date first above written.
CRESCENT MACH I PARTNERS, L.P.
BY: TCW ASSET MANAGEMENT
CORPORATION, ITS INVESTMENT ADVISOR
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have executed this Consent and
Termination Agreement as of the date first above written.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
FAMILY TRUST
By: ____________________________________
Name:
Title:
________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇ III
________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