1
EXHIBIT 10.3
COMMON UNIT PURCHASE
AGREEMENT dated as of June 11, 2001,
among DONJOY, L.L.C., a Delaware
limited liability company (the
"Company"), and THE PURCHASERS
IDENTIFIED ON ANNEX I HERETO
(collectively, the "Purchasers").
The Company desires to raise approximately $10,000,000 in common
equity financing, and the Purchasers, severally, desire to purchase from the
Company, an aggregate of 91,743 Common Units (as defined herein) (the "Purchased
Units") in connection therewith, all on the terms and subject to the conditions
set forth herein. Capitalized terms used herein shall have the meanings ascribed
to such terms in Section 6.10 hereof.
NOW THEREFORE, 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
ISSUANCE AND SALE OF THE PURCHASED UNITS
1.1 OPERATING AGREEMENT; AUTHORIZATION.
Simultaneously with or prior to the execution and delivery of this
Agreement, the Company's Board of Managers (the "Board of Managers") has
approved in writing (the "Board Approval") the execution, delivery and
performance by the Company of this Agreement (including the issuance, sale and
delivery of the Purchased Units to the Purchasers) and each Related Agreement to
which the Company is a party. The Operating Agreement designates 2,900,000 Units
as Common Units.
1.2 SALE OF THE PURCHASED UNITS.
Upon the terms and subject to the satisfaction or waiver of the
conditions set forth in Article IV, and in reliance upon the representations and
warranties hereinafter set forth, at the Closing, the Company shall issue, sell
and deliver to each Purchaser, and each Purchaser shall purchase from the
Company, that number of Purchased Units set forth opposite such Purchaser's name
on ANNEX I, for the aggregate purchase price set forth opposite such Purchaser's
name on ANNEX I, free and clear of all Liens (other than pursuant to the
Operating Agreement and the Members' Agreement). Each Purchaser hereby consents,
for purposes of the Operating Agreement, to the offer, issuance and sale by the
Company to the Purchasers of the Purchased Units in accordance with the
provisions of this Agreement and hereby waives any rights such Purchaser may
have in connection with such offer, issuance and sale under the Members'
Agreement (including, but not limited, Section 5 thereof).
2
1.3 CLOSING.
The closing (the "Closing") with respect to the issuance and sale of the
Purchased Units being purchased by the Purchasers and the consummation of the
related transactions contemplated hereby shall, subject to the satisfaction or
waiver of the applicable conditions set forth in Article IV, take place at the
offices of X'Xxxxxxxx Graev & Karabell, LLP, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 10:00 a.m., New York City time, on June 11, 2001, or at such
other time, date or place as agreed to by the parties hereto (such date, the
"Closing Date").
1.4 CLOSING DELIVERIES.
At the Closing, the Company shall deliver to each Purchaser a
certificate, registered in such Purchaser's name, representing the Purchased
Units set forth opposite each such Purchaser's name on ANNEX I, against receipt
by the Company of a wire transfer of immediately available funds to an account
or accounts designated in writing by the Company of an aggregate amount equal to
the purchase price for the Purchased Units being purchased by such Purchaser at
the Closing. Upon the receipt by the Company of the purchase price for the
Purchased Units being purchased by each Purchaser at the Closing, the Company
shall treat such purchase as a contribution by such Purchaser to the Company
pursuant to Section 721 of the Code and, in accordance with the provisions of
the Operating Agreement, credit the amount of such purchase price to such
Purchaser's capital account on the books of the Company.
1.5 USE OF PROCEEDS.
The proceeds from the sale of the Purchased Units shall be used by the
Company solely as set forth under "Sources and Uses of Funds" on SCHEDULE 1.5.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to, and agrees with, the
Purchasers, as follows:
2.1 ORGANIZATION AND QUALIFICATION.
The Company and each of its Subsidiaries have been duly incorporated or
formed and are validly existing as limited liability companies or corporations
in good standing under the laws of their respective jurisdictions of
incorporation or formation, are duly qualified to do business and are in good
standing as foreign limited liability companies or corporations in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure to so
qualify or have such power or authority would not, singularly or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole (a "Material Adverse Effect").
