Exhibit 4.4
AFFILIATE AGREEMENT
This Affiliate Agreement, dated as of December 15, 1999 (this "Agreement"),
is by and among Biomet, Inc., an Indiana corporation ("Biomet"), and the
undersigned stockholders (singly, a "Stockholder" and collectively, the
"Stockholders") of Implant Innovations International Corporation, a Delaware
corporation ("Parent").
Preliminary Statements
A. Biomet and Parent have entered into an Agreement and Plan of Merger,
dated as of August 28, 1999 (the "Merger Agreement"), pursuant to which Parent
will merge with and into Palm Acquisition Corp., an Indiana corporation and a
wholly owned subsidiary of Biomet ("Acquisition").
B. Pursuant to the Merger Agreement, at the Effective Time, as that term is
defined in the Merger Agreement, all outstanding shares of Parent Stock,
including Parent Stock owned by the Stockholders, will be converted into the
right to receive Biomet Common Shares.
C. It is a condition to each party's obligation to effect the transaction
contemplated by the Merger Agreement (the "Merger") that (i) legal counsel to
Parent and Biomet shall have delivered their respective opinions to the effect
that the Merger will constitute a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and that
Biomet, Acquisition and Parent each will be a party to the reorganization within
the meaning of Section 368(b) of the Code, and (ii) the independent public
accounting firms for Parent and Biomet shall have delivered their respective
opinions to the effect that the Merger will qualify for pooling-of-interests
accounting treatment.
D. The execution and delivery of this Agreement by the Stockholders is
required under the terms of the Merger Agreement as a condition precedent to the
obligations of Biomet and Parent to complete the transactions contemplated
thereby.
E. The Stockholders have been advised that the Stockholders may be deemed
to be "affiliates" of Parent, as such term is used (i) for purposes of
paragraphs (c) and (d) of Rule 145 of the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act"), or
(ii) in the Commission's Accounting Series Releases 130 and 135, as amended,
although nothing contained herein shall be construed as an admission by the
Stockholders that the Stockholders are in fact affiliates of Parent.
Terms and Conditions
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Use of Defined Terms. Capitalized terms not otherwise defined in this
Agreement have the meanings ascribed to them in the Merger Agreement.
2. Acknowledgements by Stockholders. Each of the Stockholders acknowledges and
understands that the representations, warranties and covenants made by the
Stockholders set forth in this Agreement will be relied upon by Biomet,
Parent and their respective affiliates, counsel and accounting firms, and
that substantial losses and damages may be incurred by such persons if the
Stockholders' representations, warranties or covenants are breached. Each
Stockholder has carefully read this Agreement and the Merger Agreement and
has consulted with such legal counsel and financial advisers as the
Stockholder has deemed appropriate in connection with the execution of this
Agreement.
3. Compliance with Rule 145 and the Act.
(a) Each Stockholder has been advised that (i) the issuance of Biomet
Common Shares in connection with the Merger is expected to be effected
pursuant to a Registration Statement filed by Biomet on Form S-4, and the
resale of such shares will be subject to the restrictions set forth in Rule
145 under the Act unless such shares are otherwise transferred pursuant to
an effective registration statement under the Act or an appropriate
exemption from registration, and (ii) each Stockholder may be deemed to be
an affiliate of Parent. Each of the Stockholders accordingly agrees not to
sell, pledge, transfer or otherwise dispose of any Biomet Common Shares
issued to the Stockholders in the Merger unless (i) the sale, pledge,
transfer or other disposition is made in conformity with the requirements
of Rule 145 under the Act, (ii) the sale, pledge, transfer or other
disposition is made pursuant to an effective registration statement under
the Act, or (iii) the Stockholder delivers to Biomet a written opinion of
counsel, in form and substance reasonably acceptable to Biomet, to the
effect that the sale, pledge, transfer or other disposition is otherwise
exempt from registration under the Act.
(b) Biomet will give stop transfer instructions to its transfer agent
with respect to any Biomet Common Shares received by the Stockholders
pursuant to the Merger, and there will be placed on the certificates
representing those Biomet Common Shares, or any substitutions therefor,
legends stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED PURSUANT TO A
BUSINESS COMBINATION WHICH IS BEING ACCOUNTED FOR AS A POOLING -OF-
INTERESTS, IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE
SECURITIES ACT OF 1933 APPLIES, AND MAY ONLY BE TRANSFERRED IN
CONFORMITY WITH RULE 145, PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT, OR IN ACCORDANCE WITH A WRITTEN OPINION OF COUNSEL,
REASONABLY ACCEPTABLE TO THE ISSUER, IN FORM AND SUBSTANCE TO THE
EFFECT THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE TRANSFERRED UNTIL SUCH
TIME AS BIOMET, INC. SHALL HAVE PUBLISHED FINANCIAL RESULTS COVERING
AT LEAST 30 DAYS OF COMBINED OPERATIONS WITH IMPLANT INNOVATIONS
INTERNATIONAL CORPORATION."
and
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE
WITH THE REQUIREMENTS OF THE CONDITIONS SPECIFIED IN THE AFFILIATE
AGREEMENT DATED AS OF DECEMBER 15, 1999 BETWEEN THE HOLDER OF THIS
CERTIFICATE AND BIOMET, INC., A COPY OF WHICH AGREEMENT MAY BE
INSPECTED BY THE HOLDER OF THIS CERTIFICATE AT THE PRINCIPAL OFFICES
OF BIOMET, INC. OR FURNISHED BY BIOMET, INC. TO THE HOLDER OF THIS
CERTIFICATE UPON WRITTEN REQUEST AND WITHOUT CHARGE."
