O.A. Exhibit 7.2
FIRST AMENDMENT TO OPTION AGREEMENT
THIS FIRST AMENDMENT TO OPTION AGREEMENT ("First Amendment") is made and
entered into as of the 2nd day of May, 1997, by and between Sulzur Intermedics
Inc., a Delaware corporation (the "Company"), formerly known as Intermedics
Inc., having a principal place of business at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxx, and Xxxxx X. Xxxxxxxxxx, a citizen of the State of Texas (the
"Optionee"), residing at Xxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000- 5120,
W I T N E S S E T H
WHEREAS, the Company and the Optionee are parties to that certain Option
Agreement dated June 4, 1992 (the "Option Agreement");
WHEREAS, the Company and the Optionee desire to amend the Option
Agreement as hereinafter provided;
NOW, THEREFORE, for and in consideration of the mutual promises set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this First
Amendment agree as follows:
1. The first whereas clause of the recitals in the Option Agreement is
hereby amended by deleting same in its entirety and substituting therefor the
following:
"WHEREAS, the Company is the owner and holder of Four Hundred
Forty-Seven Thousand Eight Hundred Thirty-Six (447,836) shares of common
stock of Maxxim Medical, Inc., a Texas corporation, formerly known as
Xxxxxx International, Inc., (the "Maxxim Medical Shares");
2. The defined term, Xxxxxx Shares, is hereby deleted at each instance
in which it appears in the Option Agreement and the term, Maxxim Medical Shares,
defined in Paragraph 1 above is substituted therefor.
3. Section 1 of the Option Agreement is hereby amended by deleting same
in its entirety and substituting therefor the following:
"SECTION 1. GRANT OF OPTION. The Company hereby grants to the
Optionee the option (the "Option") to purchase the Maxxim Medical
Shares at the exercise price of $13.80 per share (the "Option Price") on
the terms and conditions set forth in this Agreement.
4. Subsection (b) of Section 3 of the Option Agreement is
hereby amended by deleting same in its entirety and substituting therefor the
following:
"(b) On exercise of this Option in whole or in part, the
Optionee shall deliver to the Company an executed and completed "Notice
of Exercise of Option" in the form attached to the First Amendment as
Attachment 1 and either (i) the Option Price in the event the Optionee
notifies the Company that he does not intend to immediately sell the
Maxxim Shares acquired by exercising the Option or (ii) an executed and
completed instruction letter in the form attached to this First
Amendment as Attachment 2 in the event the Optionee notifies the Company
that he intends to immediately sell the shares acquired by exercising
the Option."
5. Section 3 of the Option Agreement is hereby amended by redesignating
subsections (c) and (d) as subsections (e) and (f), respectively, and adding new
subsections (c) and (d) as follows:
"(c) At the request of the Optionee, the Company will promptly
deliver the Maxxim Shares to Xxxx X. Xxxxx Xx., Esq., Xxxxx, Xxxxx &
Xxxxxx, The Coastal Tower, 0 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, counsel to Maxxim Medical, and request that it remove any legends
restricting the transfer of the Maximum Medical Shares and/or issue new
certificates representing the Maxxim Medical Shares in the denominations
designated by the Optionee.
(d) At the request of the Optionee, the Company will promptly
open an account with DLS Capital Partners, Inc. in the name of the
Company at the Optionee's expense and deposit the Maxxium Medical Shares
therein to facilitate the exercise of the Option by the Optionee and
subsequent sale of the Maxxim Shares by the Optionee in an open market
or private transaction. The Optionee hereby holds the Company harmless
and releases the Company from and waives any and all claims, damages,
and loss of whatever nature arising out of the actions or failures to
act by DLS Capital Partners, Inc, except to the extent of the written
instructions which the Company provides such firm."
6. Subsection (a) of Section 4 of the Option Agreement is hereby amended
by deleting same in its entirety and substituting therefor the following:
"(a) approval by the Board of Directors of Maxxim Medical, Inc.