2
3
2.2 AUTHORITY; ACTIONS; ENFORCEABILITY.
The Company has the requisite limited liability company power and
authority to execute and deliver this Agreement and the Related Agreements to
which it is a party and to perform its obligations hereunder and thereunder. The
execution, delivery and performance by the Company of this Agreement and the
Related Agreements to which it is a party and the performance of its obligations
hereunder and thereunder have been duly authorized by all necessary limited
liability company action and no other limited liability company proceedings are
necessary to authorize this Agreement or any of the Related Agreements to which
it is a party or the performance of its obligations hereunder or thereunder. The
Company has duly executed and delivered this Agreement and the Related
Agreements to which it is a party, and this Agreement and the Related Agreements
to which it is a party each constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
except to the extent that such enforceability may be subject to (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii) general
equitable principles (whether considered in a proceeding in equity or at law).
2.3 NO CONFLICTS; CONSENTS
The execution and delivery by the Company of this Agreement and the
Related Agreements to which it is a party and the performance by the Company of
its obligations hereunder and thereunder 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 give rise to a right of termination, cancellation or
acceleration of any obligation or a loss of a benefit 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 upon any property or assets of the Company or any of its
Subsidiaries pursuant to, any provision of (i) the limited liability company
agreement, operating agreement, certificate or articles of incorporation, bylaws
or other similar organizational documents, as applicable, of the Company or any
of its Subsidiaries, (ii) any indenture, mortgage, deed of trust, loan agreement
or other 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 Company or any of its Subsidiaries is
subject, except for such conflicts, breaches, violations or defaults which would
not, singularly or in the aggregate, have a Material Adverse Effect, or (iii)
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 respective properties or assets
(assuming compliance by each Purchaser with its representations and warranties
set forth in Article III); and (assuming compliance by each Purchaser with its
representations and warranties set forth in Article III) 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 and delivery by
the Company of this Agreement or any Related Agreement to which it is a party or
the performance by the Company of its obligations hereunder or thereunder,
except for such consents, approvals, authorizations, filings, registrations or
qualifications (i) which shall have been obtained or made on or prior to the
Closing Date, (ii) as may be required under state securities laws, and (iii) as
may be required to perfect Liens granted under the Credit Agreement.
3
4
2.4 CAPITALIZATION.
(a) The authorized capitalization of the Company immediately after
the Closing shall consist of 3,000,000 Units, of which (i) 2,900,000 Units are
designated Common Units, of which (A) 885,633 Common Units are duly and validly
issued and outstanding, all of which shall be held of record by the Persons and
in the amounts set forth on SCHEDULE 2.4, (B) no Common Units shall be held by
the Company in its treasury, (C) 158,823 Common Units shall be duly and validly
reserved for issuance pursuant to outstanding options granted by the Company
pursuant to the Third Amended and Restated DonJoy, L.L.C. 1999 Option Plan (the
"Option Plan"), (D) 19,976 Common Units shall be duly and validly reserved for
issuance pursuant to options that may be granted after the Closing pursuant to
the Option Plan, and (E) no additional Common Units shall be reserved for
issuance and (ii) 100,000 Units shall be designated Preferred Units, of which
(A) 44,405 Preferred Units shall be duly and validly issued and outstanding, all
of which shall be held of record by the Persons and in the amounts set forth on
SCHEDULE 2.4, and (B) no Preferred Units shall be held by the Company in its
treasury or reserved for issuance. As of immediately after the Closing, all
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 such Section of the LLC Act, potentially with interest.
(b) 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 any such shares, are fully paid and non-assessable or, in the
case of the units of DJ, are not subject to assessment by DJ for additional
capital contributions; provided, however, that each member of DJ 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 to be returned to or for the account of the
Company as provided in such Section of the LLC Act, potentially with interest;
and are owned by the Company, either directly or indirectly through its
Subsidiaries, free and clear of any Liens, other than those Liens created
pursuant to (i) the Operating Agreement, or (ii) described in the Offering
Memorandum. DJ is a wholly owned Subsidiary of the Company and has no
Subsidiaries other than DJ Orthopedics Capital Corporation, a Delaware
corporation ("DJ Capital"), and dj Orthopedics de Mexico, S.A. de C.V., a
Mexican corporation.
(c) There are no outstanding subscriptions, preemptive rights,
warrants, calls, options or other rights to acquire, or instruments convertible
into or exchangeable for, or agreements or understandings with respect to the
transfer, sale or issuance of, any shares, units, limited liability company
interests or other equity or ownership interests of the Company or any of its
Subsidiaries granted or issued by, or binding upon, the Company or any of its
Subsidiaries, or to which the Company or any of its Subsidiaries is a party,
other than those (i) provided for in the Operating Agreement, the Members'
Agreement, the Credit Agreement or the Option Plan or (ii) as otherwise
described in the Offering Memorandum. Neither the Company nor any of its
Subsidiaries has any equity appreciation rights, phantom equity plan or similar
rights outstanding.
