UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 17, 2015
WRIGHT MEDICAL GROUP N.V.
(Exact name of registrant as specified in its charter)
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| The Netherlands |
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1-35065 |
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98-0509600 |
| (State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(I.R.S. Employer
Identification No.) |
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| Prins Bernhardplein 200
1097 JB Amsterdam The
Netherlands |
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None |
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(Zip Code) |
(+ 31) 20 675-4002
(Registrant’s telephone number, including area code)
Not Applicable
(Former
name or former address, if changed since last report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
On November 17, 2015, Wright Medical Group N.V. (“Wright”)
entered into an underwriting agreement (the “Underwriting Agreement”) with TMG Holdings Coöperatief U.A., an affiliate of Warburg Pincus LLC and an existing shareholder of Wright (the “Selling Shareholder”), and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (the “Underwriter”), relating to the underwritten offering of 4,500,000 ordinary shares, par value €0.03 per share, of Wright (the “Shares”). The Underwriter agreed to
purchase the Shares from the Selling Shareholder pursuant to the Underwriting Agreement at a price of $20.82 per share. The offering closed on November 23, 2015. Wright did not sell any shares in the offering or receive any proceeds from the
offering.
The offering was effected pursuant to a shelf registration statement on Form S-3, which was filed by Wright and declared
effective by the Securities and Exchange Commission on November 17, 2015 (Registration No. 333-208072) (the “Registration Statement”), and a related prospectus supplement dated November 17, 2015.
A copy of the Underwriting Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K. An opinion of Stibbe N.V. provided in
connection with the offering is filed as Exhibit 5.1 to this report.
| Item 9.01 |
Financial Statements and Exhibits. |
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| Exhibit
No. |
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Description |
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| 1.1 |
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Underwriting Agreement, dated November 17, 2015, among Wright Medical Group N.V., TMG Holdings Coöperatief U.A. and Merrill Lynch, Pierce, Fenner & Smith Incorporated (filed herewith) |
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| 5.1 |
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Opinion of Stibbe N.V. (filed herewith) |
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| 23.1 |
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Consent of Stibbe N.V. (included in Exhibit 5.1) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
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| Dated: November 23, 2015 |
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WRIGHT MEDICAL GROUP N.V. |
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By: |
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/s/ Lance A. Berry |
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Name: |
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Lance A. Berry |
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Title: |
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Senior Vice President and Chief Financial Officer |
WRIGHT MEDICAL GROUP N.V.
CURRENT REPORT ON FORM 8-K
EXHIBIT INDEX
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| Exhibit
No. |
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Description |
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Method of Filing |
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| 1.1 |
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Underwriting Agreement, dated November 17, 2015, among Wright Medical Group N.V., TMG Holdings Coöperatief U.A. and Merrill Lynch, Pierce, Fenner & Smith Incorporated |
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Filed herewith |
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| 5.1 |
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Opinion of Stibbe N.V. |
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Filed herewith |
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| 23.1 |
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Consent of Stibbe N.V. |
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Included in Exhibit 5.1 |
Exhibit 1.1
WRIGHT MEDICAL GROUP N.V.
(a
Netherlands public limited liability company)
4,500,000 Ordinary Shares
UNDERWRITING AGREEMENT
Dated:
November 17, 2015
WRIGHT MEDICAL GROUP N.V.
(a Netherlands public limited liability company)
4,500,000 Ordinary Shares
UNDERWRITING AGREEMENT
November 17, 2015
Merrill Lynch, Pierce,
Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
Wright Medical Group
N.V., a Netherlands public limited liability company (naamloze vennootschap or N.V.) (the “Company”), and TMG Holdings Coöperatief U.A., a cooperative with excluded liability (coöperatie met uitgesloten
aansprakelijkheid) incorporated under the laws of the Netherlands, having its corporate seat (statutaire zetel) in Amsterdam (the “Selling Shareholder”), confirm their respective agreements with Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the “Underwriter”), with respect to the sale by the Selling Shareholder and the purchase by the Underwriter of 4,500,000 Ordinary Shares, par value EUR €0.03 per share, of the Company
(“Ordinary Shares”) (Such shares to be sold by the Selling Shareholder being referred to as the “Securities”).
The
Company and the Selling Shareholder understand that the Underwriter proposes to make a public offering of the Securities as soon as the Underwriter deems advisable after this Agreement has been executed and delivered.
The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration
statement on Form S-3 (File No. 333-208072) covering the public offering and sale of certain securities, including the Securities, under the Securities Act of 1933, as amended (the “1933
Act”), and the rules and regulations promulgated thereunder (the “1933 Act Regulations”), which automatic shelf registration statement became effective under Rule 462(e) under the 1933 Act Regulations. Such registration statement, as
of any time, means such registration statement as amended by any post-effective amendments thereto to such time, including the exhibits and any schedules thereto at such time, the documents incorporated or deemed to be incorporated by reference
therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B under the 1933 Act Regulations (“Rule 430B”), is referred to herein
as the “Registration Statement;” provided, however, that the “Registration Statement” without reference to a time means such registration statement as amended by any post-effective amendments thereto as of the time of the first
contract of sale for the Securities, which time shall be considered the “new effective date” of such registration statement with respect to the Securities within the meaning of paragraph (f)(2) of Rule 430B, including the exhibits and
schedules thereto as of such time, the documents incorporated or deemed incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time
pursuant to Rule 430B. Each preliminary prospectus used in connection with the offering of the Securities, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, are collectively referred to herein as a “preliminary
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prospectus.” Promptly after execution and delivery of this Agreement, the Company will prepare and file a final prospectus relating to the Securities in accordance with the provisions of
Rule 424(b) under the 1933 Act Regulations (“Rule 424(b)”). Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein called the “Rule 462(b) Registration Statement” and, after such filing,
the term “Registration Statement” shall include the Rule 462(b) Registration Statement. The final prospectus, in the form first furnished or made available to the Underwriter for use in connection with the offering of the Securities,
including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are collectively referred to herein as the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (or any successor system) (“EDGAR”).
As used in this Agreement:
“Applicable Time” means 7:00 P.M., New York City time, on November 17, 2015 or such other time as agreed by the
Company and the Underwriter.
“General Disclosure Package” means any Issuer General Use Free Writing Prospectuses
issued at or prior to the Applicable Time, the most recent preliminary prospectus (including any documents incorporated therein by reference) that is distributed to investors prior to the Applicable Time and the information included on Schedule A-1
hereto, all considered together.
“Issuer Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”)) relating to
the Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the
Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed or required
to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general
distribution to prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic Road Show”)), as evidenced by its being specified in Schedule A-2 hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General
Use Free Writing Prospectus.
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or other references of like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include all such financial statements and
schedules and other information incorporated or deemed incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to the execution and delivery of this Agreement; and all
references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934, as amended, and
the rules and regulations
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promulgated thereunder (collectively, the “1934 Act”), incorporated or deemed to be incorporated by reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be, at or after the execution and delivery of this Agreement.
SECTION 1. Representations and
Warranties.
(a) Representations and Warranties by the Company. The Company represents and warrants to the Underwriter as of the
date hereof, the Applicable Time and the Closing Time (as defined below), and agrees with the Underwriter, as follows:
(i)
Registration Statement and Prospectuses. The Company meets the requirements for use of Form S-3 under the 1933 Act. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and the
Securities have been and remain eligible for registration by the Company on such automatic shelf registration statement. Each of the Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act. No stop
order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued
and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated. The Company has complied with each request (if any) from the Commission for additional information.
Each of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness and at each
deemed effective date with respect to the Underwriter pursuant to Rule 430B(f)(2) under the 1933 Act Regulations, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus, the
Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus and the Prospectus delivered to the
Underwriter for use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when
they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission under the 1934 Act
(the “1934 Act Regulations”).
(ii) Accurate Disclosure. Neither the Registration Statement nor any
amendment thereto, at its effective time or at the Closing Time, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading. As of the Applicable Time, neither (A) the General Disclosure Package nor (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package,
included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading. Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b) or at the Closing Time, included, includes or
will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the
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circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the General Disclosure Package and
the Prospectus, at the time the Registration Statement became effective or when such documents incorporated by reference were filed or hereafter are filed with the Commission, as the case may be, when read together with the other information in the
Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement (or any amendment thereto), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information furnished to the
Company by the Underwriter expressly for use therein. For purposes of this Agreement, the only information so furnished shall be the information in the first paragraph under the heading “Underwriting—Commissions and Discounts,” the
information in the second sentence of the first paragraph and the second paragraph under the heading “Underwriting—Short Positions” and the information under the heading “Underwriting—Electronic Distribution” in each
case contained in the Prospectus (collectively, the “Underwriter Information”).
(iii) Issuer Free Writing
Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified.
(iv) Well-Known Seasoned Issuer.
(A) At the original effectiveness of the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)
under the 1933 Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the 1933 Act, and (D) as of the Applicable Time, the Company was and is a “well-known seasoned issuer” (as defined in Rule
405).
(v) Company Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective
amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date hereof, the
Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible
issuer.
(vi) Independent Accountants. The accountants who certified the financial statements and supporting
schedules included in the Registration Statement, the General Disclosure Package and the Prospectus are independent public accountants as required by the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the Public
Company Accounting Oversight Board.
(vii) Financial Statements. The financial statements included or incorporated
by reference in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly, in all material respects, the financial
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position of the Company, Wright Medical Group, Inc. and their consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the
Company, Wright Medical Group, Inc. and their consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a
consistent basis throughout the periods involved, except for any unaudited financial statements, which are subject to normal year end adjustment and do not contain certain footnotes as permitted by the applicable rules or the Commission. The
supporting schedules, if any, present fairly in all material respects in accordance with GAAP the information required to be stated therein. The selected financial data and the summary financial information included in the Registration Statement,
the General Disclosure Package and the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited and unaudited financial statements included therein. The
pro forma financial information and the related notes thereto included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, have been prepared in all material respects in accordance with the
Commission’s rules and guidance with respect to pro forma financial information, and the assumptions underlying such pro forma financial information are reasonable and are set forth in the Registration Statement, the General Disclosure Package
and the Prospectus. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the General Disclosure Package or the
Prospectus under the 1933 Act or the 1933 Act Regulations. All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus, or incorporated by reference therein, regarding
“non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1933 Act, to
the extent applicable. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all
material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(viii) No Material Adverse Change in Business. Except as otherwise stated therein, since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital stock.
