Exhibit 2.1
[FORM OF] AGREEMENT AND PLAN
OF MERGER dated as of November __, 2001
(the "AGREEMENT"), by and among DJ
ORTHOPEDICS, INC., a Delaware corporation
(the "PARENT"), DJ ACQUISITION CORPORATION,
a Delaware corporation and a wholly owned
subsidiary of the Parent (the "MERGER
SUBSIDIARY") and DONJOY, L.L.C., a Delaware
limited liability company (the "COMPANY").
The Parent has filed a registration statement with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"SECURITIES ACT"), relating to the initial public offering of shares of its
common stock, $.01 par value per share (the "PARENT COMMON STOCK") (such
offering, the "PARENT IPO"). In order to facilitate the Parent IPO, the parties
hereto desire to enter into the transactions contemplated hereby.
The board of directors or board of managers, as applicable, of each of
the Parent, the Merger Subsidiary and the Company, by resolutions duly adopted
pursuant to Sections 251 and 264 of the Delaware General Corporation Law (the
"DELAWARE STATUTE") and Section 18-209 of the Delaware Limited Liability Company
Act (the "LLC ACT") have approved this Agreement and the proposed merger of the
Merger Subsidiary with and into the Company in accordance with this Agreement.
Pursuant to a Consent and Termination Agreement, dated as of November
__, 2001, by and among the Company and the members of the Company named therein,
members of the Company holding more than 50% of each class of units of the
Company have approved this Agreement and the proposed merger of Merger
Subsidiary with and into the Company in accordance with this Agreement.
For Federal income tax purposes, the Parent IPO and the Merger (as
defined below) are intended to be treated, in conjunction, as a contribution of
cash and Common Units and Preferred Units (each as defined below) in exchange
for Parent Common Stock (as defined below) and cash under Section 351 of the
Internal Revenue Code of 1986, as amended.
ACCORDINGLY, in consideration of the mutual benefits to be derived from
this Agreement, the parties hereto agree as follows:
ARTICLE I
GENERAL
1.1 THE MERGER.
At the Effective Time (as defined in SECTION 1.2) and in accordance
with the provisions of this Agreement, the Merger Subsidiary shall be merged
(the "MERGER") with and into the Company, which shall be the surviving entity of
the Merger (the "SURVIVING ENTITY", and the Company and the Merger Subsidiary
collectively, the "CONSTITUENT ENTITIES"). The name of the Company shall be
adopted by the Surviving Entity and shall remain unchanged by the Merger.
1.2 THE EFFECTIVE TIME OF THE MERGER.
The Merger shall become effective upon the filing by the Surviving
Entity of the certificate of merger attached hereto as ANNEX A (the "CERTIFICATE
OF MERGER") with the Secretary of State of the State of Delaware pursuant to
Sections 103 and 264(c) of the Delaware Statute and Section 18-209(c) of the LLC
Act; PROVIDED, HOWEVER, that in no event shall the Certificate of Merger be
filed until immediately prior to the consummation of the Parent IPO. The
Certificate of Merger shall be executed and delivered in the manner provided
under the Delaware Statute and the LLC Act. The date and time when the Merger
shall become effective as aforesaid is herein called the "EFFECTIVE TIME."
1.3 EFFECT OF MERGER.
(a) Except as specifically set forth herein, at the Effective
Time, the identity, existence, limited liability company organization, purposes,
powers, objects, franchises, privileges, rights and immunities of the Company
shall continue in effect and be unimpaired by the Merger, and the identity,
existence, corporate organization, purposes, powers, objects, franchises,
privileges, rights and immunities of the Merger Subsidiary shall be merged with
and into the Surviving Entity, which shall, as the Surviving Entity, be fully
vested therewith. At the Effective Time, the separate existence and corporate
organization of the Merger Subsidiary, except insofar as it may be continued by
statute, shall cease, and the Merger Subsidiary shall be merged with and into
the Surviving Entity.