4
5
2.5 PRIVATE SALE.
Assuming the accuracy of the representations and warranties of the
Purchasers contained in Section 3.2, the offering, issuance and sale of the
Purchased Units will be exempt from registration under the Securities Act and
applicable state securities laws and the rules and regulations promulgated
thereunder.
2.6 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, and the rules and regulations
of the Commission promulgated 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.
2.7 BROKERS.
Neither the Company nor any of its Subsidiaries is a party to any
contract, agreement or understanding with any Person that would give rise to a
valid claim against the Company, any of the Company's Subsidiaries or any
Purchaser for a brokerage commission, finder's fee or like payment in connection
with the offering, issuance and sale of the Purchased Units.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS
Each Purchaser represents and warrants severally, and not jointly as
to any other Purchaser, as follows:
3.1 AUTHORITY; ACTIONS; ENFORCEABILITY.
If such Purchaser is not a natural person, such Purchaser has the
requisite power and authority to execute and deliver this Agreement and the
Related Agreements to which it is a party and to perform its obligations
hereunder and thereunder, and the execution, delivery and performance by such
Purchaser of this Agreement and the Related Agreements to which it is a party
and the performance of its obligations hereunder and thereunder have been duly
authorized by all requisite action on its part and no other proceedings on its
part are necessary to authorize this Agreement or any of the Related Agreements
to which it is a party or the performance of its obligations hereunder or
thereunder. Such Purchaser has duly executed and delivered this Agreement and
the Related Agreements to which it or he is a party, and this Agreement and the
Related Agreements to which it or he is a party each constitutes the legal,
valid and binding obligation of such Purchaser, enforceable against such
Purchaser in accordance with its terms, except to the extent that such
enforceability may be subject to (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general equitable principles
(whether considered in a proceeding in equity or at law).
5
6
3.2 INVESTMENT REPRESENTATIONS.
Solely for establishing that the issuance, offer or sale of the
Purchased Units to such Purchaser is exempt from the registration requirements
of the Securities Act and comparable provisions of state securities 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 such Purchaser in this
Agreement, on which such Purchaser is relying in full in connection with its or
his decision to invest in the Company:
(a) Such Purchaser is acquiring the Purchased Units for its or his
own account, for investment and not with a view to the distribution thereof in
violation of the Securities Act or applicable state securities laws;
(b) Such Purchaser (A) understands that (i) the Purchased 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 Purchased 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 and (B)
has had the opportunity to ask questions of, and receive answers from, the
Company and its management relating to the business and financial condition of
the Company and its Subsidiaries;
(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 Purchased Units 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) and has such
knowledge and experience in financial and business matters that it or he is
capable of evaluating the risks and merits of its or his investment in the
Purchased Units, provided, that such Purchaser's representations in this Section
3.2(d) shall in no way limit the enforceability of any representations made by
the Company in this Agreement or any of the Related Agreements to which it is a
party; and
(f) Such Purchaser was not formed for the purpose of consummating
the transactions contemplated hereby.
6
7
ARTICLE IV
CONDITIONS TO CLOSING
4.1 CONDITIONS TO PURCHASERS' OBLIGATIONS.
The obligation of each Purchaser to purchase and pay for the Purchased
Units to be purchased hereunder at the Closing is subject to the satisfaction of
the following conditions precedent (unless waived by such Purchaser):
(a) The Company shall have duly issued and delivered to each
Purchaser a certificate, registered in such Purchaser's name, representing the
Purchased Units set forth opposite such Purchaser's name on ANNEX I
(b) The Company shall have performed its obligations under, and
shall have complied with, all the covenants and agreements set forth in this
Agreement and the Related Agreements to which it is a party and all
representations and warranties contained in Article II shall be true and correct
as of the date hereof and at and as of the Closing Date with the same effect as
if such representations and warranties had been made at and as of the Closing
Date, and each Purchaser shall have received a certificate to that effect signed
by an officer of the Company.
(c) The Company shall have (i) completed SBA Forms 480 and 652 and
Parts A and B of SBA Form 1031, executed such SBA Forms where specified, and
delivered such SBA Forms to X.X. Xxxxxx DJ and (ii) executed and delivered to
X.X. Xxxxxx DJ the letter, substantially in the form attached hereto as EXHIBIT
A, from the Company to X.X. Xxxxxx DJ.