(ix) Good Standing of the Company.
The Company has been duly incorporated and is validly existing as a public limited liability company (naamloze vennootschap) in good standing under the laws of The Netherlands (or such equivalent concept to the extent it exists under the laws
of such jurisdiction) and has corporate power and capacity to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and
perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required (or such equivalent concept to
the extent it exists under the laws of such jurisdiction), whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse
Effect.
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(x) Good Standing of Subsidiaries. Each “significant subsidiary”
of the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each, a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly organized and is validly existing in good standing under the laws of the
jurisdiction of its incorporation or organization (or such equivalent concept to the extent it exists under the laws of such jurisdiction), has corporate or similar power and authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement, the General Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required (or such
equivalent concept to the extent it exists under the laws of such jurisdiction), whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not result
in a Material Adverse Effect. Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of
the outstanding shares of capital stock of any Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such Subsidiary. The only subsidiaries of the Company are those listed on Schedule A-3.
(xi) Capitalization. The authorized, issued and outstanding shares of capital stock of the Company are as set forth in
the Registration Statement, the General Disclosure Package and the Prospectus under the heading “Description of Ordinary Shares” (except for subsequent issuances, if any, pursuant to reservations, agreements or employee benefit plans
referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration Statement, the General Disclosure Package and the
Prospectus). The outstanding shares of capital stock of the Company, including the Securities to be sold by the Selling Shareholder to the Underwriter, have been duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(xii) Stock Options. With respect to the stock options (the “Stock Options”) granted pursuant to the
stock-based compensation plans of the Company and its subsidiaries (the “Company Stock Plans”), (i) each Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Internal Revenue Code of
1986, as amended, including the regulations and published interpretations thereunder (herein called the “Code”), so qualifies, (ii) each grant of a Stock Option was duly authorized no later than the date on which the grant of such
Stock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and
any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance
with the terms of the Company Stock Plans, the 1934 Act and all other applicable laws and regulatory rules or requirements, including the rules of the NASDAQ Global Select Market and any other exchange on which Company securities are traded,
(iv) the per share exercise price of each Stock Option was equal to the fair market value of a share of Ordinary Shares on the applicable Grant Date and (v) each such grant was properly accounted for in accordance with GAAP in the
financial statements (including the related notes) of the Company and disclosed in
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the Company’s filings with the Commission in accordance with the 1934 Act and all other applicable laws. The Company has not knowingly granted, and there is no and has been no policy or
practice of the Company of granting, Stock Options prior to, or otherwise coordinate the grant of Stock Options with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of
operations or prospects.
(xiii) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(xiv) Description of Securities. The Ordinary Shares conform in all material respects to
all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same.
(xv) Registration Rights. Other than as disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale by the Company under the 1933 Act. Any person that
possesses registration rights or similar rights to have any securities registered for sale in connection with the transactions contemplated by this Agreement has elected not to exercise or has waived such rights in connection with the transactions
contemplated by this Agreement.
(xvi) Absence of Violations, Defaults and Conflicts. Neither the Company nor any of
its subsidiaries is (A) in violation of its charter, by-laws or similar organizational document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the properties or assets of the
Company or any subsidiary is subject (collectively, “Agreements and Instruments”), except for such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect, or (C) in violation of any law, statute,
rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency having jurisdiction over the Company or any of its subsidiaries or any of their
respective properties, assets or operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein and in the Registration Statement, the General Disclosure Package and the Prospectus (including the sale of the Securities) and compliance by the Company with its obligations
hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments (except for such conflicts, breaches,
defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the charter, by-laws or similar
organizational document of the Company or any of its subsidiaries or any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental Entity. As used herein, a “Repayment Event” means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any
of its subsidiaries.
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(xvii) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any subsidiary’s principal suppliers,
manufacturers, customers or contractors, which, in either case, would result in a Material Adverse Effect.
(xviii)
Absence of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now
pending or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which might result in a Material Adverse Effect, or which might materially and adversely affect their respective properties or
assets or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder; and the aggregate of all pending legal or governmental proceedings to which the Company or any such
subsidiary is a party or of which any of their respective properties or assets is the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental
to the business, would not result in a Material Adverse Effect.
(xix) Accuracy of Exhibits. There are no contracts
or documents that are required to be described in the Registration Statement, the General Disclosure Package, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto that have not been so described and
filed as required.
(xx) Absence of Further Requirements. No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the rules of the NASDAQ Stock Market LLC, state securities laws or the
rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”).
(xxi) Possession of Licenses and
Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the
business now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse Effect. The Company and its subsidiaries are in compliance with the terms and conditions of all Governmental
Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(xxii) Title to Property. The Company and its subsidiaries have good and marketable title to all real property owned by
them and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as (A) are described in the Registration
Statement, the
8
General Disclosure Package and the Prospectus or (B) do not, singly or in the aggregate, materially affect the value of such property and do not interfere with the use made and proposed to
be made of such property by the Company or any of its subsidiaries; and all of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Registration Statement, the General Disclosure Package or the Prospectus, are in full force and effect, and neither the Company nor any such subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company or any subsidiary under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xxiii) Possession of Intellectual Property. The
Company and its subsidiaries own, possess or can acquire on reasonable terms all Intellectual Property (as defined below) necessary for the conduct of the businesses of the Company and its subsidiaries as described in the Registration Statement, the
General Disclosure Package and the Prospectus as now conducted, and (i) to the Company’s knowledge there is no infringement, misappropriation or violation by third parties of any such Intellectual Property; (ii) there is no pending
or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the rights of the Company or any of its subsidiaries in or to any such Intellectual Property, and the Company is unaware of any facts which would
form a reasonable basis for any such claim; (iii) the Intellectual Property owned by the Company and its subsidiaries and, to the knowledge of the Company, the Intellectual Property licensed to the Company or any of its subsidiaries have not
been adjudged by a court of competent jurisdiction invalid or unenforceable, in whole or in part, and there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope
of any such Intellectual Property, and except as described in the Registration Statement, the General Disclosure Package or the Prospectus the Company is unaware of any facts which would form a reasonable basis for any such claim; (iv) there is
no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others that the Company or any of its subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property or other proprietary rights
of others, neither the Company nor any of its subsidiaries has received any written notice of such claim in the past three years and neither the Company nor any of its subsidiaries is aware of any other facts which would form a reasonable basis for
any such claim; and (v) to the Company’s knowledge, no employee of the Company or any of its subsidiaries is in or has ever been in violation in any material respect of any term of any employment contract, patent disclosure agreement,
invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment with
the Company or such subsidiary, or actions undertaken by the employee while employed with the Company or such subsidiary. The term “Intellectual Property” as used herein means all patents, patent applications, trade and service marks,
trade and service mark registrations, trade names, copyrights, licenses, inventions, trade secrets, proprietary technology and proprietary know-how.
(xxiv) Patent Applications. To the Company’s knowledge, in connection with the filing of all patent applications
filed or caused to be filed by the Company and its subsidiaries with the United States Patent and Trademark Office (herein called the “PTO”), each of the Company and its subsidiaries has complied with the PTO’s duty of candor and
disclosure for their patent and has made no material misrepresentation in any such application or in any application filed with any applicable foreign patent authorities. The Company is unaware of any facts material to a determination of
patentability regarding the Company’s and its subsidiaries’ patent applications not called to the attention of the PTO and is unaware of any facts not called to the attention of the
9
PTO which would preclude the grant of a patent for such applications. The Company has no knowledge of any facts which would materially conflict with the Company’s or any of its
subsidiaries’ ownership rights to its patent applications.
(xxv) Regulatory Compliance. Except as described in
the Registration Statement, the General Disclosure Package and the Prospectus, or except as would not, singly or in the aggregate, result in a Material Adverse Effect, the Company and each of its subsidiaries: (i) has not received any
unresolved FDA Form 483, notice of adverse filing, warning letter, untitled letter or other correspondence or notice from the U.S. Food and Drug Administration (“FDA”), or any other court or arbitrator or federal, state, local or foreign
governmental or regulatory authority, alleging or asserting noncompliance with the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.); (ii) is and has been in compliance with applicable health care laws, including without
limitation, the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), the federal Anti-kickback Statute (42 U.S.C. § 1320a-7b(b)), the civil False Claims Act (31 U.S.C. §§ 3729 et seq.), the administrative False Claims
Law (42 U.S.C. § 1320a-7b(a)), the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)), the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.), as amended by
the Health Information Technology for Economic and Clinical Health Act of 2009, the exclusion laws, Social Security Act § 1128 (42 U.S.C. § 1320a-7), Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social
Security Act ), and the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Affordability Reconciliation Act of 2010, and the regulations promulgated pursuant to such laws, and comparable state laws, and
all other local, state, federal, national, supranational and foreign laws, manual provisions, policies and administrative guidance relating to the regulation of the Company or such subsidiary (collectively, “Health Care Laws”);
(iii) possesses all licenses, certificates, approvals, clearances, authorizations, permits and supplements or amendments thereto required by any such Health Care Laws and/or to carry on its businesses as now or proposed to be conducted
(“Authorizations”) and such Authorizations are valid and in full force and effect and neither the Company nor any of its subsidiaries is in violation of any term of any such Authorizations; (iv) has not received notice of any ongoing
claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any U.S. or non-U.S. federal, state, local or other governmental or regulatory authority, governmental or regulatory agency or body, court,
arbitrator or self-regulatory organization (each, a “Governmental Authority”) or third party alleging that any product operation or activity is in violation of any Health Care Laws or Authorizations and has no knowledge that any such
Governmental Authority or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (v) has not received notice that any Governmental Authority has taken, is taking or intends to take action
to limit, suspend, modify or revoke any Authorizations and has no knowledge that any such Governmental Authority is considering such action; (vi) has filed, obtained, maintained or submitted all reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments thereto as required by any Health Care Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments
were complete, correct and not misleading on the date filed (or were corrected or supplemented by a subsequent submission); and (vii) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated,
conducted or issued, any recall, market withdrawal or replacement, safety alert, post sale warning, “dear doctor” letter, or other notice or action relating to the alleged lack of safety or efficacy of any product or any alleged product
defect or violation and, to the Company’s knowledge, no third party has initiated or conducted any such notice or action.