(b) At the Effective Time, all rights, privileges, immunities and
franchises, of a public as well as of a private nature, of each of the
Constituent Entities, and all property, real, personal and mixed, tangible and
intangible (other than the Company Option Plan, the Company Options, the Company
Option Agreements, the Non-Employee Director Purchase Rights and the
Non-Employee Director Purchase Rights Agreements (each as defined in SECTION 2.1
below) which shall be assumed by the Parent pursuant to SECTION 2.1 and each of
the other documents listed on SCHEDULE 3.1 hereto which shall be assumed by the
Parent), in each case, of whatsoever kind or description, and all debts due on
whatever account and all other choses in action, and all and every other
interest, of or belonging to or due to any of the Constituent Entities, shall be
taken
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and deemed to be transferred to and vested in the Surviving Entity without
further act or deed; and the title to any real estate, or any interest therein,
vested in any of the Constituent Entities shall not revert or be in any way
impaired by reason of the Merger; but the Surviving Entity shall thenceforth be
responsible and liable for all the liabilities, obligations and penalties of
each of the Constituent Entities, and any claim existing, or action or
proceeding, civil or criminal, pending by or against any of the Constituent
Entities, may be prosecuted as if the Merger had not taken place, or the
Surviving Entity may be substituted in its place, and any judgment rendered
against any of the Constituent Entities may be enforced against the Surviving
Entity. Neither the rights of creditors nor any liens upon the property of any
of the Constituent Entities shall be impaired by the Merger.
1.4 OPERATING AGREEMENT AND BY-LAWS OF SURVIVING ENTITY; DIRECTORS AND
OFFICERS.
At the Effective Time, (a) the operating agreement attached hereto as
ANNEX B to this Agreement shall become the operating agreement of the Surviving
Entity until altered, amended or repealed as provided in said operating
agreement, (b) the by-laws attached hereto as ANNEX C to this Agreement shall
become the by-laws of the Surviving Entity until altered, amended or repealed as
provided in said by-laws of the Surviving Entity, (c) the members of the board
of managers of the Company at the Effective Time shall become the members of the
board of managers of the Surviving Entity and (d) the officers of the Company at
the Effective Time shall become the officers of the Surviving Entity.
1.5 TAKING OF NECESSARY ACTION; FURTHER ASSURANCES.
Prior to the Effective Time, the parties hereto shall take, or cause to
be taken (as the case may be), all such action as may be necessary or
appropriate in order to effectuate the Merger as expeditiously as reasonably
practicable.
ARTICLE II
EFFECT OF MERGER ON EQUITY CAPITAL
OF CONSTITUENT ENTITIES
2.1 MERGER CONSIDERATION; EFFECT ON CAPITAL STOCK.
The consideration for the Merger shall be as follows (the "MERGER
CONSIDERATION"):
(a) COMMON UNITS OF THE COMPANY. At the Effective Time, each
common unit of the Company (the "COMMON UNITS") issued and outstanding
immediately prior to the Effective Time (the "TERMINATING COMMON UNITS ") shall
automatically, by virtue of the Merger and without any action on the part of the
holder thereof, be converted into [11.711] shares (the "EXCHANGE RATIO") of
Parent Common Stock, with each holder of Terminating Common Units receiving that
number of shares of Parent Common Stock
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and that amount of cash consideration in respect of fractional shares of Parent
Common Stock as set forth on SCHEDULE 2.1 hereof.
(b) PREFERRED UNITS OF THE COMPANY. At the Effective Time, each
preferred unit of the Company (the "PREFERRED UNITS") issued and outstanding
immediately prior to the Effective Time (the "TERMINATING PREFERRED UNITS")
shall automatically, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into (i) shares of Parent Common Stock at
the Exchange Ratio and (ii) the right to receive a cash amount equal to (A)
$1,044.534917 PLUS (B) all accrued Preferred Return (as defined in the Third
Amended and Restated Operating Agreement of DonJoy, L.L.C., dated as of July 7,
2000, the "OPERATING AGREEMENT") on such Terminating Preferred Unit from and
including October 1, 2001 through, but not including, the date upon which the
Effective Time occurs LESS (C) the aggregate amount of all distributions made
pursuant to Section 6.3(a) of the Operating Agreement with respect to income
allocated to such Terminating Preferred Unit pursuant to clauses 2 and 3 of
Section 6.2(a)(iii)(A) of the Operating Agreement on or after October 1, 2001
through, but not including, the date upon which the Effective Time occurs
(collectively, the "PREFERRED LIQUIDATION AMOUNT"), with each holder of
Terminating Preferred Units receiving that number of shares of Parent Common
Stock and that amount of cash consideration as set forth on SCHEDULE 2.1 hereof.
