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Exhibit 4.2
MAXXIM MEDICAL GROUP, INC.
MAXXIM MEDICAL, INC.
144,552 Units consisting of
$144,552,000 Aggregate Principal Amount at Maturity
of Senior Subordinated Discount Notes due 2009
of Maxxim Medical Group, Inc.
and
144,552 Warrants to Purchase an aggregate of 118,908 shares of common stock
of Maxxim Medical, Inc.
PURCHASE AGREEMENT
November 12, 1999
GS Mezzanine Partners, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street, 10th Floor
New York, New York 10004
GS Mezzanine Partners Offshore, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street, 10th Floor
New York, New York 10004
John Hancock Mutual Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
John Hancock Variable Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Signature 3 Limited
c/o John Hancock Mutual Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
Merrill Lynch International
c/o John Hancock Mutual Life Insurance Company
200 Clarendon Street
Boston, Massachusetts 02117
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The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Chase Equity Associates, L.P.
c/o Chase Capital Partners
380 Madison Avenue, 12th Floor
New York, New York 10017
CIBC WMC, Inc.
c/o CIBC Capital Partners
161 Bay Street, 8th Floor
Toronto, Ontario M5J 2S8
Canada
Merrill Lynch, Pierce, Fenner & Smith Incorporated
250 Vesey Street
World Financial Center, North Tower
New York, New York 10281
Nationwide Life Insurance Company
One Nationwide Plaza
Columbus, Ohio 43215
Deutsche Bank AG, New York Branch
130 Liberty Street, 29th Floor
New York, New York 10006
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
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Ladies and Gentlemen:
Maxxim Medical Group, Inc., a Delaware corporation (the "Company"),
and Maxxim Medical, Inc., a Texas corporation and the parent of the Company
("Holdings"), propose to issue and sell 144,552 units (the "Units"), each Unit
consisting of $1,000 in principal amount at maturity of the Company's Senior
Subordinated Discount Notes due 2009 (the "Notes") and one warrant (a
"Warrant") to purchase 0.8226 shares of common stock of Holdings, par value
$0.001 per share, at an exercise price of $0.01 per share. The Notes will be
issued pursuant to an Indenture to be dated as of November 12, 1999 (the
"Indenture"), among the Company, the Guarantors (as defined below) and The Bank
of New York, as trustee (the "Trustee"). The Notes will be initially guaranteed
on an unsecured senior subordinated basis by Holdings and each U.S. subsidiary
of the Company listed on the signature pages hereto (collectively referred to
as the "Guarantors"). The Warrants will be issued pursuant to a warrant
agreement (the "Warrant Agreement") dated as of November 12, 1999 among
Holdings and the Purchasers (as defined herein). Holdings and the Company
hereby confirm their agreement with GS Mezzanine Partners, L.P., GS Mezzanine
Partners Offshore, L.P., John Hancock Mutual Life Insurance Company, John
Hancock Variable Life Insurance Company, Signature 3 Limited, Merrill Lynch
International, The Northwestern Mutual Life Insurance Company, Chase Equity
Associates, L.P., CIBC WMC, Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Nationwide Life Insurance Company, Deutsche Bank AG, New York
Branch and Credit Suisse First Boston Corporation (collectively, the
"Purchasers") concerning the purchase by the Purchasers of the Warrants from
Holdings and the Notes from the Company.
The Units will be sold to the Purchasers without being registered
under the Securities Act of 1933, as amended (the "Securities Act"), in
reliance upon an exemption therefrom. The Company has prepared a private
placement memorandum dated November 12, 1999 (the "Private Placement
Memorandum") setting forth information concerning Holdings, the Company and the
Units. Copies of the Private Placement Memorandum have been delivered by
Holdings and the Company to the Purchasers pursuant to the terms of this
Agreement. Any references herein to the Private Placement Memorandum shall be
deemed to include all amendments and supplements thereto, unless otherwise
noted. Holdings and the Company hereby confirm that they have authorized the
use of the Private Placement Memorandum in connection with the sale of the
Units to the Purchasers in accordance with Section 2.
Holders of the Units (including the Purchasers and their direct and
indirect transferees) will be entitled to the benefits of an Exchange and
Registration Rights Agreement, substantially in the form attached hereto as
Annex A (the "Registration Rights Agreement"), pursuant to which the Company
and the Guarantors will agree to file with the Securities and Exchange
Commission (the "Commission") (a) a registration
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statement under the Securities Act (the "Exchange Offer Registration
Statement") registering an issue of senior subordinated discount notes of the
Company (the "Exchange Notes") which are identical in all material respects to
the Notes (except that the Exchange Notes will not contain terms with respect
to transfer restrictions) and (b) under certain circumstances, a shelf
registration statement pursuant to Rule 415 under the Securities Act (the
"Shelf Registration Statement").
