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Exhibit 4.11
AMENDMENT NO. 1
TO WARRANT AGREEMENT BETWEEN
SEALY CORPORATION AND
SOCIETY NATIONAL BANK AS WARRANT AGENT
THIS AMENDMENT NO. 1 TO WARRANT AGREEMENT between SEALY CORPORATION
(successor in interest to the Ohio Mattress Holding Company), a Delaware
corporation (the "Company"), and SOCIETY NATIONAL BANK as the Warrant Agent
(successor to First Chicago Trust Company), is dated as of the ______ day of
________________, 1995. Capitalized terms not otherwise defined in this
Amendment No. 1 shall have the meanings given them in the Warrant Agreement (as
defined below).
WITNESSETH:
WHEREAS: The Company and the original Warrant Agent entered into a
Warrant Agreement, dated as of the 1st day of August 1989 (the "Warrant
Agreement"), to issue the Warrants which entitled the holders thereof to
purchase shares of Class B Common Stock of the Company; and
WHEREAS: The Company plans to offer its Common Stock for sale to the
public (the "Offering") pursuant to a Registration Statement of Form S-2 to be
filed with the Securities and Exchange Commission; and
WHEREAS: The Company plans on amending its Restated Certificate of
Incorporation to provide for the automatic conversion upon consummation of the
Offering of shares of Class B Common Stock into Common Stock, $.01 par value
per share ("Common Stock"); and
WHEREAS: The Company and the Warrant Agent desire to amend the Warrant
Agreement to accelerate the exercise date of the Warrants to a date beginning
30 days after consummation of the Offering, and to permit holders of the
Warrants to exercise the same through the surrender of Warrants having a value
equal to the exercise price of the underlying shares of Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth in the Warrant Agreement and this Amendment, the parties hereby agree
as follows:
1. Section 1.01 of the Warrant Agreement is hereby amended by adding
the following definitions thereto:
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"Offering" means the public offering of the Company's Common Stock
described in the registration statement of Form S-2 (File No. 33_________) under
the Securities Act of 1933 filed with the Securities and Exchange Commission on
________________,1995.
"Representatives" means the representatives of the underwriters for the
Offering.
2. Section 3.02 is deleted in its entirety and replaced with the
following:
"SECTION 3.02 EXERCISE PERIODS. Subject to the terms and conditions set
forth herein (including Sections 3.03 and 3.08), the Warrants shall be
exercisable at any time or from time to time:
(i) subsequent to August 9, 1995;
(ii) subsequent to the occurrence of any Triggering Event;
(iii) in connection with an Initial Public Offering, but only to
the extent that Warrant Shares issued upon exercise of the Warrants are
included in the registration statement pertaining to the Initial Public
Offering pursuant to Section 4.01, and subsequently sold in such Initial Public
Offering;
(iv) during the 90-day period subsequent to the date of notice by
the Company of the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company ("Liquidation"); or
(v) subsequent to the thirtieth day following the first date that
the Company receives payment for its shares sold in the Offering from the
Representatives."
3. Section 3.04 is deleted in its entirety and replaced with the
following:
"SECTION 3.04 MANNER OF EXERCISE. A Warrant may be exercised
upon (i) surrender to the Company of the certificate evidencing the Warrant at
the office of the Warrant Agent, together with the form of election to purchase
on the reverse thereof duly filled in and signed and (ii) payment to the Warrant
Agent, for the account of the Company, of the Exercise Price for the number of
Warrant Shares in respect of which such Warrant is then exercised. Such payment
shall be made (a) by a certified or official bank check payable to the order of
the Warrant Agent as agent for the Company or by wire transfer of funds to any
account designated by the Company for such purpose and/or (b) by surrendering to
the Company Warrants having
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a value equal to the aggregate exercise price payable with respect to the
number of Warrant Shares to be purchased. In the event that a Holder of the
Warrants determines to pay the exercise price for Warrant Shares by
surrendering to the Company a portion of such Holder's Warrants, the number of
Warrants to be surrendered in exchange for each Warrant share shall be
determined by multiplying the Current Market Value of a share of Common Stock
by one fiftieth of one percent (.0002). Subject to Section 3.02, the rights of
purchase represented by the Warrants shall be exercisable at the election of
the Holders either in full at any time or from time to time in part and in the
event that a Warrant Certificate is surrendered for exercise in respect of less
than all of the Warrant Shares purchasable on such exercise, a new Warrant
Certificate exercisable for the remaining Warrant Shares will be issued. The
Warrant Agent shall countersign and deliver the required new Warrant
Certificates, and the Company, at the Warrant Agent's request, shall supply
the Warrant Agent with Warrant Certificates duly signed on behalf of the
Company for such purpose."
4. Except as set forth herein, the Warrant Agreement shall remain in
full force and effect and shall be otherwise unaffected hereby.
5. This Amendment No. 1 may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed, all as of the day and year first above written.
SEALY CORPORATION
By: __________________________________
Its: __________________________________
SOCIETY NATIONAL BANK AS
SUCCESSOR WARRANT AGENT
By: __________________________________
Its: __________________________________
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