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EXHIBIT 10.9
EXECUTION COPY
PREFERRED UNIT PURCHASE AGREEMENT
DATED AS OF JUNE 30, 1999
AMONG
DONJOY, L.L.C.
AND
THE PURCHASERS NAMED HEREIN
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TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS; RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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1.2 Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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ARTICLE II PURCHASE AND SALE OF PREFERRED UNITS; CLOSING . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Amended and Restated Operating Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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2.2 Authorization of Issuance of Preferred Units. . . . . . . . . . . . . . . . . . . . . . . . . . 5
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2.3 Sale of Preferred Units. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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2.4 Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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2.5 Closing Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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2.6 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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ARTICLE III REPRESENTATIONS AND WARRANTIES ABOUT THE COMPANY . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Private Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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3.2 Capitalization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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3.3 Authority, Execution and Enforceability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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3.4 No Conflict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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3.5 Investment Company Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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3.6 Recapitalization Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS . . . . . . . . . . . . . . . . . . . . . . . 8
4.1 Authorization of the Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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4.2 Investment Representations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
5.1 Information Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
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5.2 Compliance with Indenture Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
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5.3 Compliance with Credit Agreement Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . .11
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ARTICLE VI CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
6.1 Conditions to Purchasers' Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
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6.2 Conditions to the Company's Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . .12
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ARTICLE VII INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
7.1 Survival of Representations, Warranties, Agreements and Covenants, Etc. . . . . . . . . . . . .12
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7.2 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
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ARTICLE VIII TRANSFER OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
8.1 Restriction on Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
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8.2 Restrictive Legends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
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ARTICLE IX ADDITIONAL AGREEMENTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
9.1 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
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9.2 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
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9.3 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
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9.4 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
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9.5 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
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9.6 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
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9.7 Amendments, Modifications and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
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9.8 Governing Law; Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
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9.9 No Third Party Reliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
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9.10 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
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9.11 Independence of Agreements, Covenants, Representations and Warranties. . . . . . . . . . . .19
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9.12 Counterparts; Facsimile Signatures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
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SCHEDULES AND EXHIBITS
SCHEDULES
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Schedule I - Purchasers, Purchase Price and Fees
EXHIBITS
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Exhibit A - Amended and Restated Operating Agreement
Exhibit B - Members' Agreement
Exhibit C - SBA Sideletter
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PREFERRED UNIT PURCHASE
AGREEMENT dated as of June 30, 1999 by and
among DONJOY, L.L.C., a Delaware limited
liability company (the "Company"), and the
Purchasers listed on Schedule I
(collectively, the "Purchasers").
The Company is in the business of developing, manufacturing
and marketing orthopedic recovery products (the "Business"). The Company
desires to raise $31,415,000 in preferred equity financing, and the Purchasers
are willing to purchase certain of the Company's redeemable preferred units
(the "Preferred Units") in connection therewith, all on the terms and subject
to the conditions set forth herein.
ACCORDINGLY, in consideration of the foregoing and the
covenants, agreements, representations and warranties contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINED TERMS; RULES OF CONSTRUCTION
1.1 DEFINED TERMS.
Capitalized terms used and not otherwise defined in this Agreement
have the meanings given to them below or in the other locations of this
Agreement specified below (or, if not defined herein, have the meanings
ascribed to them in the Amended and Restated Operating Agreement):
"Agreement" shall have the meaning given to such term in
Section 1.2.
"Amended and Restated Operating Agreement" means the Company's
Amended and Restated Operating Agreement, dated as of the date hereof, among
the Company and the holders of Units of the Company, in substantially the form
set forth in Exhibit A, as amended from time to time.
"Applicable Law" means , as to any Person, all provisions of
laws, statutes, ordinances, rules, regulations, permits, certificates or orders
of any governmental authority applicable to such Person or any of its assets or
property and all judgments applicable to such Person.
"Application Fee" has the meaning given to it in Section 9.1.
"Board" means the Board of Managers of the Company.
"Business" has the meaning given to it in the Preamble to this
Agreement.
"Business Day" means any day other than a Saturday, Sunday or
a day on which commercial banks in New York, New York are authorized or
required to be closed.
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"CB Capital" means CB Capital Investors, L.P, and any
successors or assigns of its Interest (as defined in the Amended and Restated
Operating Agreement).
"Claim" means any claim, demand, assessment, judgment, order,
decree, action, cause of action, litigation, suit, investigation or other
Proceeding.
"Closing" has the meaning given to it in Section 2.4.
"Closing Certificate" has the meaning given to it in Section
7.1.
"Closing Date" has the meaning given to it in Section 2.4.
"Closing Fee" has the meaning given to it in Section 9.1.
"Code" means the Internal Revenue Code of 1986, as amended, or
any similar Federal law then in force, and the rules and regulations
promulgated thereunder, all as the same may from time to time be in effect.
"Commission" means the Securities and Exchange Commission or
any successor or replacement thereto.
"Common Units" means the common units of the Company providing
the holder thereof to the rights provided by the Amended and Restated Operating
Agreement.
"Company" has the meaning given to it in the caption to this
Agreement.
"Company Indemnified Persons" has the meaning given to it in
Section 6.2(b).