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(xxvi) Clinical Studies. The studies, tests and preclinical and clinical
trials conducted by or on behalf of the Company or any of its subsidiaries with respect to programs that are currently in development or in discovery or are described in the Prospectus were and, if still pending, are being conducted with reasonable
care and in accordance with applicable experimental protocols, procedures and controls pursuant to all Health Care Laws and Authorizations, except where such failure to comply would not, individually or in the aggregate, have a Material Adverse
Effect; the descriptions of the results of such studies, tests and trials contained in the Registration Statement, the General Disclosure Package and the Prospectus are accurate and complete in all material respects and fairly present the data
derived from such studies, tests and trials; except to the extent disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries is aware of any studies, tests or trials,
the results of which the Company or such subsidiary believes reasonably call into question the study, test, or trial results described or referred to in the Registration Statement, the General Disclosure Package and the Prospectus when viewed in the
context in which such results are described and the clinical state of development; and neither the Company nor any of its subsidiaries has received any notices or correspondence from any Governmental Authority requiring the termination, suspension
or material modification of any studies, tests or preclinical or clinical trials conducted by or on behalf of the Company or such subsidiary. There have been no material adverse episodes or complications resulting from any studies, tests or
preclinical or clinical trials conducted by or on behalf of the Company or any of its subsidiaries.
(xxvii)
Environmental Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of
its subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release of chemicals, compounds, mixtures, wastes, and substances regulated thereunder as “hazardous,” “toxic,” “pollutants,” or
“contaminants,” including without limitation, petroleum (including crude oil or any fraction thereof) or petroleum products, asbestos and asbestos-containing materials, natural gas liquids, naturally occurring radioactive materials, brine,
drilling mud or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”),
(B) the Company and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or, to the Company’s
knowledge, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of
its subsidiaries, (D) the Company or any of its subsidiaries have not incurred any costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) and (E) to the Company’s knowledge, there are no events or
circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Entity, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws. The representations and warranties in this Section 1(a)(xxvii) shall govern over those provided in Section 1(a)(xviii) on Absence of Proceedings for all matters relating to
Environmental Laws, Hazardous Materials, and environmental matters.
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(xxviii) Compliance With ERISA. Each of the Company and its subsidiaries
is in compliance in all material respects with all currently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (herein called
“ERISA”); no “reportable event” (as defined in ERISA) has occurred with respect to any “pension plan” (as defined in ERISA) for which the Company or any Subsidiary would have any liability; the Company and its
Subsidiaries have not incurred and do not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “pension plan” or (ii) Sections 412 or 4971 of the Code; and each
“pension plan” for which the Company or any Subsidiary would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or
by failure to act, that would reasonably be expected to cause the loss of such qualification.
(xxix) Accounting
Controls. The Company maintains effective internal control over financial reporting (as defined under Rule 13-a15 and 15d-15 under the 1934 Act Regulations) and a
system of internal accounting controls sufficient to provide reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; (D) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (E) the interactive data in eXtensible Business Reporting Language incorporated by
reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable
thereto. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness in the Company’s
internal control over financial reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting. The Company’s auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material weaknesses in the design
or operation of internal controls over financial reporting that have adversely affected or are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and (ii) any fraud,
whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.
(xxx) Disclosure Controls. The Company and each of its subsidiaries maintain an effective system of disclosure controls
and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the 1934 Act Regulations) that are designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s
management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
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(xxxi) Sarbanes-Oxley Act. There is and has been no failure on the part of
the Company or, to the knowledge of the Company, any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(xxxii)
Payment of Taxes. All non-United States and United States federal income tax returns of the Company and its subsidiaries required by law to be filed through the date hereof (taking into account extensions) have been filed and all taxes shown
by such returns or otherwise assessed, which are due and payable, have been paid, except (a) assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided and (b) taxes the
nonpayment of which (or tax returns the nonfiling of which) would not reasonably be expected to have a Material Adverse Effect. The non-United States and United States federal income tax returns of the Company through the fiscal year ended
December 29, 2013 have been settled and no assessment in connection therewith has been made against the Company. The Company and its subsidiaries have filed all other tax returns that are required to have been filed by them pursuant to
applicable foreign, state, local or other law through the date hereof (taking into account extensions), except insofar as the failure to file such returns would not result in a Material Adverse Effect, and has paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company and its subsidiaries, except for (x) such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by the Company or (y) taxes
the nonpayment of which (or tax returns the nonfiling of which) would not reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves on the books of the Company in respect of any income and corporation tax liability
for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would not result in a Material Adverse Effect.
(xxxiii) Insurance. The Company and its subsidiaries carry or are entitled to the benefits of insurance, with
financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect. The Company
has no reason to believe that it or any of its subsidiaries will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary
or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect. Neither of the Company nor any of its subsidiaries has been denied any insurance coverage which it has sought or for which it
has applied.
(xxxiv) Investment Company Act. The Company is not required, and upon the sale of the Securities as
herein contemplated, will not be required, to register as an “investment company” under the Investment Company Act of 1940, as amended.
(xxxv) Absence of Manipulation. Neither the Company, any of its subsidiaries nor, to the Company’s knowledge, any
affiliate of the Company has taken, nor will the Company, any of its subsidiaries or, to the Company’s knowledge, any affiliate take, directly or indirectly, any action that is designed, or would be expected, to cause or result in, or which has
constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities or to result in a violation of Regulation M under the 1934 Act.
13
(xxxvi) Foreign Corrupt Practices Act. None of the Company, any of its
subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would
result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company and, to the knowledge of the Company, its affiliates
have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxxvii) Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions to the extent applicable to the
Company or any of its subsidiaries, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”);
and no action, suit or proceeding by or before any Governmental Entity involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(xxxviii) OFAC. None of the Company or any of its subsidiaries, directors, officers or employees, or, to the knowledge
of the Company, any agent, or affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries, is currently the subject or the target of any sanctions administered or enforced by the U.S. Government,
(including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State and including, without limitation, the designation as a “specially designated
national” or “blocked person”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”),
nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or the target of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria (each, a
“Sanctioned Country”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or
other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of or
business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as initial purchaser, advisor, investor or otherwise) of Sanctions.
For the past five years, the Company and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the
target of Sanctions or with any Sanctioned Country.
(xxxix) Lending Relationship. Except as disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus, the Company does not have any material lending or other relationship with any bank or lending affiliate of the Underwriter.
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(xl) Statistical and Market-Related Data. Nothing has come to the
attention of the Company that has caused the Company to believe that any statistical and market-related data included in the Registration Statement, the General Disclosure Package or the Prospectus are not based on or derived from sources that are
reliable and accurate in all material respects.
(b) Representations and Warranties of the Selling Shareholder. The Selling
Shareholder represents and warrants to the Underwriter as of the date hereof, as of the Applicable Time and as of the Closing Time, and agrees with the Underwriter, as follows:
(i) Accurate Disclosure. Neither the General Disclosure Package nor the Prospectus or any amendments or supplements
thereto includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such
representations and warranties set forth in this subsection (b)(i) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholder furnished in writing by or on behalf of the Selling
Shareholder expressly for use in the Registration Statement, the General Disclosure Package, the Prospectus or any other Issuer Free Writing Prospectus or any amendment or supplement thereto (the “Selling Shareholder Information”). The
Selling Shareholder is not prompted to sell the Securities to be sold by the Selling Shareholder hereunder by any information concerning the Company or any subsidiary of the Company which is not set forth in the General Disclosure Package or the
Prospectus.
(ii) Authorization of this Agreement. This Agreement has been duly authorized, executed and delivered
by the Selling Shareholder.
(iii) Noncontravention. The execution and delivery of this Agreement by the Selling
Shareholder and the sale and delivery of the Securities to be sold by the Selling Shareholder and the consummation of the transactions contemplated herein and compliance by the Selling Shareholder with its obligations hereunder do not and will not,
whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default under, or result in the creation or imposition of any tax, lien, charge or encumbrance upon the Securities to be sold by the
Selling Shareholder or any property or assets of the Selling Shareholder pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Selling Shareholder
is a party or by which the Selling Shareholder may be bound, or to which any of the property or assets of the Selling Shareholder is subject, nor will such action result in any violation of the provisions of the charter or by-laws or other
organizational instrument of the Selling Shareholder, if applicable, or any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Selling Shareholder or any of its properties, except for any such conflict, breach or default that would not have a material adverse effect on the ability of the Selling Shareholder to perform its obligations hereunder.
(iv) Valid Title. The Selling Shareholder has, and at the Closing Time will have, valid title to the Securities to be
sold by the Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement, and to sell,
transfer and deliver the Securities to be sold by the Selling Shareholder.