(d) Each Purchaser shall have received (i) an original executed
counterpart from each party to each Related Agreement, (ii) a revised version of
Schedule I to the Operating Agreement (prepared and delivered by the Company)
which identifies each Purchaser as the holder of (A) the Purchased Units being
purchased by such Purchaser at the Closing and (B) the other Units (if any) held
of record by such Purchaser immediately prior to the Closing and (iii) an
original certificate from the Secretary, or an Assistant Secretary, of the
Company, dated as of the Closing Date, certifying (A) that a true and complete
copy of the Certificate of Formation of the Company, as certified by the
Secretary of State of the State of Delaware as of date not more than five (5)
days prior to the Closing Date and in full force and effect on the Closing Date,
is attached thereto, (B) that a true and complete copy of the Limited Liability
Company Agreement of the Company, as in full force and effect on the Closing
Date, (being the Operating Agreement) is attached thereto, (C) that a true and
complete copy of a Certificate of Good Standing of the Company, as issued by the
Secretary of State of the State of Delaware as of date not more than five (5)
days prior to the Closing Date, is attached thereto, (D) as to the genuineness
of the resolutions (attached thereto) of the Board of Managers which authorize
the execution, delivery and performance of this Agreement (including the
issuance and sale of the Purchased Units to the Purchasers) and the Related
Agreements to which the Company is a party and the consummation of the
transactions contemplated hereby and thereby, and (E) as to the incumbency and
genuineness of the signatures of each Person, on behalf of the Company,
executing this Agreement and the Related Agreements to which the Company is a
party.
7
8
(e) The issuance and sale of the Purchased Units to the other
Purchasers shall have been consummated simultaneously with the Closing.
(f) Each of the Related Agreements shall be in full force and effect
and no term or condition thereof shall have been amended, waived or otherwise
modified without the prior written consent of each Purchaser.
4.2 CONDITIONS TO THE COMPANY'S OBLIGATIONS.
The obligation of the Company to issue and sell the Purchased Units at
the Closing is subject to the satisfaction of the following conditions precedent
(unless waived by the Company):
(a) Each Purchaser shall have performed its obligations under, and
shall have complied with, all the covenants and agreements set forth in this
Agreement and the Related Agreements to which it is a party and all
representations and warranties contained in Article III shall be true and
correct as of the date hereof and at and as of the Closing Date with the same
effect as if such representations and warranties had been made at and as of the
Closing Date.
(b) 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 Purchased
Units being purchased by such Purchaser.
ARTICLE V
TRANSFER OF PURCHASED UNITS
5.1 RESTRICTION ON TRANSFER.
The Purchased Units shall be restricted from transfer as set forth in
the Operating Agreement and the Members' Agreement.
5.2 RESTRICTIVE LEGENDS.
Each certificate evidencing Purchased Units shall be stamped or
otherwise imprinted with a legend as set forth in the Members' Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 EXPENSES, ETC.
The Company will pay (i) all reasonable 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 its counsel incurred in connection with the review and
negotiation of this Agreement and the Related Agreements), (ii) all reasonable
out-of-pocket costs and expenses incurred by X.X. Xxxxxx DJ in connection with
the transactions
8
9
contemplated by this Agreement and the Related Agreements (including all
reasonable fees and expenses incurred by X.X. Xxxxxx DJ in connection with its
due diligence investigation of the Company and all reasonable fees and expenses
of its counsel), (iii) the actual costs and expenses (including fees and
expenses of counsel) incurred by the Purchasers in connection with any amendment
or waiver of, or enforcement of, this Agreement or the Related Agreements, (iv)
any stamp or similar taxes which may be determined to be payable in connection
with the execution, delivery or performance of this Agreement or any of the
Related Agreements or any modification, amendment or alteration of the terms or
provisions hereof or thereof, (v) any issue taxes which may be determined to be
payable in respect of the issuance and sale of the Purchased Units to the
Purchasers, and (vi) 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.
6.2 INDEMNIFICATION.
The Company shall indemnify each Purchaser and its affiliates and their
respective officers, directors, partners, employees, agents and representatives
(each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, actions, damages,
liabilities and related expenses (including, without limitation and as incurred,
reasonable costs of investigating, preparing or defending any such claim or
action, whether or not such Indemnitee is a party thereto), including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution, delivery or performance of this
Agreement or any of the Related Agreements or the consummation of the
transactions contemplated hereby or thereby, or (ii) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto. All amounts due under this Section shall be
payable promptly after written demand therefor. Any indemnification of an
Indemnitee by the Company pursuant to this Section shall be effected by wire
transfer of immediately available funds from the Company to an account
designated by the Indemnitee within 15 days after the determination thereof. No
right of any Indemnitee for indemnification pursuant to this Agreement shall be
affected by any examination made for or on behalf of any Purchaser, the
knowledge of any Purchaser's officers, directors, partners, employees, agents or
representatives or the acceptance by any Purchaser of any certificate or
opinion.
