WMGI Wright Medical Group NV

 

 

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 24, 2015

 

 

WRIGHT MEDICAL GROUP N.V.

(Exact name of registrant as specified in its charter)

 

 

 

The Netherlands		1-35065		98-0509600
(State or other jurisdiction of incorporation)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

Prins Bernhardplein 200 1097 JB Amsterdam The Netherlands		None
(Address of principal executive offices)		(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:

 

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

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Item 1.01. Entry into a Material Definitive Agreement.

Supplemental Indenture

Pursuant to an indenture dated as of February 13, 2015, between Wright Medical Group, Inc. (“WMGI”) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”) (the “2020 Indenture”), WMGI issued $632.5 million aggregate principal amount of 2.00% Cash Convertible Senior Notes due 2020 (the “2020 Notes”).

On November 24, 2015, Wright Medical Group N.V. (“Wright”), WMGI and the Trustee entered into a Supplemental Indenture to the 2020 Indenture (the “2020 Supplemental Indenture”). The 2020 Supplemental Indenture provides for, among other things, Wright’s full and unconditional guarantee, on a senior unsecured basis, of all of WMGI’s obligations relating to the 2020 Notes (the “Guarantee”) and to make certain other adjustments to the terms of the 2020 Indenture to give effect to the merger of Trooper Merger Sub Inc., an indirect and wholly owned subsidiary of Wright, with and into WMGI, effective as of October 1, 2015 (the “Merger”).

The foregoing description of the 2020 Supplemental Indenture is qualified in its entirety by reference to the 2020 Supplemental Indenture, which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Assumption of Warrant

Also on November 24, 2015, Wright executed amendments relating to WMGI’s warrant transactions in which Wright assumed the warrants initially issued by WMGI on February 9 and 10, 2015. The assumed warrants are initially exercisable into 21,122,256 ordinary shares of Wright and are subject to adjustment upon the occurrence of certain events. The strike price of the warrants will initially be $38.8010 per share. The warrants are exercisable over the 200 trading day period beginning on May 15, 2020, as such period may be adjusted. The warrant transactions will have a dilutive effect to the extent that the market value per ordinary share of Wright during such period exceeds the applicable strike price of the warrants.

The foregoing description of the assumed warrants is qualified in its entirety by reference to the amended warrant confirmations relating to the warrant transactions with each of the three counterparties, which are filed as Exhibits 10.1 through 10.6 to this Current Report on Form 8-K and are incorporated herein by reference.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

Item 3.02. Unregistered Sales of Equity Securities.

As described in Item 1.01 of this Current Report on Form 8-K, which is incorporated herein by reference, on November 24, 2015, Wright assumed the obligations under the warrants initially issued by WMGI on February 9 and 10, 2015. The assumed warrants are initially exercisable for an aggregate maximum of 21,122,256 ordinary shares of Wright with a strike price of $38.8010 per share. The number of shares issuable upon exercise of the warrants and the strike price are subject to adjustment under certain circumstances described in the warrants confirmations. Wright offered and sold the warrants in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended

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(the “Securities Act”). Neither the warrants nor the underlying ordinary shares (issuable in the event the market price per ordinary share exceeds the strike price of the warrants on the date the warrants are exercised) have been registered under the Securities Act. Neither the warrants nor such underlying ordinary shares may be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit No.		Description
4.1		Supplemental Indenture dated as of November 24, 2015 among Wright Medical Group, Inc., Wright Medical Group N.V., as Guarantor, and The Bank of New York Mellon Trust Company, N.A., as Trustee (filed herewith)
10.1		Amendment to the Base Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and Deutsche Bank AG, London Branch (filed herewith)
10.2		Amendment to the Base Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and JPMorgan Chase Bank, National Association (filed herewith)
10.3		Amendment to the Base Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and Wells Fargo Bank, National Association (filed herewith)
10.4		Amendment to the Additional Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and Deutsche Bank AG, London Branch (filed herewith)
10.5		Amendment to the Additional Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and JPMorgan Chase Bank, National Association (filed herewith)
10.6		Amendment to the Additional Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and Wells Fargo Bank, National Association (filed herewith)

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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.

 

Dated: November 27, 2015		WRIGHT MEDICAL GROUP N.V.
		By:		/s/ Lance A. Berry

		Name:		Lance A. Berry
		Title:		Senior Vice President and Chief Financial Officer

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WRIGHT MEDICAL GROUP N.V.

CURRENT REPORT ON FORM 8-K

EXHIBIT INDEX

 

Exhibit No.		Description		Method of Filing
4.1		Supplemental Indenture dated as of November 24, 2015 among Wright Medical Group, Inc., Wright Medical Group N.V., as Guarantor, and The Bank of New York Mellon Trust Company, N.A., as Trustee			Filed herewith
10.1		Amendment to the Base Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and Deutsche Bank AG, London Branch			Filed herewith
10.2		Amendment to the Base Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and JPMorgan Chase Bank, National Association			Filed herewith
10.3		Amendment to the Base Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and Wells Fargo Bank, National Association			Filed herewith
10.4		Amendment to the Additional Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and Deutsche Bank AG, London Branch			Filed herewith
10.5		Amendment to the Additional Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and JPMorgan Chase Bank, National Association			Filed herewith
10.6		Amendment to the Additional Warrant Confirmation, dated as of November 24, 2015, between Wright Medical Group N.V. and Wells Fargo Bank, National Association			Filed herewith

Exhibit 4.1

Supplemental Indenture (this “Supplemental Indenture”), dated as of November 24, 2015, among (i) Wright Medical Group, Inc., a Delaware corporation (the “Company”); (ii) Wright Medical Group N.V., a Dutch public limited company (naamloze vennootschap) (the “Guarantor”); and (iii) The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”).

W I T N E S S E T H

WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture, dated as of February 13, 2015, providing for the issuance of $632,500,000 aggregate principal amount of 2% Cash Convertible Senior Notes due 2020 (the “Indenture”);

WHEREAS, Article 13 of the Indenture provides that within 90 days after the effective time of the Permitted Tornier Merger Transaction (the “Merger”), the Guarantor shall fully and unconditionally guarantee, on a senior unsecured basis, the Company’s obligations under the Indenture and the Notes on the terms and conditions set forth in the Indenture;

WHEREAS, the effective time of the Merger occurred on October 1, 2015 (the “Merger Effective Time”);

WHEREAS, prior to consummation of the Merger, the initial Conversion Rate for the Notes was 32.3939 shares of Common Stock per $1,000 principal amount of Notes (subject to adjustment as provided in Article 14 of the Indenture);

WHEREAS, in accordance with Section 14.01 of the Indenture, upon the Merger Effective Time, the Conversion Rate is required to be adjusted to equal the product of (A) the Conversion Rate in effect immediately prior to the Merger Effective Time multiplied by (B) the sum of (x) the quotient of the amount of cash that a holder of one share of Common Stock was entitled to receive in the Merger, if any, divided by the average Daily VWAPs for each of the 10 consecutive Trading Days immediately preceding the Merger Effective Time and (y) the number of Tornier Ordinary Shares that a holder of one share of Common Stock received in the Merger (subject to the other adjustments to the Conversion Rate as provided in Article 14 of the Indenture);

WHEREAS, under the terms of the Merger, each share of Company common stock was converted into the right to receive 1.0309 Tornier Ordinary Shares;

WHEREAS, Section 14.07 of the Indenture provides that in connection with a Reorganization Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) under the Indenture providing for the change in the right to convert each $1,000 principal amount of Notes resulting from the Merger and in accordance with the Indenture; and

WHEREAS, pursuant to Sections 10.01 and 13.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

(1) Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

 

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(2) Guarantee. The Guarantor hereby fully and unconditionally guarantees the Company’s obligations under the Indenture and the Notes on a senior unsecured basis, hereby acknowledges and agrees that it has provided its Guarantee for good and valuable consideration and, subject to the provisions of Article 13 of the Indenture, unconditionally guarantees the Guarantee Obligations, on a senior unsecured basis, to the Trustee and each Holder and their successors and assigns in accordance with the term of the Indenture, including Article 13, and the Notes.

(3) Waiver of Rights. Subject to and in accordance with the provisions of Article 13 of the Indenture, the Guarantor hereby waives and relinquishes under the Indenture: (a) any right to require a Benefited Party to proceed against the Company or any other Person at any time before proceeding against the Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by the Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of the Guarantor, the Company, any Benefited Party, any creditor of the Guarantor or the Company or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against the Guarantor for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal and (f) any defense arising because of a Benefited Party’s election, in any proceeding instituted under Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code.

(4) Covenants. Subject to and in accordance with the provisions of Article 13 of the Indenture, the Guarantor hereby covenants and agrees that the Guarantee shall not be discharged except by payment in full of all Guarantee Obligations, including the principal, premium, if any, and interest and Additional Interest, if any, on the Notes and all other costs provided for under the Indenture or as provided in Article 7 of the Indenture or by release of the same in accordance with the provisions of the Indenture. Subject to and in accordance with the provisions of Article 13 of the Indenture, the Guarantor hereby further agrees (i) that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guarantee Obligations hereby until payment in full of all such obligations guaranteed hereby, (ii) as between it, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated for purposes of the Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantee Obligations, and (y) in the event of any acceleration of such obligations, such Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of the Guarantee and (iii) that the Guarantee Obligations of the Guarantor under Article 13 of the Indenture and this Supplemental Indenture shall be limited to the maximum amount as shall, after giving effect to such maximum amount and all other contingent and fixed liabilities of the Guarantor that are relevant under such laws, result in the Guarantee Obligations of the Guarantor under the Guarantee not constituting a fraudulent transfer or conveyance under applicable law or being void or voidable under any law relating to insolvency or debt. The Guarantor hereby further acknolwedges, agrees and confirms its obligations under Article 13 of the Indenture.

(5) Settlement Upon Conversion. From and after the Merger Effective Time, Holders of the Notes shall have the right to convert the Notes (pursuant to, and subject to the conditions of, the Indenture) solely into cash at an initial conversion rate equal to 33.3949 Tornier Ordinary Shares per $1,000 principal amount of Notes (subject to adjustment as provided in Article 14 of the Indenture). In

 

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accordance with Section 14.07 of the Indenture and as set forth in the definition of “Daily VWAP” in the Indenture, from and after the Merger Effective Time, the Daily VWAP shall be calculated by reference to the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “WMGI <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of the Tornier Ordinary Shares on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company). The “Daily VWAP” shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.

(6) Anti-dilution and other adjustments. The anti-dilution adjustments provided for in Article 14 shall remain in full force and effect and, subject to and in accordance with the Indenture, unless the context requires otherwise, at and after the effective time of the Merger references to the Common Stock shall be deemed to refer to Tornier Ordinary Shares. Except as expressly provided herein, all other provisions of the Indenture shall remain in full force and effect and this Supplemental Indenture shall be deemed to be part of the terms and conditions of the Indenture for any all purposes.

(7) Governing Law. THIS SUPPLEMENTAL INDENTURE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING TITLE 14 OF ARTICLE 5 OF THE GENERAL OBLIGATIONS LAW OF NEW YORK).

(8) Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

(9) Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.

(10) The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company and the Guarantor. All of the provisions contained in the Indenture in respect of the rights, privileges, protections, immunities, powers and duties of the Trustee shall be applicable in respect of this Supplemental Indenture as fully and with like force and effect as though fully set forth in full herein.

[Signature pages follow.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.

 

 

[Signature page – Supplemental Indenture]

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[Signature page – Supplemental Indenture]

Exhibit 10.1

EXECUTION VERSION

AMENDMENT TO THE WARRANT CONFIRMATION

 

Date:		November 24, 2015
From:		Deutsche Bank
		Deutsche Bank AG, London Branch (“Dealer”) Winchester house 1 Great Winchester St, London EC2N 2DB Telephone: 44 20 7545 8000   c/o Deutsche Bank Securities Inc. 60 Wall Street New York, NY 10005 Telephone: 212-250-2500
To:		Wright Medical Group, Inc. (“Company”) 5677 Airline Road, Arlington, TN 38002 Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398   And
		Wright Medical Group N.V. Prins Bernhardplein 200 1097 JB Amsterdam, The Netherlands Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398 Email: jim.lightman@wmt.com
Subject:		Amendment to the Additional Warrant Confirmation dated February 10, 2015

 

Chairman of the Supervisory Board: Dr. Paul Achleitner. Management Board: John Cryan (Co-Chairman), Jürgen Fitschen (Co-Chairman), Stuart Lewis, Sylvie Matherat, Henry Ritchotte, Karl von Rohr, Marcus Schenck, Christian Sewing.   Deutsche Bank AG is authorised under German Banking Law (competent authority: European Central Bank and the BaFin, Germany’s Federal Financial Supervisory Authority) and, in the United Kingdom, by the Prudential Regulation Authority. It is subject to supervision by the European Central Bank and by BaFin, and is subject to limited regulation in the United Kingdom by the Financial Conduct Authority and the Prudential Regulation Authority.		Deutsche Bank AG is a joint stock corporation with limited liability incorporated in the Federal Republic of Germany, Local Court of Frankfurt am Main, HRB No. 30 000; Branch Registration in England and Wales BR000005 and Registered Address: Winchester House, 1 Great Winchester Street, London EC2N 2DB. Deutsche Bank AG, London Branch is a member of the London Stock Exchange. (Details about the extent of our authorisation and regulation by the Prudential Regulation Authority, and regulation by the Financial Conduct Authority, are available on request or from www.db.com/en/content/eu_disclosures.htm)

 

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The purpose of this Amendment to the Confirmation (this “Amendment”) is to amend certain terms and conditions of the Transaction (as defined below). Reference is made to the letter agreement dated as of February 10, 2015 (the “Confirmation”, which is attached hereto as Exhibit A) that confirms the terms and conditions of the Warrants issued by the Company to the Dealer as of the Trade Date, as amended hereby (the “Transaction”). Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the Confirmation; provided that if such meaning is amended thereby, such amended meaning shall apply.