Pursuant to or in connection with the Agreement and Plan of Merger
(the "Merger Agreement") dated as of June 13, 1999, as amended, between
Holdings and Fox Paine Medic Acquisition Corporation ("Fox Paine Maxxim"), a
Texas corporation newly formed by Fox Paine Capital Fund, L.P. (the "Fox Paine
Fund"), as part of the proposed recapitalization (the "Recapitalization") of
Holdings, Fox Paine Maxxim will merge (the "Merger") with and into Holdings,
with Holdings as the surviving corporation in the Merger. Prior to or
simultaneously with the Merger, (a) the Fox Paine Fund and other affiliated
investment funds (collectively, the "Fox Paine Investors"), together with
certain other minority investors (together with the Fox Paine Investors, the
"Investors"), will purchase or will have purchased all the common stock of Fox
Paine Maxxim, with such common stock being converted into Holdings' common
stock in the Merger (the "Investor Equity Contribution"), (b) Maxxim Medical,
Inc., a Delaware corporation and indirect wholly owned subsidiary of Holdings
("Maxxim Delaware"), will sell (the "Circon Sale") to Circon Holdings
Corporation (formerly Fox Paine Citron Acquisition Corporation) ("Fox Paine
Circon"), a newly formed Delaware corporation to be owned by the Investors and
the Continuing Shareholders (as defined herein), all the capital stock of its
wholly owned subsidiary Circon Corporation ("Circon") and (c) Holdings will
contribute all its assets and liabilities (other than those assets and
liabilities relating to Holdings' existing credit facilities) to the Company
(the "Asset Dropdown"). As part of the Recapitalization, (a) each outstanding
share of common stock of Holdings (other than certain shares held by a group of
10 current shareholders of Holdings (the "Continuing Shareholders")) will be
converted into the right to receive $26.00 in cash (the "Merger Consideration")
and (b) certain options to purchase the common stock of Holdings will be
canceled in return for a cash payment for each share subject to such options
equal to the excess of $26.00 over the exercise price of such options (the
"Option Consideration"). The Recapitalization and related transactions will be
funded from the following sources: (a) an aggregate of up to $262.0 million of
borrowings under new senior secured credit facilities of the Company (the "New
Credit Facilities"); (b) at least $100.0 million from the issuance and sale of
the Units; (c) $50.0 million from the issuance by Holdings of senior unsecured
discount notes (the "Holdings Notes") and related warrants to purchase Holdings
common stock; (d) $228.0 million in cash proceeds from the Circon Sale
(including the repayment of any intercompany indebtedness owed by Circon to
Maxxim Delaware immediately prior to the Circon Sale); (e) $131.8 million in
cash from the Investor Equity Contribution; and (f) $4.4 million in cash from
the sale of new shares of common stock of Holdings to the Continuing
Shareholders financed from a portion of the
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Option Consideration they receive. As part of the Recapitalization, (a)
Holdings and its subsidiaries will repay all their existing debt, other than
any Existing Notes (as defined) not purchased in the Debt Tender Offer (as
defined) and $8.7 million in capital leases, industrial revenue bonds and other
long-term obligations, by (i) repaying all amounts outstanding under the Third
Amended and Restated Credit Agreement dated January 4, 1999, among Holdings,
Nationsbank, N.A., as agent, The Bank of Nova Scotia and First Union Bank, as
managing agents, and certain other banks named therein and (ii) consummating a
debt tender offer (the "Debt Tender Offer") to acquire up to $100.0 million in
principal amount of Holding's outstanding 10 1/2% Senior Subordinated Notes due
2006 (the "Existing Notes"), with any Existing Notes not tendered and purchased
in the Debt Tender Offer becoming direct obligations of the Company, and (b)
the Company, Holdings, Fox Paine Circon and Circon will enter into a services
agreement (the "Services Agreement"), pursuant to which Holdings and the
Company will provide Circon and Fox Paine Circon certain services. All the
above described transactions, together with any related transactions, are
collectively referred to herein as the "Transactions."
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Private Placement Memorandum. References to
subsidiaries of Holdings and/or the Company give effect to the Circon Sale.