"Credit Agreement" shall mean the Credit Agreement dated as of
the date hereof, among the Company, as Parent, DJ Orthopedics, as Borrower, the
lenders party thereto, First Union National Bank, as Administrative Agent,
Documentation Agent and Collateral Agent, The Chase Manhattan Bank, as
Syndication Agent, Issuing Bank and Swingline Lender and Chase Securities Inc.,
as Arranger and Book Manager, as amended from time to time.
"DJ Capital" means DJ Orthopedics Capital Corporation, a
Delaware corporation and a wholly-owned subsidiary of DJ Orthopedics.
"DJ Orthopedics" means DJ Orthopedics, LLC, a Delaware limited
liability company and wholly-owned subsidiary of the Company.
"Documents" means this Agreement, the Amended and Restated
Operating Agreement, the Members' Agreement and the SBA Sideletter.
"First Union" means First Union Investors, Inc., and any
successors or assigns of its Interest (as defined in the Amended and Restated
Operating Agreement).
"Fundamental Documents" means the documents by which any
Person (other than an individual) establishes its legal existence or which
govern its internal affairs. The
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Fundamental Documents of the Company are the Amended and Restated Operating
Agreement, the Members' Agreement and the By-Laws of the Company.
"Indemnified Persons" means any of the Company Indemnified
Persons or any of the Purchaser Indemnified Persons, as the context may
require.
"Indemnifying Persons" means any of the Purchasers or the
Company, as the context may require.
"Indenture" has the meaning given to it in the Amended and
Restated Operating Agreement.
"Initial Purchaser" has the meaning given to it in the Senior
Subordinated Notes Purchase Agreement.
"Investment Company Act" shall have the meaning given to such
term in Section 3.5.
"Liability" means any liability or obligation, whether known
or unknown, asserted or unasserted, absolute or contingent, accrued or
unaccrued, liquidated or unliquidated and whether due or to become due,
regardless of when asserted.
"LLC Act" shall have the meaning given to such term in Section
3.2.
"Loss" means any loss, Liability, Claim, cost, damage,
deficiency, Tax (including any Taxes imposed with respect to any indemnity
payments for any such Loss), penalty, fine or expense, whether or not arising
out of any Claims by or on behalf of any party to this Agreement or any third
party, including interest, penalties, reasonable attorneys' fees and expenses
and all amounts paid in investigation, defense or settlement of any of the
foregoing which any such party may suffer, sustain or become subject to, as a
result of, in connection with, relating or incidental to or by virtue of any
indemnifiable event or condition.
"Members' Agreement" means the Members' Agreement among the
Company and the holders of Units, in substantially the form set forth in
Exhibit B, as amended from time to time.
"Offering Memorandum" means the offering memorandum dated June
17, 1999, as the same may be amended or supplemented from time to time prior to
Closing, to be used in connection with the sale of the Senior Subordinated
Notes.
"Person" has the meaning given to it in the Amended and
Restated Operating Agreement.
"Preferred Units" has the meaning given to it in the Preamble
to the Agreement providing the holder thereof to the rights provided by the
Amended and Restated Operating Agreement.
"Proceeding" means any legal, administrative or arbitration
action, suit, complaint, charge, hearing, inquiry, investigation or proceeding.
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"Purchaser" has the meaning given to it in the caption to this
Agreement and any Person succeeding to the rights of a Purchaser pursuant to
the terms hereof.
"Purchaser Indemnified Person" has the meaning given to it in
Section 7.2(a).
"Recapitalization Agreement" means the Recapitalization
Agreement, dated as of April 29, 1999, by and among ▇▇▇▇▇ ▇▇ Partners, LLC,
▇▇▇▇▇ & Nephew, Inc. and the Company.
"SBA Sideletter" means the letter from the Company to CB
Capital, in substantially the form attached as Exhibit C.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Subordinated Notes" means the Company's 12 5/8% Senior
Subordinated Notes due 2009 issued on the date hereof.
"Senior Subordinated Notes Purchase Agreement" means the
Purchase Agreement dated as of June 17, 1999, among the Company, DJ
Orthopedics, DJ Capital and the Initial Purchaser signatory thereto.
"Tax" means any Taxes and the term "Taxes" means, with respect
to any Person, (A) all income taxes (including any tax on or based upon net
income, or gross income, or income as specially defined, or earnings, or
profits, or selected items of income, earnings or profits) and all gross
receipts, sales, use, ad valorem, transfer, franchise, license, withholding,
payroll, employment, excise, severance, stamp, occupation, premium, property or
windfall profits taxes, alternative or add-on minimum taxes, customs duties or
other taxes, fees, assessments or charges of any kind whatsoever, together with
any interest and any penalties, additions to tax or additional amounts imposed
by any taxing authority (domestic or foreign) on such Person and (B) any
Liability for the payment of any amount of the type described in the
immediately preceding clause (A) as a result of (i) being a "transferee"
(within the meaning of Section 6901 of the Code or any other Applicable Law) of
another Person, (ii) being a member of an affiliated, combined or consolidated
group or (iii) a contractual arrangement or otherwise.
"Transaction Documents" has the meaning given to it in Section
3.3.
"Units" means, collectively, the Common Units and the
Preferred Units.