(c) OPTIONS TO PURCHASE COMMON UNITS OF THE COMPANY.
(i) COMPANY OPTION PLAN.
(A) At the Effective Time, each option to
purchase Common Units, whether vested or unvested, granted pursuant to
the Company's Fourth Amended and Restated 1999 Option Plan (the
"COMPANY OPTION PLAN") issued and outstanding immediately prior to the
Effective Time (the "COMPANY OPTIONS") shall be deemed to constitute an
option to acquire, on the same terms and conditions as set forth in the
existing option agreement between the optionholder and the Company
(except as set forth below), the same number of shares of Parent Common
Stock as the holder of such Company Option would have been entitled to
receive pursuant to the Merger had such holder exercised such Company
Option in full immediately prior to the Effective Time.
(B) At the Effective Time, the Parent shall
assume the Company Option Plan, each Company Option in accordance with
the terms under which it was issued and each option agreement by which
such Company Option is evidenced (each, a "COMPANY OPTION AGREEMENT");
PROVIDED, HOWEVER, that (i) the terms and conditions of the Company
Option Plan, each Company Option and each Company Option Agreement
shall be revised to the extent necessary to reflect changes from a
limited liability company to corporate form and (ii) the exercise price
for each Company Option, as reflected in the corresponding Company
Option Agreement, will be proportionately adjusted to reflect the
change from Common Units to Parent Common Stock at the Exchange Ratio.
As promptly as practicable after the Effective Time, the Parent shall
enter into
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revised Company Option Agreements with each holder of Company Options
to effectuate the provisions of the immediately preceding sentence. At
or prior to the Effective Time, the Parent shall take all corporate
action necessary to reserve for issuance a sufficient number of shares
of Parent Common Stock as shall be required for delivery upon exercise
of the Company Options assumed by it in accordance with this SECTION
2.1(c)(i).
(ii) NON-EMPLOYEE DIRECTOR PURCHASE RIGHTS.
(A) At the Effective Time, each right to
purchase Common Units granted pursuant to the Non-Employee Director
Purchase Rights Agreements, each dated as of October __, 2001, by and
between the Company and each of Xxxxx X. Xxxxxx, Xxxx X. Xxxxx and Xxxx
X. Xxxxx (collectively, the "NON-EMPLOYEE DIRECTOR PURCHASE RIGHTS
AGREEMENTS") shall be deemed to constitute a right to acquire
(collectively, the "NON-EMPLOYEE DIRECTOR PURCHASE RIGHTS"), on the
same terms and conditions as set forth in the Non-Employee Director
Purchase Rights Agreements (except as set forth below), the same number
of shares of Parent Common Stock as the holder of such Non-Employee
Director Purchase Rights would have been entitled to receive pursuant
to the Merger had such holder exercised such Non-Employee Director
Purchase Rights in full immediately prior to the Effective Time.
(B) At the Effective Time, the Parent shall
assume each Non-Employee Director Purchase Rights Agreement and each
Non-Employee Director Purchase Rights in accordance with such
Non-Employee Director Purchase Rights Agreement; PROVIDED, HOWEVER,
that the terms and conditions of each Non-Employee Director Purchase
Right and each Non-Employee Director Purchase Rights Agreement shall be
revised to the extent necessary to reflect changes from a limited
liability company to corporate form. As promptly as practicable after
the Effective Time, the Parent shall enter into revised Non-Employee
Director Purchase Rights Agreements with each holder of Non-Employee
Director Purchase Rights to effectuate the provisions of the
immediately preceding sentence. At or prior to the Effective Time, the
Parent shall take all corporate action necessary to reserve for
issuance a sufficient number of shares of Parent Common Stock as shall
be required for delivery upon exercise of the Non-Employee Director
Purchase Rights assumed by it in accordance with this SECTION
2.1(c)(ii).
