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EXHIBIT 4.9
UNIT PURCHASE AGREEMENT,
dated as of June 28, 2000, among
▇▇▇▇▇ & NEPHEW DISPOSAL, INC., a
Delaware corporation (the "Seller"),
and THE PURCHASERS IDENTIFIED ON
ANNEX I HERETO (collectively, the
"Purchasers").
The Seller desires to sell to the Purchasers, and the Purchasers
desire to purchase from the Seller, 54,000 Common Units (the "Purchased Units")
of DonJoy, L.L.C., a Delaware limited liability company (the "Company").
In consideration of the mutual promises herein made and in
consideration of the representations, warranties, and covenants herein
contained, the Seller and the Purchasers agree as follows:
ARTICLE I
PURCHASED UNITS
1.1 SALE OF THE PURCHASED UNITS.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, and in reliance upon the representations and warranties
hereinafter set forth, at the Closing, the Seller shall issue, sell and deliver
to each Purchaser, and each such Purchaser shall purchase from the Seller, that
number of Purchased Units set forth opposite the name of such Purchaser in the
second column of Annex I, free and clear of all liens, claims and encumbrances
of any nature whatsoever (collectively, "Liens") (other than pursuant to the
Existing Agreements (as defined below)), for the aggregate purchase price set
forth opposite the name of such Purchaser in the third column of Annex I.
(b) Each party hereto waives any rights such party may have under
Section 6 of the Members' Agreement with respect to the sale by the Seller to
the Purchasers of the Purchased Units in accordance with the provisions of this
Agreement and acknowledges its or his consent to such sale for purposes of
Section 7.1(a) of the Operating Agreement.
(c) As used herein, the term "Existing Agreements" means (i) the
Second Amended and Restated Operating Agreement of the Company, dated as of July
30, 1999, among the Seller, the Purchasers and the other parties thereto (if
any), as amended, supplemented and otherwise modified from time to time (the
"Operating Agreement"), and (ii) the Members' Agreement of the Company, dated as
of June 30, 1999, among the Company, the Seller, the Purchasers and the other
parties thereto (if any), as amended, supplemented or otherwise modified from
time to time (the "Members' Agreement").
1.2 CLOSING.
(a) The closing of the issuance, sale and purchase of the
Purchased Units pursuant to Section 1.1(a) (the "Closing") shall take place at
10:00 a.m., New York City time, on the date hereof (the "Closing Date") at the
offices of ▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
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(b) At the Closing, (i) the Seller shall deliver to each
Purchaser the certificates representing the Purchased Units to be purchased by,
and issued and sold to, such Purchaser pursuant to Section 1.1(a), duly endorsed
in blank for transfer or accompanied by stock powers duly executed in blank,
sufficient in form and substance to convey to such Purchaser good title to such
Purchased Units, free and clear of all Liens (other than pursuant to the
Existing Agreements), and (ii) each Purchaser, in full payment for the Purchased
Units to be purchased by, and sold to, such Purchaser pursuant to Section
1.1(a), shall deliver to the Seller the purchase price to be paid by such
Purchaser for such Purchased Units pursuant to Section 1.1(a), in immediately
available funds by wire transfer to Bank One, Chicago, Illinois, ABA Routing No.
▇▇▇▇▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇, Account Name: ▇▇▇▇▇ & Nephew, Inc.
1.3 FURTHER ASSURANCES.
The Seller shall, at any time after the Closing, upon the request of any
Purchaser and at such Purchaser's expense, do, execute, acknowledge and deliver,
and cause to be done, executed, acknowledged and delivered, all such further
acts, deeds, assignments, transfers, conveyances, powers of attorney or
assurances as may be reasonably required to transfer, convey, grant and confirm
to and vest in such Purchaser good title to all of the Purchased Units purchased
by, and sold to such Purchaser pursuant to Section 1.1(a), free and clear of all
Liens (other than pursuant to the Existing Agreements).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As a material inducement to the Purchasers to enter into and
perform their respective obligations under this Agreement, the Seller hereby
represents and warrants to the Purchasers as set forth in Sections 2.1 through
2.4 below.