1.2 RULES OF CONSTRUCTION.
The term this "Agreement" means this agreement together with all
schedules and exhibits hereto, as the same may from time to time be amended,
modified, supplemented or restated in accordance with the terms hereof. The
use in this Agreement of the term "including" means "including, without
limitation." The words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole, including the schedules and
exhibits, as the same may from time to time be amended, modified, supplemented
or restated, and not to any particular section, subsection, paragraph,
subparagraph or clause contained in this Agreement. All references to
sections, schedules and exhibits mean the sections of this Agreement and the
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schedules and exhibits attached to this Agreement, except where otherwise
stated. The title of and the section and paragraph headings in this Agreement
are for convenience of reference only and shall not govern or affect the
interpretation of any of the terms or provisions of this Agreement. The use
herein of the masculine, feminine or neuter forms shall also denote the other
forms, as in each case the context may require or permit. Where specific
language is used to clarify by example a general statement contained herein,
such specific language shall not be deemed to modify, limit or restrict in any
manner the construction of the general statement to which it relates. The
language used in this Agreement has been chosen by the parties to express their
mutual intent, and no rule of strict construction shall be applied against any
party. Unless expressly provided otherwise, the measure of a period of one
month or year for purposes of this Agreement shall be that date of the
following month or year corresponding to the starting date, provided that if no
corresponding date exists, the measure shall be that date of the following
month or year corresponding to the next day following the starting date. For
example, one month following February 18 is March 18, and one month following
March 31 is May 1.
ARTICLE II
PURCHASE AND SALE OF PREFERRED UNITS; CLOSING
2.1 AMENDED AND RESTATED OPERATING AGREEMENT.
Simultaneously with or prior to the Closing, the Company shall execute
and deliver the Amended and Restated Operating Agreement. The Amended and
Restated Operating Agreement designates 100,000 Preferred Units and sets forth
the powers, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof.
2.2 AUTHORIZATION OF ISSUANCE OF PREFERRED UNITS.
The Company has authorized the issuance, sale, transfer, assignment,
conveyance and deliverance at the Closing of an aggregate of 40,184 Preferred
Units.
2.3 SALE OF PREFERRED UNITS.
At the Closing, subject to the satisfaction or waiver of the
conditions set forth in Article VI, the Company shall issue, sell, transfer,
assign, convey and deliver to each Purchaser, and each Purchaser shall
severally purchase from the Company, that number of Preferred Units set forth
opposite its name on Schedule I for the aggregate purchase price set forth
opposite its name.
2.4 CLOSING.
The closing (the "Closing") hereunder with respect to the issuance,
sale, transfer, assignment, conveyance and delivery of the Preferred Units
being purchased by each Purchaser at the Closing and the consummation of the
related transactions contemplated hereby shall, subject to the satisfaction or
waiver of the applicable conditions set forth in Article VI, take place at the
offices of ▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., local time, on the date of the closing of the
transactions contemplated
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by the Recapitalization Agreement, or at such other time, date or place as
agreed to by the parties (such date, the "Closing Date").
2.5 CLOSING DELIVERIES.
At the Closing, the Company shall deliver to each Purchaser purchasing
Preferred Units a certificate, registered in such Purchaser's name,
representing the Preferred Units purchased by such Purchaser at the Closing,
against receipt by the Company of a wire transfer, of immediately available
funds to an account or accounts designated by the Company, of an aggregate
amount equal to the purchase price for the Preferred Units being purchased by
such Purchaser at the Closing.
2.6 USE OF PROCEEDS.
The proceeds received by the Company from the sale of Preferred Units
shall be used by the Company (i) as set forth under "Sources and Uses of Funds"
in the Offering Memorandum and (ii) to pay the Application Fee and the Closing
Fee as set forth in
Section 9.1.
ARTICLE III
REPRESENTATIONS AND WARRANTIES ABOUT THE COMPANY
The Company represents and warrants to each Purchaser as
follows:
3.1 PRIVATE SALE.
Assuming the accuracy of the representations of the Purchasers in
Section 4.2, the offering, sale, and issuance of the Preferred Units will be
exempt from registration under the Securities Act and applicable state
securities laws and the rules and regulations promulgated thereunder.
3.2 CAPITALIZATION.
(a) As of the Closing Date, the Company will have an authorized
capitalization as set forth in the Offering Memorandum under the heading
"Security Ownership of Certain Beneficial Owners and Management--Description of
Operating Agreement"; all of the outstanding Units of the Company have been
duly and validly authorized and issued and are not subject to assessment by the
Company for additional capital contributions; provided, however, that each
member of the Company would be liable for the amount of any distribution to
such member (or its predecessor in interest) made in violation of Section
18-607 or Section 18-804 of the Limited Liability Company Act of the State of
Delaware (the "LLC Act") to the extent the same is required to be returned to
or for the account of the Company as provided in Section 18-607 or Section
18-804, as applicable, of the LLC Act, potentially with interest. All of the
outstanding units or shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, and, in the case of capital
stock, fully paid and non-assessable or, in the case of the units of DJ
Orthopedics, are not subject to assessment by the Company for additional
capital contributions; provided, however, that each member of DJ Orthopedics
will be liable for the amount of any distribution to such member (or its
predecessor in interest) made in violation of Section 18-607 or Section 18-804
of the LLC Act to the extent the same is required
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to be returned to or for the account of the Company as provided in Section
18-607 or Section 18-804, as applicable, of the LLC Act, potentially with
interest; and are owned directly by the Company, free and clear of any lien,
charge, encumbrance, security interest, restriction upon voting or transfer or
any other claim of any third party, (except for those created pursuant to the
Credit Agreement, the Amended and Restated Operating Agreement or the Members'
Agreement and except for those described in the Offering Memorandum). DJ
Orthopedics has no subsidiaries other than DJ Capital and ▇▇▇▇▇ & Nephew DonJoy
de Mexico, S.A. de C.V., a Mexican corporation.