(d) COMMON STOCK OF MERGER SUBSIDIARY. At the Effective Time, each
share of common stock, $0.01 par value per share, of the Merger Subsidiary
issued and outstanding immediately prior to the Effective Time shall
automatically, by virtue of the Merger and without any action on the part of the
holder thereof, be cancelled and no consideration shall be delivered therefor.
(e) FRACTIONAL SHARES. No fractional shares of Parent Common Stock
or scrip shall be issued upon conversion of the Terminating Common Units or the
Terminating Preferred Units pursuant to SECTIONS 2.1(a) and 2.1(b). The number
of full
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shares of Parent Common Stock issuable to a holder upon conversion of the
Terminating Common Units or the Terminating Preferred Units of such holder shall
be computed on the basis of the aggregate number of Terminating Common Units or
Terminating Preferred Units to be converted by such holder. Instead of any
fractional shares of Parent Common Stock which would otherwise be issuable upon
conversion of any shares of Terminating Common Units or Terminating Preferred
Units, the Parent shall pay a cash adjustment in respect of such fractional
interest in an amount equal to the product of (i) initial public offering price
of Parent Common Stock in the Parent IPO as set forth in the final prospectus
for the Parent IPO and (ii) such fractional interest. The holders of fractional
interests shall not be entitled to any rights as stockholders of the Parent in
respect of such fractional interests.
ARTICLE III
ASSIGNMENT AND ASSUMPTION
3.1 ASSIGNMENT.
At the Effective Time, the Company shall transfer, convey and assign to
the Parent all of its right, title and interest in and to the contracts and
agreements set forth on SCHEDULE 3.1 (the "ASSIGNED CONTRACTS")
3.2 ASSUMPTION.
At the Effective Time, the Parent shall assume, perform, discharge and
otherwise be responsible for all obligations, responsibilities or liabilities of
the Company under the Assigned Contracts and those items referred to in SECTION
2.1(c).
ARTICLE IV
APPROVAL OF AGREEMENT;
FILING THEREOF
4.1 APPROVAL.
The board of directors and board of managers, as applicable, of each of
the Parent, the Merger Subsidiary and the Company and the members of the Company
holding more than 50% of each class of units of the Company, by resolutions duly
adopted, have, in accordance with the provisions of the Delaware Statute and the
LLC Act, as applicable, approved and adopted the Merger and this Agreement.
4.2 FILING.
The Surviving Entity shall cause the Certificate of Merger to be
delivered to and filed with the Secretary of State of the State of Delaware in
accordance with Sections 103 and 264(c) of the Delaware Statute and Section
18-209(c) of the LLC Act, subject, however, to the proviso contained in SECTION
1.2 above.
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ARTICLE V
TERMINATION
If the Parent IPO is terminated for any reason, or if the
Parent IPO does not occur by March 31, 2002, this Agreement shall terminate and
be of no further force or effect.
ARTICLE VI
MISCELLANEOUS
6.1 LEGEND.
Each certificate for Parent Common Stock issued hereunder is being
issued in a transaction exempt from the registration requirements of the
Securities Act and applicable state securities laws. Accordingly, each such
certificate for Parent Common Stock shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1993, AS AMENDED, OR ANY STATE SECURITIES LAWS. THESE SECURITIES MAY
NOT BE OFFERED, SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM UNDER SAID ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT AND APPLICABLE STATE
SECURITIES LAWS."
6.2 SERVICE OF PROCESS; REGISTERED AGENT.
The Surviving Entity does hereby agree that it may be served with
process in the State of Delaware in any proceeding for enforcement of any
obligation of the Company and the Merger Subsidiary, as well as for enforcement
of any obligation of the Surviving Entity arising from the merger herein
provided for; does hereby irrevocably appoint the Secretary of State of the
State of Delaware as its agent to accept service of process in any such suit or
other proceedings; and does hereby specify the following address outside the
State of Delaware to which a copy of such process shall be mailed by the
Secretary of State of the State of Delaware:
DONJOY, L.L.C.
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
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6.3 NECESSARY ACTS.
Each of the Parent, the Merger Subsidiary and the Surviving Entity
agree that they will cause to be executed and filed and recorded any document or
documents prescribed by the laws of the State of Delaware, and that they will
cause to be performed all necessary acts within the State of Delaware and
elsewhere to effectuate the Merger herein provided for.
