1
Exhibit 4.7
WARRANT AGREEMENT
AMONG
MAXXIM MEDICAL, INC.
and
the parties named herein
Dated as of November 12, 1999
2
TABLE OF CONTENTS1
SECTION 1. Warrant Certificates..............................................................1
SECTION 2. Execution of Warrant Certificates.................................................1
SECTION 3. Registration......................................................................2
SECTION 4. Registration of Transfers and Exchanges...........................................2
SECTION 5. Warrants; Exercise of Warrants....................................................5
SECTION 6. Payment of Taxes..................................................................6
SECTION 7. Mutilated or Missing Warrant Certificates.........................................7
SECTION 8. Reservation of Warrant Shares.....................................................7
SECTION 9. Obtaining Stock Exchange Listings.................................................8
SECTION 10. Adjustment of Number of Warrant Shares Issuable..................................8
SECTION 11. Fractional Interests............................................................16
SECTION 12. Notices to Warrant Holders......................................................16
SECTION 13. Mandatory Exercise in the Event of an Initial Public Offering...................18
SECTION 14. Notices to Company and Warrant Holder...........................................18
SECTION 15. Supplements and Amendments......................................................19
SECTION 16. Successors......................................................................19
SECTION 17. Termination.....................................................................19
SECTION 18. Governing Law...................................................................19
SECTION 19. Benefits of This Agreement......................................................19
SECTION 20. Headings........................................................................20
SECTION 21. Submission to Jurisdiction......................................................20
SECTION 22. Waiver of Jury Trial............................................................20
SECTION 23. Service of Process..............................................................20
SECTION 24. Counterparts....................................................................20
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1 This Table of Contents does not constitute a part of this Agreement or have
any bearing upon the interpretation of any of its terms or provisions.
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WARRANT AGREEMENT (the "Warrant Agreement" or this "Agreement")
dated as of November 12, 1999 (the "Issue Date") between Maxxim Medical, Inc.,
a Texas corporation (the "Company"), and the parties named herein (together
with their successors and assigns, the "Holders").
Terms defined in the Purchase Agreement (the "Purchase
Agreement"), dated as of November 12, 1999 among the Company and the purchasers
named therein (the "Purchasers") unless defined herein are used as therein
defined.
WHEREAS, the Company proposes to issue Warrants, as hereinafter
described (the "Warrants"), to purchase up to 144,132 shares of Common Stock
(the "Common Stock") of the Company (the Common Stock issuable on exercise of
the Warrants being referred to herein as the "Warrant Shares"), in connection
with a private placement of an aggregate of $98,473,000
principal amount at maturity of the Company's Senior Discount Notes due 2010
and each Warrant entitling the Holder thereof to purchase one Warrant Share.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") to be delivered pursuant to this
Agreement shall be in registered form only and shall be substantially in the
form set forth in Exhibit A attached hereto.
SECTION 2. Execution of Warrant Certificates. Warrant
Certificates shall be signed on behalf of the Company by its Chairman of the
Board or its President or a Vice President and by its Secretary or an Assistant
Secretary under its corporate seal. Each such signature upon the Warrant
Certificates may be in the form of a facsimile signature of the present or any
future Chairman of the Board, President, Vice President, Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, President,
Vice President, Secretary or Assistant Secretary, notwithstanding the fact that
at the time the Warrant Certificates shall be delivered or disposed of he shall
have ceased to hold such office. The seal of the Company may be in the form of
a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
In case any officer of the Company who shall have signed any of
the Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been disposed of by the Company, such Warrant
Certificates nevertheless may be delivered or disposed of as though such person
had not ceased to be such officer of the Company; and any Warrant Certificate
may be signed on behalf of the Company by any person who, at the actual date of
the execution of such Warrant Certificate, shall be a proper officer of the
Company to sign such Warrant Certificate, although at the date of the execution
of this Warrant Agreement any such person was not such an officer.
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SECTION 3. Registration. The Company shall number and register
the Warrant Certificates in a register as they are issued. The Company may deem
and treat the registered Holder(s) of the Warrant Certificates as the absolute
owner(s) thereof (notwithstanding any notation of ownership or other writing
thereon made by anyone), for all purposes, and shall not be affected by any
notice to the contrary. The Company shall act as the registrar for the
Warrants.
SECTION 4. Registration of Transfers and Exchanges. (a) The
Company shall from time to time register the transfer of any outstanding
Warrant Certificates in a Warrant register to be maintained by the Company upon
surrender thereof accompanied by a written instrument or instruments of
transfer in the form set forth on the reverse side of the form of Warrant
Certificate attached hereto as Exhibit A, duly executed by the registered
Holder or Holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, together with (if such transfer is pursuant
to clause (1)(w) or (1)(y) of the next paragraph) the opinion of counsel
specified therein. Upon any such registration of transfer, a new Warrant
Certificate shall be issued to the transferee(s) and the surrendered Warrant
Certificate shall be canceled and disposed of by the Company.
The Holders of Warrant Shares, by their acceptance of Warrant
Certificates or certificates evidencing Warrant Shares, agree that any proposed
resale, pledge or other transfer (including any transfer by issuance of Warrant
Shares upon exercise of a Warrant evidenced by a Warrant Certificate in a name
other than the name in which such Warrant Certificate is registered) of any
Warrant or Warrant Shares may be effected only (1)(w) inside the United States
(I) to a person who the seller reasonably believes is a qualified institutional
buyer within the meaning of Rule 144A under the Securities Act in a transaction
meeting the requirements of Rule 144A, (II) in accordance with Rule 144 under
the Securities Act or (III) pursuant to another exemption from the registration
requirements of the Securities Act (and based upon an opinion of counsel
reasonably satisfactory to the Company to such effect), (x) to the Company, (y)
outside the United States to a foreign person in a transaction meeting the
requirements of Rule 904 under the Securities Act (and based upon an opinion of
counsel reasonably satisfactory to the Company to such effect) or (z), in the
case of Warrant Shares only, pursuant to an effective registration statement
under the Securities Act and (2) in each case, in accordance with the
applicable securities laws of any state of the United States or any other
applicable jurisdiction. Each Holder by acceptance of Warrant Certificates or
certificates evidencing Warrant Shares, agrees to, and each subsequent Holder
is required to, notify any purchaser thereof of the resale restrictions set
forth above. Prior to any proposed resale, pledge or other transfer (including
any transfer by issuance of Warrant Shares upon exercise of a Warrant evidenced
by a Warrant Certificate in a name other than the name in which such Warrant
Certificate is registered) of any Warrant or Warrant Shares, the Holder thereof
shall give written notice to the Company of such Holder's intention to effect
such transfer and the names and circumstances thereof and, if the proposed
transfer is pursuant to clause (1)(w) or (1)(y) of the second preceding
sentence, will, if requested by the Company, deliver to the Company:
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(1) an investment covenant, signed by the proposed transferee,
setting forth acceptance of the provisions referenced in this Section 4
and reasonably satisfactory to the Company;
(2) an agreement by such transferee to the impression of the
restrictive investment legend set forth below on the Warrant or the
Warrant Shares;
(3) an agreement by such transferee that the Company may place a
notation in the stock books of the Company or a "stop transfer order"
with any transfer agent or registrar with respect to the Warrant Shares
or such other legend as the Company reasonably believes is required by
law; and
(4) an agreement by such transferee to be bound by the
provisions of this Section 4 relating to the transfer of such Warrant
or Warrant Shares.