(v) Delivery of Securities. Upon payment
of the purchase price for the Securities to be sold by the Selling Shareholder pursuant to this Agreement, delivery of such Securities, as directed by the Underwriter, to Cede & Co. (“Cede”) or such other nominee as may be
designated
15
by The Depository Trust Company (“DTC”) (unless delivery of such Securities is unnecessary because such Securities are already in possession of Cede or such nominee), registration of
such Securities in the name of Cede or such other nominee (unless registration of such Securities is unnecessary because such Securities are already registered in the name of Cede or such nominee), and the crediting of such Securities on the books
of DTC to securities accounts (within the meaning of Section 8-501(a) of the Uniform Commercial Code then in effect in the State of New York (the “UCC”)) of the Underwriter (assuming that
neither DTC nor any the Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the UCC, to such Securities), (A) under Section 8-501 of the UCC, the Underwriter will acquire a valid
“security entitlement” in respect of such Securities and (B) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of
Section 8-102 of the UCC, to such Securities may be asserted against the Underwriter with respect to such security entitlement; for purposes of this representation, the Selling Shareholder may assume that when such payment, delivery (if
necessary) and crediting occur, (I) such Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation,
bylaws and applicable law, (II) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (III) appropriate entries to the account of the Underwriter on the records of DTC will have been made
pursuant to the UCC, (IV) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Securities, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the
UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriter, (V) claims of
creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC and (VI) if at any time DTC or other securities intermediary does not have
sufficient Securities to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Securities then held by DTC or such securities intermediary.
(vi) Absence of Manipulation. The Selling Shareholder has not taken, and will not take, directly or indirectly, any
action which is designed to or which constituted or would be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
(vii) Absence of Further Requirements. No filing with, or consent, approval, authorization, order, registration,
qualification or decree of any arbitrator, court, governmental body, regulatory body, administrative agency or other authority, body or agency, domestic or foreign, is necessary or required for the performance by the Selling Shareholder of its
obligations hereunder, or in connection with the sale and delivery of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the 1933
Act, the 1933 Act Regulations, the rules of the NASDAQ Stock Market, state securities laws or the rules of FINRA.
(viii)
No Registration or Similar Rights. The Selling Shareholder does not have any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the
offering contemplated by this Agreement other than those rights that have been disclosed in the General Disclosure Package and the Prospectus.
(ix) No Free Writing Prospectuses. The Selling Shareholder has not prepared or had prepared on its behalf or used or
referred to, any “free writing prospectus” (as defined in Rule 405), and has not distributed any written materials in connection with the offer or sale of the Securities.
16
(x) No Association with FINRA. Neither the Selling Shareholder nor any of
its affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a “person associated with a member” (within the meaning of the FINRA
By-Laws) of FINRA.
(c) Officer’s Certificates. Any certificate signed by any officer of the Company or any of its
subsidiaries delivered to the Underwriter or to counsel for the Underwriter shall be deemed a representation and warranty by the Company to the Underwriter as to the matters covered thereby; and any certificate signed by or on behalf of the Selling
Shareholder as such and delivered to the Underwriter or to counsel for the Underwriter pursuant to the terms of this Agreement shall be deemed a representation and warranty by the Selling Shareholder to the Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriter; Closing.
(a) Sale of Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, the Selling Shareholder agrees to sell to the Underwriter, and the Underwriter agrees to purchase from the Selling Shareholder, at the price per Ordinary Share of $20.82, the Securities.
(b) Reserved.
(c)
Payment. Payment of the purchase price for, and delivery of, the Securities shall be made at the offices of Latham & Watkins LLP, 650 Town Center Drive, 20th Floor, Costa Mesa,
California 92626, or at such other place as shall be agreed upon by the Underwriter and the Company, at 9:00 A.M. (New York City time) on the third (fourth, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business
day after the date hereof, or such other time not later than ten business days after such date as shall be agreed upon by the Underwriter and the Company and the Selling Shareholder (such time and date of payment and delivery being herein called
“Closing Time”).
Payment shall be made to the Selling Shareholder by wire transfer of immediately available funds to bank
accounts designated by the Selling Shareholder against delivery to the Underwriter for the account of the Underwriter for the Securities to be purchased by it. Delivery of the Securities shall be made by issuing the Securities to Cede &
Co., a company organized under the laws of the State of New York (“Cede”), as the nominee for the Depository Trust Company (“DTC”), for further credit to the account designated by the Underwriter within DTC, unless the
Underwriter shall otherwise instruct. Such payment of the purchase price by the Underwriter will constitute payment on the Securities issued to Cede.
(d) Denominations; Registration. The Securities shall be in such denominations and registered in such names as the Underwriter may
request in writing at least one full business day before the Closing Time.
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SECTION 3. Covenants of the Company, the Selling Shareholder and the Underwriter.
(a) Covenants of the Company. The Company covenants with the Underwriter as follows:
(i) Compliance with Securities Regulations and Commission Requests. The Company, subject to Section 3(a)(ii), will
comply with the requirements of Rule 430B, and during the Prospectus Delivery Period (as defined below) will notify the Underwriter promptly, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement
shall become effective or any amendment or supplement to the Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus, including any document incorporated by reference therein or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or, to the Company’s knowledge, threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company
becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect all filings required under Rule 424(b), in connection with the offering contemplated hereby, in the
manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) in
connection with such offering was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. During the Prospectus Delivery Period, the Company will make every reasonable effort to prevent the
issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Securities within the
time required by Rule 456(b)(1)(i) under the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the 1933 Act Regulations (including, if applicable, by updating the
“Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(ii) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the
1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a
prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in connection with sales of the Securities (the
“Prospectus Delivery Period”), any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriter or for the Company, to (i) amend the Registration Statement in order
that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the
General Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the
case may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give the Underwriter notice of such event, (B) prepare any amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement, the General Disclosure
18
Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Underwriter with copies of any such amendment or
supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Underwriter or counsel for the Underwriter shall reasonably object in
writing. The Company will furnish to the Underwriter such number of copies of such amendment or supplement as the Underwriter may reasonably request. The Company has given the Underwriter notice of any filings made pursuant to the 1934 Act or 1934
Act Regulations within 48 hours prior to the Applicable Time; the Company will give the Underwriter notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Underwriter with copies of any such
documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Underwriter or counsel for the Underwriter shall reasonably object in writing.
(iii) Delivery of Registration Statements. The Company has furnished or will, upon request, deliver or make
electronically available to the Underwriter and counsel for the Underwriter, without charge, a signed copy of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver or make electronically available to the Underwriter, without charge, a
conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for the Underwriter. The copies of the Registration Statement and each amendment thereto furnished to the Underwriter will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(iv) Delivery of Prospectuses. The Company has delivered to the Underwriter, without charge, as many copies of each
preliminary prospectus as the Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to the Underwriter, without charge, during the Prospectus
Delivery Period, such number of copies of the Prospectus (as amended or supplemented) as the Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriter will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(v) Blue Sky Qualifications. The Company will use its reasonable best efforts, in cooperation with the Underwriter, to
qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Underwriter may designate and to maintain such qualifications in effect so long as required to
complete the distribution of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in
which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(vi) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make
generally available to its security holders as soon as reasonably practicable an earnings statement for the purposes of, and to provide to the Underwriter the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(vii) Reserved.
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(viii) Listing. The Company will use its reasonable best efforts to effect
and maintain the listing of the Ordinary Shares on the Nasdaq Global Select Market.
(ix) Restriction on Sale of
Securities. During a period of 60 days from the date of the Prospectus, the Company will not, without the prior written consent of the Underwriter, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary
Shares or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Ordinary Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Ordinary Shares or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder, (B) any Ordinary Shares issued by the Company upon the exercise of an option or warrant, the conversion of a security or the vesting of a restricted stock unit
outstanding on the date hereof and referred to in the General Disclosure Package and the Prospectus, (C) any Ordinary Shares issued or options to purchase Ordinary Shares or restricted stock units granted pursuant to existing employee benefit
plans of the Company referred to in the General Disclosure Package and the Prospectus, (D) any Ordinary Shares issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the General Disclosure Package
and the Prospectus or (E) any warrant issued by the Company in connection with previously-disclosed obligations to assume any warrant previously issued by Wright Medical Group, Inc.
(x) Reporting Requirements. The Company, during the period the Prospectus Delivery Period, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations.
(xi) Issuer Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the
Underwriter, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the
Company with the Commission or retained by the Company under Rule 433; provided that the Underwriter will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule A-2 hereto and any “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Underwriter and the Company. The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed
consented to, by the Underwriter as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the
Commission where required, legending and record keeping. During the Prospectus Delivery Period, if at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriter and will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
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(b) Covenants of the Selling Shareholder. The Selling Shareholder covenants with the
Underwriter as follows:
(i) Tax Forms. The Selling Shareholder agrees that it will deliver to the Underwriter prior
to or at the Closing Time a properly completed and executed United States Treasury Department Form W-8IMY (or other applicable form or statement specified by the Treasury Department regulations in lieu thereof) in order to facilitate the
Underwriter’s documentation of its compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated.
(ii) Issuer Free Writing Prospectuses. The Selling Shareholder agrees that, unless it obtains the prior written consent
of the Underwriter, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by
the Company with the Commission or retained by the Company under Rule 433; provided that the Underwriter will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule A-2 hereto and any “road show that is a written
communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Underwriter and the Company. The Selling Shareholder represents that it has treated or agrees that it will treat each such free writing prospectus consented
to, or deemed consented to, by the Underwriter as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely
filing with the Commission where required, legending and record keeping.
(c) Certain Agreements of the Underwriter. The
Underwriter hereby represents to the Company and agrees with the Company that, unless it obtains prior written consent of the Company, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or
that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Company will be deemed to have
consented to the Issuer Free Writing Prospectuses listed on Schedule A-2 hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Company.
SECTION 4. Payment of Expenses.
(a) Expenses of the Company. The Company will pay or cause to be paid all expenses incident to the performance of its obligations under
this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and each amendment thereto, (ii) the preparation, printing and delivery to
the Underwriter of copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriter
to investors, (iii) the preparation and delivery of the Securities to the Underwriter, including any stock or other transfer taxes and any stamp or other duties payable upon the sale or delivery of the Securities to the Underwriter,
(iv) the fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(a)(v) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriter in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of any transfer agent or
registrar for the Securities, (vii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriter in connection with, the review by FINRA of the terms of the sale of the Securities and (viii) the fees
and expenses incurred in connection with the listing of the
21
Securities on the Nasdaq Global Select Market and (ix) the costs and expenses (including, without limitation, any damages or other amounts payable in connection with legal or contractual
liability) associated with the reforming of any contracts for sale of the Securities made by the Underwriter caused by a breach of the representation contained in the third sentence of Section 1(a)(ii).
