Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - Wright Medical Group N.V. | d203409d8k.htm |
Exhibit 10.1
[Dealer Letterhead]
| DATE: | June [●], 2016 | |||||||||
| TO: | Wright Medical Group, Inc. 1023 Cherry Road Memphis, TN 38117 | |||||||||
| Wright Medical Group N.V. Prins Bernhardplein 200 1097 JB Amsterdam The Netherlands | ||||||||||
| ATTENTION: | James Lightman Sr. Vice President, General Counsel and Secretary | |||||||||
| TELEPHONE: | + 31 20 675 4002 | |||||||||
| EMAIL: | jim.lightman@wmt.com | |||||||||
| FROM: | [DEALER] | |||||||||
| TELEPHONE: | [DEALER’S NUMBER] | |||||||||
| SUBJECT: | Partial Terminations of Relevant Transactions Listed on Attached Schedule A and Related Amendments | |||||||||
The purpose of this communication (this “Confirmation”) is to set forth the terms and conditions of the partial termination (the “Transaction”) of the rights and obligations under and in respect of the following transactions (each such transaction, a “Relevant Transaction” and collectively the “Relevant Transactions” and the terminated portion of each such Relevant Transaction, the “Terminated Portion”) and to modify the confirmations of the Relevant Transactions as described herein: Base call option transaction confirmation, dated as of February 9, 2015, by and between [DEALER] (“Dealer”) and Wright Medical Group, Inc. (“Wright Inc.”) (the “Base Call Option”); Base warrant transaction confirmation, dated as of February 9, 2015, by and between Dealer and Wright Inc., as amended by the Amendment dated as of November 24, 2015, by and between Dealer, Wright Inc. and Wright Medical Group N.V. (“Wright N.V.” and together with Wright Inc., the “Counterparties” and each a “Counterparty”) (the “Base Warrant”). The Terminated Portion of each of the above Relevant Transactions shall be as set forth on Schedule A in the column labeled “Number of Options or Warrants, As Applicable, of such Relevant Transaction Subject to Termination”. The Terminated Portion of each Relevant Transaction shall be terminated as of [•], 2016 (the “Termination Effective Date”).
1. The definitions and provisions of the 2000 ISDA Definitions (including the Annex thereto) (the “2000 Definitions”) and the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions” and, together with the 2000 Definitions, the “Definitions”), in each case, as published by the International Swaps and Derivatives Association, Inc. (“ISDA”) are incorporated into this Confirmation. Any capitalized term not otherwise defined herein shall have the meaning set forth for such term in the confirmation for the Base Call Option or the Base Warrant, as applicable. In the event of any inconsistency between the 2000 Definitions and the Equity Definitions, the Equity Definitions will govern.
2. In consideration for the termination of the Terminated Portion of each Relevant Transaction, a “Termination Payment” with respect to the Terminated Portion of each Relevant Transaction shall be made in the amount set forth on Schedule A, such Termination Payments to be made as further specified in Paragraph 4 below. Each of Dealer, Wright Inc. and Wright N.V. hereby agrees that, upon receipt of the Termination Payments (as aggregated into a Net Termination Payment as provided in Paragraph 4 below), with respect to the Terminated Portion of each Relevant Transaction: (i) such Terminated Portion of the Relevant Transaction and all of the respective rights and obligations of Dealer and any applicable Counterparty thereunder are cancelled and terminated as of the Termination Effective Date; (ii) Dealer releases and discharges each of Wright Inc. and Wright N.V. from and agrees not to make any claim against Wright Inc. or Wright N.V. with respect to any obligations of Wright Inc. or Wright N.V. arising out of, and to be performed in connection with, any Terminated Portion of a Relevant Transaction after the Termination Effective Date, including, but not limited to, any rights or obligations said to survive the termination of a Relevant Transaction in such Relevant Transaction’s confirmation in respect of the Terminated Portion of such Relevant Transaction and; (iii) each of Wright Inc. and Wright N.V. releases and discharges Dealer from and agrees not to make any claim against Dealer with respect to any obligations of Dealer arising out of, and to be performed in connection with, any Terminated Portion of a Relevant Transaction after the Termination Effective Date, including, but not limited to, any rights or obligations said to survive the termination of a Relevant Transaction in such Relevant Transaction’s confirmation in respect of the Terminated Portion of such Relevant Transaction. Each of the parties hereby represents and acknowledges to the other that, upon receipt of the Termination Payments (as aggregated into a Net Termination Payment as provided in Paragraph 4 below), no further amounts are owed by Dealer, Wright Inc. or Wright N.V. to any other party with respect to the Terminated Portion of each Relevant Transaction.
3. Wright N.V. hereby transfers and assigns its obligations to make Termination Payments to Dealer in respect of the Terminated Portion of each of the Base Warrants to Wright Inc., and Wright Inc. hereby accepts Wright N.V.’s obligation to make Termination Payments in respect of the Terminated Portion of each of the Base Warrants. The Dealer hereby consents to the transfer and assignment of the obligation to make Termination Payments in respect of the Terminated Portion of each of the Base Warrants from Wright N.V. to Wright Inc.
4. The parties hereby agree to net the Termination Payments with respect to the Terminated Portion each of the Relevant Transactions such that a single payment shall be made with respect to the Termination Portion of each of the Relevant Transactions (such net payment, the “Net Termination Payment”), such Net Termination Payment satisfying each party’s obligations to make payments to the other. On the Termination Effective Date, Dealer shall deliver to Wright Inc. the Net Termination Payment in accordance with the Wright Inc. Payment Instructions below.