("Maxxim Medical") of a merger or consolidation of Maxxim Medical with,
or into, another corporation as a result of which Maxxim Medical is not
the surviving corporation; provided that the Option is exercised before
the earlier of one hundred eighty (180) days after the effective date of
the merger or consolidation or the expiration date of
-2-
the Option;"
7. Section 10 of the Option Agreement is hereby amended by deleting same
in its entirety and substituting therefor the following:
"SECTION 10. EARLY TERMINATION OF OPTION. Notwithstanding
Section 3(a) or any other provision of this Agreement to the contrary,
in the event the Maxxim Shares trade at an average of less than sixty
percent (60%) of the Option Price for a period of ninety (90)
consecutive days during the term of this Agreement, either party may
elect to terminate this Agreement effective upon notice to the other
party within twenty (20) days of the occurrence of said event. "
8. The defined term, Xxxxxx, is hereby deleted at each instance in which
it appears in the Option Agreement and the term, Maxxim Medical, defined in
paragraph 4 above is substituted therefor.
9. Unless expressly amended herein, all other provisions of the Option
Agreement shall continue in full force and effect. Unless otherwise defined
herein, all terms defined in the Option Agreement shall have the same meaning in
this First Amendment.
10. This First Amendment contains the entire agreement and understanding
between the parties respecting the subject matter hereof and supersedes all
prior and collateral agreements and understandings, regardless of form or
nature, between the parties respecting the subject matter. No extension,
modification, or supplement to this First Amendment will be effective unless
made in writing signed by a duly authorized officer of the Company and the
Optionee. This First Amendment will be binding on and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. This
First Amendment may be executed in multiple counterparts, each of which will
constitute an original, but all of the which together will constitute one and
the same agreement. The validity, construction, and enforcement of this First
Amendment and all matters related thereto or in connection therewith will be
governed by the laws of the State of Texas.
-3-
The parties having read, understood and reached agreement on each and
every provision, term, and condition in this First Amendment, acknowledge and
confirm same by their signatures or that of their respective duly authorized
officers below, as of the date first set forth above.
SULZER INTERMEDICS INC.
X. XXXXXX /s/
Xxxxx X. Xxxxxx, Sole Director
XXXXX X. XXXXXXXXXX /s/
Xxxxx X. Xxxxxxxxxx
-4-
ATTACHMENT 1
NOTICE OF EXERCISE OF OPTION
TO: Sulzer Intermedics Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx 00000
Attention: President
The undersigned, pursuant to the Option Agreement dated June 4, 1992, by
and between Intermedics Inc. and Xxxxx X. Xxxxxxxxxx xxxxx exercises his Option
to the extent of ________shares of Maxxim Medical, Inc. common stock as provided
herein.
The Option Price for such shares is enclosed by check made payable to
Intermedics in the amount of $ __________ or, together with Federal income tax
withholding requirements, is to be withheld from the proceeds of sale and
delivered to Sulzer Intermedics pursuant to the instruction letter attached and
executed by the Optionee.
The undersigned requests that the Maxxim Shares to be transferred
pursuant the exercise of the Option be:
_____ assigned, transferred, conveyed, issued, and delivered him as set
forth below.
_____ sold pursuant to the instruction letter executed by the Optionee
and delivered with this Notice.
Dated:__________________
Xxxxx X. Xxxxxxxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
-5-
ATTACHMENT 2
TRANSMITTAL LETTER TO BROKERAGE FIRM
[DATE]
VIA FEDERAL EXPRESS
DLS Capital Partners, Inc.
0000 X. Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Re: Common shares of Maxxim Medical, Inc. ("Maxxim Medical
Shares") in Account No._______________
Dear _____________:
The Maxxix Medical Shares in the referenced account are subject to an
option in favor of Xxxxx X. Xxxxxxxxxx which Xx. Xxxxxxxxxx has exercised to the
extent of __________ shares.
You are hereby instructed to sell ______________Maxxim Medical Shares
pursuant to market, limit, stop order, stop loss, all or none, or do not reduce
orders as specified by Xx. Xxxxxxxxxx verbally or in writing and remit directly
to Sulzer Intermedics from the proceeds of the sale an amount equal to $13.80
per share times number of shares sold ($ ________ ) plus ____% to cover Sulzer
Intermedics Federal tax withholding obligations. You are hereby further
instructed to pay to balance of the proceeds less commissions or fees, if any
directly to Xx. Xxxxxxxxxx or as he instructs. All unsold Maxxim Medical Shares
shall remain in Sulzer Intermedics Inc.'s account.
Very truly yours,
Sulzer Intermedics, Inc.
Xxxxxxxx X. Xxxxxxxx
Treasurer
and
Xxxxx X. Xxxxxxxxxx
-6-