2.1 AUTHORITY; CORPORATE ACTIONS; ENFORCEABILITY.
The Seller has the requisite corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance by the Seller of this Agreement and the
performance of its obligations hereunder have been duly authorized by all
necessary corporate action on its part and no other corporate proceedings on its
part are necessary to authorize this Agreement or the performance of its
obligations hereunder. The Seller has duly executed and delivered this
Agreement, and this Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting the enforcement of
creditors' rights generally and general equitable principles.
2.2 CONSENTS; NO CONFLICTS
The execution and delivery by the Seller of this Agreement and the
performance by it of its obligations hereunder does not: (i) conflict with, or
result in any violation of or default (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or a loss of a benefit under, or result in the
creation
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of any Lien upon any of the assets owned or used by the Seller under, any
provision of: (A) the certificate of incorporation or bylaws of the Seller; (B)
any lease, license, contract or other agreement or commitment (each, a
"Contract") to which the Seller is a party or by which any of the Seller's
properties or assets is bound (other than the Existing Agreements); (C) any
judgment, order, compliance agreement, injunction, award or decree issued by any
Governmental Authority applicable to the Seller or any of the Seller's
properties or assets; or (D) any law, rule, regulation, ordinance or code of any
Governmental Authority applicable to the Seller or any of the Seller's
properties or assets; or (ii) require the Seller to obtain any consent,
approval, license, permit, order or authorization of, or make, any registration,
declaration or filing with, any Governmental Authority or any other Person. As
used in this Agreement, the term "Governmental Authority" means any Federal,
state, local or foreign government, court of competent jurisdiction,
administrative agency or commission or other governmental authority and the term
"Person" means and includes an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, joint
venture, an unincorporated organization or a Governmental Authority.
2.3 OWNERSHIP.
The Seller is the lawful owner, of record and beneficially, of the
Purchased Units and has good and marketable title to such Purchased Units, free
and clear of any and all Liens (other than pursuant to the Existing Agreements).
Upon the Seller's delivery to each Purchaser at the Closing of the Purchased
Units to be purchased by, and issued and sold to, such Purchaser pursuant to
Section 1.1(a) and the payment in full at the Closing by such Purchaser of the
purchase price for such Purchased Units pursuant to Section 1.2, such Purchaser
will receive good and marketable title to such Purchased Units, free and clear
of all Liens (other than pursuant to the Existing Agreements). Except for the
Existing Agreements, (i) there are no outstanding options, warrants, rights,
calls or other Contracts to which the Seller or any Affiliate thereof is a party
to sell or assign any of the Purchased Units and (ii) there are no Contracts to
which the Seller or any Affiliate thereof is a party which relate to the
Purchased Units. As used herein, the term "Affiliate" means, with respect to any
specified Person, any other Person that, directly or indirectly, through one or
more intermediaries, controls, is under common control with, or controlled by,
such specified Person and the term "control" means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, as trustee or executor or otherwise.
2.4 BROKERS.
No Person has acted, directly or indirectly, as a broker, finder or
financial advisor of the Seller or any Affiliate thereof in connection with the
transactions contemplated by this Agreement. No Person is entitled to receive
any broker's, finder's or similar fee or commission from the Seller or any
Affiliate thereof in connection with this Agreement or the consummation of the
transactions contemplated thereby, based in any way on any Contract made by or
on behalf of the Seller or any Affiliate thereof.
ARTICLE III
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SEVERAL REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS
As a material inducement to the Seller to enter into and perform
its obligations under this Agreement, each of the Purchasers hereby severally
(as to such Purchaser only) represents and warrants to the Seller as set forth
in Sections 3.1 through 3.3 below.
3.1 AUTHORITY; ACTIONS; ENFORCEABILITY.
If such Purchaser is not a natural Person, such Purchaser has the
requisite corporate or limited partnership power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and the
execution and delivery by such Purchaser of this Agreement and the performance
by such Purchaser of its obligations hereunder have been duly authorized by all
necessary corporate or limited partnership action on the part of such Purchaser
and no other corporate or limited partnership proceedings on the part of such
Purchaser are necessary to authorize this Agreement or to perform its
obligations hereunder. Such Purchaser has duly executed and delivered this
Agreement, and this Agreement constitutes the legal, valid and binding
obligation of such Purchaser, enforceable against such Purchaser in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or other similar laws
affecting the enforcement of creditors' rights generally and general equitable
principles.