On October 1, 2015, Company and Wright Medical Group N.V. (which was previously known as Tornier N.V., the “Parent”) completed the Tornier Merger Transaction.

DEUTSCHE BANK AG, LONDON BRANCH IS NOT REGISTERED AS A BROKER DEALER UNDER THE U.S. SECURITIES EXCHANGE ACT OF 1934. DEUTSCHE BANK SECURITIES INC. (“DBSI”) HAS ACTED SOLELY AS AGENT IN CONNECTION WITH THE TRANSACTION AND HAS NO OBLIGATION, BY WAY OF ISSUANCE, ENDORSEMENT, GUARANTEE OR OTHERWISE WITH RESPECT TO THE PERFORMANCE OF EITHER PARTY UNDER THE TRANSACTION. AS SUCH, ALL DELIVERY OF FUNDS, ASSETS, NOTICES, DEMANDS AND COMMUNICATIONS OF ANY KIND RELATING TO THIS TRANSACTION BETWEEN DEUTSCHE BANK AG, LONDON BRANCH, AND COUNTERPARTY SHALL BE TRANSMITTED EXCLUSIVELY THROUGH DEUTSCHE BANK SECURITIES INC. DEUTSCHE BANK AG, LONDON BRANCH IS NOT A MEMBER OF THE SECURITIES INVESTOR PROTECTION CORPORATION (SIPC).

In consideration of the premises and the agreements, provisions and covenants contained in this Amendment, Company, Dealer and Parent hereby agree as follows:

 

1.	Assignment and Assumption.

 

(a)

For an agreed consideration, the Company hereby assigns to the Parent, and the Parent hereby irrevocably assumes from the Company, as of the date hereof, all the obligations of Company under the Confirmation and all the obligations of the “Issuer” (with the meaning of such term amended in accordance with Section 2(a) below) under the Confirmation, provided that the representations and warranties of the Company in Section 8 of the Confirmation shall be replaced by the representations and warranties of the Parent in Section 3 of this Amendment. From and after the date hereof, Parent shall assume and succeed to the obligation of the Company to make due and punctual payment and delivery of all payment and delivery obligations under the Confirmation and the performance and observation of every covenant or other obligation on the part of the Company and/or the Issuer to be performed or observed by it.

 

(b)

On or prior to the Currency Business Day immediately following the date hereof, the Dealer shall transfer to the Parent a cash amount in Euros (the “Par Value Payment”) equal to the product of (i) a number of Shares equal to the Number of Warrants multiplied by the Warrant Entitlement, subject to any adjustments made to such numbers by the Calculation Agent on or prior to the date of such payment,

 

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and (ii) the par value per Share as of such date. Such Par Value Payment shall constitute an advance payment for purposes of paying up the Shares issuable upon exercise of the Warrants. Upon receipt, Parent shall reserve the Par Value Payment and apply the Par Value Payment against the obligation to pay-up the Shares upon exercise of the Warrants. To the extent that the Par Value Payment exceeds the aggregate nominal value of the Shares issued upon exercise of the Warrants, then such excess shall be regarded as share premium.

 

2.	Adjustments to General Terms.

The definition of “Shares” in the Confirmation is replaced in its entirety with the following new definition:

“The ordinary shares, par value 0.03 Euros per share, of Wright Medical Group N.V. (Exchange symbol “WMGI”). As a result, for the avoidance of doubt, references to “Issuer” and to “Company” throughout this Confirmation refer to Wright Medical Group N.V.”

 

3.	Representations and Warranties.

Parent hereby represents and warrants to Dealer on the date hereof, and in the case of the representations in Section 3(a) below, at all times until termination of the Transaction that:

 

(a)

Parent has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction as amended by this Amendment; such execution, delivery and performance have been duly authorized by all necessary corporate action on Parent’s part; and this Amendment has been duly and validly executed and delivered by Parent and constitutes its valid and binding obligation, enforceable against Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.

 

(b)

Neither the execution and delivery of this Amendment nor the incurrence or performance of obligations of Parent hereunder will conflict with or result in a breach of the articles of association of Parent, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which Parent or any of its subsidiaries is a party or by which Parent or any of its subsidiaries is bound or to which Parent or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.

 

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(c)

No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Parent of this Amendment, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws or under the Dutch Act on Financial Supervision (Wet op het Financieel Toezicht).

 

(d)

The issuance of the number of Shares equal to the Maximum Number of Shares has been duly authorized and, upon payment in full of the Par Value Payment and otherwise as contemplated by the terms of the Warrants, including Section 5 of the Amendment, following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully-paid, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights and the Warrant Shares shall upon issuance be accepted for listing or quotation on the Exchange.

 

(e)

Parent is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

 

(f)

Parent is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18) (C) of the Commodity Exchange Act).

 

(g)

Parent and each of its affiliates are not, on the date hereof, in possession of any material non-public information with respect to Parent or the Shares.

 

(h)

No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity), except for the reporting requirements of the Exchange Act and rules promulgated thereunder, or, at and after the Tornier Merger Transaction, the reporting or registration requirements of the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969), in each case, as a result of Dealer or its affiliates owning or holding (however defined) Shares.

 

(i)

Parent (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.

 

(j)

It is a party which is able to adhere to the Attachment to the ISDA 2013 EMIR NFC Representation Protocol published by ISDA on March 8, 2013 (the “NFC Representation Protocol”) as if it were a party making the NFC Representation (as such term is defined in the NFC Representation Protocol.

 

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4.	Other Provisions.

 

(a)

Repurchase Notices. The first sentence of Section 9(b) of the Confirmation is replaced with the following sentence:

“Issuer shall, on any day on which Issuer effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares on such day, subject to any adjustments provided herein, is (i) less than 97,854,977 (in the case of the first such notice) or (ii) thereafter more than 4,332,691 less than the number of Shares included in the immediately preceding Repurchase Notice.”.

 

(b)

Additional Termination Events. Section 9(h)(ii) of the Confirmation is hereby amended by inserting the following clause (J) at the end thereof:

“(J) On any day during the period from and including the date hereof, to and including the final Expiration Date, (I) the Notional Unwind Shares (as defined below) as of such day exceeds a number of Shares equal to 90.0% of the Par Value Delivery Number, or (II) Company makes a public announcement of any transaction or event that, in the reasonable opinion of Dealer would, upon consummation of such transaction or upon the occurrence of such event, as applicable, and after giving effect to any applicable adjustments hereunder, cause the Notional Unwind Shares immediately following the consummation of such transaction or the occurrence of such event to exceed a number of Shares equal to 90.0% of the Par Value Delivery Number. The “Notional Unwind Shares” as of any day is a number of Shares equal to (1) the amount that would be payable pursuant to Section 6 of the Agreement (determined as of such day as if an Early Termination Date had been designated in respect of the Transaction and as if the Company were the sole Affected Party and the Transaction were the sole Affected Transaction), divided by (2) the Settlement Price (determined as if such day were a Valuation Date). “Par Value Delivery Number” means a number of Shares equal to (i) the Par Value Payment divided by (ii) the par value per Share.”

 

(c)

Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. Section 9(j)(i)(b) of the Confirmation is replaced in its entirety with the following new Section 9(j)(i)(b):

“(b) Issuer represents to Dealer that each of Issuer and its affiliates is not, as of the date of such election, in possession of any material non-public information with respect to Issuer or the Shares and”.

 

(d)

Status of Claims in Bankruptcy. Section 9(r) of the Confirmation is replaced in its entirety with the following new Section 9(r):

 

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“Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Issuer with respect to the Transaction that are senior to the claims of shareholders of Issuer in any bankruptcy proceedings of Issuer; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Issuer of its obligations and agreements with respect to the Transaction other than during any such bankruptcy proceedings; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.”.

 

(e)

Non-Occurrence of Tornier Merger Transaction. Sections 9(aa) and 9(bb) of the Confirmation are hereby deleted in their entirety and replaced with “[Reserved]”.

 

(f)

Maximum Share Delivery. Section 9(p)(ii) of the Confirmation is replaced in its entirety with the following new Section 9(p)(ii):

In the event Issuer shall not have issued to Dealer the full number of Shares or Restricted Shares otherwise to be issued by Issuer to Dealer pursuant to the terms of the Transaction because Issuer has insufficient authorized capital to issue the full number of Shares or Restricted Shares (such deficit, the “Deficit Shares”), Issuer shall be continually obligated to transfer, from time to time, Shares or Restricted Shares, as the case may be, to Dealer until the full number of Deficit Shares have been transferred pursuant to this Section 9(p)(ii), when, and to the extent that Shares are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), provided that in no event shall Issuer transfer any Shares or Restricted Shares to Dealer pursuant to this Section 9(p)(ii) to the extent that such transfer would cause the aggregate number of Shares and Restricted Shares transferred to Dealer to exceed the Maximum Number of Shares. Issuer shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares that are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date and the corresponding number of Shares or Restricted Shares, as the case may be, to be transferred) and promptly transfer such Shares or Restricted Shares, as the case may be, thereafter.

 

(g)

Relevant Excess Amount Notice Obligation. Section 9(cc) of the Confirmation is replaced in its entirety with the following new Section 9(cc):

“(cc) Promptly following the public announcement by Issuer of any proposal, transaction or event that if approved or consummated would result in a change to the par value of the Shares or require any additional payment by Dealer in respect of the par value of the Warrant Shares, Issuer shall notify Dealer of such public announcement; provided, however, that Issuer’s failure to notify Dealer of such public announcement shall not constitute an Event of Default or Termination Event to the extent Issuer pays to Dealer an amount in EUR equal to the Relevant Excess Amount, if any, corresponding to such amendment.”

 

6

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5.

Share Issue. Dealer acknowledges that to the extent (but solely to the extent) the issue of a Share hereunder would result in (i) the amount in EUR equal to the product of (x) the aggregate number of Shares issued to Dealer pursuant hereto and (y) the par value per Share to exceed (ii) the aggregate amount in EUR paid to Parent in connection with the Transaction (whether pursuant to the Par Value Payment or otherwise paid to Parent for purposes of paying up the aggregate par value of the Shares issuable upon exercise of the Warrants, and whether on the date of issue or delivery of such Share or at such prior time as Dealer may elect), Parent will not be required to issue such Share unless and until Dealer pays such amounts to the Parent as a payment (volstorting) on such Share as required to eliminate such excess or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue. If any issue and/or delivery owed to Dealer under the Transaction is not made, in whole or in part, as a result of this provision, Parent’s obligation to make such issue and/or delivery shall not be extinguished and Parent shall make such issue and delivery as promptly as practicable after, but in no event later than one Business Day after, Dealer (whether on or after the original date of issue and delivery of the relevant Share) pays such amounts to the Parent as a payment (volstorting) on such Share as required under this provision to give effect to such issue or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue.

 

6.

Scope of the Amendment. This Amendment amends solely the terms and provisions of the Transaction and the Confirmation set forth herein and nothing in this Amendment is intended or shall be construed as amending or waiving any other terms or provisions of the Transaction, the Confirmation or any other rights of the Company or Dealer under the Transaction or the Confirmation. Company, Parent and Dealer acknowledge that each of the Transaction and the Confirmation (each as amended by this Amendment) are in full force and effect and is hereby confirmed and ratified in all respects. References in the Confirmation to the Transaction or the Confirmation shall mean the Transaction or the Confirmation as amended by this Amendment.

 

7.	2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol.

 

(a)

The parties agree that the terms of the 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol published by ISDA on July 19, 2013 (“Protocol”) apply to the Agreement as if the parties had adhered to the Protocol without amendment. In respect of the Attachment to the Protocol, (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this Section i (and references to “such party’s Adherence Letter” and “its Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into this Agreement”, (iii) references to “Protocol Covered Agreement” shall be deemed to be references to this Agreement (and each “Protocol Covered Agreement” shall be read accordingly), and (iv) references to “Implementation Date” shall be deemed to be references to the date of this Agreement. For the purposes of this Section i:

 

(i)

Dealer is a Portfolio Data Sending Entity and Company is a Portfolio Data Receiving Entity;

 

(ii)

Dealer and Company may use a Third Party Service Provider, and each of Dealer and Company consents to such use including the communication of the relevant data in relation to Dealer and Company to such Third Party Service Provider for the purposes of the reconciliation services provided by such entity.

 

(iii)

The Local Business Days for such purposes in relation to Dealer are New York, London, Frankfurt, Tokyo and Singapore and in relation to Company are New York;

 

(iv)

The provisions in this paragraph shall survive the termination of this Transaction.

 

(v)

The following are the applicable email addresses.