1. Representations, Warranties and Agreements of the Company and the
Guarantors. The Company and each of the Guarantors represent and warrant to,
and agree with, the Purchasers on and as of the date hereof that:
(a) The Private Placement Memorandum does not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(b) Assuming the accuracy of the representations and warranties of the
Purchasers contained in Section 2 and their compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Units to the Purchasers in the manner
contemplated by this Agreement and the Private Placement Memorandum, to
register the Units, the Notes or the Warrants under the Securities Act or
to qualify the Indenture under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
(c) Holdings and each of its subsidiaries have been duly incorporated
and are validly existing as corporations in good standing under the laws
of their respective jurisdictions of incorporation, are duly qualified to
do business and are in good standing as foreign corporations in each
jurisdiction in which their
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respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the
failure to so qualify or have such power or authority could not,
singularly or in the aggregate, be reasonably expected to be materially
adverse to the condition (financial or otherwise), results of operations,
business, assets or liabilities of Holdings and its subsidiaries, taken
as a whole (a "Material Adverse Effect"). The Company is the only direct
subsidiary of Holdings. Schedule 2 hereto sets forth, as of the date
hereof and the Closing Date, a list of all direct and indirect
subsidiaries of Holdings.
(d) As of the Closing Date, Holdings and the Company will have a pro
forma capitalization as set forth in the Private Placement Memorandum
under the heading "Capitalization." All the outstanding shares of capital
stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly by Holdings. All
the outstanding shares of capital stock of Holdings have been duly and
validly authorized and issued, are fully paid and non-assessable and the
capital stock of Holdings conforms in all material respects to the
description thereof contained in the Private Placement Memorandum. When
the Units are delivered and paid for pursuant to this Agreement on the
Closing Date, the Warrants will be exercisable for shares of Holdings
common stock ("Underlying Shares") in accordance with their terms and the
Underlying Shares initially issuable upon exercise of such Warrants have
been duly and validly authorized and reserved for issuance upon such
exercise and, when issued in accordance with the terms of the Warrant
Agreement and the Warrants and paid for pursuant to this Agreement, will
be validly issued, fully paid and non-assessable. As of the Closing Date,
all the outstanding capital stock of the Company and each of the
Guarantors other than Holdings is duly and validly authorized and issued,
is fully paid and non-assessable and is owned directly or indirectly by
Holdings and (other than the capital stock of the Company) by the
Company. As of the Closing Date, after giving effect to the Asset
Dropdown, Holdings engages in no business other than holding the
outstanding shares of capital stock of the Company. As of the Closing
Date, all the outstanding shares of capital stock of the Company and its
subsidiaries will be free and clear of any lien, charge, encumbrance,
security interest or restriction upon voting or transfer, except for the
pledge of such capital stock as security for the obligations under the
credit agreement (the "Credit Agreement"), to be dated as of the Closing
Date, among Holdings, the Company, The Chase Manhattan Bank, as
Administrative Agent and Collateral Agent, Bankers Trust Company and
Merrill Lynch Capital Corporation, as Co-Syndication Agents, Canadian
Imperial Bank of Commerce and Credit Suisse First Boston Corporation, as
Co-Documentation Agents, and the lenders party thereto, relating to the
New Credit
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Facilities and except for the Warrants and the Holdings Warrants (as
defined herein).
(e) Holdings had full right, power and authority to execute and
deliver the Merger Agreement and has full right, power and authority to
perform its obligations thereunder; and all corporate action required to
be taken for the due and proper authorization, execution and delivery of
the Merger Agreement and the consummation of the transactions
contemplated thereby were validly taken.
(f) Each of the Company and the Guarantors, as applicable, has full
right, power and authority to execute and deliver this Agreement, the
Indenture, the Registration Rights Agreement, the Notes, the Warrants,
the Credit Agreement and the Guarantee Agreements (as defined in the
Credit Agreement), Pledge Agreement (as defined in the Credit Agreement)
and Security Agreement (as defined in the Credit Agreement) to be entered
into by the Company and the Guarantors in connection with the Credit
Agreement (collectively, the "New Credit Facilities Documents"), the
Services Agreement, the Shareholders Agreement, the Warrant Agreement,
the supplemental indenture dated as of October 18, 1999, relating to the
Existing Notes (the "Supplemental Indenture"), the Stock Purchase
Agreement dated as of November 12, 1999 by and between Maxxim Delaware
and Fox Paine Circon (the "Circon Purchase Agreement"), the Holdings
Notes, the indenture relating to the Holdings Notes dated as of November
12, 1999 (the "Holdings Notes Indenture"), the warrants ("Holdings
Warrants") exercisable for Holdings common stock issued in connection
with the issuance and sale of the Holdings Notes and the warrant
agreement (the "Holdings Warrant Agreement") dated as of November 12,
1999 relating to the Holdings Warrants (collectively, the "Transaction
Documents") to which such entity is, or will be as of the Closing Date, a
party and to perform their respective obligations hereunder and
thereunder; and all corporate action required to be taken for the due and
proper authorization, execution and delivery of each of the Transaction
Documents by such entities and the consummation of the transactions
contemplated thereby by such entities has been duly and validly taken.
