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EXHIBIT 10.52
CONSENT AND TERMINATION AGREEMENT
dated as of November 7, 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 October 26, 2001 (the "FIRST 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 "FIRST MERGER");
WHEREAS, in order to facilitate the IPO, the Parent and the Company
have entered into an Agreement and Plan of Merger, dated as of November 7, 2001
(the "SECOND MERGER AGREEMENT", and together with the First Merger Agreements,
the "MERGER AGREEMENTS"), pursuant to which, immediately after the consummation
of the First Merger, but immediately prior to the consummation of the IPO, the
Company will be merged with and into the Parent, with the Parent being the
surviving entity (the "SECOND MERGER", and together with the First Merger, the
"MERGERS");
WHEREAS, pursuant to the First Merger Agreement, the Members will
receive shares of Parent Common Stock and the other consideration specified in
the First 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
First 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:
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1. CONSENT TO THE MERGERS AND APPROVAL OF THE MERGER AGREEMENTS. Each of
the Members hereby consents to the Mergers and hereby approves the form, terms
and provisions of the Merger Agreements substantially in the forms attached
hereto as EXHIBIT A.
2. TERMINATION OF MEMBERS' AGREEMENT. Effective upon the filing of the
Certificate of Merger (as defined in the First Merger Agreement) pursuant to,
and in accordance with, the terms of the First 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]
2
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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: /s/ Leslie H. Cross
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Name: Leslie H. Cross
Title: President & Chief Executive Officer
J.P. MORGAN DJ PARTNERS, LLC
BY: J.P. MORGAN FAIRFIELD PARTNERS,
LLC, ITS MANAGING MEMBER
By: /s/ Charles Orsatti
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Charles Orsatti
Managing Member
J.P. MORGAN PARTNERS (23A SBIC), LLC
BY: J.P. MORGAN PARTNERS (23A SBIC
MANAGER), INC.,
ITS MANAGING MEMBER
By: /s/ Mitchell Blutt
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Name: Mitchell Blutt
Title: Executive Partner
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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: /s/ David F. Grams, Jr.
------------------------------------
David F. Grams, Jr.
Title: Principal
FIRST UNION CAPITAL PARTNERS, LLC
By: /s/ David F. Grams, Jr.
------------------------------------
David F. Grams, Jr.
Principal
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IN WITNESS WHEREOF, the parties hereto have executed this Consent
and Termination Agreement as of the date first above written.
DJC, INC.
By: /s/ Jean-Marc Chapus
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Name: Jean-Marc Chapus
Title: President
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: /s/ Jean-Marc Chapus
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Name: Jean-Marc Chapus
Title: Managing Director
TCW LEVERAGED INCOME TRUST II, L.P.
BY: TCW (LINC II), L.P.,
ITS GENERAL PARTNER
BY: TCW ADVISERS (BERMUDA), LTD.,
ITS GENERAL PARTNER
By: /s/ Mark D. Senkpiel
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Name: Mark D. Senkpiel
Title: Managing Director
BY: TCW INVESTMENT MANAGEMENT
CORPORATION, AS INVESTMENT ADVISER
By: /s/ Jean-Marc Chapus
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Name: Jean-Marc Chapus
Title: Managing Director
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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: /s/ Jean-Marc Chapus
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Name: Jean-Marc Chapus
Title: Managing Director
By: /s/ Mark D. Senkpiel
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Name: Mark D. Senkpiel
Title: Managing Director
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IN WITNESS WHEREOF, the parties hereto have executed this Consent
and Termination Agreement as of the date first above written.
LESLIE H. CROSS & DEBORAH L. CROSS
FAMILY TRUST
By: /s/ Leslie H. Cross
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Name: Leslie H. Cross
Title: Co-Trustee
/s/ Cyril Talbot III
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Cyril Talbot III
/s/ Michael R. McBrayer
-------------------------------------
Michael R. McBrayer