Portfolio Data:

Dealer: collateral.disputes@db.com

Company: jim.lightman@wmt.com

Notice of discrepancy:

Dealer: collateral.disputes@db.com

Company: jim.lightman@wmt.com

Dispute Notice:

Dealer: collateral.disputes@db.com

Company: jim.lightman@wmt.com

 

(b)

NFC Representation Protocol.

 

(i)

The parties agree that the provisions set out in the Attachment to the ISDA 2013 EMIR NFC Representation Protocol published by ISDA on March 8, 2013 (the “NFC Representation Protocol”) shall apply to the Agreement as if each party were an Adhering Party under the terms of the NFC Representation Protocol. In respect of the Attachment to the Protocol, (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this Section 2 (and references to “the relevant Adherence Letter” and “its Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into this Agreement”, (iii) references to “Covered Master Agreement” shall be deemed to be references to this Agreement (and each “Covered Master Agreement” shall be read accordingly), and (iv) references to “Implementation Date” shall be deemed to be references to the date of this Agreement.

 

(ii)

Company confirms that it enters into this Agreement as a party making the NFC Representation (as such term is defined in the NFC Representation Protocol). Company shall promptly notify Dealer of any change to its status as a party making the NFC Representation.

 

(iii)

Transaction Reporting - Consent for Disclosure of Information. Notwithstanding anything to the contrary herein or in the Agreement or any non-disclosure, confidentiality or other agreements entered into between the parties from time to time, each party hereby consents to the Disclosure of information (the “Reporting Consent”):

 

(A)

to the extent required by, or necessary in order to comply with, any applicable law, rule or regulation which mandates Disclosure of transaction and similar information or to the extent required by, or necessary in order to comply with, any order, request or directive regarding Disclosure of transaction and similar information issued by any relevant authority or body or agency (“Reporting Requirements”); or

 

(B)

to and between the other party’s head office, branches or affiliates; to any person, agent, third party or entity who provides services to such other party or its head office, branches or affiliates; to a Market; or to any trade data repository or any systems or services operated by any trade repository or Market, in each case, in connection with such Reporting Requirements.

“Disclosure” means disclosure, reporting, retention, or any action similar or analogous to any of the aforementioned.

“Market” means any exchange, regulated market, clearing house, central clearing counterparty or multilateral trading facility.

Disclosures made pursuant to this Reporting Consent may include, without limitation, Disclosure of information relating to disputes over transactions between the parties, a party’s identity, and certain transaction and pricing data and may result in such information becoming available to the public or recipients in a jurisdiction which may have a different level of protection for personal data from that of the relevant party’s home jurisdiction.

This Reporting Consent shall be deemed to constitute an agreement between the parties with respect to Disclosure in general and shall survive the termination of this Confirmation. No amendment to or termination of this Reporting Consent shall be effective unless such amendment or termination is made in writing between the parties and specifically refers to this Reporting Consent.

 

8.	Governing Law. This Amendment will be governed by and construed in accordance with laws of the State of New York (without reference to choice of law doctrine).

 

9.

Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction, as amended by this Amendment. Each party (i) certifies that no representative, agent or attorney of any party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties have been induced to enter into the Transaction, as amended by this Amendment, as applicable, by, among other things, the mutual waivers and certifications provided herein.

 

10.	Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

[Remainder of page left blank intentionally]

 

7

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EXECUTION VERSION

Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Amendment and returning it to 44 113 336 2009.

We are very pleased to have executed the Transaction with you and we look forward to completing other transactions with you in the near future.

 

 

Chairman of the Supervisory Board: Dr. Paul Achleitner. Management Board: John Cryan (Co-Chairman), Jürgen Fitschen (Co-Chairman), Stuart Lewis, Sylvie Matherat, Henry Ritchotte, Karl von Rohr, Marcus Schenck, Christian Sewing.   Deutsche Bank AG is authorised under German Banking Law (competent authority: European Central Bank and the BaFin, Germany’s Federal Financial Supervisory Authority) and, in the United Kingdom, by the Prudential Regulation Authority. It is subject to supervision by the European Central Bank and by BaFin, and is subject to limited regulation in the United Kingdom by the Financial Conduct Authority and the Prudential Regulation Authority.		Deutsche Bank AG is a joint stock corporation with limited liability incorporated in the Federal Republic of Germany, Local Court of Frankfurt am Main, HRB No. 30 000; Branch Registration in England and Wales BR000005 and Registered Address: Winchester House, 1 Great Winchester Street, London EC2N 2DB. Deutsche Bank AG, London Branch is a member of the London Stock Exchange. (Details about the extent of our authorisation and regulation by the Prudential Regulation Authority, and regulation by the Financial Conduct Authority, are available on request or from www.db.com/en/content/eu_disclosures.htm)

 

8

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Accepted and confirmed
as of the date first written above:
WRIGHT MEDICAL GROUP, INC.
By:		/s/ Lance A. Berry
Name:		Lance A. Berry
Title:		Senior Vice President and Chief
		Financial Officer
WRIGHT MEDICAL GROUP N.V.
By:		/s/ David H. Mowry
Name:		David H. Mowry
Title:		Executive Vice President and Chief Operating Officer

 

9

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Exhibit A

Confirmation

 

10

Exhibit 10.2

EXECUTION VERSION

AMENDMENT TO THE WARRANT CONFIRMATION

 

Date:		November 24, 2015
From:		JPMorgan Chase Bank, National Association (“Dealer”) London Branch 25 Bank Street Canary Wharf London E14 5JP England   c/o J.P. Morgan Securities LLC 383 Madison Ave. New York, NY 10179
To:		Wright Medical Group, Inc. (“Company”) 5677 Airline Road, Arlington, TN 38002 Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398   And
		Wright Medical Group N.V. Prins Bernhardplein 200 1097 JB Amsterdam, The Netherlands Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398 Email: jim.lightman@wmt.com
Subject:		Amendment to the Base Warrant Confirmation dated February 9, 2015

The purpose of this Amendment to the Confirmation (this “Amendment”) is to amend certain terms and conditions of the Transaction (as defined below). Reference is made to the letter agreement dated as of February 9, 2015 (the “Confirmation”, which is attached hereto as Exhibit A) that confirms the terms and conditions of the Warrants issued by the Company to the Dealer as of the Trade Date, as amended hereby (the “Transaction”). Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the Confirmation; provided that if such meaning is amended thereby, such amended meaning shall apply.

On October 1, 2015, Company and Wright Medical Group N.V. (which was previously known as Tornier N.V., the “Parent”) completed the Tornier Merger Transaction.

 

1

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In consideration of the premises and the agreements, provisions and covenants contained in this Amendment, Company, Dealer and Parent hereby agree as follows:

 

1.	Assignment and Assumption.

 

(a)

For an agreed consideration, the Company hereby assigns to the Parent, and the Parent hereby irrevocably assumes from the Company, as of the date hereof, all the obligations of Company under the Confirmation and all the obligations of the “Issuer” (with the meaning of such term amended in accordance with Section 2(a) below) under the Confirmation, provided that the representations and warranties of the Company in Section 8 of the Confirmation shall be replaced by the representations and warranties of the Parent in Section 3 of this Amendment. From and after the date hereof, Parent shall assume and succeed to the obligation of the Company to make due and punctual payment and delivery of all payment and delivery obligations under the Confirmation and the performance and observation of every covenant or other obligation on the part of the Company and/or the Issuer to be performed or observed by it.

 

(b)

On or prior to the Currency Business Day immediately following the date hereof, the Dealer shall transfer to the Parent a cash amount in Euros (the “Par Value Payment”) equal to the product of (i) a number of Shares equal to the Number of Warrants multiplied by the Warrant Entitlement, subject to any adjustments made to such numbers by the Calculation Agent on or prior to the date of such payment, and (ii) the par value per Share as of such date. Such Par Value Payment shall constitute an advance payment for purposes of paying up the Shares issuable upon exercise of the Warrants. Upon receipt, Parent shall reserve the Par Value Payment and apply the Par Value Payment against the obligation to pay-up the Shares upon exercise of the Warrants. To the extent that the Par Value Payment exceeds the aggregate nominal value of the Shares issued upon exercise of the Warrants, then such excess shall be regarded as share premium.

 

2.	Adjustments to General Terms.

The definition of “Shares” in the Confirmation is replaced in its entirety with the following new definition:

“The ordinary shares, par value 0.03 Euros per share, of Wright Medical Group N.V. (Exchange symbol “WMGI”). As a result, for the avoidance of doubt, references to “Issuer” and to “Company” throughout this Confirmation refer to Wright Medical Group N.V.”

 

3.	Representations and Warranties.

Parent hereby represents and warrants to Dealer on the date hereof, and in the case of the representations in Section 3(a) below, at all times until termination of the Transaction that:

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(a)

Parent has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction as amended by this Amendment; such execution, delivery and performance have been duly authorized by all necessary corporate action on Parent’s part; and this Amendment has been duly and validly executed and delivered by Parent and constitutes its valid and binding obligation, enforceable against Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.

 

(b)

Neither the execution and delivery of this Amendment nor the incurrence or performance of obligations of Parent hereunder will conflict with or result in a breach of the articles of association of Parent, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which Parent or any of its subsidiaries is a party or by which Parent or any of its subsidiaries is bound or to which Parent or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.

 

(c)

No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Parent of this Amendment, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws or under the Dutch Act on Financial Supervision (Wet op het Financieel Toezicht).

 

(d)

The issuance of the number of Shares equal to the Maximum Number of Shares has been duly authorized and, upon payment in full of the Par Value Payment and otherwise as contemplated by the terms of the Warrants, including Section 5 of the Amendment, following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully-paid, and the issuance of the Warrant Shares will not be subject to any preemptive rights and the Warrant Shares shall upon issuance be accepted for listing or quotation on the Exchange.

 

(e)

Parent is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

 

(f)

Parent is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18) (C) of the Commodity Exchange Act).

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(g)

Parent and each of its affiliates are not, on the date hereof, in possession of any material non-public information with respect to Parent or the Shares.

 

(h)

No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity), except for the reporting requirements of the Exchange Act and rules promulgated thereunder, or, at and after the Tornier Merger Transaction, the reporting or registration requirements of the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969), in each case, as a result of Dealer or its affiliates owning or holding (however defined) Shares.

 

(i)

Parent (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.

 

4.	Other Provisions.

 

(a)

Repurchase Notices. The first sentence of Section 9(b) of the Confirmation is replaced with the following sentence:

“Issuer shall, on any day on which Issuer effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares on such day, subject to any adjustments provided herein, is (i) less than 94,923,248 (in the case of the first such notice) or (ii) thereafter more than 6,614,326 less than the number of Shares included in the immediately preceding Repurchase Notice.”.

 

(b)

Additional Termination Events. Section 9(h)(ii) of the Confirmation is hereby amended by inserting the following clause (J) at the end thereof:

“(J) On any day during the period from and including the date hereof, to and including the final Expiration Date, (I) the Notional Unwind Shares (as defined below) as of such day exceeds a number of Shares equal to 90.0% of the Par Value Delivery Number, or (II) Company makes a public announcement of any transaction or event that, in the reasonable opinion of Dealer would, upon consummation of such transaction or upon the occurrence of such event, as applicable, and after giving effect to any applicable adjustments hereunder, cause the Notional Unwind Shares immediately following the consummation of such transaction or the occurrence of such event to exceed a number of Shares equal to 90.0% of the Par Value Delivery Number. The “Notional Unwind Shares” as of any day is a number of Shares equal to (1) the amount that would be payable pursuant to Section 6 of the Agreement (determined as of such day as if an Early Termination Date had been designated in respect of the Transaction and as if the

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Company were the sole Affected Party and the Transaction were the sole Affected Transaction), divided by (2) the Settlement Price (determined as if such day were a Valuation Date). “Par Value Delivery Number” means a number of Shares equal to (i) the Par Value Payment divided by (ii) the par value per Share.”

 

(c)

Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. Section 9(j)(i)(b) of the Confirmation is replaced in its entirety with the following new Section 9(j)(i)(b):

“(b) Issuer represents to Dealer that each of Issuer and its affiliates is not, as of the date of such election, in possession of any material non-public information with respect to Issuer or the Shares and”.

 

(d)

Status of Claims in Bankruptcy. Section 9(r) of the Confirmation is replaced in its entirety with the following new Section 9(r):

“Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Issuer with respect to the Transaction that are senior to the claims of shareholders of Issuer in any bankruptcy proceedings of Issuer; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Issuer of its obligations and agreements with respect to the Transaction other than during any such bankruptcy proceedings; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.”.

 

(e)

Non-Occurrence of Tornier Merger Transaction. Sections 9(aa) and 9(bb) of the Confirmation are hereby deleted in their entirety and replaced with “[Reserved]”.

 

(f)

Maximum Share Delivery. Section 9(p)(ii) of the Confirmation is replaced in its entirety with the following new Section 9(p)(ii):

In the event Issuer shall not have issued to Dealer the full number of Shares or Restricted Shares otherwise to be issued by Issuer to Dealer pursuant to the terms of the Transaction because Issuer has insufficient authorized capital to issue the full number of Shares or Restricted Shares (such deficit, the “Deficit Shares”), Issuer shall be continually obligated to transfer, from time to time, Shares or Restricted Shares, as the case may be, to Dealer until the full number of Deficit Shares have been transferred pursuant to this Section 9(p)(ii), when, and to the extent that Shares are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), provided that in no event shall Issuer transfer any Shares or Restricted Shares to Dealer pursuant to this Section 9(p)(ii) to the extent that such transfer would cause the aggregate number of Shares and Restricted Shares transferred to Dealer to exceed the Maximum Number of Shares. Issuer shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares that are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date and the corresponding number of Shares or Restricted Shares, as the case may be, to be transferred) and promptly transfer such Shares or Restricted Shares, as the case may be, thereafter.