(b) Except as described in the Offering Memorandum, there are
no outstanding subscriptions, rights, warrants, calls or options to acquire, or
instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, units or other equity
or other ownership interests in the Company or any of its subsidiaries.
3.3 AUTHORITY, EXECUTION AND ENFORCEABILITY.
(a) The Company (i) has full right, power and authority to
execute and deliver this Agreement, and (ii) had or has full right, power and
authority to execute and deliver the Recapitalization Agreement, the Amended
and Restated Operating Agreement, the Members' Agreement, the Credit Agreement,
the Indenture and the Senior Subordinated Notes Purchase Agreement
(collectively, the "Transaction Documents") and to perform its respective
obligations hereunder and thereunder; and all requisite action required to be
taken for the due and proper authorization, execution and delivery of each of
the Transaction Documents to which it is a party and the consummation of the
transactions contemplated thereby have been duly and validly taken.
(b) Each Transaction Document has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding agreement of the Company, enforceable against it in accordance with its
terms, except to the extent that (i) such enforceability may be subject to (A)
bankruptcy, insolvency, fraudulent, conveyance, reorganization, moratorium and
other similar laws affecting creditors' rights generally and (B) general
equitable principles (whether considered in a proceeding in equity or at law)
and (ii) the validity or enforceability of rights to indemnification and
contribution thereunder may be limited by Federal or state securities laws or
regulations or the public policy underlying such laws or regulations.
3.4 NO CONFLICT.
The execution, delivery and performance by the Company of each of the
Transaction Documents to which it is a party, the compliance by the Company
with the terms thereof and the consummation of the transactions contemplated
thereby will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, or, except for those
existing on the Closing Date and permitted under the Credit Agreement and those
created pursuant to the Credit Agreement, result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to, any material indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
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Company or any of its subsidiaries is subject, nor will any such actions result
in any violation of the provisions of the limited liability company agreement,
operating agreement, charter or by-laws, as applicable, of the Company or any
of its subsidiaries or any statute or any judgment, order, decree, rule or
regulation of any court or arbitrator or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets (assuming compliance by each Purchaser with its
representations, warranties and agreements set forth in Section 4 hereof and
assuming compliance by the Initial Purchaser of its representations, warranties
and agreements set forth in Section 2 of the Senior Subordinated Notes Purchase
Agreement); and (assuming compliance by each Purchaser with its
representations, warranties and agreements set forth in Section 4 hereof and
assuming compliance by the Initial Purchaser of its representations, warranties
and agreements set forth in Section 2 of the Senior Subordinated Notes Purchase
Agreement) no consent, approval, authorization or order of, or filing or
registration with, any such court or arbitrator or governmental agency or body
under any such statute, judgment, order, decree, rule or regulation is required
for the execution, delivery and performance by the Company of each of the
Transaction Documents to which it is a party, the issuance, sale and delivery
of the Preferred Units and compliance by the Company with the terms thereof and
the consummation of the transactions contemplated by the Transaction Documents,
except for such consents, approvals, authorizations, filings, registrations or
qualifications which shall have been obtained or made prior to the Closing
Date.
3.5 INVESTMENT COMPANY ACT.
Neither the Company nor any of its subsidiaries is (i) an "investment
company" or a company "controlled by" an investment company within the meaning
of the Investment Company Act of 1940, as amended (the "Investment Company
Act"), and the rules and regulations of the Commission thereunder or (ii) a
"holding company" or a "subsidiary company" of a holding company or an
"affiliate" thereof within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
3.6 RECAPITALIZATION AGREEMENT.
Except as set forth on Schedule 3.6 hereto, or as described in the
Offering Memorandum, the representations and warranties contained in Article V
of the Recapitalization Agreement are true and correct in all material respects
(except to the extent such representations and warranties which expressly
relate to an earlier date, in which case, such representations and warranties
shall be true and correct in all material respects on such date).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser severally represents and warrants to the Company as to
itself and not as to any other Purchaser, as of the date hereof, as follows:
4.1 AUTHORIZATION OF THE DOCUMENTS.
Such Purchaser has all requisite power and authority to execute,
deliver and perform the Documents to which it is a party and the transactions
contemplated thereby, and the execution,
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delivery and performance by such Purchaser of the Documents to which it is a
party have been duly authorized by all requisite action by such Purchaser.
This Agreement has been duly executed and delivered by such Purchaser and this
Agreement constitutes and, when executed and delivered by such Purchaser
(assuming the due authorization, execution and delivery by the other parties
thereto), each other Document to which such Purchaser is a party will
constitute a valid and binding obligation of such Purchaser, enforceable
against such Purchaser in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws and subject to general principles of equity.
4.2 INVESTMENT REPRESENTATIONS.
Solely for establishing that the issuance, sale, transfer, assignment,
conveyance and deliverance of the Preferred Units to such Purchaser is exempt
from the registration requirements of the Securities Act and comparable
provisions of state blue-sky laws and not in any way to mitigate the
responsibility or Liability of the Company for any breach of the
representations and warranties made by it in this Agreement, on which such
Purchaser is relying in full in connection with its decision to invest in the
Company:
(a) Such Purchaser is acquiring the Preferred Units for its own
account, for investment and not with a view to the distribution thereof or any
interest therein in violation of the Securities Act or applicable state
securities laws.