6.3 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 to carry out the provisions
and purposes of this Agreement and the Related Agreements.
6.4 SPECIFIC PERFORMANCE; REMEDIES.
Damages in the event of a breach by the Company of this Agreement or any
other Related Agreement to which the Company is a party would be difficult, if
not impossible, to ascertain, and it is therefore agreed that the Purchasers, in
addition to and without limiting any
9
10
other remedy or right any of them may have, will have the right to an injunction
or other equitable relief in any court of competent jurisdiction, enjoining any
such breach, and enforcing specifically the terms and provisions hereof and
thereof, and the Company hereby waives any and all defenses it may have on the
ground of lack of jurisdiction or competence of the court to grant such an
injunction or other equitable relief. The existence of this right to specific
performance will not preclude the Purchasers from pursuing any other rights and
remedies at law or in equity which the Purchasers may have.
6.5 SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of the Company and
the Purchasers and their respective successors, permitted assigns, heirs and
personal representatives. Upon the transfer of any Purchased Units in accordance
with the terms of this Agreement, the transferee shall be bound by, and entitled
to the benefits of, this Agreement with respect to such transferred Purchased
Units, in the same manner as the transferring Purchaser.
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 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 Company, to
DonJoy, L.L.C.
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
10
11
Facsimile: (000) 000-0000
(ii) if to any Purchaser, to such Purchaser's address set forth
on ANNEX I.
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 immediately after
the date of such receipt, and five Business Days after deposit in the U.S. mails
in the case of mailing.
6.8 AMENDMENTS, MODIFICATIONS AND WAIVERS.
The terms and provisions of this Agreement may not be modified or
amended, nor any of the provisions hereof waived, temporarily or permanently,
except pursuant to a written instrument executed by the Company and the holders
of a majority of the Purchased 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.
6.9 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 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 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
11
12
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.
6.10 CERTAIN DEFINITIONS.
Capitalized terms used and not otherwise defined in this Agreement have
the meanings ascribed to them below:
"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.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal statute, 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 other
Federal agency at the time administering the Securities Act.
"Common Unit" has the meaning ascribed to such term in the Operating
Agreement.
"Contribution Agreement" means the Contribution Agreement dated as of
the date hereof, by and among X.X. Xxxxxx DJ and the parties named therein.
"Credit Agreement" shall mean the Credit Agreement dated as of June 30,
1999, among the Company, as Parent, DJ, 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 by Amendment No. 1 dated as of May 25, 2000, and as the same may be
further amended, supplemented or otherwise modified from time to time.
"DJ" means dj Orthopedics, LLC, a Delaware limited liability company.
"X.X. Xxxxxx DJ" means X.X. Xxxxxx DJ Partners, LLC, a Delaware limited
liability company, and any successors or assigns of its Interest (as defined in
the Operating Agreement).
"Lien" means any security interest, lien, pledge, claim, charge, escrow,
encumbrance, option, right of first offer, right of first refusal, preemptive
right, mortgage, indenture, security
12
13
agreement or other similar agreement, arrangement, contract, commitment,
understanding or obligation, whether written or oral and whether or not relating
in any way to credit or the borrowing of money.
"Members' Agreement" means the Members' Agreement dated as of June 30,
1999, among the Company, the Purchasers and the other parties thereto, as
amended, supplemented or otherwise modified from time to time.
"Offering Memorandum" means the offering memorandum dated June 17, 1999,
for the 12 5/8% Senior Subordinated Notes due 2009 issued and sold by DJ and DJ
Capital on June 30, 1999, as the same may have been amended, supplemented or
otherwise modified prior to such issuance and sale.
"Operating Agreement" means the Third Amended and Restated Operating
Agreement, dated as of July 7, 2000, of the Company, as amended, supplemented or
otherwise modified from time to time.
"Option Plan" has the meaning assigned to such term Section 2.4(a) of
this Agreement.
"Person" shall be construed as broadly as possible and shall include an
individual or natural person, a partnership (including a limited liability
partnership), a corporation, an association, a joint stock company, a limited
liability company, a trust, a joint venture, an unincorporated organization and
a governmental authority.