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(g)

Relevant Excess Amount Notice Obligation. Section 9(cc) of the Confirmation is replaced in its entirety with the following new Section 9(cc):

“(cc) Promptly following the public announcement by Issuer of a proposal to amend the Issuer’s articles of association in order to increase the nominal value of the Shares, Issuer shall notify Dealer of such public announcement; provided, however, that Issuer’s failure to notify Dealer of such public announcement shall not constitute an Event of Default or Termination Event to the extent Issuer pays to Dealer an amount in EUR equal to the Relevant Excess Amount, if any, corresponding to such amendment.”

 

5.

Share Issue. Dealer acknowledges that to the extent (but solely to the extent) the issue of a Share hereunder would result in (i) the amount in EUR equal to the product of (x) the aggregate number of Shares issued to Dealer pursuant hereto and (y) the par value per Share to exceed (ii) the aggregate amount in EUR paid to Parent in connection with the Transaction (whether pursuant to the Par Value Payment or otherwise paid to Parent for purposes of paying up the aggregate par value of the Shares issuable upon exercise of the Warrants, and whether on the date of issue or delivery of such Share or at such prior time as Dealer may elect), Parent will not be required to issue such Share unless and until Dealer pays such amounts to the Parent as a payment (volstorting) on such Share as required to eliminate such excess or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue. If any issue and/or delivery owed to Dealer under the Transaction is not made, in whole or in part, as a result of this provision, Parent’s obligation to make such issue and/or delivery shall not be extinguished and Parent shall make such issue and delivery as promptly as practicable after, but in no event later than one Business Day after, Dealer (whether on or after the original date of issue and delivery of the relevant Share) pays such amounts to the Parent as a payment (volstorting) on such Share as required under this provision to give effect to such issue or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue.

 

6.

Scope of the Amendment. This Amendment amends solely the terms and provisions of the Transaction and the Confirmation set forth herein and nothing in this Amendment is intended or shall be construed as amending or waiving any other terms or provisions of the Transaction, the Confirmation or any other rights of the Company or Dealer under the Transaction or the Confirmation. Company, Parent and Dealer acknowledge that each of the Transaction and the Confirmation (each as amended by this Amendment) are in full force and effect and is hereby confirmed and ratified in all respects. References in the Confirmation to the Transaction or the Confirmation shall mean the Transaction or the Confirmation as amended by this Amendment.

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7.	2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol.

 

(a)

The parties agree that the terms of the 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol published by ISDA on July 19, 2013 (“Protocol”) apply to the Agreement as if the parties had adhered to the Protocol without amendment. In respect of the Attachment to the Protocol, (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this Section 7(a) (and references to “such party’s Adherence Letter” and “its Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into this Amendment”, (iii) references to “Protocol Covered Agreement” shall be deemed to be references to the Agreement (and “each Protocol Covered Agreement” shall be read accordingly), (iv) references to “Implementation Date” shall be deemed to be references to the date of this Amendment, and (v) the term “the parties” shall be construed as referring to Dealer and the Company. For the purposes of this Section 7(a):

 

(i)

Dealer is a Portfolio Data Sending Entity and the Company is a Portfolio Data Receiving Entity;

 

(ii)

The Local Business Days for such purposes in relation to Dealer are London and in relation to Company are New York and Amsterdam;

 

(iii)

The provisions in this 7(a) shall survive the termination of the Transaction; and

 

(iv)

The following are the applicable email addresses.

 

 

8.	Governing Law. This Amendment will be governed by and construed in accordance with laws of the State of New York (without reference to choice of law doctrine).

 

9.

Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction, as amended by this Amendment. Each party (i) certifies that no representative, agent or attorney of any party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties have been induced to enter into the Transaction, as amended by this Amendment, as applicable, by, among other things, the mutual waivers and certifications provided herein.

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10.	Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

[Remainder of page left blank intentionally]

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EXECUTION VERSION

Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Amendment and returning it to J.P. Morgan Securities LLC, 383 Madison Ave, New York, NY 10179, and by email to EDG_Notices@jpmorgan.com and EDG_NY_Corporate_Sales_Support@jpmorgan.com.

 

 

9

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Accepted and confirmed
as of the date first written above:
WRIGHT MEDICAL GROUP, INC.
By:		/s/ Lance A. Berry
Name:		Lance A. Berry
Title:		Senior Vice President and Chief
		Financial Officer
WRIGHT MEDICAL GROUP N.V.
By:		/s/ David H. Mowry
Name:		David H. Mowry
Title:		Executive Vice President and Chief
		Operating Officer

 

10

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Exhibit A

Confirmation

Exhibit 10.3

EXECUTION VERSION

AMENDMENT TO THE WARRANT CONFIRMATION

 

Date:		November 24, 2015
From:
		Wells Fargo Bank, National Association (“Dealer”) 375 Park Avenue New York, NY 10152 Attn: Structuring Services Group Telephone: 212-214-6101 Facsimile: 212-214-5913
To:		Wright Medical Group, Inc. (“Company”) 5677 Airline Road, Arlington, TN 38002 Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398   And
		Wright Medical Group N.V. Prins Bernhardplein 200 1097 JB Amsterdam, The Netherlands Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398 Email: jim.lightman@wmt.com
Subject:		Amendment to the Base Warrant Confirmation dated February 9, 2015

The purpose of this Amendment to the Confirmation (this “Amendment”) is to amend certain terms and conditions of the Transaction (as defined below). Reference is made to the letter agreement dated as of February 9, 2015 (the “Confirmation”, which is attached hereto as Exhibit A) that confirms the terms and conditions of the Warrants issued by the Company to the Dealer as of the Trade Date, as amended hereby (the “Transaction”). Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the Confirmation; provided that if such meaning is amended thereby, such amended meaning shall apply.

 

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On October 1, 2015, Company and Wright Medical Group N.V. (which was previously known as Tornier N.V., the “Parent”) completed the Tornier Merger Transaction.

In consideration of the premises and the agreements, provisions and covenants contained in this Amendment, Company, Dealer and Parent hereby agree as follows:

 

1.	Assignment and Assumption.

 

(a)

For an agreed consideration, the Company hereby assigns to the Parent, and the Parent hereby irrevocably assumes from the Company, as of the date hereof, all the obligations of Company under the Confirmation and all the obligations of the “Issuer” (with the meaning of such term amended in accordance with Section 2(a) below) under the Confirmation, provided that the representations and warranties of the Company in Section 8 of the Confirmation shall be replaced by the representations and warranties of the Parent in Section 3 of this Amendment. From and after the date hereof, Parent shall assume and succeed to the obligation of the Company to make due and punctual payment and delivery of all payment and delivery obligations under the Confirmation and the performance and observation of every covenant or other obligation on the part of the Company and/or the Issuer to be performed or observed by it.

 

(b)

On or prior to the Currency Business Day immediately following the date hereof, the Dealer shall transfer to the Parent a cash amount in Euros (the “Par Value Payment”) equal to the product of (i) a number of Shares equal to the Number of Warrants multiplied by the Warrant Entitlement, subject to any adjustments made to such numbers by the Calculation Agent on or prior to the date of such payment, and (ii) the par value per Share as of such date. Such Par Value Payment shall constitute an advance payment for purposes of paying up the Shares issuable upon exercise of the Warrants. Upon receipt, Parent shall reserve the Par Value Payment and apply the Par Value Payment against the obligation to pay-up the Shares upon exercise of the Warrants. To the extent that the Par Value Payment exceeds the aggregate nominal value of the Shares issued upon exercise of the Warrants, then such excess shall be regarded as share premium.

 

2.	Adjustments to General Terms.

The definition of “Shares” in the Confirmation is replaced in its entirety with the following new definition:

“The ordinary shares, par value 0.03 Euros per share, of Wright Medical Group N.V. (Exchange symbol “WMGI”). As a result, for the avoidance of doubt, references to “Issuer” and to “Company” throughout this Confirmation refer to Wright Medical Group N.V.”

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3.	Representations and Warranties.

Parent hereby represents and warrants to Dealer on the date hereof, and in the case of the representations in Section 3(a) below, at all times until termination of the Transaction that:

 

(a)

Parent has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction as amended by this Amendment; such execution, delivery and performance have been duly authorized by all necessary corporate action on Parent’s part; and this Amendment has been duly and validly executed and delivered by Parent and constitutes its valid and binding obligation, enforceable against Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.

 

(b)

Neither the execution and delivery of this Amendment nor the incurrence or performance of obligations of Parent hereunder will conflict with or result in a breach of the articles of association of Parent, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which Parent or any of its subsidiaries is a party or by which Parent or any of its subsidiaries is bound or to which Parent or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.

 

(c)

No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Parent of this Amendment, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws or under the Dutch Act on Financial Supervision (Wet op het Financieel Toezicht).

 

(d)

The issuance of the number of Shares equal to the Maximum Number of Shares has been duly authorized and, upon payment in full of the Par Value Payment and otherwise as contemplated by the terms of the Warrants, including Section 5 of the Amendment, following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully-paid, and the issuance of the Warrant Shares will not be subject to any preemptive rights and the Warrant Shares shall upon issuance be accepted for listing or quotation on the Exchange.

 

(e)

Parent is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

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(f)

Parent is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18) (C) of the Commodity Exchange Act).

 

(g)

Parent and each of its affiliates are not, on the date hereof, in possession of any material non-public information with respect to Parent or the Shares.

 

(h)

No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity), except for the reporting requirements of the Exchange Act and rules promulgated thereunder, or, at and after the Tornier Merger Transaction, the reporting or registration requirements of the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969), in each case, as a result of Dealer or its affiliates owning or holding (however defined) Shares.

 

(i)

Parent (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.

 

4.	Other Provisions.

 

(a)

Repurchase Notices. The first sentence of Section 9(b) of the Confirmation is replaced with the following sentence:

“Issuer shall, on any day on which Issuer effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares on such day, subject to any adjustments provided herein, is (i) less than 91,496,699 (in the case of the first such notice) or (ii) thereafter more than 8,940,373 less than the number of Shares included in the immediately preceding Repurchase Notice.”.

 

(b)

Additional Termination Events. Section 9(h)(ii) of the Confirmation is hereby amended by inserting the following clause (J) at the end thereof:

“(J) On any day during the period from and including the date hereof, to and including the final Expiration Date, (I) the Notional Unwind Shares (as defined below) as of such day exceeds a number of Shares equal to 90.0% of the Par Value Delivery Number, or (II) Company makes a public announcement of any transaction or event that, in the reasonable opinion of Dealer would, upon consummation of such transaction or upon the occurrence of such event, as applicable, and after giving effect to any applicable adjustments hereunder, cause the Notional Unwind Shares immediately following the consummation of such transaction or the occurrence of such event to exceed a number of

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Shares equal to 90.0% of the Par Value Delivery Number. The “Notional Unwind Shares” as of any day is a number of Shares equal to (1) the amount that would be payable pursuant to Section 6 of the Agreement (determined as of such day as if an Early Termination Date had been designated in respect of the Transaction and as if the Company were the sole Affected Party and the Transaction were the sole Affected Transaction), divided by (2) the Settlement Price (determined as if such day were a Valuation Date). “Par Value Delivery Number” means a number of Shares equal to (i) the Par Value Payment divided by (ii) the par value per Share.”

 

(c)

Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. Section 9(j)(i)(b) of the Confirmation is replaced in its entirety with the following new Section 9(j)(i)(b):

 

“(b)

Issuer represents to Dealer that each of Issuer and its affiliates is not, as of the date of such election, in possession of any material non-public information with respect to Issuer or the Shares and”.

 

(d)

Status of Claims in Bankruptcy. Section 9(r) of the Confirmation is replaced in its entirety with the following new Section 9(r):

“Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Issuer with respect to the Transaction that are senior to the claims of shareholders of Issuer in any bankruptcy proceedings of Issuer; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Issuer of its obligations and agreements with respect to the Transaction other than during any such bankruptcy proceedings; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.”.

 

(e)

Non-Occurrence of Tornier Merger Transaction. Sections 9(aa) and 9(bb) of the Confirmation are hereby deleted in their entirety and replaced with “[Reserved]”.

 

(f)

Maximum Share Delivery. Section 9(p)(ii) of the Confirmation is replaced in its entirety with the following new Section 9(p)(ii):

In the event Issuer shall not have issued to Dealer the full number of Shares or Restricted Shares otherwise to be issued by Issuer to Dealer pursuant to the terms of the Transaction because Issuer has insufficient authorized capital to issue the full number of Shares or Restricted Shares (such deficit, the “Deficit Shares”), Issuer shall be continually obligated to transfer, from time to time, Shares or Restricted Shares, as the case may be, to Dealer until the full number of Deficit Shares have been transferred pursuant to this Section 9(p)(ii), when, and to the extent that Shares are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), provided that in no event shall Issuer transfer any Shares or Restricted Shares to Dealer pursuant to this Section 9(p)(ii) to the extent that such transfer would cause the aggregate number of Shares and

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Restricted Shares transferred to Dealer to exceed the Maximum Number of Shares. Issuer shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares that are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date and the corresponding number of Shares or Restricted Shares, as the case may be, to be transferred) and promptly transfer such Shares or Restricted Shares, as the case may be, thereafter.