6.4 GOVERNING LAW.
All questions concerning the construction, interpretation and validity
of this Agreement 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 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 this Agreement, even if under such jurisdiction's choice of law
or conflict of law analysis, the substantive law of some other jurisdiction
would ordinarily apply.
6.5 BENEFITS OF AGREEMENT.
All the terms and provisions of this Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Agreement shall not be assignable by any party hereto without
the consent of the other parties hereto.
6.6 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.
6.7 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.
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6.8 MODIFICATION.
This Agreement shall not be altered or otherwise amended except
pursuant to an instrument in writing signed by each of the parties hereto.
6.9 DESCRIPTIVE HEADINGS.
Descriptive headings are for convenience only and shall not control or
affect the meaning or construction of any provisions of this Agreement.
6.10 COUNTERPARTS; FACSIMILE SIGNATURES.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original instrument but all of which together
shall constitute one agreement. Facsimile counterpart signatures to this
Agreement shall be acceptable and binding.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement and Plan of Merger to be duly executed and delivered on the date first
written above.
DJ ORTHOPEDICS, INC.
By:
--------------------------------------------
Name: Xxxxx Xxxxxx III
Title: Senior Vice President - Finance,
Chief Financial Officer & Secretary
DJ ACQUISITION CORPORATION
By:
--------------------------------------------
Name: Xxxxx Xxxxxx III
Title: Senior Vice President - Finance,
Chief Financial Officer & Secretary
DONJOY, L.L.C.
By:
--------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President & Chief Executive Officer
SCHEDULE 2.1
Members Outstanding Outstanding New Shares Cash in Lieu Preferred
Common Units Preferred Units of Parent of Fractional Liquidation
Common Stock Shares Amount(1)
----------------------------------------- ------------------ ----------------- ----------------- ---------------- --------------
X.X. Xxxxxx DJ Partners, LLC 860,956 - -
Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx 16,673 - -
Family Trust
Xxxxxxx X. XxXxxxxx 4,002 - -
Xxxxx Xxxxxx III 4,002 - -
[Terminated Employees exercising - -
options]
X.X. Xxxxxx Partners (23A SBIC), LLC - 22,573
DJ Investment, LLC - 6,362
First Union Capital Partners, LLC - 668
DJC, Inc. - 10,705
TCW Crescent Mezzanine Trust II - 2,323
TCW Leveraged Income Trust II, L.P. - 1,104
Crescent/Mach I Partners, L.P. - 670
Totals: [885,633] 44,405
--------
1 The amount of cash to be paid to the holders of Preferred Units is equal to
the sum of (i) the Preferred Contribution Amount (as defined in the Third
Amended and Restated Operating Agreement of DonJoy, L.L.C., dated as of July 7,
2001) per Preferred Unit MULTIPLIED BY a specified premium based on the amount
of time such Preferred Unit has been outstanding and limited by a specified
internal rate of return per Preferred Unit, PLUS (ii) the amount of Cumulated
Preferred Return for such Preferred Unit through September 30, 2001, LESS (iii)
the aggregate amount of all Tax distributions made to the holders of Preferred
Units with respect to amounts which were properly allocable to Cumulated
Preferred Return and accrued and unpaid preferred return for the 2001 calendar
year. In addition, such amount will be increased by the aggregate amount of all
accrued and unpaid Preferred Return on such Preferred Unit from October 1, 2001
through, but not including the date upon which the Effective Time occurs.
SCHEDULE 3.1
CONTRACTS AND AGREEMENTS
TO BE ASSIGNED BY THE COMPANY
AND ASSUMED BY THE PARENT
1. Third Amended and Restated Pledge Agreement, dated as of June 11, 2001,
by and among the Company, Xxxxxx X. Xxxxx and the Xxxxxx X. Xxxxx &
Xxxxxxx X. Xxxxx Family Trust
2. Third Amended and Restated Pledge Agreement, dated as of June 11, 2001,
by and between the Company and Xxxxxxx X. XxXxxxxx
3. Third Amended and Restated Pledge Agreement, dated as of June 11, 2001,
by and between the Company and Xxxxx Xxxxxx III
4. Amended and Restated Secured Promissory Note dated as of June 28, 2000
made by each of Xxxxxx X. Xxxxx and the Xxxxxx X. Xxxxx & Xxxxxxx X.