"Preferred Unit" has the meaning ascribed to such term in the Operating
Agreement.
"Purchased Units" has the meaning assigned to such term in the preamble
to this Agreement.
"Related Agreements" means the Contribution Agreement and any other
agreement entered into in connection with the purchase or sale of the Purchased
Units pursuant to this Agreement.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act, or
any successor rule thereto.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same may from time to time be in effect.
"security" has the meaning given to the term "security" in Section 2(1)
of the Securities Act.
"Subsidiary" means, with respect to any Person, any other Person of
which more than fifty percent (50%) of the shares of capital stock or other
interests entitled to vote in the election of directors or comparable Persons
performing similar functions are at the time owned or controlled, directly or
indirectly through one or more Subsidiaries, by such Person. As used in this
definition, the term "control" means the possession, directly or indirectly, of
the power to
13
14
direct the management and policies of a Person, whether through the ownership of
voting securities, by contract or otherwise.
"Unit" has the meaning ascribed to such term in the Operating Agreement.
6.11 NO THIRD PARTY RELIANCE.
Anything contained herein to the contrary notwithstanding, the
representations and warranties of the Company contained in this Agreement (i)
are being given by the Company as an inducement to the Purchasers to enter into
this Agreement and the Related Agreements (and the Company acknowledges that the
Purchasers have expressly relied thereon) and (b) are solely for the benefit of
the Purchasers and their respective successors and assigns. Accordingly, no
third party (including, without limitation, any holder of capital stock of the
Company) or anyone acting on behalf of any thereof, other than the Purchasers
and their respective successors and assigns, 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 Company or the Purchasers with
respect to such representations or warranties or any matter subject to or
resulting in indemnification under this Agreement or otherwise.
6.12 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.
6.13 INTERPRETATION.
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, annexes, schedules and
exhibits mean the sections of this Agreement and the annexes, schedules and
exhibits attached to this Agreement, except where otherwise stated. The title of
and the section 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
14
15
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.
6.14 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.
6.15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
All of the representations and warranties of the parties hereto set
forth in this Agreement or in any other instrument delivered pursuant to this
Agreement shall be deemed to have been relied upon by the party or parties to
whom such representations and warranties were made. Notwithstanding any
investigation made at any time by or on behalf of any party hereto, the
representations and warranties contained in this Agreement or in any other
instrument delivered pursuant to this Agreement shall survive the Closing and
shall terminate in their entirety on the date which is 15 months following the
Closing Date; provided, however, (i) each representation and warranty of the
Company set forth in Sections 2.1, 2.2, 2.3 and 2.4, (ii) each representation
and warranty of each Purchaser set forth in Sections 3.1 and 3.2 and (iii) any
representation or warranty of the Company or any Purchaser which is breached if
such breach involves fraud or intentional misrepresentation by the Company or
any such Purchaser shall survive the Closing Date until the expiration of the
applicable statute of limitations governing claims for breach of such
representation and warranty. Notwithstanding any investigation made at any time
by or on behalf of any party hereto, the covenants and agreements contained in
this Agreement or in any other instrument delivered pursuant to this Agreement
shall survive the Closing. Any claim for which the party asserting such claim
shall have given proper notice in accordance with the terms of this Agreement on
or prior to the expiration of the survival period shall survive until such claim
is resolved pursuant to the terms of this Agreement.
6.16 COUNTERPART; FACSIMILE SIGNATURES.
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
15
16
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.
* * * *
16
17
IN WITNESS WHEREOF, the parties hereto have executed this Common
Unit Purchase Agreement as of the date first above written.
COMPANY
DONJOY, L.L.C.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: CEO/President
18
IN WITNESS WHEREOF, the parties hereto have executed this Common
Unit Purchase Agreement as of the date first above written.
PURCHASER
X.X. XXXXXX DJ PARTNERS, LLC
BY: X.X. XXXXXX FAIRFIELD PARTNERS, LLC, ITS
MANAGING MEMBER
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------------
Xxxxxxx X. Xxxxxxx
Managing Member
19
IN WITNESS WHEREOF, the parties hereto have executed this Common
Unit Purchase Agreement as of the date first above written.
PURCHASER
XXXXXX X. XXXXX & XXXXXXX X. XXXXX
FAMILY TRUST
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: CEO/President
20
IN WITNESS WHEREOF, the parties hereto have executed this Common
Unit Purchase Agreement as of the date first above written.
PURCHASER
/s/ XXXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxxx X. XxXxxxxx
21
IN WITNESS WHEREOF, the parties hereto have executed this Common
Unit Purchase Agreement as of the date first above written.