5. Wright Inc. Payment Instructions:
Bank: [●]
ABA#: [●]
Swift: [●]
Acct: [●]
Beneficiary: [●]
6. The Termination Payment with respect to the Terminated Portion of each Relevant Transaction shall be determined by referencing the VWAP Price for the Relevant Transaction as set forth in the table below.
| VWAP Price | ||||||||||||||||||||||||||||||||
| $17.50 | $18.00 | $18.50 | $19.00 | $19.50 | $20.00 | $20.50 | $21.00 | |||||||||||||||||||||||||
| Termination Payment in respect of the Terminated Portion of the Base Call Option |
[ | ●] | [ | ●] | [ | ●] | [ | ●] | [ | ●] | [ | ●] | [ | ●] | [ | ●] | ||||||||||||||||
| Termination Payment in respect of the Terminated Portion of the Base Warrant |
[ | ●] | [ | ●] | [ | ●] | [ | ●] | [ | ●] | [ | ●] | [ | ●] | [ | ●] | ||||||||||||||||
If the VWAP Price is between two VWAP Prices in the table above, the amount of the Termination Payment with respect to the Terminated Portion of the Relevant Transaction shall be determined by a straight-line interpolation between the amount of the Termination Payment set forth for the higher and lower VWAP Prices.
“VWAP Price” shall mean the per Share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page WMGI <equity> AQR in respect of the period from the scheduled opening time of the Exchange to the Scheduled Closing Time of the Exchange on the Scheduled Trading Day immediately preceding the Termination Effective Date (or if such volume-weighted average price is unavailable at such time, the market value of one Share on such Valid Day, as determined by the Calculation Agent using, if practicable, a volume-weighted average method).
7. The parties agree that from and after the Termination Effective Date, each of the Relevant Transactions shall be amended and restated in its entirety but with the adjustments shown in the column labeled “Revisions to the Terms of the Relevant Transaction” in Schedule A beside each Relevant Transaction. The parties further agree that each of the following side letters to the Relevant Transactions shall continue in full force and effect:
| • | The letter agreement by and between Dealer and Wright Inc. dated as of February 9, 2015, specifying certain additional terms and conditions of the Base Warrants issued by Wright Inc. to Dealer, as amended on November 24, 2015 (the “Initial Base Warrant Side Letter”); |
| • | The letter agreement by and between Dealer, Wright Inc. and Wright N.V. dated as of November 24, 2015, amending the Initial Base Warrant Side Letter; and |
| • | The letter agreement by and between Dealer and Wright Inc. dated as of February 9, 2015, specifying certain additional terms and conditions of the Base Call Options issued by Dealer to Wright Inc. |
8. Counterparty represents and warrants to Dealer on the date hereof and on the Termination Effective Date that:
| a. | Counterparty has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of this Confirmation; such execution, delivery and performance have been duly authorized by all necessary corporate action on Counterparty’s part; and this Confirmation has been duly and validly executed and delivered by Counterparty and constitutes its valid and binding obligation, enforceable against Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto. |
| b. | Neither the execution and delivery of this Confirmation nor the incurrence or performance of obligations of Counterparty hereunder will conflict with or result in a breach of the certificate of incorporation or by-laws (or any equivalent documents) of Counterparty, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which Counterparty or any of its subsidiaries is a party or by which Counterparty or any of its subsidiaries is bound or to which Counterparty or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument. |
| c. | No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Counterparty of this Confirmation, except such as have been obtained or made and such as may be required under the Securities Act of 1933, as amended, or state securities laws or under the Dutch Act on Financial Supervision (Wet op het Financieel Toezicht). |
| d. | Counterparty is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. |
| e. | Counterparty is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18) (C) of the Commodity Exchange Act). |
| f. | Counterparty and each of its affiliates are not, on the date hereof, in possession of any material non-public information with respect to Wright N.V. or the Shares. |
| g. | No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity), except for the reporting requirements of the Exchange Act and rules promulgated thereunder, or, the reporting or registration requirements of the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969), in each case, as a result of Dealer or its affiliates owning or holding (however defined) Shares. |
| h. | Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million. |
| i. | Counterparty is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares). |
9. Dealer hereby repeats the representations made to Counterparty in Section 3 of the 2002 ISDA Master Agreement on the date hereof and on the Termination Effective Date.
[The remainder of page intentionally left blank]
This Confirmation may be executed in several counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Facsimile or portable document format (.pdf) copies of this Confirmation shall have the same force and effect as an original.
Please confirm that the foregoing correctly sets forth the terms of the agreement between Dealer, Wright Inc. and Wright N.V. with respect to the Transaction, by manually signing this Confirmation as evidence of agreement to such terms and returning an executed copy to us.
Very Truly Yours,
[DEALER]
By:
Name:
Title:
Each of Wright Inc. and Wright N.V. hereby agrees to, accepts and confirms the terms of the foregoing as of the Termination Effective Date.
WRIGHT MEDICAL GROUP, INC.
By:
Name:
Title:
WRIGHT MEDICAL GROUP N.V.
By:
Name:
Title:
Schedule A
| Relevant Transaction |
Number of Options or |
Revisions to the Terms of the Relevant Transaction | ||
| Base call option transaction confirmation, dated as of February 9, 2015, by and between [DEALER] and Wright Medical Group, Inc. | 45,000 Options | Number of Options shall be revised to equal 505,000 | ||
| Base warrant transaction confirmation, dated as of February 9, 2015, by and between [DEALER] and Wright Medical Group, Inc., as amended by the Amendment dated as of November 24, 2015, by and between [DEALER], Wright Medical Group, Inc. and Wright Medical Group N.V. | [●] Warrants | Number of Warrants shall be revised to equal [●] | ||