(b) Expenses of the Selling Shareholder. The Selling Shareholder will pay all expenses incident to the performance of its obligations
under, and the consummation of the transactions contemplated by, this Agreement, including (i) any stamp and other duties and stock and other transfer taxes, if any, payable upon the sale of the Securities to the Underwriter, and (ii) the
fees and disbursements of its counsel and other advisors.
(c) Termination of Agreement. If this Agreement is terminated by the
Underwriter in accordance with the provisions of Section 5, Section 9(a)(i) or (iii) hereof, the Company shall reimburse the Underwriter for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriter.
(d) Allocation of Expenses. The provisions of this Section shall not affect any agreement that the Company and the Selling Shareholder
may make for the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriter’s Obligations. The obligations of
the Underwriter hereunder are subject to the accuracy of the respective representations and warranties of the Company and the Selling Shareholder contained herein or in certificates of any officer of the Company or any of its subsidiaries or on
behalf of any Selling Shareholder delivered pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholder of their respective covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement has become effective and at the Closing Time no stop order
suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no
proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information. The Company shall
have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) under the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) under the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the
cover page of a prospectus filed pursuant to Rule 424(b).
(b) Opinion and Negative Assurance Letter of Counsel for Company. At the
Closing Time, the Underwriter shall have received the favorable opinion and negative assurance letter, dated the Closing Time, of Ropes & Gray LLP, counsel for the Company, in form and substance reasonably satisfactory to the Underwriter.
(c) Opinion of General Counsel for Company. At the Closing Time, the Underwriter shall have received the favorable opinion, dated
the Closing Time, of the General Counsel for the Company, in form and substance reasonably satisfactory to the Underwriter.
(d)
Opinion of Dutch Counsel for Company. At the Closing Time, the Underwriter shall have received the favorable opinion, dated the Closing Time, of Stibbe N.V., Dutch counsel for the Company, in form and substance reasonably satisfactory to the
Underwriter.
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(e) Opinion of Counsel for the Selling Shareholder. At the Closing Time, the Underwriter
shall have received the favorable opinion, dated the Closing Time, of Willkie Farr & Gallagher, U.S. counsel for the Selling Shareholder and Stibbe N.V., Dutch counsel for the Selling Shareholder, in form and substance reasonably
satisfactory to the Underwriter.
(f) Opinion of Counsel for Underwriter. At the Closing Time, the Underwriter shall have received
the favorable opinion, dated the Closing Time, of Latham & Watkins LLP, counsel for the Underwriter, with respect to such matters as the Underwriter may reasonably request. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New York, the General Corporation Law of the State of Delaware and the federal securities laws of the United States, upon the opinions of counsel satisfactory to the
Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers and other representatives of the Company and its subsidiaries and
certificates of public officials.
(g) Officers’ Certificate. At the Closing Time, there shall not have been, since the date
hereof or since the respective dates as of which information is given in the General Disclosure Package and the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Underwriter shall have received a certificate of the Chief Executive Officer or the President of the
Company and of the chief financial or chief accounting officer of the Company, dated the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Company in this
Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been
issued and no proceedings for any of those purposes have been instituted or are pending or, to their knowledge, contemplated.
(h)
Certificate of Selling Shareholder. At the Closing Time, the Underwriter shall have received a certificate of the Selling Shareholder, dated the Closing Time, to the effect that (i) the representations and warranties of the Selling
Shareholder in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time and (ii) the Selling Shareholder has complied with all agreements and all conditions on its part to be
performed under this Agreement at or prior to the Closing Time.
(i) Accountant’s Comfort Letters. At the time of the
execution of this Agreement, the Underwriter shall have received from each of Ernst & Young LLP and KPMG LLP a letter, dated such date, in form and substance satisfactory to the Underwriter containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the
Prospectus.
(j) Bring-down Comfort Letter. At the Closing Time, the Underwriter shall have received from each of Ernst &
Young LLP and KPMG LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (i) of this Section, except that the specified date referred to shall be a date
not more than three business days prior to the Closing Time.
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(k) Approval of Listing. At the Closing Time, the Securities shall have been approved for
listing on the Nasdaq Global Select Market.
(l) No Objection. FINRA has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(m) Lock-up
Agreement. At the date of this Agreement, the Underwriter shall have received an agreement, in form and substance reasonably satisfactory to the Underwriter, signed by the Selling Shareholder.
(n) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement,
if there are any debt securities or preferred stock of, or guaranteed by, the Company or any of its subsidiaries that are rated by a “nationally recognized statistical rating organization,” as such term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act, (i) no downgrading shall have occurred in the rating accorded any such debt securities or preferred stock and (ii) no such organization shall have publicly announced that it has under
surveillance or review, or has changed its outlook with respect to, its rating of any such debt securities or preferred stock (other than an announcement with positive implications of a possible upgrading).
(o) Reserved
(p)
Additional Documents. At the Closing Time, counsel for the Underwriter shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Selling Shareholder in connection
with the sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter.
(q) Termination of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, the obligations of the Underwriter to purchase the Securities, may be terminated by the Underwriter by notice to the Company and the Selling Shareholder at any time at or prior to Closing Time or, and such termination
shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8, 15 and 16 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriter by the Company. The Company agrees to indemnify and hold harmless the Underwriter, its affiliates (as
such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its directors and officers, its selling agents and each person, if any, who controls the Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever,
as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, or the
omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included
(A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General
24
Disclosure Package or the Prospectus (or any amendment or supplement thereto) or (B) in any materials or information provided to investors by, or with the approval of, the Company in
connection with the marketing of the offering of the Securities (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged
omission in any preliminary prospectus, Issuer Free Writing Prospectus, Prospectus or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(e) below) any such settlement is effected with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the
Underwriter), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, the General Disclosure Package or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(b)
Indemnification of Underwriter by Selling Shareholder. The Selling Shareholder agrees to indemnify and hold harmless the Underwriter, its Affiliates and selling agents and each person, if any, who controls the Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in the manner set forth in clauses (a)(i), (ii) and (iii) above; provided that the Selling Shareholder shall be liable only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission has been made in the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus (or any amendment or supplement thereto) or any
Issuer Free Writing Prospectus in reliance upon and in conformity with the Selling Shareholder Information; provided, further, that the liability under this subsection of the Selling Shareholder shall be limited to an amount equal to the aggregate
gross proceeds after underwriting commissions and discounts, but before expenses, to the Selling Shareholder from the sale of Securities sold by the Selling Shareholder hereunder.
(c) Indemnification of the Company, Directors and Officers and Selling Shareholder. The Underwriter agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the
Selling Shareholder and each person, if any, who controls any Selling Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement
25
(or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, the General Disclosure Package or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with the Underwriter Information.
(d) Actions against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) and 6(b) above, counsel to the indemnified parties shall be selected by the Underwriter, and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of
the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect
of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such
settlement.
(f) Other Agreements with Respect to Indemnification. The provisions of this Section shall not affect any agreement
between the Company and the Selling Shareholder with respect to indemnification.
SECTION 7. Contribution. If the indemnification
provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and
the Selling Shareholder, on the one hand, and the Underwriter, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Selling Shareholder, on the one hand, and of the Underwriter, on the other hand, in
connection with the statements or omissions, which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
26
The relative benefits received by the Company and the Selling Shareholder, on the one hand, and
the Underwriter, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Selling Shareholder and the total underwriting discount received by the Underwriter in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price
of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company and the Selling Shareholder, on the one
hand, and the Underwriter, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Shareholder or by the Underwriter and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholder and the Underwriter agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriter shall not be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which the Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act and the Underwriter’s Affiliates and selling agents shall have the same rights to contribution as the Underwriter, and each director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company or any Selling Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company or the Selling
Shareholder, as the case may be.
The provisions of this Section shall not affect any agreement among the Company and the Selling
Shareholder with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive. All representations,
warranties and agreements contained in this Agreement or in certificates of officers of the Company or
27
any of its subsidiaries or the Selling Shareholder submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of
the Underwriter or its Affiliates or selling agents, any person controlling the Underwriter, its officers or directors, any person controlling the Company or any person controlling any Selling Shareholder and (ii) delivery of and payment for
the Securities.
SECTION 9. Termination of Agreement.
(a) Termination. The Underwriter, in its absolute discretion, may terminate this Agreement without liability to the Company, by notice
to the Company and the Selling Shareholder, at any time at or prior to the Closing Time (i) if there has been, in the judgment of the Underwriter, since the time of execution of this Agreement or since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of
which is such as to make it, in the judgment of the Underwriter, impracticable or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the Nasdaq Global Select Market, or (iv) if trading generally on the NYSE Amex or the New York Stock Exchange or in the Nasdaq Global Select Market has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or (v) a material
disruption has occurred in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section 9, such termination shall
be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 15 and 16 shall survive such termination and remain in full force and effect.
SECTION 10. Reserved.
SECTION 11. Reserved.
SECTION 12. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the Underwriter shall be directed to the Underwriter at One Bryant Park, New York, New York 10036 (Fax: (646) 855-3073); attention: Syndicate Department; notices to the
Company shall be directed to it at Prins Bernhardplein 200, 1097 JB Amsterdam, The Netherlands, attention of James Lightman. Notices to the Selling Shareholder shall be given to it at Strawinskylaan 3051, 1077ZX Amsterdam, The Netherlands (Fax: +31
20.301.2202); attention: Guido Nieuwenhuizen, with a copy to Warburg Pincus (Bermuda) Private Equity IX, L.P., 450 Lexington Avenue, New York, New York 10017 (Fax: (646) 824-9312); attention: Sean D. Carney.