(b) Such Purchaser understands that (i) the Preferred Units
have not been registered under the Securities Act or applicable state
securities laws by reason of their issuance by the Company in a transaction
exempt from the registration requirements of the Securities Act and applicable
state securities laws and (ii) the Preferred Units must be held by such
Purchaser indefinitely unless a subsequent disposition thereof is registered
under the Securities Act and applicable state securities laws or is exempt from
such registration.
(c) Such Purchaser further understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to such
Purchaser) promulgated under the Securities Act depends on the satisfaction of
various conditions, and that, if applicable, Rule 144 may afford the basis for
sales of the Preferred Units acquired hereunder in limited amounts.
(d) Such Purchaser has not employed any broker or finder in
connection with the transactions contemplated by this Agreement.
(e) Such Purchaser is an "accredited investor" (as defined in
Rule 501(a) of Regulation D promulgated under the Securities Act). The Company
has made available to such Purchaser or its representatives all agreements,
documents, records and books that such Purchaser has requested relating to an
investment in the Preferred Units which may be acquired by the Purchaser
hereunder. Such Purchaser has had an opportunity to ask questions of, and
receive answers from, a person or persons acting on behalf of the Company,
concerning the terms and conditions of this investment, and answers have been
provided to all of such questions to the full satisfaction of such Purchaser.
Such Purchaser has such knowledge and experience in financial and business
matters that it is capable of evaluating the risks and merits of this
investment. Such Purchaser's representations in this subsection shall in no
way limit the
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enforceability of any representations made by the Company in any of the
Documents to which it is a party.
(f) Such Purchaser was not formed for the purpose of
consummating the transactions contemplated hereby.
ARTICLE V
COVENANTS
5.1 INFORMATION RIGHTS.
The Company shall furnish each Purchaser with the following:
(a) Monthly Reports. As soon as available, but not later than
30 days after the end of each fiscal month, a consolidated balance sheet of the
Company as of the end of such period and consolidated statements of income of
the Company for such period and for the period commencing at the end of the
previous fiscal year and ending with the end of such period, setting forth in
each case in comparative form the corresponding figures for the corresponding
period of the preceding fiscal year, and including comparisons to the budget or
business plan and an analysis of the variances from the budget or plan, all
prepared in accordance with generally accepted accounting principles
consistently applied with past practices (except for the absence of footnotes
and year-end adjustments).
(b) Quarterly Reports. As soon as available, but not later
than 45 days after the end of each quarterly accounting period, (i) a
consolidated balance sheet of the Company as of the end of such period and
consolidated statements of income, cash flows and changes in members' equity
for such quarterly accounting period and for the period commencing at the end
of the previous fiscal year and ending with the end of such period, setting
forth in each case in comparative form the corresponding figures for the
corresponding period of the preceding fiscal year, and including comparisons to
the budget or business plan and an analysis of the variances from the budget or
plan, all prepared in accordance with generally accepted accounting principles
consistently applied with past practices (except for the absence of footnotes
and year-end adjustments) and (ii) a report by management of the Company of the
operating and financial highlights of the Company and its subsidiaries for such
period.
(c) Annual Audit. As soon as available, but not later than 120
days after the end of each fiscal year of the Company, audited consolidated
financial statements of the Company, which shall include statements of income,
cash flows and changes in members' equity for such fiscal year and a balance
sheet as of the last day thereof, each prepared in accordance with generally
accepted accounting principles, consistently applied, and accompanied by the
report of a "Big 5" firm of independent certified public accountants selected
by the Board (the "Accountants"). The Company and its subsidiaries shall
maintain a system of accounting sufficient to enable its Accountants to render
the report referred to in this Section 4.
(d) Budgets. As soon as available, but not more than 90 days
after the commencement of each new fiscal year, a business plan and projected
financial statements for such new fiscal year.
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(e) Miscellaneous. Promptly upon becoming available, the
Company shall provide to each Purchaser copies of all financial statements,
reports, press releases, notices, proxy statements and other documents sent by
the Company or its subsidiaries to its members generally or released to the
public and copies of all regular and periodic reports, if any, filed by the
Company or its subsidiaries with the Commission, any securities exchange or the
NASD.
5.2 COMPLIANCE WITH INDENTURE COVENANTS.
So long as any Preferred Units (other than Paid Preferred Units) are
outstanding, the Company shall cause DJ Orthopedics to perform its obligations
under Section 4.03, Section 4.05, Section 4.06, Section 4.07, Section 4.09 and
Section 4.12 of the Indenture.
5.3 COMPLIANCE WITH CREDIT AGREEMENT COVENANTS.
So long as any Preferred Units (other than Paid Preferred Units) are
outstanding, the Company will perform its obligations under Section 6.01(b),
Section 6.03(b) and Section 6.09 of the Credit Agreement, as in effect on the
date hereof.
ARTICLE VI
CONDITIONS TO CLOSING
6.1 CONDITIONS TO PURCHASERS' OBLIGATIONS.
The obligation of each Purchaser to purchase and pay for the Preferred
Units to be purchased hereunder at the Closing is subject to the satisfaction
of the following conditions, whether precedent or subsequent (unless waived by
such Purchaser):
(a) The Company and each member of the Company (other than the
Purchasers) shall have executed and delivered to each Purchaser a counterpart
to the Amended and Restated Operating Agreement.