The legends set forth above shall be removed (by delivery of a substitute
certificate without such legends), and Biomet shall so instruct its
transfer agent, if a registration statement respecting the sale of the
shares has been declared effective under the Act or if the Stockholder
delivers to Biomet (i) satisfactory written evidence that the shares have
been sold in compliance with Rule 145 (in which case, the substitute
certificate will be issued in the name of the transferee), or (ii) an
opinion of counsel, in form and substance reasonably acceptable to Biomet,
to the effect that sale of the shares by the holder thereof is no longer
subject to Rule 145. A sale of Biomet Common Shares made pursuant to the
registration statement described in Section 9.10 of the Merger Agreement,
when effective, will meet the requirements of this Section and the shares
sold, when reissued, will not be required to contain the legends set forth
herein.
4. Covenants Related to Pooling-of-Interests.
(a) During the period beginning on the date 30 days prior to the
Closing Date (as defined in the Merger Agreement) and ending on the day
after Biomet has published (within the meaning of Section 201.01 of the
Commission's Codification of Financial Reporting Policies) financial
results covering at least 30 days of combined operations of Biomet and
Parent (the "Restricted Period"), the Stockholders will not sell, exchange,
transfer, pledge, distribute or otherwise dispose of or grant any option,
establish any "short" or "put"-equivalent position with respect to or enter
into any similar transaction (through derivatives or otherwise) intended to
have or having the effect, directly or indirectly, or reducing its risk
relative to (i) any shares of Parent Stock owned by the Stockholders or
(ii) any Biomet Common Shares received by the Stockholders in connection
with the Merger.
(b) Notwithstanding anything to the contrary contained in Section
4(a), each Stockholder will be permitted, during the Restricted Period, (i)
to sell, exchange, transfer, pledge, distribute or otherwise dispose of or
grant any option, establish any "short" or "put"-equivalent position with
respect to or enter into any similar transaction (through derivatives or
otherwise) intended to have or having the effect, directly or indirectly,
of reducing its risk relative to any Biomet Common Shares received by the
Stockholder in connection with the Merger (a "Transfer") equal to the
Stockholder's pro rata portion of 1% of the total number of outstanding
Biomet Common Shares acquired by all stockholders of Parent pursuant to the
Merger (measured as of the date of such Transfer and subject to
confirmation of such calculation by Biomet), and (ii) to make bona fide
charitable contributions or gifts of such securities; provided, however
that the transferee(s) of such charitable contributions or gifts agree(s)
in writing to hold such securities for the period specified in Section
4(a).
(c) All Transfers described herein may be made only in accordance with
and subject to the terms of the Escrow Agreement during the term thereof.
5. Miscellaneous.
(a) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same document.
(b) This Agreement shall be enforceable by, and shall inure to the
benefit of and be binding upon, the parties and their respective successors
and assigns. As used in this Agreement, the term "successors and assigns"
means, where the context permits, heirs, executors, administrators,
trustees and successor trustees, and personal and other representatives.
(c) This Agreement shall be deemed to be made in and in all respects
shall be interpreted, construed and governed by and in accordance with
Delaware law without regard to the conflict of law principles thereof. The
parties irrevocably and unconditionally consent to submit to the exclusive
jurisdiction of the courts of the State of Delaware and of the United
States of America located in Delaware (the "Delaware Courts") for any
litigation arising out of or relating to this Agreement and the
transactions contemplated by this Agreement (and agree not to commence any
litigation relating thereto except in the Delaware Courts), waive any
objection to the laying of venue of any such litigation in the Delaware
Courts and agree not to plead or claim in any Court that such litigation
brought therein has been brought in an inconvenient forum.
(d) If any term, provision, covenant, or restriction contained in this
Agreement is held by a court or a federal or state regulatory agency of
competent jurisdiction to be invalid, void, or unenforceable, the remainder
of the terms, provisions, covenants, and restrictions contained in this
Agreement shall remain in full force and effect, and shall in no way be
affected, impaired, or invalidated.
(e) Counsel to and accountants for the parties to the Merger Agreement
shall be entitled to rely upon this Agreement as needed.
(f) This Agreement shall not be modified or amended, or any right
waived or any obligations excused, except by a written agreement signed by
both parties.
(g) Notwithstanding any other provision contained in this Agreement,
this Agreement and all obligations under this Agreement shall terminate
upon the termination of the Merger Agreement in accordance with its terms.
IN WITNESS WHEREOF, this Agreement is executed as of the date first stated
above.
BIOMET, INC.
By:/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, Chairman
"STOCKHOLDERS"
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Lazzarra
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Xxxxxxx X. Lazzarra
GLOBAL PRIVATE EQUITY II L.P.
By: Advent International Limited Partnership,
its General Partner
By: Advent International Corporation,
its General Partner
By: /s/ Xxxxxx Moufflet
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ADVENT INTERNATIONAL INVESTORS II L.P.
By: Advent International Corporation,
its General Partner
By: /s/ Xxxxxx Moufflet
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/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Bareld X. Xxxxxxx
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Bareld X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