3.2 INVESTMENT REPRESENTATIONS.
(a) Such Purchaser is acquiring the Purchased Units set forth
opposite its or his name on Annex I for its or his own account, for investment
only and not with a view to effecting a distribution thereof in violation of the
Securities Act or applicable state securities laws. Such Purchaser understands
that the Purchased Units to be acquired by such Purchaser pursuant to this
Agreement have not been registered under the Securities Act or the securities
laws of any state or other jurisdiction and cannot be disposed of unless
subsequently registered under the Securities Act and any applicable state laws
or an exemption from such registration is available. Such Purchaser has such
knowledge and experience in financial and business matters such that such
Purchaser is capable of evaluating the merits and risks of an investment in the
Purchased Units to be acquired by such Purchaser hereunder and making an
informed investment decision with respect thereto and that such Purchaser has
consulted with and relied exclusively upon the advice of such Purchaser's own
counsel and tax and financial advisors in connection with such Purchaser's
investment decision to acquire such Purchased Units.
(b) Such Purchaser qualifies as an "accredited investor" (as
defined in Rule 501(a) under the Securities Act), provided, that, in the case of
DJC, Inc. ("DJC"), in lieu of such representation and warranty as to the
qualification of DJC as an "accredited investor," DJC represents and warrants
that all investment decisions with respect to DJC's investment in the Purchased
Units to be acquired by DJC hereunder were made on behalf of DJC by TCW/Crescent
Mezzanine Partners II, L.P. and TWC Leverage Income Trust II, L.P., the holders,
collectively, of 100% of the outstanding capital stock of DJC.
(c) Such Purchaser further understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to such
Purchaser) under the Securities
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Act depends on the satisfaction of various conditions, and that, if
applicable, Rule 144 may only afford the basis for sales of the Purchased Units
to be acquired by such Purchaser hereunder only in limited amounts.
3.3 BROKERS.
No Person has acted, directly or indirectly, as a broker, finder or
financial advisor of such Purchaser in connection with the transactions
contemplated by this Agreement. No Person is entitled to receive any broker's,
finder's or similar fee or commission from such Person in connection with this
Agreement or the consummation of the transactions contemplated thereby, based in
any way on any Contract made by or on behalf of such Purchaser.
ARTICLE IV
MISCELLANEOUS
4.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
All representations, warranties and covenants hereunder shall survive
the Closing and shall in no way be affected by any knowledge possessed by, or
investigation of the subject matter thereof made by or on behalf of, the
Purchasers.
4.2 REMEDIES.
In case any one or more of the covenants set forth in this Agreement
shall have been breached by any party hereto, each other party hereto may
proceed to protect and enforce its or his 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. In the event
that any dispute between the Seller and any of the Purchasers should result in
litigation, the prevailing party in such dispute shall be entitled to recover
from the losing party all reasonable fees, costs and expenses of enforcing any
right of such prevailing party under or with respect to this Agreement,
including, without limitation, such reasonable fees and expenses of attorneys
and accountants (which shall include, without limitation, all fees, costs and
expenses of appeals).
4.3 EXPENSES; TRANSFER TAXES.
Except as set forth in the next sentence, each party hereto will pay its
own costs and expenses incident to its negotiation and preparation of this
Agreement and to its performance of its obligations hereunder, including the
fees, expenses and disbursements of its counsel and accountants. The Seller
agrees that it will pay, and will hold each Purchaser harmless from, any and all
liability with respect to any transfer, stamp or similar taxes which may be
determined to be payable in connection with the execution, delivery and
performance of this Agreement or any modification, amendment or alteration of
the terms or provisions of this Agreement.
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4.4 SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of the Seller and
each of the Purchasers and the respective successors, assigns, heirs and
personal representatives of the Seller and each of the Purchasers.
4.5 ENTIRE AGREEMENT.
This Agreement contains the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous arrangements or understandings with respect thereto.
4.6 NOTICES.
Any notices, demands, consents or other communications that are
given or made hereunder shall be in writing and shall be given or made to any
party hereto by physical delivery, U.S. mail (registered or certified mail,
postage prepaid, return receipt requested) or overnight courier or by
transmission by facsimile to such party at its, his or her address (or facsimile
number) set forth below, or such other address (or facsimile number) as shall
have been specified by like notice by such party:
(i) if to the Seller, to
▇▇▇▇▇ & Nephew Disposal, Inc.
c/o Smith & Nephew, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ & Nephew Disposal, Inc.
c/o Smith & Nephew, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to any Purchaser, to such Purchaser at the address
set forth on Annex I immediately below the name of
such Purchaser.