Xxxxx Family Trust in the principal amount of $1,052,705.56.
5. Secured Promissory Note dated as of June 28, 2000 made by each of
Xxxxxx X. Xxxxx and the Xxxxxx X. Xxxxx & Xxxxxxx X. Xxxxx Family Trust
for the benefit of the Company in the principal amount of $88,644.58.
6. Secured Promissory Note dated as of July 7, 2000 made by each of Xxxxxx
X. Xxxxx and the Xxxxxx X. Xxxxx & Xxxxxxx X. Xxxxx Family Trust for
the benefit of the Company in the principal amount of $124,608.80.
7. Secured Promissory Note dated as of June 11, 2001 made by each of
Xxxxxx X. Xxxxx and the Xxxxxx X. Xxxxx & Xxxxxxx X. Xxxxx Family Trust
for the benefit of the Company in the principal amount of $150,610.29.
8. Amended and Restated Secured Promissory Note dated as of June 28, 2000
made by Xxxxxxx X. XxXxxxxx for the benefit of the Company in the
principal amount of $210,541.11.
9. Secured Promissory Note dated as of June 28, 2000 made by Xxxxxxx X.
XxXxxxxx for the benefit of the Company in the principal amount of
$17,728.91.
10. Secured Promissory Note dated as of July 7, 2000 made by Xxxxxxx X.
XxXxxxxx for the benefit of the Company in the principal amount of
$24,924.67.
11. Secured Promissory Note dated as of June 11, 2001 made by Xxxxxxx X.
XxXxxxxx for the benefit of the Company in the principal amount of
$30,121.74.
12. Amended and Restated Secured Promissory Note dated as of June 28, 2000
made by Xxxxx Xxxxxx III for the benefit of the Company in the
principal amount of $210,541.11.
13. Secured Promissory Note dated as of June 28, 2000 made by Xxxxx Xxxxxx
III for the benefit of the Company in the principal amount of
$17,728.91.
14. Secured Promissory Note dated as of July 7, 2000 made by Xxxxx Xxxxxx
III for the benefit of the Company in the principal amount of
$24,924.67.
15. Secured Promissory Note dated as of June 11, 2001 made by Xxxxx Xxxxxx
III for the benefit of the Company in the principal amount of
$30,121.74.
ANNEX A
CERTIFICATE OF MERGER
OF
DJ ACQUISITION CORPORATION
(A DELAWARE CORPORATION)
WITH AND INTO
DONJOY, L.L.C.
(A DELAWARE LIMITED LIABILITY COMPANY)
Pursuant to Title 8, Section 264(c) of the Delaware General Corporation
Law and Title 6, Section 18-209 of the Delaware Limited Liability Company Act,
the undersigned limited liability company executed the following Certificate of
Merger:
FIRST: The name of the surviving limited liability company is DonJoy,
L.L.C., a Delaware limited liability company, and the name of the corporation
being merged into this surviving limited liability company is DJ Acquisition
Corporation, a Delaware corporation.
SECOND: The Agreement and Plan of Merger has been approved, adopted,
certified, executed, and acknowledged by the surviving limited liability company
and the merging corporation.
THIRD: The name of the surviving limited liability company is DonJoy,
L.L.C.
FOURTH: The merger is to become effective at 9:30 a.m. on
______________, 2001.
FIFTH: The Agreement and Plan of Merger is on file at 0000 Xxxxx
Xxxxxx, Xxxxx, Xxxxxxxxxx 00000, a place of business of the surviving limited
liability company.
SIXTH: A copy of the Agreement and Plan of Merger will be furnished by
the surviving limited liability company on request, without cost, to any member
of the surviving limited liability company or stockholder of the merging
corporation.
IN WITNESS WHEREOF, the surviving limited liability company has caused
this certificate to be signed by an authorized officer, the __ day of
___________, 2001.
DONJOY, L.L.C.
By:
--------------------------------------
Xxxxxx X. Xxxxx
President & Chief Executive Officer
ANNEX B
[Fourth Amended and Restated Operating Agreement]
ANNEX C
[Amended and Restated By-Laws]