(g) This Agreement has been duly authorized, executed and delivered by
the Company and each of the Guarantors and constitutes a valid and
legally binding agreement of the Company and each of the Guarantors.
(h) The Indenture has been duly authorized by the Company and each of
the Guarantors, and, when duly executed and delivered in accordance with
its terms by each of the parties thereto, will constitute a valid and
legally binding agreement of the Company and each of the Guarantors
enforceable against the Company and each of the Guarantors in accordance
with its terms, except as may
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be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered
in a proceeding in equity or at law). On the Closing Date, the Indenture
will conform in all material respects to the requirements of the Trust
Indenture Act and the rules and regulations of the Commission applicable
to an indenture which is qualified thereunder.
(i) The Notes have been duly authorized by the Company and each of the
Guarantors and, when duly executed, authenticated, issued and delivered
as provided in the Indenture and paid for as provided herein, will be
duly and validly issued and outstanding and will constitute valid and
legally binding obligations of the Company as issuer, and each of the
Guarantors, as guarantors, entitled to the benefits of the Indenture and
enforceable against the Company, as issuer, and each of the Guarantors,
as guarantors, in accordance with their terms, except as may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered
in a proceeding in equity or at law).
(j) The Warrants have been duly authorized by Holdings and, when duly
executed, authenticated, issued and delivered as provided in the Warrant
Agreement and paid for as provided herein, will be duly and validly
issued and outstanding and will constitute valid and legally binding
obligations of Holdings, entitled to the benefits of the Warrant
Agreement and enforceable against Holdings in accordance with their
terms, except as may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law) and except to
the extent that the indemnification or contribution provisions contained
therein may be unenforceable.
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(k) The Registration Rights Agreement has been duly authorized by the
Company and each of the Guarantors and, when duly executed and delivered
in accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the Company and each
of the Guarantors enforceable against the Company and each of the
Guarantors in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equitable principles (whether considered in a proceeding
in equity or at law) and except to the extent that the indemnification or
contribution provisions contained therein may be unenforceable.
(l) The Merger Agreement has been duly authorized, executed and
delivered by Holdings and constitutes a valid and legally binding
agreement of Holdings, enforceable against Holdings in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(m) Each New Credit Facilities Document to which the Company or a
Guarantor is to be a party has been duly authorized by the Company or
such Guarantor, as applicable, and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute
a valid and legally binding agreement of the Company or such Guarantor,
as applicable, enforceable against the Company or such Guarantor, in
accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in
equity or at law).
(n) The Services Agreement has been duly authorized by Holdings and
the Company and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and legally
binding agreement of each of Holdings and the Company enforceable against
each of Holdings and the Company in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
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(o) The Shareholders Agreement has been duly authorized by Holdings,
and when duly executed and delivered in accordance with its terms by each
of the parties thereto, will constitute a valid and legally binding
agreement of Holdings enforceable against Holdings in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(p) The Warrant Agreement has been duly authorized by Holdings, and
when duly executed and delivered in accordance with its terms by each of
the parties thereto, will constitute a valid and legally binding
agreement of Holdings enforceable against Holdings in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(q) Each other Transaction Document to which the Company or a
Guarantor is to be a party has been duly authorized by the Company or
such Guarantor, as applicable, and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute
a valid and legally binding agreement of the Company or such Guarantor,
as applicable, enforceable against the Company or such Guarantor, as
applicable, in accordance with its terms, except as may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equitable principles (whether considered in a proceeding
in equity or at law).
(r) Each Transaction Document conforms in all material respects to the
description thereof contained in the Private Placement Memorandum to the
extent described therein.