Each such notice, demand, consent or other communication shall be effective upon
receipt in the case of physical delivery or overnight courier, upon confirmation
of receipt by or on behalf of the addressee in the case of transmission by
facsimile if received prior to 5:00 p.m., New York City time, and, if received
after 5:00 p.m., New York City time, on the next Business Day
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immediately after the date of such receipt, and five Business Days after deposit
in the U.S. mails in the case of mailing. As used herein, the term "Business
Day" means any day, other than a Saturday, Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close.
4.7 AMENDMENTS.
The terms and provisions of this Agreement may be modified or amended,
or any of the provisions hereof waived, temporarily or permanently, pursuant to
the written consent of the Seller and the Purchasers.
4.8 GOVERNING LAW, WAIVER OF JURY TRIAL; JURISDICTION.
(a) All questions concerning the construction, interpretation and
validity of this Agreement shall be governed by and construed and enforced in
accordance with the internal law 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 law
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 this Agreement, even if under such
jurisdiction's choice of law or conflict of law analysis, the internal 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.
4.9 SEVERABILITY.
Whenever possible, each provision of this Agreement shall be interpreted
in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or the effectiveness or validity of any provision in any other jurisdiction, and
this Agreement will be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been contained
herein.
4.10 INTERPRETATION.
The section headings in this Agreement are for convenience only
and shall not control or affect the meaning of any provision of this Agreement.
Annex I hereto is hereby incorporated in and made a part of this Agreement as if
set forth on full herein. Where specific
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language (such as the word "including") 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.
4.11 DISCLAIMER OF WARRANTIES.
The Seller makes no representations or warranties with respect to any
projections, forecasts or forward-looking information provided to the
Purchasers. There is no assurance that any projected or forecasted results will
be achieved. EXCEPT AS TO THOSE MATTERS EXPRESSLY COVERED BY THE REPRESENTATIONS
AND WARRANTIES IN THIS AGREEMENT, THE PURCHASED UNITS (AND THE BUSINESS AND
ASSETS OF THE COMPANY REPRESENTED THEREBY) ARE BEING SOLD TO THE PURCHASERS ON
AN "AS IS, WHERE IS" BASIS AND THE SELLER DISCLAIMS ALL OTHER WARRANTIES,
REPRESENTATIONS AND GUARANTEES, WHETHER EXPRESS OR IMPLIED. THE SELLER MAKES NO
REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE AND NO IMPLIED WARRANTIES WHATSOEVER. THE PURCHASE PRICE WITH RESPECT TO
THE PURCHASED UNITS WAS NEGOTIATED PRIVATELY BETWEEN THE PARTIES. THE SELLER
ACKNOWLEDGES THAT IT HAS SUCH KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS
MATTERS THAT IT IS CAPABLE OF EVALUATING THE MERITS OF A SALE OF THE PURCHASED
UNITS ON THE TERMS SET FORTH HEREIN, HAS HAD AN OPPORTUNITY TO ASK QUESTIONS
REGARDING THE BUSINESS, PROPERTIES, PROSPECTS AND FINANCIAL CONDITION OF THE
COMPANY AND THE ADEQUACY OF THE PURCHASE PRICE FOR THE PURCHASED UNITS AND
ANSWERS HAVE BEEN PROVIDED TO ALL SUCH QUESTIONS. Each Purchaser acknowledges
that neither the Seller nor any of its representatives nor any other Person has
made any representation or warranty, express or implied, as to the accuracy or
completeness of any memoranda, charts, summaries or schedules heretofore made
available by the Seller or its representatives to such Purchaser or any other
information which is not included in this Agreement, and neither the Seller nor
any of its representatives nor any other Person will have or be subject to any
liability to any Purchaser, any Affiliate thereof or any other Person resulting
from the distribution of any such information to, or use of any such information
by, any Purchaser, any Affiliate thereof or any of their agents, consultants,
accountants, counsel or other representatives.