(b) The Company shall have duly issued and delivered to each
Purchaser a certificate for the number of Preferred Units purchased by such
Purchaser.
(c) The Company and each member of the Company (other than the
Purchasers) shall have duly executed and delivered to each Purchaser a
counterpart to the Members' Agreement.
(d) The Company shall have executed and delivered to each
Purchaser an SBA Sideletter.
(e) The Company shall have performed its obligations under, and
shall have complied with, all the covenants and agreements set forth in this
Agreement.
(f) Each Purchaser shall have received a certificate from the
Secretary or an Assistant Secretary of the Company, dated as of the Closing
Date, certifying (i) that true and complete copies of the Fundamental Documents
of the Company as in effect on the Closing Date
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are attached thereto, (ii) as to the incumbency and genuineness of the
signatures of each Person executing this Agreement and the other Documents on
behalf of the Company and (iii) the genuineness of the resolutions (attached
thereto) of the Board or similar governing body of the Company authorizing the
execution, delivery and performance of this Agreement and the other Documents
to which the Company is a party and the consummation of the transactions
contemplated hereby and thereby.
(g) All representations and warranties of the Company contained
in Article III shall be true and correct in all material respects on and as of
the Closing Date.
(h) The transactions contemplated by the Recapitalization
Agreement, the Credit Agreement and the Senior Subordinated Notes Purchase
Agreement shall be consummated concurrently with the closing under this
Agreement.
6.2 CONDITIONS TO THE COMPANY'S OBLIGATIONS.
The obligation of the Company to issue the Preferred Units to each
Purchaser at the Closing is subject to the satisfaction of the following
conditions whether precedent or subsequent (unless waived by the Company):
(a) Each Purchaser shall have delivered to the Company by wire
transfer, of immediately available funds to an account or accounts designated
by the Company, an aggregate amount equal to the purchase price for the
Preferred Units being purchased by such Purchaser.
(b) Each Purchaser and each other member of the Company shall
have duly executed and delivered to the Company a counterpart to the Amended
and Restated Operating Agreement.
(c) Each Purchaser and each other member of the Company shall
have duly executed and delivered to the Company a counterpart to the Members'
Agreement.
(d) All representations and warranties of each Purchaser
contained in Article III shall be true and correct in all material respects on
and as of the Closing Date.
(e) The transactions contemplated by the Recapitalization
Agreement, the Credit Agreement and the Senior Subordinated Notes Purchase
Agreement shall be consummated concurrently with the closing under this
Agreement.
ARTICLE VII
INDEMNIFICATION
7.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES, AGREEMENTS AND COVENANTS,
ETC.
All statements contained in this Agreement or any other Document or
any closing certificate delivered by the Company or the Purchasers, pursuant to
this Agreement or in connection with the transactions contemplated by this
Agreement (each, a "Closing Certificate"), shall constitute representations and
warranties by the Company, or the Purchasers, as applicable, under this
Agreement. Notwithstanding any investigation made at any time by or on behalf
of any party hereto, all representations and warranties contained in this
Agreement or made in
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writing by or on behalf of the Company, or any Purchaser, in connection with
the transactions contemplated by this Agreement shall survive the Closing until
fifteen (15) months following the Closing Date, provided however, that the
representations and warranties contained in Sections 3.2, 3.3, 3.4 and Article
IV shall survive the Closing indefinitely and the representations and
warranties contained in Section 3.6 shall survive the Closing until such time
as such representations and warranties cease to survive under the
Recapitalization Agreement.
7.2 INDEMNIFICATION.
(a) In addition to all other rights and remedies available to
the Purchasers, the Company shall indemnify, defend and hold harmless each
Purchaser and its affiliates and their respective partners, officers,
directors, employees, agents and representatives (collectively, the "Purchaser
Representatives"; and together with such Purchaser, the "Purchaser Indemnified
Persons") against all Losses, and none of the Purchaser Indemnified Persons
shall be liable to the Company or any other stockholder of the Company for or
with respect to any and all Losses, together with all costs and expenses
(including legal and accounting fees and expenses) related thereto or incurred
in enforcing this Article VII, (i) arising from the untruth, inaccuracy or
breach of any of the representations or warranties of the Company (without
giving effect to any qualification as to materiality) contained in any Document
or Closing Certificate or any facts or circumstances constituting any such
untruth, inaccuracy or breach or (ii) arising from the breach of any covenant
or agreement of the Company contained in any Document or any facts or
circumstances constituting such breach.
(b) In addition to all other rights and remedies available to
the Company, each Purchaser severally as to itself only and not as to any other
Purchaser, shall indemnify, defend and hold harmless the Company and its
officers, directors, employees, agents and representatives (collectively, the
"Company Indemnified Persons,") against all Losses, together with all
reasonable out-of-pocket costs and expenses (including legal and accounting
fees and expenses) related thereto or incurred in enforcing this Article VII,
(i) arising from the untruth, inaccuracy or breach of any of the
representations or warranties of such Purchaser contained in any Document or
Closing Certificate or any facts or circumstances constituting such untruth,
inaccuracy or breach or (ii) arising from the breach of any covenant or
agreement of such Purchaser contained in any Document or any facts or
circumstances constituting such breach.