 

(g)

Relevant Excess Amount Notice Obligation. Section 9(cc) of the Confirmation is replaced in its entirety with the following new Section 9(cc):

“(cc) Promptly following the public announcement by Issuer of a proposal to amend the Issuer’s articles of association in order to increase the nominal value of the Shares, Issuer shall notify Dealer of such public announcement; provided, however, that Issuer’s failure to notify Dealer of such public announcement shall not constitute an Event of Default or Termination Event to the extent Issuer pays to Dealer an amount in EUR equal to the Relevant Excess Amount, if any, corresponding to such amendment.”

 

5.

Share Issue. Dealer acknowledges that to the extent (but solely to the extent) the issue of a Share hereunder would result in (i) the amount in EUR equal to the product of (x) the aggregate number of Shares issued to Dealer pursuant hereto and (y) the par value per Share to exceed (ii) the aggregate amount in EUR paid to Parent in connection with the Transaction (whether pursuant to the Par Value Payment or otherwise paid to Parent for purposes of paying up the aggregate par value of the Shares issuable upon exercise of the Warrants, and whether on the date of issue or delivery of such Share or at such prior time as Dealer may elect), Parent will not be required to issue such Share unless and until Dealer pays such amounts to the Parent as a payment (volstorting) on such Share as required to eliminate such excess or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue. If any issue and/or delivery owed to Dealer under the Transaction is not made, in whole or in part, as a result of this provision, Parent’s obligation to make such issue and/or delivery shall not be extinguished and Parent shall make such issue and delivery as promptly as practicable after, but in no event later than one Business Day after, Dealer (whether on or after the original date of issue and delivery of the relevant Share) pays such amounts to the Parent as a payment (volstorting) on such Share as required under this provision to give effect to such issue or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue.

 

6.

Scope of the Amendment. This Amendment amends solely the terms and provisions of the Transaction and the Confirmation set forth herein and nothing in this Amendment is intended or shall be construed as amending or waiving any other terms or provisions of the Transaction, the Confirmation or any other rights of the Company or Dealer under the Transaction or the Confirmation. Company, Parent and Dealer acknowledge that each of the Transaction and the Confirmation (each as amended by this Amendment) are in full force and effect and is hereby confirmed and ratified in all respects. References in the Confirmation to the Transaction or the Confirmation shall mean the Transaction or the Confirmation as amended by this Amendment.

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7.	2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol.

 

(a)

The parties agree that the terms of the 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol published by ISDA on July 19, 2013 (“Protocol”) apply to the Agreement as if the parties had adhered to the Protocol without amendment. In respect of the Attachment to the Protocol, (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this Section 7(a) (and references to “such party’s Adherence Letter” and “its Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into this Amendment”, (iii) references to “Protocol Covered Agreement” shall be deemed to be references to the Agreement (and “each Protocol Covered Agreement” shall be read accordingly), and (iv) references to “Implementation Date” shall be deemed to be references to the date of this Amendment. For the purposes of this Section 7(a):

 

(i)

Dealer is a Portfolio Data Sending Entity and the Company is a Portfolio Data Receiving Entity;

 

(ii)

Dealer and Company may use a Third Party Service Provider, and each of Dealer and Company consents to such use including the communication of the relevant data in relation to Dealer and Company to such Third Party Service Provider for the purposes of the reconciliation services provided by such entity;

 

(iii)

The Local Business Days for such purposes in relation to Dealer are New York and in relation to Company are New York and Amsterdam;

 

(iv)

The provisions in this 7(a) shall survive the termination of the Transaction; and

 

(v)

The following are the applicable email addresses.

 

Portfolio Data:		Dealer: collateral.mgmt@wellsfargo.com
		Company: jim.lightman@wmt.com
Notice of discrepancy:		Dealer: collateral.mgmt@wellsfargo.com
		Company: jim.lightman@wmt.com
Dispute Notice:		Dealer: collateral.mgmt@wellsfargo.com
		Company: jim.lightman@wmt.com

 

8.	Governing Law. This Amendment will be governed by and construed in accordance with laws of the State of New York (without reference to choice of law doctrine).

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9.

Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction, as amended by this Amendment. Each party (i) certifies that no representative, agent or attorney of any party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties have been induced to enter into the Transaction, as amended by this Amendment, as applicable, by, among other things, the mutual waivers and certifications provided herein.

 

10.	Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

[Remainder of page left blank intentionally]

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EXECUTION VERSION

Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Amendment and returning it to CorporateDerivativeNotifications@wellsfargo.com.

 

 

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Accepted and confirmed
as of the date first written above:
WRIGHT MEDICAL GROUP, INC.
By:		/s/ Lance A. Berry
Name:		Lance A. Berry
Title:		Senior Vice President and Chief
		Financial Officer
WRIGHT MEDICAL GROUP N.V.
By:		/s/ David H. Mowry
Name:		David H. Mowry
Title:		Executive Vice President and Chief
		Operating Officer

 

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Exhibit A

Confirmation

Exhibit 10.4

EXECUTION VERSION

AMENDMENT TO THE WARRANT CONFIRMATION

 

Date:		November 24, 2015
From:		Deutsche Bank
		Deutsche Bank AG, London Branch (“Dealer”) Winchester house 1 Great Winchester St, London EC2N 2DB Telephone: 44 20 7545 8000   c/o Deutsche Bank Securities Inc. 60 Wall Street New York, NY 10005 Telephone: 212-250-2500
To:		Wright Medical Group, Inc. (“Company”) 5677 Airline Road, Arlington, TN 38002 Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398   And
		Wright Medical Group N.V. Prins Bernhardplein 200 1097 JB Amsterdam, The Netherlands Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398 Email: jim.lightman@wmt.com
Subject:		Amendment to the Base Warrant Confirmation dated February 9, 2015

 

Chairman of the Supervisory Board: Dr. Paul Achleitner. Management Board: John Cryan (Co-Chairman), Jürgen Fitschen (Co-Chairman), Stuart Lewis, Sylvie Matherat, Henry Ritchotte, Karl von Rohr, Marcus Schenck, Christian Sewing.   Deutsche Bank AG is authorised under German Banking Law (competent authority: European Central Bank and the BaFin, Germany’s Federal Financial Supervisory Authority) and, in the United Kingdom, by the Prudential Regulation Authority. It is subject to supervision by the European Central Bank and by BaFin, and is subject to limited regulation in the United Kingdom by the Financial Conduct Authority and the Prudential Regulation Authority.		Deutsche Bank AG is a joint stock corporation with limited liability incorporated in the Federal Republic of Germany, Local Court of Frankfurt am Main, HRB No. 30 000; Branch Registration in England and Wales BR000005 and Registered Address: Winchester House, 1 Great Winchester Street, London EC2N 2DB. Deutsche Bank AG, London Branch is a member of the London Stock Exchange. (Details about the extent of our authorisation and regulation by the Prudential Regulation Authority, and regulation by the Financial Conduct Authority, are available on request or from www.db.com/en/content/eu_disclosures.htm)

 

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The purpose of this Amendment to the Confirmation (this “Amendment”) is to amend certain terms and conditions of the Transaction (as defined below). Reference is made to the letter agreement dated as of February 9, 2015 (the “Confirmation”, which is attached hereto as Exhibit A) that confirms the terms and conditions of the Warrants issued by the Company to the Dealer as of the Trade Date, as amended hereby (the “Transaction”). Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the Confirmation; provided that if such meaning is amended thereby, such amended meaning shall apply.

On October 1, 2015, Company and Wright Medical Group N.V. (which was previously known as Tornier N.V., the “Parent”) completed the Tornier Merger Transaction.

DEUTSCHE BANK AG, LONDON BRANCH IS NOT REGISTERED AS A BROKER DEALER UNDER THE U.S. SECURITIES EXCHANGE ACT OF 1934. DEUTSCHE BANK SECURITIES INC. (“DBSI”) HAS ACTED SOLELY AS AGENT IN CONNECTION WITH THE TRANSACTION AND HAS NO OBLIGATION, BY WAY OF ISSUANCE, ENDORSEMENT, GUARANTEE OR OTHERWISE WITH RESPECT TO THE PERFORMANCE OF EITHER PARTY UNDER THE TRANSACTION. AS SUCH, ALL DELIVERY OF FUNDS, ASSETS, NOTICES, DEMANDS AND COMMUNICATIONS OF ANY KIND RELATING TO THIS TRANSACTION BETWEEN DEUTSCHE BANK AG, LONDON BRANCH, AND COUNTERPARTY SHALL BE TRANSMITTED EXCLUSIVELY THROUGH DEUTSCHE BANK SECURITIES INC. DEUTSCHE BANK AG, LONDON BRANCH IS NOT A MEMBER OF THE SECURITIES INVESTOR PROTECTION CORPORATION (SIPC).

In consideration of the premises and the agreements, provisions and covenants contained in this Amendment, Company, Dealer and Parent hereby agree as follows:

 

1.	Assignment and Assumption.

 

(a)

For an agreed consideration, the Company hereby assigns to the Parent, and the Parent hereby irrevocably assumes from the Company, as of the date hereof, all the obligations of Company under the Confirmation and all the obligations of the “Issuer” (with the meaning of such term amended in accordance with Section 2(a) below) under the Confirmation, provided that the representations and warranties of the Company in Section 8 of the Confirmation shall be replaced by the representations and warranties of the Parent in Section 3 of this Amendment. From and after the date hereof, Parent shall assume and succeed to the obligation of the Company to make due and punctual payment and delivery of all payment and delivery obligations under the Confirmation and the performance and observation of every covenant or other obligation on the part of the Company and/or the Issuer to be performed or observed by it.

 

(b)

On or prior to the Currency Business Day immediately following the date hereof, the Dealer shall transfer to the Parent a cash amount in Euros (the “Par Value Payment”) equal to the product of (i) a number of Shares equal to the Number of Warrants multiplied by the Warrant Entitlement, subject to any adjustments made to such numbers by the Calculation Agent on or prior to the date of such payment,

 

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and (ii) the par value per Share as of such date. Such Par Value Payment shall constitute an advance payment for purposes of paying up the Shares issuable upon exercise of the Warrants. Upon receipt, Parent shall reserve the Par Value Payment and apply the Par Value Payment against the obligation to pay-up the Shares upon exercise of the Warrants. To the extent that the Par Value Payment exceeds the aggregate nominal value of the Shares issued upon exercise of the Warrants, then such excess shall be regarded as share premium.

 

2.	Adjustments to General Terms.

The definition of “Shares” in the Confirmation is replaced in its entirety with the following new definition:

“The ordinary shares, par value 0.03 Euros per share, of Wright Medical Group N.V. (Exchange symbol “WMGI”). As a result, for the avoidance of doubt, references to “Issuer” and to “Company” throughout this Confirmation refer to Wright Medical Group N.V.”

 

3.	Representations and Warranties.

Parent hereby represents and warrants to Dealer on the date hereof, and in the case of the representations in Section 3(a) below, at all times until termination of the Transaction that:

 

(a)

Parent has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction as amended by this Amendment; such execution, delivery and performance have been duly authorized by all necessary corporate action on Parent’s part; and this Amendment has been duly and validly executed and delivered by Parent and constitutes its valid and binding obligation, enforceable against Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.

 

(b)

Neither the execution and delivery of this Amendment nor the incurrence or performance of obligations of Parent hereunder will conflict with or result in a breach of the articles of association of Parent, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which Parent or any of its subsidiaries is a party or by which Parent or any of its subsidiaries is bound or to which Parent or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.

 

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(c)

No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Parent of this Amendment, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws or under the Dutch Act on Financial Supervision (Wet op het Financieel Toezicht).

 

(d)

The issuance of the number of Shares equal to the Maximum Number of Shares has been duly authorized and, upon payment in full of the Par Value Payment and otherwise as contemplated by the terms of the Warrants, including Section 5 of the Amendment, following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully-paid, and the issuance of the Warrant Shares will not be subject to any preemptive or similar rights and the Warrant Shares shall upon issuance be accepted for listing or quotation on the Exchange.

 

(e)

Parent is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

 

(f)

Parent is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18) (C) of the Commodity Exchange Act).

 

(g)

Parent and each of its affiliates are not, on the date hereof, in possession of any material non-public information with respect to Parent or the Shares.

 

(h)

No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity), except for the reporting requirements of the Exchange Act and rules promulgated thereunder, or, at and after the Tornier Merger Transaction, the reporting or registration requirements of the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969), in each case, as a result of Dealer or its affiliates owning or holding (however defined) Shares.

 

(i)

Parent (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.

 

(j)

It is a party which is able to adhere to the Attachment to the ISDA 2013 EMIR NFC Representation Protocol published by ISDA on March 8, 2013 (the “NFC Representation Protocol”) as if it were a party making the NFC Representation (as such term is defined in the NFC Representation Protocol.

 

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4.	Other Provisions.