4.12 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement. This Agreement, and
any amendments, modifications or waivers hereof, to the extent signed and
delivered by means of a facsimile machine, shall be treated in all manner and
respects as an original agreement or instrument and shall be considered to have
the same binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto or to any such
amendment, modification or waiver, each other party hereto or thereto shall
reexecute original forms thereof and deliver them to all other parties.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Unit
Purchase Agreement as of the date first above written.
SELLER
▇▇▇▇▇ & NEPHEW DISPOSAL, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President & Treasurer
GUARANTOR
▇▇▇▇▇ & Nephew, Inc. (the
"Guarantor") hereby unconditionally
and irrevocably guarantees to the
Purchasers the full and timely
performance and payment of all of
the Seller's obligations under this
Agreement. The Guarantor hereby
agrees that the Purchasers, or any
of them, may proceed against the
Guarantor for the performance or
payment of such obligations. In
addition, the Guarantor hereby
waives all special suretyship
defenses and notice requirements.
▇▇▇▇▇ & NEPHEW, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer
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IN WITNESS WHEREOF, the parties hereto have executed this Unit
Purchase Agreement as of the date first above written.
PURCHASER
▇▇▇▇▇ ▇▇ PARTNERS, LLC
BY: FAIRFIELD CHASE MEDICAL PARTNERS,
LLC, ITS MANAGING MEMBER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Member
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IN WITNESS WHEREOF, the parties hereto have executed this Unit
Purchase Agreement as of the date first above written.
PURCHASER
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
FAMILY TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Co-Trustee
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IN WITNESS WHEREOF, the parties hereto have executed this Unit
Purchase Agreement as of the date first above written.
PURCHASER
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ III
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ III
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IN WITNESS WHEREOF, the parties hereto have executed this Unit
Purchase Agreement as of the date first above written.
PURCHASER
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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ANNEX I
NUMBER OF
PURCHASER PURCHASED UNITS PURCHASE PRICE
--------- --------------- ----------------
▇▇▇▇▇ ▇▇ PARTNERS, LLC 52,495 $ 5,722,007.53
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 1,017 $ 110,805.73
FAMILY TRUST
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 244 $ 26,593.37
▇▇▇▇▇ ▇▇▇▇▇▇ III 244 $ 26,593.37
COMPANY CONSENT AND WAIVER
DonJoy, L.L.C., a Delaware limited liability company (the
"Company"), hereby waives any rights that the Company may have under Section 6
of the Member's Agreement with respect to the sale by the Seller to the
Purchasers of the Purchased Units in accordance with the provisions of the Unit
Purchase Agreement dated as of June 28, 2000, to which this Company Consent and
Waiver is attached (the "Unit Purchase Agreement"). In addition, by reason of
its
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prior receipt of the proposed Unit Purchase Agreement, the Company confirms that
it has received prior written notice of such sale from the Seller pursuant to
Section 7.2(b) of the Operating Agreement. Furthermore, the Company hereby
certifies that all members of the Company (excluding the Seller) who hold Units
(as defined in the Operating Agreement) have consented to such sale for purposes
of Section 7.1(a) of the Operating Agreement.
Capitalized terms used and not otherwise defined in this Company
Consent and Waiver have the meanings ascribed to them in the Unit Purchase
Agreement.
Dated: June 28, 2000
DONJOY, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President & CEO
16
MEMBER CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), hereby waives any rights the
undersigned may have under Section 6 of the Members' Agreement with respect to
the sale by the Seller to the Purchasers of the Purchased Units in accordance
with the provisions of the Unit Purchase Agreement dated as of June 28, 2000, to
which this Member Consent and Waiver is attached (the "Unit Purchase
Agreement"). In addition, the undersigned acknowledges its consent to such sale
for purposes of Section 7.1(a) of the Operating Agreement.
Capitalized terms used and not otherwise defined in this Member
Consent and Waiver have the meanings ascribed to them in the Unit Purchase
Agreement.
Dated: June 28, 2000
CB CAPITAL INVESTORS, LLC
BY: CHASE CAPITAL PARTNERS,
AS INVESTMENT MANAGER
By:
---------------------------------
Name:
Title:
17
MEMBER CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), hereby waives any rights the
undersigned may have under Section 6 of the Members' Agreement with respect to
the sale by the Seller to the Purchasers of the Purchased Units in accordance
with the provisions of the Unit Purchase Agreement dated as of June 28, 2000, to
which this Member Consent and Waiver is attached (the "Unit Purchase
Agreement"). In addition, the undersigned acknowledges its consent to such sale
for purposes of Section 7.1(a) of the Operating Agreement.