The Warrant Holders agree that each Warrant Certificate and any
certificate representing the Warrant Shares will bear the following legend:
THE SECURITY REPRESENTED BY THIS CERTIFICATE (AND ANY PREDECESSOR) WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE
WARRANTS EVIDENCED HEREBY AGREES FOR THE BENEFIT OF MAXXIM MEDICAL,
INC., A TEXAS CORPORATION (THE "COMPANY"), THAT (A) SUCH SECURITY (AND,
IF SUCH SECURITY EVIDENCES A WARRANT, THE WARRANT SHARES ISSUABLE
PURSUANT THERETO) MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(1) (W) INSIDE THE UNITED STATES (I) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, OR (II) IN ACCORDANCE WITH RULE 144
UNDER THE SECURITIES ACT, OR (III) PURSUANT TO ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL, IF THE COMPANY SO REQUESTS), (X) TO THE COMPANY,
(Y) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL, IF THE COMPANY SO REQUESTS) OR (Z),
IN THE CASE OF WARRANT SHARES ONLY, PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (2) IN EACH CASE,
IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
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WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH
IN (A) ABOVE. THE SECURITY REPRESENTED BY THIS CERTIFICATE IS ALSO
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AND HAS THE BENEFIT
OF CERTAIN REGISTRATION RIGHTS, CONTAINED IN THE STOCKHOLDERS'
AGREEMENT, DATED AS OF NOVEMBER 12, 1999, AS AMENDED FROM TIME TO TIME,
A COPY OF WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL EXECUTIVE
OFFICES.
Subject to the foregoing provisions, Warrant Certificates may be
exchanged at the option of the Holder(s) thereof, when surrendered to the
Company at its office for another Warrant Certificate or other Warrant
Certificates of like tenor and representing in the aggregate a like number of
Warrants. Warrant Certificates surrendered for exchange shall be canceled and
disposed of by the Company.
On delivery of the Warrants by the Company to the Purchasers
pursuant to the Purchase Agreement, each Holder will have registration rights
with respect to the Warrant Shares set forth in the Stockholders' Agreement,
dated as of November 12, 1999, among the Company and the other parties set
forth on the signature pages thereto, as the same may be amended from time to
time (the "Stockholders' Agreement").
Every Holder of a Warrant Certificate, by accepting the same,
consents and agrees with the Company and with every subsequent Holder of such
Warrant Certificate that, prior to due presentment of such Warrant Certificate
for registration of transfer, the Company may treat the person in whose name
the Warrant Certificate is registered as the owner thereof for all purposes and
as the person entitled to exercise the registration rights granted under the
Warrants, and neither the Company nor any agent thereof shall be affected by
any notice to the contrary.
(b) Termination of Restrictions. The restriction referred to in
the legend referenced in Section 4(a) of this Agreement shall cease and
terminate as to any particular Warrants or Warrant Certificates or certificates
representing Warrant Shares when, in the reasonable opinion of counsel for the
Company, such restriction is no longer required in order to assure compliance
with the Securities Act. The Company or the Company's counsel, at their
election, may request from any Holder a certificate or an opinion of such
Holder's counsel with respect to any relevant matters in connection with the
removal of the legend set forth in Section 4(a) from such Holder's
Certificate(s), any such certificate or opinion of counsel to be reasonably
satisfactory to the Company and its counsel. The restrictions referred to in
Section 4(a) shall cease and terminate as to any particular Warrants, Warrant
Certificates and certificates representing Warrant Shares when, in the
reasonable opinion of counsel for the Company, the provisions of this Agreement
are no longer applicable to such Warrants, Warrant Certificates or certificates
representing Warrant Shares or this Agreement shall have terminated in
accordance with its terms. Any other restrictions referred to in any other
legends required pursuant to Section 4 shall cease and terminate when, in the
reasonable opinion of counsel for the Company, such restrictions are no longer
applicable. Whenever such restrictions shall cease and
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terminate as to any Warrants, Warrant Certificates and certificates
representing Warrant Shares the Holder holding such shares shall be entitled to
receive from the Company, without expense (other than applicable transfer
taxes, if any, if such unlegended shares are being delivered and transferred to
any person other than the registered Holder thereof), new certificates for a
like number of Warrants, Warrant Certificates and certificates representing
Warrant Shares not bearing the relevant legend(s) set forth or referred to in
Section 4.
SECTION 5. Warrants; Exercise of Warrants. Subject to the terms
of this Agreement, each Holder shall have the right, which may be exercised
commencing at the opening of business on the Issue Date and until 5:00 p.m.,
New York City time on November 12, 2004, to receive from the Company the number
of fully paid and nonassessable Warrant Shares which the Holder may at the time
be entitled to receive on exercise of such Warrants and payment of the Exercise
Price then in effect for such Warrant Shares. Each Warrant not exercised prior
to 5:00 p.m., New York City time, November 12, 2004 shall become void and all
rights thereunder and all rights in respect thereof under this Agreement shall
cease as of such time.
A Warrant may be exercised upon surrender to the Company at its
office designated for such purpose (the address of which is set forth in
Section 14 hereof) of the Warrant Certificate or Certificates evidencing the
Warrants to be exercised with the form of election to purchase on the reverse
thereof duly filled in and signed, which signature shall be guaranteed by a
bank or trust company having an office or correspondent in the United States or
a broker or dealer which is a member of a registered securities exchange or the
National Association of Securities Dealers, Inc., together with (if such
exercise involves a transfer pursuant to clause (1)(w) or (1)(y) of the second
paragraph of Section 4) the opinion of counsel specified therein, and upon
payment to the Company of the exercise price (the "Exercise Price") which is
set forth in the form of Warrant Certificate attached hereto as Exhibit A, as
adjusted as provided in this Agreement, for the number of Warrant Shares in
respect of which such Warrants are then exercised. Payment of the aggregate
Exercise Price shall be made in cash or by certified or official bank check to
the order of the Company. In lieu of exercising this Warrant by paying in full
the Exercise Price plus transfer taxes (if applicable pursuant to Section 6),
if any, the Warrant Holder may, from time to time, convert this Warrant, in
whole or in part, into a number of shares of Common Stock determined by
dividing (a) the aggregate current market price of the number of shares of
Common Stock represented by the Warrants converted, minus the aggregate
Exercise Price for such shares of Common Stock, minus transfer taxes, if any,
by (b) the current market price of one share of Common Stock. The current
market price shall be determined pursuant to Section 10(f).