PURCHASER
/s/ XXXXX XXXXXX III
----------------------------------------------
Xxxxx Xxxxxx III
22
ANNEX I
NUMBER OF
PURCHASER PURCHASED UNITS PURCHASE PRICE
--------- --------------- --------------
X.X. XXXXXX DJ PARTNERS, LLC 89,186 $9,721,371.98
c/o X.X. Xxxxxx Partners, LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Official Notices Clerk
(FBO: W. Xxxxx Xxxxxxxxx)
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX X. XXXXX & XXXXXXX X. XXXXX 1,727 $188,262.86
FAMILY TRUST
XXXXXXX X. XXXXXXXX 415 $45,182.58
XXXXX XXXXXX III 415 $45,182.58
TOTAL: 91,743 $10,000,000.00
------ ============ ==============
23
SCHEDULE 1.5
SOURCES AND USES OF FUNDS
See attached.
24
SCHEDULE 2.4
CAPITALIZATION
PURCHASER PREFERRED UNITS COMMON UNITS
--------- --------------- ------------
X.X. Xxxxxx Partners (23A SBIC), LLC 22,573 -
DJ Investment, LLC 6,362 -
First Union Capital Partners, LLC 668 -
DJC, Inc. 10,699 -
TCW/Crescent Mezzanine Trust II 2,323 -
TCW Leveraged Income Trust II, L.P. 1,110 -
Crescent/Mach I Partners, L.P. 670 -
X.X. Xxxxxx DJ Partners, LLC - 860,956
Xxxxxx X. Xxxxx & Xxxxxxx X. Xxxxx Family Trust - 16,673
Xxxxxxx X. XxXxxxxx - 4,002
Xxxxx Xxxxxx III - 4,002
TOTAL: 44,405 885,633
----- ====== =======
25
CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), and a holder of the Company's
Preferred Units, hereby consents, for purposes of the Operating Agreement, to
the offer, issuance and sale by the Company to the Purchasers of the Purchased
Units in accordance with the provisions of the Common Unit Purchase Agreement
dated as of June 11, 2001, to which this Consent and Waiver is attached (the
"Unit Purchase Agreement"), and hereby waives any rights the undersigned may
have in connection with such offer, issuance and sale under the Members'
Agreement (including, but not limited to, Section 5 thereof).
Capitalized terms used and not otherwise defined in this Consent and
Waiver have the meanings ascribed to them in the Unit Purchase Agreement.
Dated: June 11, 2001
X.X. XXXXXX PARTNERS (23A SBIC), LLC
BY: X.X. XXXXXX PARTNERS (23A SBIC
MANAGER), INC.,
ITS MANAGING MEMBER
By: /s/ XXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
26
CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), and a holder of the Company's
Preferred Units, hereby consents, for purposes of the Operating Agreement, to
the offer, issuance and sale by the Company to the Purchasers of the Purchased
Units in accordance with the provisions of the Common Unit Purchase Agreement
dated as of June 11, 2001, to which this Consent and Waiver is attached (the
"Unit Purchase Agreement"), and hereby waives any rights the undersigned may
have in connection with such offer, issuance and sale under the Members'
Agreement (including, but not limited to, Section 5 thereof).
Capitalized terms used and not otherwise defined in this Consent and
Waiver have the meanings ascribed to them in the Unit Purchase Agreement.
Dated: June 11, 2001
DJ INVESTMENT, LLC
BY: FIRST UNION INVESTORS, INC.,
AS MANAGER
By: /s/ XXXXX X. XXXXX
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Principal
27
CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), and a holder of the Company's
Preferred Units, hereby consents, for purposes of the Operating Agreement, to
the offer, issuance and sale by the Company to the Purchasers of the Purchased
Units in accordance with the provisions of the Common Unit Purchase Agreement
dated as of June 11, 2001, to which this Consent and Waiver is attached (the
"Unit Purchase Agreement"), and hereby waives any rights the undersigned may
have in connection with such offer, issuance and sale under the Members'
Agreement (including, but not limited to, Section 5 thereof).
Capitalized terms used and not otherwise defined in this Consent and
Waiver have the meanings ascribed to them in the Unit Purchase Agreement.