(c) If for any reason the indemnity provided for in this
Section 7.2 is unavailable to any Indemnified Person or is insufficient to hold
each such Indemnified Person harmless from all such Losses arising with respect
to the transactions contemplated by this Agreement, then the Indemnifying
Persons shall contribute to the amount paid or payable for such Losses in such
proportion as is appropriate to reflect not only the relative benefits received
by the Indemnifying Persons on the one hand and such Indemnified Person on the
other but also the relative fault of the Indemnifying Persons and the
Indemnified Person as well as any other relevant equitable considerations. In
addition, the Indemnifying Persons shall reimburse any Indemnified Person upon
demand for all reasonable expenses (including reasonable fees of legal counsel)
incurred by such Indemnified Person in connection with investigating, preparing
for or defending any such action or claim. The indemnity, contribution and
expenses reimbursement obligations that the Indemnifying Persons have under
this Article VII shall be in addition to any Liability that the Indemnifying
Persons may otherwise have. The Indemnifying Persons further agree that the
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indemnification and reimbursement commitments set forth in this Agreement shall
apply whether or not the Indemnified Person is a formal party to any such
Claim.
(d) Any indemnification of an Indemnified Person by
Indemnifying Persons pursuant to this Section shall be effected by wire
transfer of immediately available funds from the Indemnifying Persons to an
account designated by the Indemnified Person within 15 days after the
determination thereof.
(e) All indemnification rights hereunder shall survive the
execution and delivery of the Documents and the consummation of the
transactions contemplated herein and therein indefinitely, regardless of any
investigation, inquiry or examination made for or on behalf of, or any
knowledge of the Purchaser and/or any of the other Indemnified Parties or the
acceptance by the Purchaser of any certificate or opinion.
ARTICLE VIII
TRANSFER OF SECURITIES
8.1 RESTRICTION ON TRANSFER.
The Preferred Units shall be restricted from transfer as set forth in
the Amended and Restated Operating Agreement and the Members' Agreement.
8.2 RESTRICTIVE LEGENDS.
Each certificate evidencing the Preferred Units shall be stamped or
otherwise imprinted with a legend as set forth in the Members' Agreement.
ARTICLE IX
ADDITIONAL AGREEMENTS OF THE COMPANY
9.1 FEES.
(a) The Company will pay, and save the Purchasers harmless
against all Liability, whether or not the Closing hereunder occurs, for the
payment of, (i) all costs and other expenses incurred from time to time by the
Company in connection with the Company's performance of and compliance with all
agreements and conditions contained herein on its part to be performed or
complied with (including the reasonable costs and expenses of counsel incurred
in connection with the review and preparation of the Documents), (ii) the
actual and reasonable out-of-pocket costs and expenses incurred by CB Capital
in connection with the transactions contemplated hereby, including reasonable
fees, expenses and charges of ▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP (counsel to CB
Capital), (iii) the reasonable costs and expenses (including fees, expenses and
charges of counsel) incurred by the Purchasers in connection with any amendment
or waiver of, or enforcement of, any Document relating to the transactions
contemplated hereby and (iv) the reasonable costs and expenses incurred by each
Purchaser in any filing with any governmental authority with respect to its
investment in the Company or in any other filing with any governmental
authority with respect to the Company that mentions such Purchaser.
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(b) The Company further agrees that it will pay, and will save
the Purchasers harmless from, any and all Liability with respect to any stamp
or similar taxes which may be determined to be payable in connection with the
execution and delivery and performance of the Documents or any modification,
amendment or alteration of the terms or provisions of the Documents.
(c) The Company further agrees that it will pay (a) a closing
fee (the "Closing Fee") in the aggregate amount of $1,100,850 and (b) an
application fee (the "Application Fee") in the aggregate amount of $314,150 to
the Purchasers, to be shared by the Purchasers pro rata in accordance with the
number of Preferred Units purchased hereunder. The Company hereby authorizes
each Purchaser to withhold from its aggregate purchase price set forth opposite
its name on Schedule I hereto, its pro rata portion of the applicable fees
payable to it by the Company pursuant to this Section 9.1(c).
9.2 FURTHER ASSURANCES.
The Company shall duly execute and deliver, or cause to be duly
executed and delivered, at its own cost and expense, such further instruments
and documents and to take all such action, in each case as may be necessary or
proper in the reasonable judgment of the Purchasers holding a majority of the
Preferred Units to carry out the provisions and purposes of the Agreement and
the other Documents.
9.3 REMEDIES.
In case any one or more of the representations, warranties, covenants
and/or agreements set forth in this Agreement shall have been breached by the
Company, the Purchasers (or any Purchaser) may proceed to protect and enforce
its or their rights either by suit in equity and/or by action at law, including
an action for damages as a result of any such breach and/or an action for
specific performance of any such covenant or agreement contained in this
Agreement.
9.4 SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of the Company and
the Purchasers and their respective successors and assigns. Upon any transfer
of any Preferred Units, as a condition to transfer the transferee shall agree
to be bound by, and entitled to the benefits of, this Agreement with respect to
such transferred Preferred Units in the same manner as the transferring
Purchaser.
9.5 ENTIRE AGREEMENT.
This Agreement and the other writings referred to herein or delivered
pursuant hereto which form a part hereof contain the entire agreement among the
parties with respect to the subject matter hereof and thereof and supersede all
prior and contemporaneous arrangements or understandings with respect thereto.