Subject to the provisions of Section 6 hereof, upon such
surrender of Warrant Certificates and payment of the Exercise Price the Company
shall issue and cause to be delivered with all reasonable dispatch (and in any
event within 10 Business Days after such receipt) to or upon the written order
of the Holder and, subject to Section 4, in such name or names as the Warrant
Holder may designate, a certificate or certificates for the number of full
Warrant Shares issuable upon the exercise of such Warrants together with cash
as provided in Section 11; provided, however, that if any consolidation, merger
or lease or sale of assets is
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proposed to be effected by the Company as described in subsection (1) of
Section 10 hereof, or a tender offer or an exchange offer for shares of Common
Stock of the Company shall be made, upon such surrender of Warrant Certificates
and payment of the Exercise Price as aforesaid, the Company shall, as soon as
possible, but in any event not later than five business days thereafter, issue
and cause to be delivered the full number of Warrant Shares issuable upon the
exercise of such Warrants in the manner described in this sentence together
with cash as provided in Section 11. Such certificate or certificates shall be
deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a Holder of record of such Warrant Shares as of
the date of the surrender of such Warrant Certificates and payment of the
Exercise Price.
Prior to the exercise of the Warrants, except as may be
specifically provided for herein, (i) no Holder of a Warrant Certificate, as
such, shall be entitled to any of the rights of a holder of Common Stock of the
Company, including, without limitation, the right to vote at or to receive any
notice of any meetings of stockholders; (ii) the consent of any such Holder
shall not be required with respect to any action or proceeding of the Company;
(iii) except as provided in Section 10(i), no such Holder, by reason of the
ownership or possession of a Warrant or the Warrant Certificate representing
the same, shall have any right to receive any cash dividends, stock dividends,
allotments or rights or other distributions paid, allotted or distributed or
distributable to the stockholders of the Company prior to, or for which the
relevant record date preceded, the date of the exercise of such Warrant; and
(iv) no such Holder shall have any right not expressly conferred by the Warrant
or Warrant Certificate held by such Holder.
The Warrants shall be exercisable, at the election of the
Holders thereof, either in full or from time to time in part and, in the event
that a Warrant Certificate is exercised in respect of fewer than all of the
Warrant Shares issuable on such exercise at any time prior to the date of
expiration of the Warrants, a new Warrant Certificate evidencing the remaining
Warrant or Warrants will be issued and delivered pursuant to the provisions of
this Section and of Section 2 hereof.
All Warrant Certificates surrendered upon exercise of Warrants
shall be canceled and disposed of by the Company. The Company shall keep copies
of this Agreement and any notices given or received hereunder available for
inspection by the Holders during normal business hours at its office.
SECTION 6. Payment of Taxes. The Company will pay all
documentary stamp taxes attributable to the initial issuance of Warrant Shares
upon the exercise of Warrants; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issue of any Warrant Certificates or any certificates
for Warrant Shares in a name other than that of the registered Holder of a
Warrant Certificate surrendered for registration of transfer or upon the
exercise of a Warrant, and the Company shall not be required to issue or
deliver such Warrant Certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the reasonable satisfaction of the
Company that such tax has been paid.
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SECTION 7. Mutilated or Missing Warrant Certificates. In case
any of the Warrant Certificates shall be mutilated, lost, stolen or destroyed,
the Company may in its discretion issue, in exchange and substitution for and
upon cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor and representing an equivalent number of
Warrants, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction of such Warrant Certificate and
indemnity, if requested, also reasonably satisfactory to it. Applicants for
such substitute Warrant Certificates shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company may
prescribe.
SECTION 8. Reservation of Warrant Shares. The Company will at
all times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock or its authorized and
issued Common Stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon exercise of Warrants, the
maximum number of shares of Common Stock which may then be deliverable upon the
exercise of all outstanding Warrants.
The Company or, if appointed, the transfer agent for the Common
Stock (the "Transfer Agent") and every subsequent transfer agent for any shares
of the Company's capital stock issuable upon the exercise of any of the rights
of purchase aforesaid will be irrevocably authorized and directed at all times
to reserve such number of authorized shares as shall be required for such
purpose. The Company will keep a copy of this Agreement on file with the
Transfer Agent and with every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants. The Company will furnish such Transfer Agent a
copy of all notices of adjustments and certificates related thereto,
transmitted to each Holder.
Before taking any action which would cause an adjustment
pursuant to Section 10 hereof to reduce the Exercise Price below the then par
value (if any) of the Warrant Shares, the Company will take any corporate
action which may, in the opinion of its counsel (which may be counsel employed
by the Company), be necessary in order that the Company may validly and legally
issue fully paid and nonassessable Warrant Shares at the Exercise Price as so
adjusted.
The Company covenants that all Warrant Shares which may be
issued upon exercise of the Warrants will, upon issue, be duly authorized,
fully paid, nonassessable, free of preemptive rights and, subject to Section 6,
free from all taxes, liens, charges and security interests, other than the
restrictions contained in the Stockholders' Agreement. The Company further
covenants, represents and warrants that, (a) as of the Issue Date, no form of
general solicitation or general advertising was used by the Company or, to the
best of its knowledge, any other Person acting on behalf of the Company, in
respect of the Warrants or the Warrant Shares or in connection with the
issuance of the Warrants; (b) as of the Issue Date, neither the Company nor any
Person acting on behalf of the Company has, either directly or indirectly, sold
or offered for sale to any Person any of the Warrants, the Warrant Shares or
any other similar security of the Company except (i) as contemplated by this
Agreement, (ii) the offer and sale of Warrants issued by the Company in
connection with the offer and sale by Maxxim Medical Group, Inc., a
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Delaware corporation and direct subsidiary of the Company, of up to
$144,552,000 principal amount at maturity of senior subordinated discount notes
due 2009 and (iii) the offer and sale of shares of common stock and the grant
of options to purchase shares of common stock of the Company in connection with
the Transactions contemplated by the Agreement and Plan of Merger, dated as of
June 13, 1999, as amended, between the Company and Fox Xxxxx Medic Acquisition
Corporation; and (c) neither the Company nor any Person acting on its behalf
will sell or offer for sale any such security to or solicit any offers to buy
any such security from, or otherwise approach or negotiate in respect thereof
with, any Person or Persons so as thereby to bring the issuance or sale of any
of the Warrants within the provisions of Section 5 of the Securities Act.
SECTION 9. Obtaining Stock Exchange Listings. The Company will
from time to time take all action which may be necessary so that the Warrant
Shares, immediately upon their issuance upon the exercise of the Warrants, will
be listed on the principal securities exchanges and markets within the United
States of America, if any, on which other shares of Common Stock are then
listed.