Dated: June 11, 2001
FIRST UNION CAPITAL PARTNERS, LLC
By: /s/ XXXXX X. XXXXX
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Principal
28
CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), and a holder of the Company's
Preferred Units, hereby consents, for purposes of the Operating Agreement, to
the offer, issuance and sale by the Company to the Purchasers of the Purchased
Units in accordance with the provisions of the Common Unit Purchase Agreement
dated as of June 11, 2001, to which this Consent and Waiver is attached (the
"Unit Purchase Agreement"), and hereby waives any rights the undersigned may
have in connection with such offer, issuance and sale under the Members'
Agreement (including, but not limited to, Section 5 thereof).
Capitalized terms used and not otherwise defined in this Consent and
Waiver have the meanings ascribed to them in the Unit Purchase Agreement.
Dated: June 11, 2001
DJC, INC.
By: /s/ XXXXX XXXXXXX, XX.
-------------------------------
Name: XXXXX XXXXXXX, XX.
Title: PRINCIPAL
29
CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), and a holder of the Company's
Preferred Units, hereby consents, for purposes of the Operating Agreement, to
the offer, issuance and sale by the Company to the Purchasers of the Purchased
Units in accordance with the provisions of the Common Unit Purchase Agreement
dated as of June 11, 2001, to which this Consent and Waiver is attached (the
"Unit Purchase Agreement"), and hereby waives any rights the undersigned may
have in connection with such offer, issuance and sale under the Members'
Agreement (including, but not limited to, Section 5 thereof).
Capitalized terms used and not otherwise defined in this Consent and
Waiver have the meanings ascribed to them in the Unit Purchase Agreement.
Dated: June 11, 2001
TCW/CRESCENT MEZZANINE TRUST II
BY: TCW/CRESCENT MEZZANINE II, L.L.C.
ITS INVESTMENT MANAGER.
BY: TCW/CRESCENT MEZZANINE, L.L.C.,
AS ITS MANAGING OWNER
By: /s/ XXXXX XXXXXXX, XX.
-------------------------------
Name: XXXXX XXXXXXX, XX.
Title: PRINCIPAL
30
CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), and a holder of the Company's
Preferred Units, hereby consents, for purposes of the Operating Agreement, to
the offer, issuance and sale by the Company to the Purchasers of the Purchased
Units in accordance with the provisions of the Common Unit Purchase Agreement
dated as of June 11, 2001, to which this Consent and Waiver is attached (the
"Unit Purchase Agreement"), and hereby waives any rights the undersigned may
have in connection with such offer, issuance and sale under the Members'
Agreement (including, but not limited to, Section 5 thereof).
Capitalized terms used and not otherwise defined in this Consent and
Waiver have the meanings ascribed to them in the Unit Purchase Agreement.
Dated: June 11, 2001
TCW LEVERAGED INCOME TRUST II, L.P.
BY: TCW (XXXX XX), L.P.,
AS ITS GENERAL PARTNER
BY: TCW ADVISERS (BERMUDA), LTD.,
ITS GENERAL PARTNER
By: /s/ XXXXX XXXXXXX, XX.
-------------------------------
Name: XXXXX XXXXXXX, XX.
Title: PRINCIPAL
BY: TCW INVESTMENT MANAGEMENT
COMPANY, AS INVESTMENT ADVISER
By: /s/ XXXXX XXXXXXX, XX.
-------------------------------
Name: XXXXX XXXXXXX, XX.
Title: PRINCIPAL
31
CONSENT AND WAIVER
The undersigned, being a member of DonJoy, L.L.C., a Delaware
limited liability company (the "Company"), and a holder of the Company's
Preferred Units, hereby consents, for purposes of the Operating Agreement, to
the offer, issuance and sale by the Company to the Purchasers of the Purchased
Units in accordance with the provisions of the Common Unit Purchase Agreement
dated as of June 11, 2001, to which this Consent and Waiver is attached (the
"Unit Purchase Agreement"), and hereby waives any rights the undersigned may
have in connection with such offer, issuance and sale under the Members'
Agreement (including, but not limited to, Section 5 thereof).
Capitalized terms used and not otherwise defined in this Consent and
Waiver have the meanings ascribed to them in the Unit Purchase Agreement.
Dated: June 11, 2001
CRESCENT MACH I PARTNERS, L.P.
BY: TCW ASSET MANAGEMENT
COMPANY, ITS INVESTMENT ADVISOR
By: /s/ XXXXX XXXXXXX, XX.
-------------------------------
Name: XXXXX XXXXXXX, XX.
Title: PRINCIPAL
By: /s/ XXXXX XXXXXXX, XX.
-------------------------------
Name: XXXXX XXXXXXX, XX.
Title: PRINCIPAL
32
Exhibit A
SBIC Side Letter
See attached.