 

(a)

Repurchase Notices. The first sentence of Section 9(b) of the Confirmation is replaced with the following sentence:

“Issuer shall, on any day on which Issuer effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares on such day, subject to any adjustments provided herein, is (i) less than 97,854,977 (in the case of the first such notice) or (ii) thereafter more than 4,332,691 less than the number of Shares included in the immediately preceding Repurchase Notice.”.

 

(b)

Additional Termination Events. Section 9(h)(ii) of the Confirmation is hereby amended by inserting the following clause (J) at the end thereof:

“(J) On any day during the period from and including the date hereof, to and including the final Expiration Date, (I) the Notional Unwind Shares (as defined below) as of such day exceeds a number of Shares equal to 90.0% of the Par Value Delivery Number, or (II) Company makes a public announcement of any transaction or event that, in the reasonable opinion of Dealer would, upon consummation of such transaction or upon the occurrence of such event, as applicable, and after giving effect to any applicable adjustments hereunder, cause the Notional Unwind Shares immediately following the consummation of such transaction or the occurrence of such event to exceed a number of Shares equal to 90.0% of the Par Value Delivery Number. The “Notional Unwind Shares” as of any day is a number of Shares equal to (1) the amount that would be payable pursuant to Section 6 of the Agreement (determined as of such day as if an Early Termination Date had been designated in respect of the Transaction and as if the Company were the sole Affected Party and the Transaction were the sole Affected Transaction), divided by (2) the Settlement Price (determined as if such day were a Valuation Date). “Par Value Delivery Number” means a number of Shares equal to (i) the Par Value Payment divided by (ii) the par value per Share.”

 

(c)

Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. Section 9(j)(i)(b) of the Confirmation is replaced in its entirety with the following new Section 9(j)(i)(b):

“(b) Issuer represents to Dealer that each of Issuer and its affiliates is not, as of the date of such election, in possession of any material non-public information with respect to Issuer or the Shares and”.

 

(d)

Status of Claims in Bankruptcy. Section 9(r) of the Confirmation is replaced in its entirety with the following new Section 9(r):

 

5

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“Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Issuer with respect to the Transaction that are senior to the claims of shareholders of Issuer in any bankruptcy proceedings of Issuer; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Issuer of its obligations and agreements with respect to the Transaction other than during any such bankruptcy proceedings; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.”.

 

(e)

Non-Occurrence of Tornier Merger Transaction. Sections 9(aa) and 9(bb) of the Confirmation are hereby deleted in their entirety and replaced with “[Reserved]”.

 

(f)

Maximum Share Delivery. Section 9(p)(ii) of the Confirmation is replaced in its entirety with the following new Section 9(p)(ii):

In the event Issuer shall not have issued to Dealer the full number of Shares or Restricted Shares otherwise to be issued by Issuer to Dealer pursuant to the terms of the Transaction because Issuer has insufficient authorized capital to issue the full number of Shares or Restricted Shares (such deficit, the “Deficit Shares”), Issuer shall be continually obligated to transfer, from time to time, Shares or Restricted Shares, as the case may be, to Dealer until the full number of Deficit Shares have been transferred pursuant to this Section 9(p)(ii), when, and to the extent that Shares are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), provided that in no event shall Issuer transfer any Shares or Restricted Shares to Dealer pursuant to this Section 9(p)(ii) to the extent that such transfer would cause the aggregate number of Shares and Restricted Shares transferred to Dealer to exceed the Maximum Number of Shares. Issuer shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares that are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date and the corresponding number of Shares or Restricted Shares, as the case may be, to be transferred) and promptly transfer such Shares or Restricted Shares, as the case may be, thereafter.

 

(g)

Relevant Excess Amount Notice Obligation. Section 9(cc) of the Confirmation is replaced in its entirety with the following new Section 9(cc):

“(cc) Promptly following the public announcement by Issuer of any proposal, transaction or event that if approved or consummated would result in a change to the par value of the Shares or require any additional payment by Dealer in respect of the par value of the Warrant Shares, Issuer shall notify Dealer of such public announcement; provided, however, that Issuer’s failure to notify Dealer of such public announcement shall not constitute an Event of Default or Termination Event to the extent Issuer pays to Dealer an amount in EUR equal to the Relevant Excess Amount, if any, corresponding to such amendment.”

 

6

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5.

Share Issue. Dealer acknowledges that to the extent (but solely to the extent) the issue of a Share hereunder would result in (i) the amount in EUR equal to the product of (x) the aggregate number of Shares issued to Dealer pursuant hereto and (y) the par value per Share to exceed (ii) the aggregate amount in EUR paid to Parent in connection with the Transaction (whether pursuant to the Par Value Payment or otherwise paid to Parent for purposes of paying up the aggregate par value of the Shares issuable upon exercise of the Warrants, and whether on the date of issue or delivery of such Share or at such prior time as Dealer may elect), Parent will not be required to issue such Share unless and until Dealer pays such amounts to the Parent as a payment (volstorting) on such Share as required to eliminate such excess or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue. If any issue and/or delivery owed to Dealer under the Transaction is not made, in whole or in part, as a result of this provision, Parent’s obligation to make such issue and/or delivery shall not be extinguished and Parent shall make such issue and delivery as promptly as practicable after, but in no event later than one Business Day after, Dealer (whether on or after the original date of issue and delivery of the relevant Share) pays such amounts to the Parent as a payment (volstorting) on such Share as required under this provision to give effect to such issue or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue.

 

6.

Scope of the Amendment. This Amendment amends solely the terms and provisions of the Transaction and the Confirmation set forth herein and nothing in this Amendment is intended or shall be construed as amending or waiving any other terms or provisions of the Transaction, the Confirmation or any other rights of the Company or Dealer under the Transaction or the Confirmation. Company, Parent and Dealer acknowledge that each of the Transaction and the Confirmation (each as amended by this Amendment) are in full force and effect and is hereby confirmed and ratified in all respects. References in the Confirmation to the Transaction or the Confirmation shall mean the Transaction or the Confirmation as amended by this Amendment.

 

7.	2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol.

 

(a)

The parties agree that the terms of the 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol published by ISDA on July 19, 2013 (“Protocol”) apply to the Agreement as if the parties had adhered to the Protocol without amendment. In respect of the Attachment to the Protocol, (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this Section i (and references to “such party’s Adherence Letter” and “its Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into this Agreement”, (iii) references to “Protocol Covered Agreement” shall be deemed to be references to this Agreement (and each “Protocol Covered Agreement” shall be read accordingly), and (iv) references to “Implementation Date” shall be deemed to be references to the date of this Agreement. For the purposes of this Section i:

 

(i)

Dealer is a Portfolio Data Sending Entity and Company is a Portfolio Data Receiving Entity;

 

(ii)

Dealer and Company may use a Third Party Service Provider, and each of Dealer and Company consents to such use including the communication of the relevant data in relation to Dealer and Company to such Third Party Service Provider for the purposes of the reconciliation services provided by such entity.

 

(iii)

The Local Business Days for such purposes in relation to Dealer are New York, London, Frankfurt, Tokyo and Singapore and in relation to Company are New York;

 

(iv)

The provisions in this paragraph shall survive the termination of this Transaction.

 

(v)

The following are the applicable email addresses.

Portfolio Data:

Dealer: collateral.disputes@db.com

Company: jim.lightman@wmt.com

Notice of discrepancy:

Dealer: collateral.disputes@db.com

Company: jim.lightman@wmt.com

Dispute Notice:

Dealer: collateral.disputes@db.com

Company: jim.lightman@wmt.com

 

(b)

NFC Representation Protocol.

 

(i)

The parties agree that the provisions set out in the Attachment to the ISDA 2013 EMIR NFC Representation Protocol published by ISDA on March 8, 2013 (the “NFC Representation Protocol”) shall apply to the Agreement as if each party were an Adhering Party under the terms of the NFC Representation Protocol. In respect of the Attachment to the Protocol, (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this Section 2 (and references to “the relevant Adherence Letter” and “its Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into this Agreement”, (iii) references to “Covered Master Agreement” shall be deemed to be references to this Agreement (and each “Covered Master Agreement” shall be read accordingly), and (iv) references to “Implementation Date” shall be deemed to be references to the date of this Agreement.

 

(ii)

Company confirms that it enters into this Agreement as a party making the NFC Representation (as such term is defined in the NFC Representation Protocol). Company shall promptly notify Dealer of any change to its status as a party making the NFC Representation.

 

(iii)

Transaction Reporting - Consent for Disclosure of Information. Notwithstanding anything to the contrary herein or in the Agreement or any non-disclosure, confidentiality or other agreements entered into between the parties from time to time, each party hereby consents to the Disclosure of information (the “Reporting Consent”):

 

(A)

to the extent required by, or necessary in order to comply with, any applicable law, rule or regulation which mandates Disclosure of transaction and similar information or to the extent required by, or necessary in order to comply with, any order, request or directive regarding Disclosure of transaction and similar information issued by any relevant authority or body or agency (“Reporting Requirements”); or

 

(B)

to and between the other party’s head office, branches or affiliates; to any person, agent, third party or entity who provides services to such other party or its head office, branches or affiliates; to a Market; or to any trade data repository or any systems or services operated by any trade repository or Market, in each case, in connection with such Reporting Requirements.

“Disclosure” means disclosure, reporting, retention, or any action similar or analogous to any of the aforementioned.

“Market” means any exchange, regulated market, clearing house, central clearing counterparty or multilateral trading facility.

Disclosures made pursuant to this Reporting Consent may include, without limitation, Disclosure of information relating to disputes over transactions between the parties, a party’s identity, and certain transaction and pricing data and may result in such information becoming available to the public or recipients in a jurisdiction which may have a different level of protection for personal data from that of the relevant party’s home jurisdiction.

This Reporting Consent shall be deemed to constitute an agreement between the parties with respect to Disclosure in general and shall survive the termination of this Confirmation. No amendment to or termination of this Reporting Consent shall be effective unless such amendment or termination is made in writing between the parties and specifically refers to this Reporting Consent.

 

8.	Governing Law. This Amendment will be governed by and construed in accordance with laws of the State of New York (without reference to choice of law doctrine).

 

9.

Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction, as amended by this Amendment. Each party (i) certifies that no representative, agent or attorney of any party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties have been induced to enter into the Transaction, as amended by this Amendment, as applicable, by, among other things, the mutual waivers and certifications provided herein.

 

10.	Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

[Remainder of page left blank intentionally]

 

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EXECUTION VERSION

Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Amendment and returning it to 44 113 336 2009.

We are very pleased to have executed the Transaction with you and we look forward to completing other transactions with you in the near future.

 

 

Chairman of the Supervisory Board: Dr. Paul Achleitner. Management Board: John Cryan (Co-Chairman), Jürgen Fitschen (Co-Chairman), Stuart Lewis, Sylvie Matherat, Henry Ritchotte, Karl von Rohr, Marcus Schenck, Christian Sewing.   Deutsche Bank AG is authorised under German Banking Law (competent authority: European Central Bank and the BaFin, Germany’s Federal Financial Supervisory Authority) and, in the United Kingdom, by the Prudential Regulation Authority. It is subject to supervision by the European Central Bank and by BaFin, and is subject to limited regulation in the United Kingdom by the Financial Conduct Authority and the Prudential Regulation Authority.		Deutsche Bank AG is a joint stock corporation with limited liability incorporated in the Federal Republic of Germany, Local Court of Frankfurt am Main, HRB No. 30 000; Branch Registration in England and Wales BR000005 and Registered Address: Winchester House, 1 Great Winchester Street, London EC2N 2DB. Deutsche Bank AG, London Branch is a member of the London Stock Exchange. (Details about the extent of our authorisation and regulation by the Prudential Regulation Authority, and regulation by the Financial Conduct Authority, are available on request or from www.db.com/en/content/eu_disclosures.htm)

 

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Accepted and confirmed
as of the date first written above:
WRIGHT MEDICAL GROUP, INC.
By:		/s/ Lance A. Berry
Name:		Lance A. Berry
Title:		Senior Vice President and Chief
		Financial Officer
WRIGHT MEDICAL GROUP N.V.
By:		/s/ David H. Mowry
Name:		David H. Mowry
Title:		Executive Vice President and Chief
		Operating Officer

 

9

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Exhibit A

Confirmation

 

10

Exhibit 10.5

EXECUTION VERSION

AMENDMENT TO THE WARRANT CONFIRMATION

 

Date:		November 24, 2015
From:		JPMorgan Chase Bank, National Association (“Dealer”) London Branch 25 Bank Street Canary Wharf London E14 5JP England
		c/o J.P. Morgan Securities LLC 383 Madison Ave. New York, NY 10179
To:		Wright Medical Group, Inc. (“Company”) 5677 Airline Road, Arlington, TN 38002 Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398
		And
		Wright Medical Group N.V. Prins Bernhardplein 200 1097 JB Amsterdam, The Netherlands Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398 Email: jim.lightman@wmt.com
Subject:		Amendment to the Additional Warrant Confirmation dated February 10, 2015

The purpose of this Amendment to the Confirmation (this “Amendment”) is to amend certain terms and conditions of the Transaction (as defined below). Reference is made to the letter agreement dated as of February 10, 2015 (the “Confirmation”, which is attached hereto as Exhibit A) that confirms the terms and conditions of the Warrants issued by the Company to the Dealer as of the Trade Date, as amended hereby (the “Transaction”). Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the Confirmation; provided that if such meaning is amended thereby, such amended meaning shall apply.