SECTION 10. Adjustment of Number of Warrant Shares Issuable. The
number of Warrant Shares issuable upon the exercise of each Warrant is subject
to adjustment from time to time upon the occurrence of the events enumerated in
this Section 10. For purposes of this Section 10, "Common Stock" means shares
now or hereafter authorized of any class of common stock of the Company and any
other stock of the Company, however designated, that has the right (subject to
any prior rights of any class or series of preferred stock) to participate in
any distribution of the assets or earnings of the Company without limit as to
per share amount.
(a) Adjustment for Change in Capital Stock.
If the Company:
(1) pays a dividend or makes a distribution on its Common Stock
in shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Common Stock into a
smaller number of shares;
(4) makes a distribution on its Common Stock in shares of its
capital stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any shares of
its capital stock;
then the number and kind of shares of its capital stock issuable upon exercise
of any Warrant in effect immediately prior to such action shall be
proportionately adjusted so that the Holder of any
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Warrant thereafter exercised may receive the aggregate number and kind of
shares of capital stock of the Company which such Holder would have owned
immediately following such action if such Warrant had been exercised
immediately prior to such action.
The adjustment shall become effective immediately after the
record date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If, after an adjustment, a Holder of a Warrant upon exercise of
it may receive shares of two or more classes of capital stock of the Company,
the exercise price of each class of capital stock shall thereafter be subject
to adjustment on terms comparable to those applicable to Common Stock in this
Section.
Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) Adjustment for Rights Issue.
If the Company distributes any rights, options or warrants to
all holders of its Common Stock entitling them to purchase shares of Common
Stock or securities directly or indirectly convertible into or exchangeable for
Common Stock (or options or rights with respect to such securities) at a price
per share less than the current market price per share on the applicable record
date, the number of Warrant Shares issuable upon exercise of one Warrant shall
be adjusted in accordance with the formula:
N(1) = N x (O + A)
-------
(O + (A x P))
-
M
where:
N(1) = the adjusted number of Warrant Shares issuable upon exercise
of one Warrant.
N = the current number of Warrant Shares issuable upon exercise of
one Warrant.
O = the number of shares of Common Stock outstanding on the record
date.
A = the number of additional shares of Common Stock offered
pursuant to such rights, options or warrants issuance.
P = the offering price per share of the additional shares.
M = the current market price per share of Common Stock, on the
record date.
The adjustment shall be made successively whenever any such
rights, options or warrants are issued and shall become effective immediately
after the record date for the determination of stockholders entitled to receive
the rights, options or warrants. If at the end of
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the period during which such rights, options or warrants are exercisable, not
all rights, options or warrants shall have been exercised, the number of
Warrant Shares issuable upon exercise of the Warrants shall be immediately
readjusted to what it would have been if "A" in the above formula had been the
number of shares actually issued.
(c) Adjustment for Other Distributions.
If the Company distributes to all holders of its Common Stock
any of its assets (including but not limited to cash), debt securities, or any
rights or warrants to purchase debt securities, preferred stock, assets or
other securities of the Company, the number of Warrant Shares issuable upon
exercise of one Warrant shall be adjusted in accordance with the formula:
N(1) = N x M
---
M-F
where:
N(1) = the adjusted number of Warrant Shares issuable upon exercise
of one Warrant.
N = the current number of Warrant Shares issuable upon exercise of
one Warrant.
M = the current market price per share of Common Stock on the
record date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of Common
Stock. The Board of Directors shall determine the fair market
value in good faith.
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the
distribution.
This subsection does not apply to distributions of capital stock
referred to in subsection (a) of this Section 10 and to distributions of
rights, options or warrants referred to in subsection (b) of this Section 10.
(d) Adjustment for Common Stock Issue.
If the Company issues shares of Common Stock to Fox Xxxxx &
Company, LLC, or its Affiliates, in their capacity as such (as defined in the
Stockholders' Agreement) for a consideration per share less than the current
market price per share on the date the Company fixes the offering price of such
additional shares, the number of Warrant Shares issuable upon exercise of one
Warrant shall be adjusted in accordance with the formula:
N1 = N x A
---
O + P
-
M
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where:
N(1) = the adjusted number of Warrant Shares issuable upon exercise
of one Warrant.
N = the current number of Warrant Shares issuable upon exercise of
one Warrant.
O = the number of shares outstanding immediately prior to the
issuance of such additional shares.
P = the aggregate consideration received for the issuance of such
additional shares.
M = the current market price per share on the date of sale of such
additional shares.
A = the number of shares outstanding immediately after the
issuance of such additional shares.
The adjustment shall be made successively whenever any such
issuance is made, and shall become effective immediately after such issuance.
This subsection (d) does not apply to:
(1) any of the transactions described in subsections (b) and (c)
of this Section 10,
(2) the exercise of Warrants, or the conversion or exchange of
other securities convertible or exchangeable for Common Stock,
(3) Common Stock issued upon the exercise of warrants and stock
options outstanding on the Issue Date, or
(4) Common Stock issued in a bona fide underwritten public
offering.
(e) Adjustment for Convertible Securities Issue.
If the Company issues any securities convertible into or
exchangeable for Common Stock (other than securities issued in transactions
described in subsections (b), (c) and (d) of this Section 10) to Fox Xxxxx &
Company, LLC or its Affiliates, in their capacity as such for a consideration
per share of Common Stock initially deliverable upon conversion or exchange of
such securities less than the current market price per share on the date of
issuance of such securities, the number of Warrant Shares issuable upon
exercise of one Warrant shall be adjusted in accordance with this formula:
N(1) = N x O + D
-----
O + P
-
M
where:
- 11 -
14
N(1) = the adjusted number of Warrant Shares issuable upon exercise
of one Warrant.
N = the then current number of Warrant Shares issuable upon
exercise of one Warrant.
O = the number of shares outstanding immediately prior to the
issuance of such securities.
P = the aggregate consideration received for the issuance of such
securities.
M = the current market price per share on the date of sale of such
securities.
D = the maximum number of shares deliverable upon conversion or in
exchange for such securities at the initial conversion or
exchange rate.
The adjustment shall be made successively whenever any such
issuance is made, and shall become effective immediately after such issuance.
If all of the Common Stock deliverable upon conversion or
exchange of such securities have not been issued when such securities are no
longer outstanding, then the number of Warrant Shares issuable upon exercise of
one Warrant shall promptly be readjusted to the number of Warrant Shares
issuable upon exercise of one Warrant which would then be in effect had the
adjustment upon the issuance of such securities been made on the basis of the
actual number of shares of Common Stock issued upon conversion or exchange of
such securities.
This subsection (e) does not apply to convertible securities
issued in a bona fide underwritten public offering.
(f) Current Market Price.