SECTION 13. No Advisory or Fiduciary Relationship. Each of the Company and the Selling Shareholder acknowledges and agrees that
(a) the purchase and sale of the Securities pursuant to this
28
Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the
Company and the Selling Shareholder, on the one hand, and the Underwriter, on the other hand, (b) in connection with the offering of the Securities and the process leading thereto, the Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company, any of its subsidiaries or any Selling Shareholder, or their respective stockholders, creditors, employees or any other party, (c) Underwriter has not assumed or will not assume an advisory or
fiduciary responsibility in favor of the Company or any Selling Shareholder with respect to the offering of the Securities or the process leading thereto (irrespective of whether the Underwriter has advised or is currently advising the Company, any
of its subsidiaries or any Selling Shareholder on other matters) and the Underwriter has no obligation to the Company or any Selling Shareholder with respect to the offering of the Securities except the obligations expressly set forth in this
Agreement, (d) the Underwriter and its affiliates may be engaged in a broad range of transactions that involve interests that differ from those of each of the Company and the Selling Shareholder and (e) the Underwriter has not provided any
legal, accounting, regulatory or tax advice with respect to the offering of the Securities and the Company and the Selling Shareholder has consulted its own respective legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
SECTION 14. Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriter, the
Company and the Selling Shareholder and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriter, the Company and the Selling
Shareholder and their respective successors and the controlling persons and officers and directors referred to in Section 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriter, the Company and the Selling Shareholder and their respective
successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 15. Trial by Jury. The Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates), the Selling Shareholder and the Underwriter hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION 16. GOVERNING LAW. THIS AGREEMENT
AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 17. Consent to Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based upon this
Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan, unless any such
Federal court determines that it lacks jurisdiction over a Related Proceeding in which case such Related Proceeding shall be instituted in the courts of the State of New York, in each case located in the City and County of
New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a
“Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s
29
address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection
to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum. Each party not located in the United States irrevocably appoints CT Corporation System as its agent to receive service of process or other legal summons for purposes of any such suit, action or
proceeding that may be instituted in any state or federal court in the City and County of New York. With respect to any Related Proceeding, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on
the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled in the Specified Courts, and with respect to any Related Judgment, each
party waives any such immunity in the Specified Courts or any other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or Related Judgment, including,
without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.
SECTION 18.
TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 19. Partial Unenforceability. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made
such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
SECTION 20. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
SECTION 21. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
* * *
If the foregoing is in
accordance with your understanding of our agreement, please sign and return to the Company and the Selling Shareholder a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the
Underwriter, the Company and the Selling Shareholder in accordance with its terms.
30
|
|
|
| Very truly yours, |
|
| WRIGHT MEDICAL GROUP N.V. |
|
|
| By |
|
/s/ Lance A. Berry |
| Name: |
|
Lance A. Berry |
| Title: |
|
Senior Vice President and Chief Financial Officer |
[Signature Page to
Underwriting Agreement]
|
|
|
| TMG HOLDINGS COÖPERATIEF U.A. |
|
|
| By |
|
/s/ Sean D. Carney |
|
|
Sean D. Carney |
|
|
| By |
|
/s/ Guido X.F.M. Nieuwenhuizen |
|
|
Guido X.F.M. Nieuwenhuizen |
[Signature Page to
Underwriting Agreement]
|
|
|
| CONFIRMED AND ACCEPTED, |
| as of the date first above written: |
|
| MERRILL LYNCH, PIERCE, FENNER & SMITH |
|
INCORPORATED |
|
|
| By |
|
/s/ Adam Chazan |
|
|
Authorized Signatory |
[Signature Page to
Underwriting Agreement]
SCHEDULE A-1
Pricing Terms
| 1. |
The Selling Shareholder is selling 4,500,000 Ordinary Shares. |
| 2. |
Public Offering Price Per Share: Variable |
SCHEDULE A-2
Free Writing Prospectuses
None
SCHEDULE A-3
Subsidiaries
|
|
|
|
|
|
|
| 1. |
|
Felding Finance B.V. |
|
25. |
|
White Box Orthopedics, LLC |
|
|
|
|
| 2. |
|
Tornier Belgium N.V. |
|
26. |
|
KHC-WDM, LLC |
|
|
|
|
| 3. |
|
OrthoHelix Surgical Designs, Inc. |
|
27. |
|
Wright Medical Technology Canada Ltd. |
|
|
|
|
| 4. |
|
SCI Calyx |
|
28. |
|
Wright Medical Japan, K.K. |
|
|
|
|
| 5. |
|
TMG France SNC |
|
29. |
|
2Hip Holdings SAS |
|
|
|
|
| 6. |
|
Tornier, Inc. |
|
30. |
|
Wright Medical Europe SAS |
|
|
|
|
| 7. |
|
Tornier AG |
|
31. |
|
Wright Medical Europe Manufacturing SA |
|
|
|
|
| 8. |
|
Tornier Espana |
|
32. |
|
Wright Medical France SAS |
|
|
|
|
| 9. |
|
Tornier GmbH |
|
33. |
|
Wright Medical Italy Srl |
|
|
|
|
| 10. |
|
Tornier Japan K.K. |
|
34. |
|
Wright Medical UK Limited |
|
|
|
|
| 11. |
|
Tornier Orthopedics, Inc. |
|
35. |
|
Wright Medical Instruments Limited |
|
|
|
|
| 12. |
|
Tornier Orthopedics Ireland, Ltd. |
|
36. |
|
Wright Medical Deutschland GmbH |
|
|
|
|
| 13. |
|
Tornier Pty |
|
37. |
|
Wright Medical Belgium NV |
|
|
|
|
| 14. |
|
Tornier SAS |
|
38. |
|
Wright Medical Netherlands, B.V. |
|
|
|
|
| 15. |
|
Tornier Scandinavia A/S |
|
39. |
|
Wright Medical EMEA, B.V. |
|
|
|
|
| 16. |
|
Tornier Srl |
|
40. |
|
Wright Medical Europe, C.V. |
|
|
|
|
| 17. |
|
Tornier UK Ltd. |
|
41. |
|
INBONE Technologies, Inc. |
|
|
|
|
| 18. |
|
Tornier US Holdings, Inc. |
|
42. |
|
Wright Medical Australia Pty Ltd. |
|
|
|
|
| 19. |
|
Tornier do Brasil Produtos Medicos Ltda |
|
43. |
|
Wright Medical Costa Rica S.A. |
|
|
|
|
| 20. |
|
Trooper Holdings Inc. |
|
44. |
|
Wright Medical Brasil Ltda |
|
|
|
|
| 21. |
|
Wright Medical Group, Inc. |
|
45. |
|
TMW Insurance, Inc. |
|
|
|
|
| 22. |
|
Wright Medical Technology, Inc. |
|
46. |
|
WG Healthcare UK Limited |
|
|
|
|
| 23. |
|
Wright Medical Capital, Inc. |
|
47. |
|
BioMimetic Therapeutics, LLC |
|
|
|
|
| 24. |
|
Wright International, Inc. |
|
48. |
|
BioMimetic Therapeutics, Ltd |
|
|
|
|
|
|
|
| 49. |
|
BioMimetic Therapeutics, Pty Ltd |
|
57. |
|
TriMed Biotech SAS |
|
|
|
|
| 50. |
|
BioMimetic Therapeutics USA, Inc. |
|
58. |
|
TriMed Hellas S.A |
|
|
|
|
| 51. |
|
BioMimetic Therapeutics Canada, Inc. |
|
59. |
|
Wright PacRim, Inc. |
|
|
|
|
| 52. |
|
Biotech International |
|
60. |
|
Solana Surgical, LLC |
|
|
|
|
| 53. |
|
Biotech Ortho |
|
61. |
|
OrthoPro, LLC |
|
|
|
|
| 54. |
|
Biotech Benelux SPRL |
|
62. |
|
Wright Medical Group Intellectual Property, Inc. |
|
|
|
|
| 55. |
|
Biotech CH |
|
63. |
|
Wright Medical Device (Shanghai) Co., Ltd |
|
|
|
|
| 56. |
|
TriMed Biotech, Inc. |
|
|
|
|
Exhibit 5.1
|
|
|
| Wright Medical Group N.V. Prins Bernhardplein
200 1097 JB Amsterdam THE NETHERLANDS |
|
Stibbe N.V. Advocaten en notarissen
Strawinskylaan 2001 P.O. Box 75640
1070 AP Amsterdam The Netherlands
T +31 20 546 0 606 F +31 20 546 0 123
www.stibbe.com
Date November 23, 2015 |
Wright Medical Group N.V. – Registration Statement on Form S-3 (Commission Reg. No. 333-208072)
Ladies and Gentlemen,
| (1) |
We have acted as legal counsel to Wright Medical Group N.V. (the ‘’Company’’), with respect to matters of Netherlands law, in connection with the registration of 4,500,000 ordinary shares in
the capital of the Company, each with a par value of EUR 0.03 (the “Shares”, and each a “Share”) that may be offered and sold by the selling shareholder identified under the caption “Selling Shareholder”
in the Prospectus Supplement (as defined below). The offering and sale of the Shares are covered by the above-referenced registration statement on Form S-3 (the ‘’Registration Statement’’), filed by the Company with the
United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Company has provided us with the Registration Statement and the related
form of prospectus included therein, in the form it was filed with the Commission (the ‘’Prospectus’’), and the prospectus supplement dated November 23, 2015, in the form it was filed with the Commission (the
“Prospectus Supplement”). |
| (2) |
For the purpose of this opinion, we have examined and exclusively relied upon photocopies or copies received by fax or by electronic means, or originals if so expressly stated, of the following documents:
|
| |
(a) |
the Registration Statement; |
| |
(c) |
the Prospectus Supplement; |
| |
(d) |
an extract from the Trade Register of the Chamber of Commerce (Kamer van Koophandel, afdeling Handelsregister) relating to the Company dated the date hereof (the ‘’Extract’’);
|
The practice is conducted by Stibbe N.V. (registered with the Trade
Register of the Chamber of Commerce under number 34198700). The general conditions of Stibbe N.V. are applicable and include a clause on limitation of liability. The general conditions have been deposited with the Amsterdam District Court and are
available on request and free of charge. They can also be found at www.stibbe.com.