On October 1, 2015, Company and Wright Medical Group N.V. (which was previously known as Tornier N.V., the “Parent”) completed the Tornier Merger Transaction.

 

1

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In consideration of the premises and the agreements, provisions and covenants contained in this Amendment, Company, Dealer and Parent hereby agree as follows:

 

1.	Assignment and Assumption.

 

(a)

For an agreed consideration, the Company hereby assigns to the Parent, and the Parent hereby irrevocably assumes from the Company, as of the date hereof, all the obligations of Company under the Confirmation and all the obligations of the “Issuer” (with the meaning of such term amended in accordance with Section 2(a) below) under the Confirmation, provided that the representations and warranties of the Company in Section 8 of the Confirmation shall be replaced by the representations and warranties of the Parent in Section 3 of this Amendment. From and after the date hereof, Parent shall assume and succeed to the obligation of the Company to make due and punctual payment and delivery of all payment and delivery obligations under the Confirmation and the performance and observation of every covenant or other obligation on the part of the Company and/or the Issuer to be performed or observed by it.

 

(b)

On or prior to the Currency Business Day immediately following the date hereof, the Dealer shall transfer to the Parent a cash amount in Euros (the “Par Value Payment”) equal to the product of (i) a number of Shares equal to the Number of Warrants multiplied by the Warrant Entitlement, subject to any adjustments made to such numbers by the Calculation Agent on or prior to the date of such payment, and (ii) the par value per Share as of such date. Such Par Value Payment shall constitute an advance payment for purposes of paying up the Shares issuable upon exercise of the Warrants. Upon receipt, Parent shall reserve the Par Value Payment and apply the Par Value Payment against the obligation to pay-up the Shares upon exercise of the Warrants. To the extent that the Par Value Payment exceeds the aggregate nominal value of the Shares issued upon exercise of the Warrants, then such excess shall be regarded as share premium.

 

2.	Adjustments to General Terms.

The definition of “Shares” in the Confirmation is replaced in its entirety with the following new definition:

“The ordinary shares, par value 0.03 Euros per share, of Wright Medical Group N.V. (Exchange symbol “WMGI”). As a result, for the avoidance of doubt, references to “Issuer” and to “Company” throughout this Confirmation refer to Wright Medical Group N.V.”

 

3.	Representations and Warranties.

Parent hereby represents and warrants to Dealer on the date hereof, and in the case of the representations in Section 3(a) below, at all times until termination of the Transaction that:

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(a)

Parent has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction as amended by this Amendment; such execution, delivery and performance have been duly authorized by all necessary corporate action on Parent’s part; and this Amendment has been duly and validly executed and delivered by Parent and constitutes its valid and binding obligation, enforceable against Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.

 

(b)

Neither the execution and delivery of this Amendment nor the incurrence or performance of obligations of Parent hereunder will conflict with or result in a breach of the articles of association of Parent, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which Parent or any of its subsidiaries is a party or by which Parent or any of its subsidiaries is bound or to which Parent or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.

 

(c)

No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Parent of this Amendment, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws or under the Dutch Act on Financial Supervision (Wet op het Financieel Toezicht).

 

(d)

The issuance of the number of Shares equal to the Maximum Number of Shares has been duly authorized and, upon payment in full of the Par Value Payment and otherwise as contemplated by the terms of the Warrants, including Section 5 of the Amendment, following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully-paid, and the issuance of the Warrant Shares will not be subject to any preemptive rights and the Warrant Shares shall upon issuance be accepted for listing or quotation on the Exchange.

 

(e)

Parent is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

 

(f)

Parent is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18) (C) of the Commodity Exchange Act).

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(g)

Parent and each of its affiliates are not, on the date hereof, in possession of any material non-public information with respect to Parent or the Shares.

 

(h)

No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity), except for the reporting requirements of the Exchange Act and rules promulgated thereunder, or, at and after the Tornier Merger Transaction, the reporting or registration requirements of the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969), in each case, as a result of Dealer or its affiliates owning or holding (however defined) Shares.

 

(i)

Parent (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.

 

4.	Other Provisions.

 

(a)

Repurchase Notices. The first sentence of Section 9(b) of the Confirmation is replaced with the following sentence:

“Issuer shall, on any day on which Issuer effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares on such day, subject to any adjustments provided herein, is (i) less than 94,923,248 (in the case of the first such notice) or (ii) thereafter more than 6,614,326 less than the number of Shares included in the immediately preceding Repurchase Notice.”.

 

(b)

Additional Termination Events. Section 9(h)(ii) of the Confirmation is hereby amended by inserting the following clause (J) at the end thereof:

“(J) On any day during the period from and including the date hereof, to and including the final Expiration Date, (I) the Notional Unwind Shares (as defined below) as of such day exceeds a number of Shares equal to 90.0% of the Par Value Delivery Number, or (II) Company makes a public announcement of any transaction or event that, in the reasonable opinion of Dealer would, upon consummation of such transaction or upon the occurrence of such event, as applicable, and after giving effect to any applicable adjustments hereunder, cause the Notional Unwind Shares immediately following the consummation of such transaction or the occurrence of such event to exceed a number of Shares equal to 90.0% of the Par Value Delivery Number. The “Notional Unwind Shares” as of any day is a number of Shares equal to (1) the amount that would be payable pursuant to Section 6 of the Agreement (determined as of such day as if an Early Termination Date had been designated in respect of the Transaction and as if the

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Company were the sole Affected Party and the Transaction were the sole Affected Transaction), divided by (2) the Settlement Price (determined as if such day were a Valuation Date). “Par Value Delivery Number” means a number of Shares equal to (i) the Par Value Payment divided by (ii) the par value per Share.”

 

(c)

Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. Section 9(j)(i)(b) of the Confirmation is replaced in its entirety with the following new Section 9(j)(i)(b):

 

“(b)

Issuer represents to Dealer that each of Issuer and its affiliates is not, as of the date of such election, in possession of any material non-public information with respect to Issuer or the Shares and”.

 

(d)

Status of Claims in Bankruptcy. Section 9(r) of the Confirmation is replaced in its entirety with the following new Section 9(r):

“Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Issuer with respect to the Transaction that are senior to the claims of shareholders of Issuer in any bankruptcy proceedings of Issuer; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Issuer of its obligations and agreements with respect to the Transaction other than during any such bankruptcy proceedings; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.”.

 

(e)

Non-Occurrence of Tornier Merger Transaction. Sections 9(aa) and 9(bb) of the Confirmation are hereby deleted in their entirety and replaced with “[Reserved]”.

 

(f)

Maximum Share Delivery. Section 9(p)(ii) of the Confirmation is replaced in its entirety with the following new Section 9(p)(ii):

In the event Issuer shall not have issued to Dealer the full number of Shares or Restricted Shares otherwise to be issued by Issuer to Dealer pursuant to the terms of the Transaction because Issuer has insufficient authorized capital to issue the full number of Shares or Restricted Shares (such deficit, the “Deficit Shares”), Issuer shall be continually obligated to transfer, from time to time, Shares or Restricted Shares, as the case may be, to Dealer until the full number of Deficit Shares have been transferred pursuant to this Section 9(p)(ii), when, and to the extent that Shares are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), provided that in no event shall Issuer transfer any Shares or Restricted Shares to Dealer pursuant to this Section 9(p)(ii) to the extent that such transfer would cause the aggregate number of Shares and Restricted Shares transferred to Dealer to exceed the Maximum Number of Shares. Issuer shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares that are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date and the corresponding number of Shares or Restricted Shares, as the case may be, to be transferred) and promptly transfer such Shares or Restricted Shares, as the case may be, thereafter.

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(g)

Relevant Excess Amount Notice Obligation. Section 9(cc) of the Confirmation is replaced in its entirety with the following new Section 9(cc):

“(cc) Promptly following the public announcement by Issuer of a proposal to amend the Issuer’s articles of association in order to increase the nominal value of the Shares, Issuer shall notify Dealer of such public announcement; provided, however, that Issuer’s failure to notify Dealer of such public announcement shall not constitute an Event of Default or Termination Event to the extent Issuer pays to Dealer an amount in EUR equal to the Relevant Excess Amount, if any, corresponding to such amendment.”

 

5.

Share Issue. Dealer acknowledges that to the extent (but solely to the extent) the issue of a Share hereunder would result in (i) the amount in EUR equal to the product of (x) the aggregate number of Shares issued to Dealer pursuant hereto and (y) the par value per Share to exceed (ii) the aggregate amount in EUR paid to Parent in connection with the Transaction (whether pursuant to the Par Value Payment or otherwise paid to Parent for purposes of paying up the aggregate par value of the Shares issuable upon exercise of the Warrants, and whether on the date of issue or delivery of such Share or at such prior time as Dealer may elect), Parent will not be required to issue such Share unless and until Dealer pays such amounts to the Parent as a payment (volstorting) on such Share as required to eliminate such excess or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue. If any issue and/or delivery owed to Dealer under the Transaction is not made, in whole or in part, as a result of this provision, Parent’s obligation to make such issue and/or delivery shall not be extinguished and Parent shall make such issue and delivery as promptly as practicable after, but in no event later than one Business Day after, Dealer (whether on or after the original date of issue and delivery of the relevant Share) pays such amounts to the Parent as a payment (volstorting) on such Share as required under this provision to give effect to such issue or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue.

 

6.

Scope of the Amendment. This Amendment amends solely the terms and provisions of the Transaction and the Confirmation set forth herein and nothing in this Amendment is intended or shall be construed as amending or waiving any other terms or provisions of the Transaction, the Confirmation or any other rights of the Company or Dealer under the Transaction or the Confirmation. Company, Parent and Dealer acknowledge that each of the Transaction and the Confirmation (each as amended by this Amendment) are in full force and effect and is hereby confirmed and ratified in all respects. References in the Confirmation to the Transaction or the Confirmation shall mean the Transaction or the Confirmation as amended by this Amendment.

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7.	2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol.

 

(a)

The parties agree that the terms of the 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol published by ISDA on July 19, 2013 (“Protocol”) apply to the Agreement as if the parties had adhered to the Protocol without amendment. In respect of the Attachment to the Protocol, (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this Section 7(a) (and references to “such party’s Adherence Letter” and “its Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into this Amendment”, (iii) references to “Protocol Covered Agreement” shall be deemed to be references to the Agreement (and “each Protocol Covered Agreement” shall be read accordingly), (iv) references to “Implementation Date” shall be deemed to be references to the date of this Amendment, and (v) the term “the parties” shall be construed as referring to Dealer and the Company. For the purposes of this Section 7(a):

 

(i)

Dealer is a Portfolio Data Sending Entity and the Company is a Portfolio Data Receiving Entity;

 

(ii)

The Local Business Days for such purposes in relation to Dealer are London and in relation to Company are New York and Amsterdam;

 

(iii)

The provisions in this 7(a) shall survive the termination of the Transaction; and

 

(iv)

The following are the applicable email addresses.

 

 

8.	Governing Law. This Amendment will be governed by and construed in accordance with laws of the State of New York (without reference to choice of law doctrine).

 

9.

Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction, as amended by this Amendment. Each party (i) certifies that no representative, agent or attorney of any party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties have been induced to enter into the Transaction, as amended by this Amendment, as applicable, by, among other things, the mutual waivers and certifications provided herein.

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10.	Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

[Remainder of page left blank intentionally]

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EXECUTION VERSION

Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Amendment and returning it to J.P. Morgan Securities LLC, 383 Madison Ave, New York, NY 10179, and by email to EDG_Notices@jpmorgan.com and EDG_NY_Corporate_Sales_Support@jpmorgan.com.

 

 

9

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Accepted and confirmed
as of the date first written above:
WRIGHT MEDICAL GROUP, INC.
By:		/s/ Lance A. Berry
Name:		Lance A. Berry
Title:		Senior Vice President and Chief
		Financial Officer
WRIGHT MEDICAL GROUP N.V.
By:		/s/ David H. Mowry
Name:		David H. Mowry
Title:		Executive Vice President and Chief
		Operating Officer

 

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Exhibit A

Confirmation

Exhibit 10.6

EXECUTION VERSION

AMENDMENT TO THE WARRANT CONFIRMATION

 

Date:		November 24, 2015
From:		Wells Fargo Bank, National Association (“Dealer”) 375 Park Avenue New York, NY 10152 Attn: Structuring Services Group Telephone: 212-214-6101 Facsimile: 212-214-5913
To:		Wright Medical Group, Inc. (“Company”) 5677 Airline Road, Arlington, TN 38002 Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398   And
		Wright Medical Group N.V. Prins Bernhardplein 200 1097 JB Amsterdam, The Netherlands Attention: James A. Lightman | Sr. Vice President, General Counsel and Secretary Telephone No.: (901) 867-4743 Facsimile No.: (901) 867-4398 Email: jim.lightman@wmt.com
Subject:		Amendment to the Additional Warrant Confirmation dated February 10, 2015

The purpose of this Amendment to the Confirmation (this “Amendment”) is to amend certain terms and conditions of the Transaction (as defined below). Reference is made to the letter agreement dated as of February 10, 2015 (the “Confirmation”, which is attached hereto as Exhibit A) that confirms the terms and conditions of the Warrants issued by the Company to the Dealer as of the Trade Date, as amended hereby (the “Transaction”). Capitalized terms used herein but not defined herein shall have the meanings given to such terms in the Confirmation; provided that if such meaning is amended thereby, such amended meaning shall apply.