In Sections 5 and 11 and in subsections (b), (c), (d) and (e) of
this Section 10, the current market price per share of Common Stock on any date
is the average of the Quoted Prices of the Common Stock for 10 consecutive
trading days commencing 15 trading days before the date in question. The
"Quoted Price" of the Common Stock is the last reported sales price of the
Common Stock as reported by NASDAQ, National Market System, or if the Common
Stock is listed on a securities exchange, the last reported sales price of the
Common Stock on such exchange which shall be for consolidated trading if
applicable to such exchange, or if neither so reported or listed, the last
reported bid price of the Common Stock. In the absence of one or more such
quotations, the Board of Directors of the Company shall determine the current
market price (i) based on the most recently completed arm's length transaction
between the Company and a person other than an Affiliate of the Company and the
closing of which occurs on such date or shall have occurred within the three
months preceding such date, (ii) if no such transaction shall have occurred on
such date or within such three month period, the value of the security most
recently determined as of a date within the six months preceding such date by a
nationally recognized financial advisory or appraisal firm selected by the
Company's Board of Directors which is not an Affiliate of the Company (an
"Independent Financial Advisor") or (iii) if neither clause (i) nor (ii) is
applicable or at the election of either the Company or the holders of at least
- 12 -
15
50% of the total Warrants issued under this Agreement (subject to adjustment
pursuant to this Section 10), then the value of the security shall be
determined as of such date by an Independent Financial Advisor.
(g) Consideration Received.
For purposes of any computation respecting consideration
received pursuant to subsections (d) and (e) of this Section 10, the following
shall apply:
(1) in the case of the issuance of shares of Common Stock for
cash, the consideration shall be the amount of such cash, provided that
in no case shall any deduction be made for any commissions, discounts or
other expenses incurred by the Company for any underwriting of the issue
or otherwise in connection therewith;
(2) in the case of the issuance of shares of Common Stock for a
consideration in whole or in part other than cash, the consideration
other than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board of Directors (irrespective of the
accounting treatment thereof), whose determination shall be conclusive,
and described in a Board resolution;
(3) in the case of the issuance of securities convertible into
or exchangeable for shares, the aggregate consideration received
therefor shall be deemed to be the consideration received by the Company
for the issuance of such securities plus the additional minimum
consideration, if any, to be received by the Company upon the conversion
or exchange thereof (the consideration in each case to be determined in
the same manner as provided in clauses (1) and (2) of this subsection).
(h) When De Minimis Adjustment May Be Deferred.
No adjustment in the number of Warrant Shares issuable upon
exercise of one Warrant need be made unless the adjustment would require an
increase or decrease of at least 1% in the number of Warrant Shares issuable
upon exercise of one Warrant. Any adjustments that are not made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Section shall be made to the nearest
1/100th of a share.
(i) When No Adjustment Required.
No adjustment need be made for a transaction referred to in
Section 10 (a), (b), (c), (d) or (e) hereof if a Warrant holder actually
participates in an issuance or distribution pursuant to Section 10 (a), (b),
(c), (d) or (e) hereof
No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no
par value of the Common Stock.
- 13 -
16
To the extent the Warrants become convertible into cash, no
adjustment need be made thereafter as to the cash. Interest will not accrue on
the cash.
(j) Notice of Adjustment.
Whenever the number of Warrant Shares issuable upon exercise of
one Warrant is adjusted, the Company shall provide the notices required by
Section 12 hereof.
(k) Notice of Certain Transactions.
If:
(1) The Company takes any action that would require an
adjustment in the number of Warrant Shares issuable upon exercise of one
Warrant pursuant to subsection (a), (b), (c), (d) or (e) of this Section
10 and if the Company does not arrange for Holders to participate
pursuant to subsection (i) of this Section 10;
(2) The Company takes any action that would require a
supplemental Warrant Agreement pursuant to subsection (l) of this
Section 10; or
(3) there is a liquidation or dissolution of the Company,
the Company shall mail to Warrant Holders a notice stating the proposed record
date for a dividend or distribution or the proposed effective date of a
subdivision, combination, reclassification, consolidation, merger, transfer,
lease, liquidation or dissolution. The Company shall mail the notice at least
15 days before such date. Failure to mail the notice or any defect in it shall
not affect the validity of the transaction.
(l) Reorganization of Company.
If the Company consolidates or merges with or into any person,
upon consummation of such transaction the Warrants shall automatically become
exercisable for the kind and amount of securities, cash or other assets which
the Holder of a Warrant would have owned immediately after the consolidation or
merger if the Holder had exercised the Warrant immediately before the effective
date of the transaction. Concurrently with the consummation of such
transaction, the corporation formed by or surviving any such consolidation or
merger if other than the Company, or the person to which such sale or
conveyance shall have been made, shall enter into a supplemental Warrant
Agreement so providing and further providing for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in this
Section. The successor company shall mail to Warrant Holders a notice
describing the supplemental Warrant Agreement.
If the issuer of securities deliverable upon exercise of
Warrants under the supplemental Warrant Agreement is an affiliate of the formed
or surviving corporation, that issuer shall join in the supplemental Warrant
Agreement.
- 14 -
17
If this subsection (l) applies, subsections (a), (b), (c), (d)
and (e) of this Section 10 do not apply.
(m) Company Determination Final.
Any determination that the Company or the Board of Directors
must make pursuant to subsection (a), (c), (d), (e), (f), (g) or (i) of this
Section 10 which is made in good faith shall be conclusive.
(n) When Issuance or Payment May Be Deferred.
In any case in which this Section 10 shall require that an
adjustment in the number of Warrant Shares issuable upon exercise of one
Warrant be made effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event (i) issuing to
the Holder of any Warrant exercised after such record date the Warrant Shares
and other capital stock of the Company, if any, issuable upon such exercise
over and above the Warrant Shares and other capital stock of the Company, if
any, issuable upon such exercise on the basis of the current number of Warrant
Shares issuable upon exercise of one Warrant and (ii) paying to such Holder any
amount in cash in lieu of a fractional share pursuant to Section 11; provided,
however, that the Company shall deliver to such Holder a due xxxx or other
appropriate instrument evidencing such Holder's right to receive such
additional Warrant Shares, other capital stock and cash upon the occurrence of
the event requiring such adjustment.
(o) Adjustment in Exercise Price.
Upon each adjustment of the number of Warrant Shares pursuant to
this Section 10, the Exercise Price for each Warrant outstanding prior to the
making of the adjustment in the number of Warrant Shares shall thereafter be
adjusted to the Exercise Price (calculated to the nearest hundredth) obtained
from the following formula:
E(1) = E x N
----
N(1)
Where
E(1) = the adjusted Exercise Price.
E = the Exercise Price prior to adjustment.
N(1) = the adjusted number of Warrant Shares issuable upon exercise
of a Warrant.
N = the number or Warrant shares previously issuable upon exercise
of a Warrant prior to adjustment.
Notwithstanding anything to the contrary, in no event shall the
Exercise Price for a Warrant be reduced below the par value of the Warrant
Share underlying such Warrant.