| |
(e) |
the deed of incorporation of the Company dated June 23, 2006; |
| |
(f) |
the respective notarial deeds of (i) issuance of 88,916,196 ordinary shares with a nominal value of € 0.01 each in the capital of the Company (the “Pre-Listing Shares”), (ii) transfer of
210,000 Pre-Listing Shares to the Company (which shares have been cancelled pursuant to the shareholders’ resolution referred to under (2)(l) with due observance of the requirements of the law of the Netherlands), and (iii) transfer of 36
Pre-Listing Shares to the Company, which deeds are further described and specified in the list attached to this opinion as Annex A; |
| |
(g) |
the written resolutions and, as the case may be, extract of the minutes of a meeting of the managing board of the Company reflecting resolutions to issue the Pre-Listing Shares, as well as written resolutions and, as
the case may be, extract of the minutes of a meeting of the supervisory board of the Company reflecting resolutions approving the issuance of the Pre-Listing Shares; |
| |
(h) |
the deed of amendment to the articles of association of the Company dated January 28, 2011 as a result of which 88,706,196 ordinary shares in the capital of the Company, each with a par value of EUR 0.01 have been
combined into 29,568,732 ordinary shares, each with a par value of EUR 0.03, of which 29,568,720 ordinary shares were held by others than the Company; |
| |
(i) |
the Company’s articles of association (statuten) as lastly amended on October 1, 2015, which according to the Extract are the articles of association of the Company as currently in force;
|
| |
(j) |
the shareholders’ register of the Company; |
| |
(k) |
the minutes of the meeting of managing board of the Company held on April 30, 2013 resolving, inter alia, to approve, ratify (bekrachtigen) and confirm (bevestigen) all issuances of ordinary
shares in the capital of the Company, prior to the date of that resolution and a written resolution of the Company’s offering committee dated May 9, 2013, determining, inter alia, that 5,175,000 ordinary shares in the capital of the
Company were to be issued; |
| |
(l) |
the minutes of the general meeting of shareholders of the Company, held on August 26, 2010, resolving to, inter alia, (i) approve the Incentive Plan and (ii) designate the managing board of the
Company for a term of five years as of August 26, 2010 as the competent body to issue shares and grant rights to subscribe for shares for a maximum term of five years, up to the amount of shares included in the authorised share capital as it
will read from time to time and to restrict or exclude the pre-emptive rights pertaining to the shares (or rights to subscribe for shares) and (iii) cancel 210,000 Pre-Listing Shares held by the Company; |
| |
(m) |
written resolutions of the managing board of the Company adopted on November 17, 2015 authorising, inter alia, the filing by the Company of the Registration Statement, including the Prospectus and the
Prospectus Supplement and the execution of the underwriting agreement with respect to the Shares, whereby the exact terms and conditions of these documents are to be determined by one or all of the Executive Directors of the Company within certain
parameters as set by the managing board of the Company; and |
(2)
| |
(n) |
written resolutions of an Executive Director of the Company, authorised by the managing board of the Company pursuant to the resolution set forth under (2)(m) to determine the final terms of certain documents in
connection with this offering, dated November 17, 2015. |
| (3) |
The written resolutions and minutes under (2)(g), (k) - (n) inclusive are hereinafter referred to as the “Resolutions”. The Registration Statement, the Prospectus, the Prospectus Supplement, the
Resolutions, the notarial deeds listed under (2)(f) together referred to as the “Documents”. |
References to the Civil Code, the Bankruptcy Act and any other Codes or Acts are references to the Burgerlijk Wetboek, the
Faillissementswet, and such other Codes or Acts of the Netherlands, as amended. In this opinion, “the Netherlands” refers to the European part of the Kingdom of the Netherlands and “EU” refers to the European
Union.
| (4) |
In rendering this opinion we have assumed: |
| |
(a) |
the legal capacity of natural persons, the genuineness of all signatures on, and the authenticity and completeness of all documents submitted to us as copies of drafts, originals or execution copies and the exact
conformity to the originals of all documents submitted to us as photocopies or copies transmitted by facsimile or by electronic means and that all documents were at this date, and have through the date hereof, remained accurate and in full force and
effect without modifications; |
| |
(b) |
(i) the power, capacity and authority of all parties to enter into and execute each of the Documents; (ii) that each of the Documents will be duly authorised by all parties thereto; and (iii) that each of the
Documents will be validly executed and delivered (where such concept is legally relevant) by each of the parties thereto (including but not limited to the Company) under all applicable laws, including the laws by which each of the Documents are
expressed to be governed; |
| |
(c) |
that each of the Documents constitutes legal, valid and binding obligations of the parties thereto and are enforceable in accordance with their respective terms under all applicable laws; |
| |
(d) |
that any and all authorisations and consents of, or other filings with or notifications to, any public authority or other relevant body or person in or of any jurisdiction which may be required in respect of the
execution or performance of each of the Documents have been or will be duly obtained or made, as the case may be; |
| |
(e) |
that the information set forth in the Extract is complete and accurate on the date hereof and consistent with the information contained in the file kept by the Trade Register with respect to the Company;
|
| |
(f) |
that that the Resolutions have not been annulled, revoked or rescinded and are in full force and effect as at the date hereof; and |
| |
(g) |
that in the event that the Shares have been or will be offered in the Netherlands this will be done only in accordance with the Financial Supervision Act. |
(3)
| (5) |
This opinion is limited to matters of the laws of the Netherlands in effect on the date of this opinion. |
| (6) |
Based upon and subject to the foregoing and to the further qualifications, limitations and exceptions set forth herein, we are as at the date hereof of the following opinion: |
| |
(a) |
the Company has been duly incorporated and is validly existing under the laws of the Netherlands as a public limited company (naamloze vennootschap); and |
| |
(b) |
the Shares have been duly authorised and validly issued by the Company, fully paid and non-assessable. |
| (7) |
This opinion is subject to the following qualifications: |
| |
(a) |
we express no opinion as to the accuracy of any representations given by the Company or any other party (express or implied) under or by virtue of the Documents save in so far as the matters represented are the subject
matter of specific opinions set forth above; |
| |
(b) |
the opinions expressed above are limited by any applicable bankruptcy (faillissement), suspension of payments (surseance van betaling), insolvency, moratorium, reorganisation, liquidation, suretyship,
fraudulent conveyance, or similar laws affecting the enforceability of rights of creditors generally (including rights of set-off) in any relevant jurisdiction including but not limited to section 3:45 of the Civil Code and section 42 of the
Bankruptcy Act concerning fraudulent conveyance; |
| |
(c) |
the terms “legal”, “valid”, “binding” or “enforceable” (or any combination thereof), where used in this opinion, mean that the relevant obligations are of a type which the courts
of the Netherlands generally recognize and enforce; the use of these terms does not suggest that the obligations will necessarily be enforced in accordance with their terms in all circumstances; in particular, enforcement of such obligations in the
courts of the Netherlands may be subject to applicable statutes of limitation, interpretation by the court (taking into account the intention of the parties to a contract), the effect of general principles of law including (without limitation) the
concepts of reasonableness and fairness (redelijkheid en billijkheid) and abuse of circumstances (misbruik van omstandigheden), and defences based on error (dwaling), fraud (bedrog), duress (dwang), force majeure
(overmacht) and set-off (verrekening); and |
| |
(d) |
when applying the law of a jurisdiction expressed in an agreement to be the governing law of that agreement, the courts of the Netherlands (assuming they have jurisdiction over the matter): |
| |
• |
|
will apply overriding mandatory provisions of the laws of the Netherlands irrespective of the law otherwise applicable to the relevant agreement; |
| |
• |
|
may give effect to the overriding mandatory provisions of the law of the jurisdiction where the obligations arising out of the agreement have to be or have been performed, in so far as those overriding mandatory
provisions render performance of the agreement – in accordance with the law otherwise applicable to it – unlawful; |
(4)
| |
• |
|
may refuse to apply the law of another jurisdiction if such application is manifestly incompatible with the public policy of the Netherlands; and |
| |
• |
|
if all the elements relevant to the situation at the time of the choice of law are located in another country, may apply provisions of the law of that other country and, if that country is an EU member state, provisions
of EU law, in so far as those provisions cannot be derogated from by agreement; and |
| |
(e) |
the term “non-assessable” as used in this opinion means that a holder of a Share will not by reason of merely being such a holder, be subject to assessment or calls by the Company or its creditors.