 

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On October 1, 2015, Company and Wright Medical Group N.V. (which was previously known as Tornier N.V., the “Parent”) completed the Tornier Merger Transaction.

In consideration of the premises and the agreements, provisions and covenants contained in this Amendment, Company, Dealer and Parent hereby agree as follows:

 

1.	Assignment and Assumption.

 

(a)

For an agreed consideration, the Company hereby assigns to the Parent, and the Parent hereby irrevocably assumes from the Company, as of the date hereof, all the obligations of Company under the Confirmation and all the obligations of the “Issuer” (with the meaning of such term amended in accordance with Section 2(a) below) under the Confirmation, provided that the representations and warranties of the Company in Section 8 of the Confirmation shall be replaced by the representations and warranties of the Parent in Section 3 of this Amendment. From and after the date hereof, Parent shall assume and succeed to the obligation of the Company to make due and punctual payment and delivery of all payment and delivery obligations under the Confirmation and the performance and observation of every covenant or other obligation on the part of the Company and/or the Issuer to be performed or observed by it.

 

(b)

On or prior to the Currency Business Day immediately following the date hereof, the Dealer shall transfer to the Parent a cash amount in Euros (the “Par Value Payment”) equal to the product of (i) a number of Shares equal to the Number of Warrants multiplied by the Warrant Entitlement, subject to any adjustments made to such numbers by the Calculation Agent on or prior to the date of such payment, and (ii) the par value per Share as of such date. Such Par Value Payment shall constitute an advance payment for purposes of paying up the Shares issuable upon exercise of the Warrants. Upon receipt, Parent shall reserve the Par Value Payment and apply the Par Value Payment against the obligation to pay-up the Shares upon exercise of the Warrants. To the extent that the Par Value Payment exceeds the aggregate nominal value of the Shares issued upon exercise of the Warrants, then such excess shall be regarded as share premium.

 

2.	Adjustments to General Terms.

The definition of “Shares” in the Confirmation is replaced in its entirety with the following new definition:

“The ordinary shares, par value 0.03 Euros per share, of Wright Medical Group N.V. (Exchange symbol “WMGI”). As a result, for the avoidance of doubt, references to “Issuer” and to “Company” throughout this Confirmation refer to Wright Medical Group N.V.”

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3.	Representations and Warranties.

Parent hereby represents and warrants to Dealer on the date hereof, and in the case of the representations in Section 3(a) below, at all times until termination of the Transaction that:

 

(a)

Parent has all necessary corporate power and authority to execute, deliver and perform its obligations in respect of the Transaction as amended by this Amendment; such execution, delivery and performance have been duly authorized by all necessary corporate action on Parent’s part; and this Amendment has been duly and validly executed and delivered by Parent and constitutes its valid and binding obligation, enforceable against Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution hereunder may be limited by federal or state securities laws or public policy relating thereto.

 

(b)

Neither the execution and delivery of this Amendment nor the incurrence or performance of obligations of Parent hereunder will conflict with or result in a breach of the articles of association of Parent, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which Parent or any of its subsidiaries is a party or by which Parent or any of its subsidiaries is bound or to which Parent or any of its subsidiaries is subject, or constitute a default under, or result in the creation of any lien under, any such agreement or instrument.

 

(c)

No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required in connection with the execution, delivery or performance by Parent of this Amendment, except such as have been obtained or made and such as may be required under the Securities Act or state securities laws or under the Dutch Act on Financial Supervision (Wet op het Financieel Toezicht).

 

(d)

The issuance of the number of Shares equal to the Maximum Number of Shares has been duly authorized and, upon payment in full of the Par Value Payment and otherwise as contemplated by the terms of the Warrants, including Section 5 of the Amendment, following the exercise of the Warrants in accordance with the terms and conditions of the Warrants, will be validly issued, fully-paid, and the issuance of the Warrant Shares will not be subject to any preemptive rights and the Warrant Shares shall upon issuance be accepted for listing or quotation on the Exchange.

 

(e)

Parent is not and, after consummation of the transactions contemplated hereby, will not be required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

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(f)

Parent is an “eligible contract participant” (as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended, other than a person that is an eligible contract participant under Section 1a(18) (C) of the Commodity Exchange Act).

 

(g)

Parent and each of its affiliates are not, on the date hereof, in possession of any material non-public information with respect to Parent or the Shares.

 

(h)

No state or local (including any non-U.S. jurisdiction’s) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity), except for the reporting requirements of the Exchange Act and rules promulgated thereunder, or, at and after the Tornier Merger Transaction, the reporting or registration requirements of the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969), in each case, as a result of Dealer or its affiliates owning or holding (however defined) Shares.

 

(i)

Parent (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least $50 million.

 

4.	Other Provisions.

 

(a)

Repurchase Notices. The first sentence of Section 9(b) of the Confirmation is replaced with the following sentence:

“Issuer shall, on any day on which Issuer effects any repurchase of Shares, promptly give Dealer a written notice of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares on such day, subject to any adjustments provided herein, is (i) less than 91,496,699 (in the case of the first such notice) or (ii) thereafter more than 8,940,373 less than the number of Shares included in the immediately preceding Repurchase Notice.”.

 

(b)

Additional Termination Events. Section 9(h)(ii) of the Confirmation is hereby amended by inserting the following clause (J) at the end thereof:

“(J) On any day during the period from and including the date hereof, to and including the final Expiration Date, (I) the Notional Unwind Shares (as defined below) as of such day exceeds a number of Shares equal to 90.0% of the Par Value Delivery Number, or (II) Company makes a public announcement of any transaction or event that, in the reasonable opinion of Dealer would, upon consummation of such transaction or upon the occurrence of such event, as applicable, and after giving effect to any applicable adjustments hereunder, cause the Notional Unwind Shares immediately following the consummation of such transaction or the occurrence of such event to exceed a number of

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Shares equal to 90.0% of the Par Value Delivery Number. The “Notional Unwind Shares” as of any day is a number of Shares equal to (1) the amount that would be payable pursuant to Section 6 of the Agreement (determined as of such day as if an Early Termination Date had been designated in respect of the Transaction and as if the Company were the sole Affected Party and the Transaction were the sole Affected Transaction), divided by (2) the Settlement Price (determined as if such day were a Valuation Date). “Par Value Delivery Number” means a number of Shares equal to (i) the Par Value Payment divided by (ii) the par value per Share.”

 

(c)

Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. Section 9(j)(i)(b) of the Confirmation is replaced in its entirety with the following new Section 9(j)(i)(b):

 

“(b)

Issuer represents to Dealer that each of Issuer and its affiliates is not, as of the date of such election, in possession of any material non-public information with respect to Issuer or the Shares and”.

 

(d)

Status of Claims in Bankruptcy. Section 9(r) of the Confirmation is replaced in its entirety with the following new Section 9(r):

“Status of Claims in Bankruptcy. Dealer acknowledges and agrees that this Confirmation is not intended to convey to Dealer rights against Issuer with respect to the Transaction that are senior to the claims of shareholders of Issuer in any bankruptcy proceedings of Issuer; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Issuer of its obligations and agreements with respect to the Transaction other than during any such bankruptcy proceedings; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transactions other than the Transaction.”.

 

(e)

Non-Occurrence of Tornier Merger Transaction. Sections 9(aa) and 9(bb) of the Confirmation are hereby deleted in their entirety and replaced with “[Reserved]”.

 

(f)

Maximum Share Delivery. Section 9(p)(ii) of the Confirmation is replaced in its entirety with the following new Section 9(p)(ii):

In the event Issuer shall not have issued to Dealer the full number of Shares or Restricted Shares otherwise to be issued by Issuer to Dealer pursuant to the terms of the Transaction because Issuer has insufficient authorized capital to issue the full number of Shares or Restricted Shares (such deficit, the “Deficit Shares”), Issuer shall be continually obligated to transfer, from time to time, Shares or Restricted Shares, as the case may be, to Dealer until the full number of Deficit Shares have been transferred pursuant to this Section 9(p)(ii), when, and to the extent that Shares are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date (whether or not in exchange for cash, fair value or any other consideration), provided that in no event shall Issuer transfer any Shares or Restricted Shares to Dealer pursuant to this Section 9(p)(ii) to the extent that such transfer would cause the aggregate number of Shares and

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Restricted Shares transferred to Dealer to exceed the Maximum Number of Shares. Issuer shall immediately notify Dealer of the occurrence of any of the foregoing events (including the number of Shares that are repurchased, acquired or otherwise received by Company or any of its subsidiaries after the Trade Date and the corresponding number of Shares or Restricted Shares, as the case may be, to be transferred) and promptly transfer such Shares or Restricted Shares, as the case may be, thereafter.

 

(g)

Relevant Excess Amount Notice Obligation. Section 9(cc) of the Confirmation is replaced in its entirety with the following new Section 9(cc):

“(cc) Promptly following the public announcement by Issuer of a proposal to amend the Issuer’s articles of association in order to increase the nominal value of the Shares, Issuer shall notify Dealer of such public announcement; provided, however, that Issuer’s failure to notify Dealer of such public announcement shall not constitute an Event of Default or Termination Event to the extent Issuer pays to Dealer an amount in EUR equal to the Relevant Excess Amount, if any, corresponding to such amendment.”

 

5.

Share Issue. Dealer acknowledges that to the extent (but solely to the extent) the issue of a Share hereunder would result in (i) the amount in EUR equal to the product of (x) the aggregate number of Shares issued to Dealer pursuant hereto and (y) the par value per Share to exceed (ii) the aggregate amount in EUR paid to Parent in connection with the Transaction (whether pursuant to the Par Value Payment or otherwise paid to Parent for purposes of paying up the aggregate par value of the Shares issuable upon exercise of the Warrants, and whether on the date of issue or delivery of such Share or at such prior time as Dealer may elect), Parent will not be required to issue such Share unless and until Dealer pays such amounts to the Parent as a payment (volstorting) on such Share as required to eliminate such excess or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue. If any issue and/or delivery owed to Dealer under the Transaction is not made, in whole or in part, as a result of this provision, Parent’s obligation to make such issue and/or delivery shall not be extinguished and Parent shall make such issue and delivery as promptly as practicable after, but in no event later than one Business Day after, Dealer (whether on or after the original date of issue and delivery of the relevant Share) pays such amounts to the Parent as a payment (volstorting) on such Share as required under this provision to give effect to such issue or otherwise takes such steps (if any) as required under Dutch law to give effect to such issue.

 

6.

Scope of the Amendment. This Amendment amends solely the terms and provisions of the Transaction and the Confirmation set forth herein and nothing in this Amendment is intended or shall be construed as amending or waiving any other terms or provisions of the Transaction, the Confirmation or any other rights of the Company or Dealer under the Transaction or the Confirmation. Company, Parent and Dealer acknowledge that each of the Transaction and the Confirmation (each as amended by this Amendment) are in full force and effect and is hereby confirmed and ratified in all respects. References in the Confirmation to the Transaction or the Confirmation shall mean the Transaction or the Confirmation as amended by this Amendment.

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7.	2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol.

 

(a)

The parties agree that the terms of the 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol published by ISDA on July 19, 2013 (“Protocol”) apply to the Agreement as if the parties had adhered to the Protocol without amendment. In respect of the Attachment to the Protocol, (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this Section 7(a) (and references to “such party’s Adherence Letter” and “its Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into this Amendment”, (iii) references to “Protocol Covered Agreement” shall be deemed to be references to the Agreement (and “each Protocol Covered Agreement” shall be read accordingly), and (iv) references to “Implementation Date” shall be deemed to be references to the date of this Amendment. For the purposes of this Section 7(a):

 

(i)

Dealer is a Portfolio Data Sending Entity and the Company is a Portfolio Data Receiving Entity;

 

(ii)

Dealer and Company may use a Third Party Service Provider, and each of Dealer and Company consents to such use including the communication of the relevant data in relation to Dealer and Company to such Third Party Service Provider for the purposes of the reconciliation services provided by such entity;

 

(iii)

The Local Business Days for such purposes in relation to Dealer are New York and in relation to Company are New York and Amsterdam;

 

(iv)

The provisions in this 7(a) shall survive the termination of the Transaction; and

 

(v)

The following are the applicable email addresses.

 

 

8.	Governing Law. This Amendment will be governed by and construed in accordance with laws of the State of New York (without reference to choice of law doctrine).

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9.

Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction, as amended by this Amendment. Each party (i) certifies that no representative, agent or attorney of any party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties have been induced to enter into the Transaction, as amended by this Amendment, as applicable, by, among other things, the mutual waivers and certifications provided herein.

 

10.	Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

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EXECUTION VERSION

Please confirm that the foregoing correctly sets forth the terms of our agreement by executing this Amendment and returning it to CorporateDerivativeNotifications@wellsfargo.com.

 

 

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Accepted and confirmed
as of the date first written above:
WRIGHT MEDICAL GROUP, INC.
By:		/s/ Lance A. Berry
Name:		Lance A. Berry
Title:		Senior Vice President and Chief
		Financial Officer
WRIGHT MEDICAL GROUP N.V.
By:		/s/ David H. Mowry
Name:		David H. Mowry
Title:		Executive Vice President and Chief
		Operating Officer

 

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Exhibit A

Confirmation