- 15 -
18
(p) Form of Warrants.
Irrespective of any adjustments in the number or kind of shares
purchasable upon the exercise of the Warrants, Warrants theretofore or
thereafter issued may continue to express the same price and number and kind of
shares as are stated in the Warrants initially issuable pursuant to this
Agreement.
(q) No Dilution or Impairment.
The Company will not, by amendment of its certificate of
incorporation or through any consolidation, merger, reorganization, transfer of
assets, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of the
Warrants, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such action as may be necessary or
appropriate (including through a reduction in the par value of Warrant Shares
as necessary) in order to protect the rights of the Holder of the Warrants
against dilution or other impairment.
SECTION 11. Fractional Interests. Any one Warrant may be
exercised only in full and not in part. The Company shall not be required to
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise at the same time by the same Holder,
the number of full Warrant Shares which shall be issuable upon the exercise
thereof shall be computed on the basis of the aggregate number of Warrant
Shares purchasable on exercise of the Warrants so requested to be exercised. If
any fraction of a Warrant Share would, except for the provisions of this
Section 11, be issuable on the exercise of any Warrants (or specified portion
thereof) , the Company shall pay an amount in cash equal to the product of (i)
such fraction of a Warrant Share and (ii) the difference between the current
market price of a share of Common Stock and the Exercise Price.
SECTION 12. Notices to Holders. Upon any adjustment of the
number of Warrant Shares issuable upon exercise of one Warrant pursuant to
Section 10, the Company shall promptly thereafter (i) no later than the
delivery of the audit opinion of a firm of independent public accountants of
recognized standing selected by the Board of Directors of the Company (who may
be the regular auditors of the Company) with respect to the then current fiscal
year of the Company, cause to be filed with the Company a certificate which
includes the report of such firm setting forth the number of Warrant Shares
issuable upon exercise of one Warrant after such adjustment and setting forth
in reasonable detail the method of calculation and the facts upon which such
calculations are based, which certificate shall be conclusive evidence of the
correctness of the matters set forth therein, and (ii) cause to be given to
each of the registered Holders of the Warrant Certificates at such Holder's
address appearing on the Warrant register written notice of such adjustments by
first class mail, postage prepaid. Where appropriate, such notice may be given
in advance and included as a part of the notice required to be mailed under the
other provisions of this Section 12.
In case:
- 16 -
19
(a) the Company shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for
or purchase shares of Common Stock or of any other subscription rights
or warrants; or
(b) the Company shall authorize the distribution to all holders
of shares of Common Stock of evidences of its indebtedness or assets
(other than cash dividends or cash distributions payable out of
consolidated earnings or earned surplus or dividends payable in shares
of Common Stock or distributions referred to in subsection (a) of
Section 10 hereof); or
(c) of any consolidation or merger to which the Company is a
party and for which approval of any shareholders of the Company is
required or of any reclassification or change of Common Stock issuable
upon exercise of the Warrants (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or a tender offer or exchange
offer for shares of Common Stock by the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company proposes to take any action (other than actions
of the character described in Section 10(a)) which would require an
adjustment of the number of Warrant Shares issuable upon exercise of one
Warrant pursuant to Section 10;
then the Company shall cause to be given to each of the registered Holders of
the Warrant Certificates at such Holder's address appearing on the Warrant
register, at least 20 days (or 10 days in any case specified in clauses (a) or
(b) above) prior to the applicable record date hereinafter specified, or
promptly in the case of events for which there is no record date, by first
class mail, postage prepaid, a written notice stating (i) the date as of which
the holders of record of shares of Common Stock to be entitled to receive any
such rights, options, warrants or distribution are to be determined, or (ii)
the initial expiration date set forth in any tender offer or exchange offer for
shares of Common Stock by the Company, or (iii) the date on which any such
consolidation, merger, conveyance, dissolution, liquidation or winding up is
expected to become effective or consummated, and the date as of which it is
expected that holders of record of shares of Common Stock shall be entitled to
exchange such shares for securities or other property, if any, deliverable upon
such reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up. The failure to give the notice required
by this Section 12 or any defect therein shall not affect the legality or
validity of any distribution, right, option, warrant, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding up, or the vote upon
any action.
Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the Holders thereof the
right to vote or to consent or to receive notice as shareholders in respect of
the meetings of shareholders or the election of Directors of the Company or any
other matter, or any rights whatsoever as shareholders of the Company.
- 17 -
20
SECTION 13. Mandatory Exercise in the Event of an Initial Public
Offering. At the request of the Company, in the event of an underwritten
initial public offering or public offerings (on a cumulative basis) of shares
of Common Stock of the Company pursuant to a registration statement or
registration statements under the Securities Act with aggregate proceeds to the
Company of at least $50.0 million, the Holders shall exercise their Warrants to
purchase Common Stock of the Company upon consummation of such initial public
offering or at such other mutually agreed upon date on or before the date of
consummation of such initial public offering.
SECTION 14. Notices to Company and Warrant Holder. Any notice or
demand authorized by this Agreement to be given or made by the registered
Holder of any Warrant Certificate to or on the Company shall be sufficiently
given or made when and if deposited in the mail, first class or registered,
postage prepaid, addressed to the office of the Company expressly designated by
the Company at its office for purposes of this Agreement (until the Holders are
otherwise notified in accordance with this Section by the Company), as follows:
Maxxim Medical, Inc.
00000 00xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Corporate Secretary
with a copy to:
Fox Xxxxx & Company, LLC
000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxx X. Xxx
as well as a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxx Xxxxx, Esq.
with a copy to:
- 18 -
21
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: F. Xxxxxxx Xxxxxxx, Esq.
Any notice pursuant to this Agreement to be given by the Company
to the registered Holder(s) of any Warrant Certificate shall be sufficiently
given when and if deposited in the mail, first class or registered, postage
prepaid, addressed (until the Company is otherwise notified in accordance with
this Section by such Holder) to such Holder at the address appearing on the
Warrant register of the Company.
SECTION 15. Supplements and Amendments. The Company may from
time to time supplement or amend this Agreement without the approval of any
Holders of Warrant Certificates in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions
in regard to matters or questions arising hereunder which the Company may deem
necessary or desirable and which shall not in any way adversely affect the
interests of the Holders of Warrant Certificates. Any amendment or supplement
to this Agreement that has an adverse effect on the interests of Holders shall
require the written consent of registered Holders of two thirds of the then
outstanding Warrant Shares issued or issuable upon exercise of the Warrants
(excluding Warrant Shares held by the Company or any of its Affiliates). The
consent of each Holder of a Warrant affected shall be required for any
amendment pursuant to which the number of Warrant Shares purchasable upon
exercise of Warrants would be decreased (other than in accordance with Section
10 or 11 hereof).
SECTION 16. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company shall bind and inure to the
benefit of its respective successors and assigns hereunder.
