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EXHIBIT 4.12
AMENDMENT NO. 1
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TO WARRANT AGREEMENT BETWEEN
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SEALY CORPORATION AND
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SOCIETY NATIONAL BANK AS WARRANT AGENT
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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 Warrant Agent to First Chicago Trust Company of New York), is dated
as of the 1st day of April, 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 on 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, $.O1 par value
per share ("Common Stock"); and
WHEREAS: The Company and the Warrant Agent desire to amend the Warrant
Agreement provide for an exercise date of the Warrants of the earlier of (1) a
date beginning 30 days after consummation of the Offering or (2) a date as
otherwise determined under the Warrant Agreement, 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" is defined in the preamble.
"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 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
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surrendered in exchange for each Warrant Share shall be determined by
dividing fifty (subject to any adjustment required under Section 7.02 or 7.06)
one hundredths (.50) by the Current Market Value of a share of Common Stock.
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: Xxxx X. Xxxxx
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Its: Secretary
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SOCIETY NATIONAL BANK AS SUCCESSOR
WARRANT AGENT
By: Xxxxx Xxxxx
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Its: Trust Officer
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