Capitalized terms used and not otherwise defined in this Member
Consent and Waiver have the meanings ascribed to them in the Unit Purchase
Agreement.
Dated: June 28, 2000
DJ INVESTMENT, LLC
BY: FIRST UNION INVESTORS, INC.,
AS MANAGER
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
18
MEMBER CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), hereby waives any rights the
undersigned may have under Section 6 of the Members' Agreement with respect to
the sale by the Seller to the Purchasers of the Purchased Units in accordance
with the provisions of the Unit Purchase Agreement dated as of June 28, 2000, to
which this Member Consent and Waiver is attached (the "Unit Purchase
Agreement"). In addition, the undersigned acknowledges its consent to such sale
for purposes of Section 7.1(a) of the Operating Agreement.
Capitalized terms used and not otherwise defined in this Member
Consent and Waiver have the meanings ascribed to them in the Unit Purchase
Agreement.
Dated: June 28, 2000
DJC, INC.
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title:
19
MEMBER CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), hereby waives any rights the
undersigned may have under Section 6 of the Members' Agreement with respect to
the sale by the Seller to the Purchasers of the Purchased Units in accordance
with the provisions of the Unit Purchase Agreement dated as of June 28, 2000, to
which this Member Consent and Waiver is attached (the "Unit Purchase
Agreement"). In addition, the undersigned acknowledges its consent to such sale
for purposes of Section 7.1(a) of the Operating Agreement.
Capitalized terms used and not otherwise defined in this Member
Consent and Waiver have the meanings ascribed to them in the Unit Purchase
Agreement.
Dated: June 28, 2000
TCW/CRESCENT MEZZANINE TRUST II
BY: TCW/CRESCENT MEZZANINE II, L.P.,
AS GENERAL PARTNER OR MANAGING OWNER
BY: TCW/CRESCENT MEZZANINE, L.L.C.,
ITS GENERAL PARTNER
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: President
20
MEMBER CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), hereby waives any rights the
undersigned may have under Section 6 of the Members' Agreement with respect to
the sale by the Seller to the Purchasers of the Purchased Units in accordance
with the provisions of the Unit Purchase Agreement dated as of June 28, 2000, to
which this Member Consent and Waiver is attached (the "Unit Purchase
Agreement"). In addition, the undersigned acknowledges its consent to such sale
for purposes of Section 7.1(a) of the Operating Agreement.
Capitalized terms used and not otherwise defined in this Member
Consent and Waiver have the meanings ascribed to them in the Unit Purchase
Agreement.
Dated: June 28, 2000
TCW LEVERAGED INCOME TRUST II, L.P.
BY: TCW INVESTMENT MANAGEMENT COMPANY, AS
INVESTMENT ADVISOR
BY: TCW/CRESCENT MEZZANINE, L.L.C.,
ITS GENERAL PARTNER
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: President
BY: TCW (▇▇▇▇ ▇▇), L.P.,
AS GENERAL PARTNER
BY: TCW ADVISORS (BERMUDA), LTD.,
AS ITS GENERAL PARTNER
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
21
MEMBER CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), hereby waives any rights the
undersigned may have under Section 6 of the Members' Agreement with respect to
the sale by the Seller to the Purchasers of the Purchased Units in accordance
with the provisions of the Unit Purchase Agreement dated as of June 28, 2000, to
which this Member Consent and Waiver is attached (the "Unit Purchase
Agreement"). In addition, the undersigned acknowledges its consent to such sale
for purposes of Section 7.1(a) of the Operating Agreement.
Capitalized terms used and not otherwise defined in this Member
Consent and Waiver have the meanings ascribed to them in the Unit Purchase
Agreement.
Dated: June 28, 2000
CRESCENT/MACH I PARTNERS, L.P.
BY: TCW ASSET MANAGEMENT
COMPANY, AS PORTFOLIO MANAGER AND AS
ATTORNEY-IN-FACT FOR THE PARTNERSHIP
By: /s/ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