SECTION 17. Termination. This Agreement (except for the
restrictions on transfer of Warrant Shares specified in Section 4) shall
terminate at 5:00 p.m., New York City time on November 12, 2004.
SECTION 18. Governing Law. THIS AGREEMENT AND EACH WARRANT
CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF SAID STATE.
SECTION 19. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than
the Company and the registered Holders of the Warrant Certificates or Warrant
Shares any legal or equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefit of the Company and
the registered Holders of the Warrant Certificates and the Warrant Shares.
Nothing herein shall prohibit or limit the Company from entering into an
agreement providing holders of securities which may hereafter be issued by the
Company with such registration rights
- 19 -
22
exercisable at such time or times and in such manner as the Board of Directors
shall deem in the best interests of the Company so long as the performance by
the Company of its obligations under such other agreement will not cause the
Company to breach its obligations hereunder to the Holders.
SECTION 20. Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for convenience only, do
not constitute a part of this Agreement and shall not affect in any way the
meanings or interpretation of this Agreement.
SECTION 21. Submission to Jurisdiction. If any action,
proceeding or litigation shall be brought by the Purchasers or any Holder of
Warrants in order to enforce any right or remedy under this Agreement, the
Company hereby consents and will submit, and will cause each of its
subsidiaries to submit, to the jurisdiction of any state or federal court of
competent jurisdiction sitting within the area comprising the Southern District
of New York on the date of this Agreement. The Company hereby irrevocably
waives any objection, including, but not limited to, any objection to the
laying of venue or based on the grounds of forum non conveniens, which it may
now or hereafter have to the bringing of any such action, proceeding or
litigation in such jurisdiction.
SECTION 22. Waiver of Jury Trial. THE ISSUER HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OF THE WARRANTS.
SECTION 23. Service of Process. Nothing herein shall affect the
right of any holder of a security to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the Company in any other jurisdiction.
SECTION 24. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
[Signature Page Follows]
- 20 -
23
[Signature Page of Warrant Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
MAXXIM MEDICAL, INC.,
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
Accepted:
GS MEZZANINE PARTNERS, L.P.
By: GS Mezzanine Advisors, L.P.,
its general partner
By: GS Mezzanine Advisors, Inc.,
its general partner
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-at-law
GS MEZZANINE PARTNERS OFFSHORE, L.P.
By: GS Mezzanine Advisors (Cayman), L.P.,
its general partner
By: GS Mezzanine Advisors, Inc.,
its general partner
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney-at-law
- 1 -
24
EXHIBIT A
[Form of Warrant Certificate]
[Face]
THE WARRANTS REPRESENTED BY THIS CERTIFICATE (AND ANY
PREDECESSOR) WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE WARRANTS EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. THE HOLDER OF THE WARRANTS EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF MAXXIM MEDICAL, INC., A TEXAS CORPORATION (THE "COMPANY") THAT (A)
SUCH WARRANTS (AND SHARES ISSUABLE PURSUANT THERETO) MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) (W) INSIDE THE UNITED STATES (I) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, OR (II) IN ACCORDANCE WITH RULE 144 UNDER THE
SECURITIES ACT, OR (III) PURSUANT TO ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL, IF
THE COMPANY SO REQUESTS), (X) TO THE COMPANY, (Y) OUTSIDE THE UNITED STATES TO
A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT OR (AND BASED UPON AN OPINION OF COUNSEL, IF THE COMPANY SO
REQUESTS) (Z), PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (2) IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE. THE WARRANTS REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY, AND
HAVE THE BENEFIT OF CERTAIN REGISTRATION RIGHTS, CONTAINED IN THE STOCKHOLDERS'
AGREEMENT DATED AS OF NOVEMBER 12, 1999, AS AMENDED FROM TIME TO TIME, A COPY
OF WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL EXECUTIVE OFFICES.
- 1 -
25
EXERCISABLE ON OR BEFORE 5:00 P.M. NEW YORK CITY TIME ON NOVEMBER 12, 2004
No. ___ ______ Warrants
Warrant Certificate
Maxxim Medical, Inc.
This Warrant Certificate certifies that , or registered assigns,
is the registered holder of Warrants expiring November 12, 2004 (the
"Warrants") to purchase Common Stock, $.001 par value (the "Common Stock"), of
Maxxim Medical, Inc., a Texas corporation (the "Company"). Each Warrant
entitles the holder upon exercise to receive from the Company on or before 5:00
p.m. New York City Time on November 12, 2004, one fully paid and nonassessable
share of Common Stock (a "Warrant Share") at the exercise price (the "Exercise
Price") of $.01 payable in lawful money of the United States of America upon
surrender of this Warrant Certificate and payment of the Exercise Price at the
office of the Company designated for such purpose, but only subject to the
conditions set forth herein and in the Warrant Agreement referred to on the
reverse hereof. In lieu of exercising this Warrant by paying in full the
Exercise Price minus transfer taxes (if applicable pursuant to Section 6 of the
Warrant Agreement), if any, the Warrant holder may, from time to time, convert
this Warrant, in whole or in part, into a number of shares of Common Stock
determined by dividing (a) the aggregate current market price of the number of
shares of Common Stock represented by the Warrants converted, minus the
aggregate Exercise Price for such shares of Common Stock, minus transfer taxes,
if any, by (b) the current market price of one share of Common Stock. The
current market price shall be determined pursuant to Section 10(f) of the
Warrant Agreement.
The number of Warrant Shares issuable upon exercise of the
Warrants is subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York City Time
on November 12, 2004, and to the extent not exercised by such time such
Warrants shall become void.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
- 2 -
26
IN WITNESS WHEREOF, Maxxim Medical, Inc. has caused this Warrant
Certificate to be signed by its Executive Vice President and Controller and by
its Secretary, each by a facsimile of his signature, and has caused a facsimile
of its corporate seal to be affixed hereunto or imprinted hereon.
Dated: November 12, 1999
By:
----------------------------
Executive Vice President and
Controller
By:
----------------------------
Secretary
- 3 -
27
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants expiring November 12, 2004, entitling the
holder on exercise to receive shares of Common Stock, $.001 par value, of the
Company (the "Common Stock"), and are issued or to be issued pursuant to a
Warrant Agreement, dated as of November 12, 1999 (the "Warrant Agreement"),
duly executed and delivered by the Company, which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Company and the holders (the words
"holders" or "holder" meaning the registered holders or registered holder) of
the Warrants. A copy of the Warrant Agreement may be obtained by the holder
hereof upon written request to the Company.