|
| (8) |
This opinion and any issue arising under this opinion will be governed by the laws of the Netherlands. |
| (9) |
We consent to the filing of this opinion letter as an exhibit to the Company’s Current Report on Form 8-K, which is incorporated by reference in the Registration Statement. In giving such consent we do not admit
that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Commission promulgated thereunder. |
|
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| Yours faithfully, |
|
|
|
|
| Stibbe N.V. |
|
|
|
|
| /s/ Paul Quist |
|
/s/ Fons Leijten |
|
|
| Paul Quist |
|
Fons Leijten |
(5)
Annex A
The deeds of (i) issuance of Pre-Listing Shares and (ii) transfer of Pre-Listing Shares compromise the following deeds:
| (1) |
the deed of issuance of 33,375,346 ordinary shares in the capital of the Company, numbered 1,800,001 to 35,175,346 inclusive, executed on July 18, 2006, before J.D.M. Schoonbrood, civil-law notary in Amsterdam;
|
| (2) |
the deed of issuance of 18,608,959 ordinary shares in the capital of the Company, numbered 35,175,347 to 53,784,305 inclusive, executed on February 26, 2007, before C.W. de Monchy, civil-law notary in Rotterdam;
|
| (3) |
the deed of issuance of 5,762,096 ordinary shares in the capital of the Company, numbered 53,784,306 to 59,546,401 inclusive, executed on February 26, 2007, before C.W. de Monchy, civil-law notary in Rotterdam;
|
| (4) |
the deed of issuance of 1,160,088 ordinary shares in the capital of the Company, numbered 59,546,402 to 60,706,489 inclusive, executed on April 2, 2007, before a legal substitute for C.W. de Monchy, civil-law
notary in Rotterdam; |
| (5) |
the deed of issuance of 140,339 ordinary shares in the capital of the Company, numbered 60,706,490 to 60,846,828 inclusive, executed on September 24, 2007, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (6) |
the deed of transfer of 300,000 ordinary shares in the capital of the Company, numbered 60,846,829 to 61,146,828 inclusive, executed on November 21, 2007, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (7) |
the deed of issuance of 140,339 ordinary shares in the capital of the Company, numbered 61,146,829 to 61,287,167 inclusive, executed on December 13, 2007, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (8) |
the deed of issuance of 7,851 ordinary shares in the capital of the Company, numbered 61,287,168 to 61,295,018 inclusive, executed on December 13, 2007, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (9) |
the deed of issuance of 42,102 ordinary shares in the capital of the Company, numbered 61,295,019 to 61,337,120 inclusive, executed on January 16, 2008, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (10) |
the deed of transfer of 210,000 ordinary shares in the capital of the Company, numbered 60,882,705 to 0,966,414 inclusive and 61,020,539 to 61,146,828 inclusive, executed on November 21, 2007, before P.H.N. Quist,
civil-law notary in Amsterdam; |
| (11) |
the deed of issuance of 9,375 ordinary shares in the capital of the Company, numbered 61,337,121 to 61,346,495 inclusive, executed on April 17, 2008, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (12) |
the deed of issuance of 13,000 ordinary shares in the capital of the Company, numbered 61,346,496 to 61,359,495 inclusive, executed on July 9, 2008, before a legal substitute (waarnemer) for P.H.N. Quist,
civil-law notary in Amsterdam; |
(6)
| (13) |
the deed of issuance of 1,200 ordinary shares in the capital of the Company, numbered 61,359,496 to 61,360,695 inclusive, executed on August 12, 2008 before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (14) |
the deed of issuance of 910,206 ordinary shares in the capital of the Company, numbered 61,360,696 to 62,270,901 inclusive, executed on August 25, 2008, before a legal substitute (waarnemer) for P.H.N.
Quist, civil-law notary in Amsterdam; |
| (15) |
the deed of issuance of 625 ordinary shares in the capital of the Company, numbered 62,270,902 to 62,271,526 inclusive, executed on September 5, 2008, before a legal substitute (waarnemer) for P.H.N. Quist,
civil-law notary in Amsterdam; |
| (16) |
the deed of issuance of 2,000 ordinary shares in the capital of the Company, numbered 62,271,527 to 62,273,526 inclusive, executed on October 15, 2008, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (17) |
the deed of issuance of 636,878 ordinary shares in the capital of the Company, numbered 62,273,527 to 62,910,404 inclusive, executed on October 27, 2008, before a legal substitute (waarnemer) for P.H.N.
Quist, civil-law notary in Amsterdam; |
| (18) |
the deed of issuance of 1,405 ordinary shares in the capital of the Company, numbered 62,910,405 to 62,911,809 inclusive, executed on May 14, 2009, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (19) |
the deed of issuance of 28,125 ordinary shares in the capital of the Company, numbered 62,911,810 to 62,939,934 inclusive, executed on May 20, 2009, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (20) |
the deed of issuance of 784 ordinary shares in the capital of the Company, numbered 62,939,935 to 62,940,718 inclusive, executed on July 27, 2009, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (21) |
the deed of issuance of 168,437 ordinary shares in the capital of the Company, numbered 62,940,719 to 63,109,155 inclusive, executed on September 10, 2009, before a legal substitute (waarnemer) for P.H.N.
Quist, civil-law notary in Amsterdam; |
| (22) |
the deed of issuance of 316,779 ordinary shares in the capital of the Company, numbered 63,109,156 to 63,425,934 inclusive, executed on September 10, 2009, before a legal substitute (waarnemer) for P.H.N.
Quist, civil-law notary in Amsterdam; |
| (23) |
the deed of issuance of 1,403,391 ordinary shares in the capital of the Company, numbered 63,425,935 to 64,829,325 inclusive, executed on September 11, 2009, before a legal substitute (waarnemer) for P.H.N.
Quist, civil-law notary in Amsterdam; |
| (24) |
the deed of issuance of 8,824,494 ordinary shares in the capital of the Company, numbered 64,829,326 to 73,653,819 inclusive, executed on October 1, 2009, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (25) |
the deed of issuance of 557,093 ordinary shares in the capital of the Company, numbered 73,653,820 to 74,210,912 inclusive, executed on October 1, 2009, before P.H.N. Quist, civil-law notary in Amsterdam;
|
(7)
| (26) |
the deed of issuance of 17,676 ordinary shares in the capital of the Company, numbered 77,240,171 to 77,304,245 inclusive, executed on March 26, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (27) |
the deed of issuance of 3,075,657 ordinary shares in the capital of the Company, numbered 74,210,913 to 77,240,170 inclusive, executed on March 26, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (28) |
the deed of issuance of 40,000 ordinary shares in the capital of the Company, numbered 77,304,246 to 77,344,245 inclusive, executed on March 26, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (29) |
the deed of issuance of 2,188 ordinary shares in the capital of the Company, numbered 77,344,246 to 77,346,433 inclusive, executed on March 26, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (30) |
the deed of issuance of 1,875 ordinary shares in the capital of the Company, numbered 77,346,434 to 77,348,308 inclusive, executed on March 26, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (31) |
the deed of issuance of 16,250 ordinary shares in the capital of the Company, numbered 77,348,309 to 77,364,558 inclusive, executed on March 26, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (32) |
the deed of issuance of 5,625 ordinary shares in the capital of the Company, numbered 77,364,559 to 77,370,183 inclusive, executed on March 26, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (33) |
the deed of issuance of 6,094 ordinary shares in the capital of the Company, numbered 77,370,184 to 77,376,277 inclusive, executed on March 26, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (34) |
the deed of issuance of 2,500 ordinary shares in the capital of the Company, numbered 77,376,278 to 77,378,777 inclusive, executed on March 26, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (35) |
the deed of issuance of 5,160 ordinary shares in the capital of the Company, numbered 77,378,778 to 77,383,937 inclusive, executed on March 26, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (36) |
the deed of issuance of 4,320 ordinary shares in the capital of the Company, numbered 77,383,938 to 77,388,257 inclusive, executed on March 26, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (37) |
the deed of issuance of 6,250 ordinary shares in the capital of the Company, numbered 77,388,258 to 77,394,507 inclusive, executed on March 29, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
(8)
| (38) |
the deed of issuance of 1,875 ordinary shares in the capital of the Company, numbered 77,394,508 to 77,396,382 inclusive, executed on March 29, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (39) |
the deed of issuance of 5,682,229 ordinary shares in the capital of the Company, numbered 77,396,383 to 83,078,611 inclusive, executed on May 25, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (40) |
the deed of issuance of 5,656,872 ordinary shares in the capital of the Company, numbered 83,078,612 to 88,735,483 inclusive, executed on May 25, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (41) |
the deed of issuance of 46,875 ordinary shares in the capital of the Company, numbered 88,735,484 to 88,782,358 inclusive, executed on May 25, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (42) |
the deed of issuance of 130,900 ordinary shares in the capital of the Company, numbered 88,782,359 to 88,913,258 inclusive, executed on May 25, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (43) |
the deed of issuance of 2,937 ordinary shares in the capital of the Company, numbered 88,913,259 to 88,916,195 inclusive, executed on December 30, 2010, before P.H.N. Quist, civil-law notary in Amsterdam;
|
| (44) |
the deed of issuance of 1 ordinary share in the capital of the Company, numbered 88,916,196, executed on January 28, 2011, before a legal substitute for P.H.N. Quist, civil-law notary in Amsterdam;
|
| (45) |
the deed of transfer and repurchase of 1 ordinary share in the capital of the Company numbered 82,136,847, executed on January 28, 2011, before a legal substitute for P.H.N. Quist, civil-law notary in Amsterdam;
|
| (46) |
the deed of transfer and repurchase of 1 ordinary share in the capital of the Company numbered 60,337,120, executed on January 28, 2011, before a legal substitute for P.H.N. Quist, civil-law notary in Amsterdam;
|
| (47) |
the deed of transfer and repurchase of 2 ordinary shares in the capital of the Company numbered 63,425,933 and 63,425,934, executed on January 28, 2011, before a legal substitute for P.H.N. Quist, civil-law notary
in Amsterdam; |
| (48) |
the deed of transfer and repurchase of 2 ordinary shares in the capital of the Company numbered 63,109,154 and 63,109,155, executed on January 28, 2011, before a legal substitute for P.H.N. Quist, civil-law notary
in Amsterdam; |
| (49) |
the deed of transfer and repurchase of 1 ordinary share in the capital of the Company numbered 88,067,977, executed on January 28, 2011, before a legal substitute for P.H.N. Quist, civil-law notary in Amsterdam;
|
| (50) |
the deed of transfer and repurchase of 1 ordinary share in the capital of the Company numbered 87,986,947, executed on January 28, 2011, before a legal substitute for P.H.N. Quist, civil-law notary in Amsterdam;
|
(9)
| (51) |
the deed of transfer and repurchase of 1 ordinary share in the capital of the Company numbered 87,620,015, executed on January 28, 2011, before a legal substitute for P.H.N. Quist, civil-law notary in Amsterdam;
and |
| (52) |
the deed of transfer and repurchase of 26 ordinary shares in the capital of the Company numbered 61,359,495, 62,271,526, 62,273,525 and 62,273,526, 62,911,809, 62,940,718, 77,344,245, 77,346,433, 77,364,557 and
77,364,558, 77,376,277, 77,378,777, 77,394,507 , 83,024,097, 83,078,611, 83,041,060, 83,045,342 and 83,051,271, 88,616,541, 88,720,195, 88,720,196, 88,735,482 and 88,735,483, 88,916,193 up to 88,916,195 inclusive, executed on January 28, 2011,
before a legal substitute for P.H.N. Quist, civil-law notary in Amsterdam. |
(10)
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