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9.6 NOTICES.
All notices and other communications delivered hereunder (whether or
not required to be delivered hereunder) shall be deemed to be sufficient and
duly given if contained in a written instrument (a) personally delivered, (b)
sent by telecopier, (c) sent by nationally-recognized overnight courier
guaranteeing next Business Day delivery or (d) sent by first class registered
or certified mail, postage prepaid, return receipt requested, in each case
addressed as follows:
if to the Company, to:
DonJoy, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
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with a copy to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
if to CB Capital, to its address set forth on Schedule I attached hereto;
with a copy to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
if to First Union, to its address set forth on Schedule I attached hereto;.
or to such other address as the party to whom such notice or other
communication is to be given may have furnished to each other party in writing
in accordance herewith. Any such notice or communication shall be deemed to
have been received (i) when delivered, if personally delivered, (ii) when sent,
if sent by telecopy on a Business Day (or, if not sent on a Business Day, on
the next Business Day after the date sent by telecopy), (iii) on the next
Business Day after dispatch, if sent by nationally recognized, overnight
courier guaranteeing next Business Day delivery, and (iv) on the fifth Business
Day following the date on which the piece of mail containing such communication
is posted, if sent by mail.
9.7 AMENDMENTS, MODIFICATIONS AND WAIVERS.
The terms and provisions of this Agreement may not be modified or
amended, nor may any of the provisions hereof be waived, temporarily or
permanently, except pursuant to a written instrument executed by the Company
and the holders of a majority of the Preferred Units; provided however that any
such amendment, modification or waiver that would adversely affect the rights
hereunder of any Purchaser, in its capacity as a Purchaser, without similarly
affecting the rights hereunder of all Purchasers, in their capacities as
Purchasers, shall not be effective as to such Purchaser without its prior
written consent. No waiver by any party shall operate or be construed as a
waiver of any subsequent breach by any other party.
9.8 GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) All questions concerning the construction, interpretation
and validity of the Documents shall be governed by and construed and enforced
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
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of the laws of any jurisdiction other than the State of Delaware. In
furtherance of the foregoing, the internal law of the State of Delaware will
control the interpretation and construction of the Documents, even if under
such jurisdiction's choice of law or conflict of law analysis, the substantive
law of some other jurisdiction would ordinarily or necessarily apply.
(b) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX
FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS
AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
(c) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of any court of the State of New York or Federal court of the
United States of America sitting in the State of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in any such court of the State of New York or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.
(d) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
of the State of New York or Federal court. Each of the parties hereto
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
9.9 NO THIRD PARTY RELIANCE.
Anything contained herein to the contrary notwithstanding, the
representations and warranties of the Company contained in this Agreement (a)
are being given by the Company as an inducement to the Purchasers to enter into
this Agreement and the other Documents (and the Company acknowledges that the
Purchasers have expressly relied thereon) and (b) are solely for the benefit of
the Purchasers and their permitted assigns. Accordingly, no third party
(including, without limitation, any other holder of any equity interest of the
Company) or anyone acting on behalf of any thereof other than the Purchasers
and their permitted assigns, and each of them, shall be a third party or other
beneficiary of such representations and warranties and no such third party
shall have any rights of contribution against the Purchasers or the Company
with respect to such representations or warranties or any matter subject to or
resulting in indemnification under this Agreement or otherwise.
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9.10 SEVERABILITY.
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the law and
public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any provision of this Agreement would be held in
any jurisdiction to be invalid, prohibited or unenforceable for any reason,
such provision, as to such jurisdiction, shall be ineffective, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn
so as not be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
9.11 INDEPENDENCE OF AGREEMENTS, COVENANTS, REPRESENTATIONS AND WARRANTIES.
All agreements and covenants hereunder shall be given independent
effect so that if a certain action or condition constitutes a default under a
certain agreement or covenant, the fact that such action or condition is
permitted by another agreement or covenant shall not affect the occurrence of
such default, unless expressly permitted under an exception to such initial
covenant. In addition, all representations and warranties hereunder shall be
given independent effect so that if a particular representation or warranty
proves to be incorrect or is breached, the fact that another representation or
warranty concerning the same or similar subject matter is correct or is not
breached will not affect the incorrectness of or a breach of a representation
and warranty hereunder.
9.12 COUNTERPARTS; FACSIMILE SIGNATURES.
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.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Preferred Unit Purchase Agreement as of the date first above written.
COMPANY:
DONJOY, L.L.C.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ III
--------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ III
Title: Vice President- Finance, Chief
Financial Officer and Secretary
PURCHASERS:
CB CAPITAL INVESTORS, L.P.
By: CB Capital Investors, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, M.D.
Title: Vice President
25
FIRST UNION INVESTORS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Sr. Vice President
[Signature Page to Preferred Unit Purchase Agreement]
26
SCHEDULE I
-------------------------------------------------------------------------
NAME AND ADDRESS NUMBER OF UNITS TOTAL PRICE
-------------------------------------------------------------------------
CB CAPITAL INVESTORS, L.P. 27,124 $21,204,968.64
c/o Chase Capital Partners
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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FIRST UNION INVESTORS, INC. 13,060 $10,210,031.36
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (704)
Fax: (704)
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TOTAL 40,184 $31,415,000
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