Warrants may be exercised at any time on or before November 12,
2004. The holder of Warrants evidenced by this Warrant Certificate may exercise
them by surrendering this Warrant Certificate, with the form of election to
purchase set forth hereon properly completed and executed, together with
payment of the Exercise Price in cash at the office of the Company designated
for such purpose. In lieu of exercising this Warrant by paying in full the
Exercise Price and transfer taxes (if applicable pursuant to Section 6 of the
Warrant Agreement), if any, the Warrant holder may, from time to time, convert
this Warrant, in whole or in part, into a number of shares of Common Stock
determined by dividing (a) the aggregate current market price of the number of
shares of Common Stock represented by the Warrants converted, minus the
aggregate Exercise Price for such shares of Common Stock and transfer taxes, if
any, by (b) the current market price of one share of Common Stock. The current
market price shall be determined pursuant to Section 10(f) of the Warrant
Agreement. In the event that upon any exercise of Warrants evidenced hereby the
number of Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be issued to the holder hereof or his assignee a
new Warrant Certificate evidencing the number of Warrants not exercised. No
adjustment shall be made for any dividends on any Common Stock issuable upon
exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of
certain events the number of Warrant Shares issuable upon exercise of one
Warrant set forth on the face hereof may, subject to certain conditions, be
adjusted. No fractions of a share of Common Stock will be issued upon the
exercise of any Warrant, but the Company will pay the cash value thereof
determined as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the
Company by the registered holder thereof in person or by legal representative
or attorney duly authorized in writing, may be exchanged, in the manner and
subject to the limitations provided in the Warrant Agreement, but without
payment of any service charge, for another Warrant Certificate or Warrant
Certificates of like tenor evidencing in the aggregate a like number of
Warrants.
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Upon due presentation for registration of transfer of this
Warrant Certificate at the office of the Company a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like
number of Warrants shall be issued to the transferee(s) in exchange for this
Warrant Certificate, subject to the limitations provided in the Warrant
Agreement, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company may deem and treat the registered holder(s) thereof
as the absolute owner(s) of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise hereof, of any distribution to the holder(s) hereof, and for
all other purposes, and the Company shall not be affected by any notice to the
contrary. Neither the Warrants nor this Warrant Certificate entitles any holder
hereof to any rights of a stockholder of the Company.
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29
ASSIGNMENT FORM
If you the Holder want to assign this Warrant, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Warrant to:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint __________________________________ agent to transfer
this Warrant on the books of the Company. The agent may substitute another to
act for him.
Date: _____________________________ Signed: ___________________________________
(Signed exactly as your name appears on the
other side of this Warrant)
Signature Guarantee: _____________________________________
In connection with any transfer of this Warrant occurring prior
to the date which is the earlier of (i) the date of the declaration by the SEC
of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act") covering resales of this Warrant (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) [ , 2001], the undersigned confirms that it has not utilized
any general solicitation or general advertising in connection with the transfer
and that this Warrant is being transferred:
[Check One]
(1) [ ] to the Company or a subsidiary thereof; or
(2) [ ] pursuant to and in compliance with Rule 144A under the Securities Act;
or
(3) [ ] to an institutional "accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) that has furnished to the
Company a signed letter containing certain representations and
agreements (the form of which appears below); or
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30
(4) [ ] outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act; or
(5) [ ] pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
(6) [ ] pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Company will refuse to register any of
the Warrants evidenced by this certificate in the name of any person other than
the registered Holder thereof; provided that if box (3) , (4), (5) or (6) is
checked, the Company may require, prior to registering any such transfer of the
Warrant Certificate, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Company has reasonably requested to confirm that
such transfers being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Company shall not be obligated
to register this Warrant Certificate in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein shall have been satisfied.
Date: ______________________________ Signed:_________________________________
(Sign exactly as your name
appears on the other side of this
Warrant Certificate)
Signature Guarantee:____________________________________________________________
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31
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED]
The undersigned represents and warrants that it is purchasing
this Warrant for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Date: _______________________ ________________________________________________
NOTICE: To be executed by an executive officer
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32
[FORM OF LETTER TO BE COMPLETED
BY PURCHASER IF (3) ABOVE IS CHECKED]
Ladies and Gentlemen:
1. The undersigned understands that any subsequent transfer of
the Warrants is subject to certain restrictions and conditions set forth in the
Warrants and in the Warrant Agreement and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Warrants except in
compliance with, such restrictions and conditions and the Securities Act.
2. The undersigned understands that the offer and sale of the
Warrants have not been registered under the Securities Act, and that the
Warrants may not be offered or sold except as permitted in the following
sentence. The undersigned agrees, on its own behalf and on behalf of any
accounts for which it is acting as hereinafter stated, that if it should sell,
pledge or otherwise transfer any Warrants it will do so only (1) (w) inside the
United States to a person who the seller reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A under the Securities Act in
a transaction meeting the requirements of Rule 144A, or in accordance with Rule
144 under the Securities Act, or pursuant to another exemption from the
registration requirements of the Securities Act (and based upon an opinion of
counsel, if the Company so requests), (x) to the Company, (y) outside the
United States to a foreign person in a transaction meeting the requirements of
Rule 904 under the Securities Act (and based upon an opinion of counsel, if the
Company so requests) or (z) pursuant to an effective registration statement
under the Securities Act and (2) in each case, in accordance with the
applicable securities laws of any state of the United States or any other
applicable jurisdiction, and the undersigned further agrees to provide to any
person purchasing any of the Warrants from us a notice advising such purchaser
that resales of the Warrants are restricted as stated herein.
3. The undersigned understands that, on any proposed resale of
any Warrants, it may be required to furnish the Company such certification and
other information as the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. The undersigned further
understands that the Warrants purchased by it will bear a legend to the
foregoing effect.
4. The undersigned is an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) and (7) under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Warrants,
and the undersigned and any accounts for which it is acting are each able to
bear the economic risk of our or its investment, as the case may be.
5. The undersigned is acquiring the Warrants purchased by us for
our account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which the undersigned exercises sole
investment discretion.
Date: ___________________________ ____________________________________________
NOTICE: To be signed by an executive officer
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33
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the
Warrant, represented by this Warrant Certificate, to receive _____________
shares of Common Stock and herewith (check item)
(i) tenders payment for such shares to the order of Maxxim
Medical, Inc. in the amount of $ in accordance with the terms hereof; or
(ii) converts this Warrant, in whole or in part, into a number
of shares of Common Stock determined by dividing (a) the aggregate
current market price of the number of shares of Common Stock
represented by this Warrant, minus the aggregate Exercise Price for
such shares of Common Stock and transfer taxes, if any, by (b) the
current market price of one Share.
The undersigned requests that a certificate for such shares be
registered in the name of ________________, whose address is
____________________, and that such shares be delivered to
________________________,whose address is _________________________.
If said number of shares is less than all of the shares of
Common Stock purchasable hereunder, the undersigned requests that a new Warrant
Certificate representing the remaining balance of such shares be registered in
the name of _________________________, whose address is _____________________,
and that such Warrant Certificate be delivered to _____________________, whose
address is __________________________.
Signature: ____________________________
Date: _________________________________
Signature Guaranteed:__________________
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