(s) The execution, delivery and performance by the Company and each of
the Guarantors of each of the Transaction Documents to which each is a
party, the issuance, authentication, sale and delivery of the Units and
compliance by the Company and each of the Guarantors with the terms
thereof (including the Notes and the Warrants) and the consummation of
the transactions contemplated by the Transaction Documents will not
conflict in any respect with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or, except as
created pursuant to the New Credit Facilities Documents or the
Shareholders Agreement, result in the creation or imposition of any lien,
charge or
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encumbrance upon any property or assets of Holdings or any of its
subsidiaries pursuant to any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which Holdings or any of
its subsidiaries is a party or by which Holdings or any of its
subsidiaries is bound or to which any of the property or assets of
Holdings or any of its subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws of
Holdings or any of its subsidiaries or any statute or any judgment,
order, decree, or rule or regulation of any court or arbitrator or
governmental agency or body having jurisdiction over Holdings or any of
its subsidiaries or any of their properties or assets, except for any
such conflicts, breaches, violations, defaults, liens, charges or
encumbrances which, singularly or in the aggregate, would not have a
Material Adverse Effect; and no consent, approval, authorization or order
of, or filing or registration with, any such court or arbitrator or
governmental agency or body under any such statute, judgment, order,
decree, rule or regulation is required for the execution, delivery and
performance by Holdings and each of its subsidiaries of each of the
Transaction Documents to which each is a party, the issuance,
authentication, sale and delivery of the Units and compliance by Holdings
and its subsidiaries with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, filings, orders, registrations or
qualifications (i) which shall have been obtained or made on or prior to
the Closing Date, (ii) as may be required to be obtained or made under
the Securities Act and applicable state securities laws as provided in
the Registration Rights Agreement, the exchange and registration rights
agreement (the "Holdings Notes Registration Agreement") dated November
12, 1999 relating to the Holdings Notes and the Shareholders Agreement or
(iii) the failure of which to be obtained would not materially restrain,
prevent or impose material burdensome conditions on any of the
transactions contemplated by the Transaction Documents.
(t) KPMG LLP are independent certified public accountants with respect
to Holdings and its subsidiaries within the meaning of Rule 101 of the
Code of Professional Conduct of the American Institute of Certified
Public Accountants (the "AICPA") and the interpretations and rulings
thereunder. The historical financial statements (including the related
notes) contained in the Private Placement Memorandum comply in all
material respects with the requirements applicable to a registration
statement on Form S-1 under the Securities Act (except that certain
supporting schedules are omitted); such financial statements have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods covered thereby and fairly
present in all material respects the financial position of the entities
purported to be covered thereby at the respective dates indicated and the
results of their operations and their cash flows for the respective
periods indicated; and the historical financial
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information contained in the Private Placement Memorandum under the
headings "Summary--Summary Historical and Pro Forma Financial
Information," "Capitalization," "Unaudited Pro Forma Financial
Information of the Company," "Selected Historical Consolidated Financial
Information of Holdings," "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Management --
Compensation of Executive Officers" are derived from the accounting
records of Holdings and its subsidiaries and fairly present in all
material respects the information purported to be shown thereby. The pro
forma financial information contained in the Private Placement Memorandum
has been prepared on a basis consistent with the historical financial
statements contained in the Private Placement Memorandum (except for the
pro forma adjustments specified therein), includes all material
adjustments to the historical financial information required by Rule
11-02 of Regulation S-X promulgated by the Commission to reflect the
transactions described in the Private Placement Memorandum, gives effect
to assumptions made on a reasonable basis and fairly presents in all
material respects the historical and proposed transactions contemplated
by the Private Placement Memorandum and the Transaction Documents;
provided that no representation is made with respect to the compliance of
the calculation of "EBITDA" with the requirements of Rule 11-02 of
Regulation S-X under the Exchange Act. The other historical financial and
statistical information and data included in the Private Placement
Memorandum are, in all material respects, fairly presented.
(u) Except as disclosed in the Private Placement Memorandum, there are
no legal or governmental proceedings pending to which Holdings or any of
its subsidiaries is a party or of which any property or assets of
Holdings or any of its subsidiaries is the subject which, (i) singularly
or in the aggregate, if determined adversely to Holdings or any of its
subsidiaries, could reasonably be expected to have a Material Adverse
Effect or (ii) question the validity or enforceability of any of the
Transaction Documents or any action taken or to be taken pursuant
thereto; and to the best knowledge of the Company and the Guarantors, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(v) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Units or suspends the sale of the
Units in any jurisdiction; no injunction, restraining order or order of
any nature by any federal or state court of competent jurisdiction has
been issued with respect to Holdings or any of its subsidiaries which
would prevent or suspend the issuance or sale of the Units or the use of
the Private Placement Memorandum in any jurisdiction in which the Units
are being issued and sold pursuant thereto; except as disclosed in
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the Private Placement Memorandum, no action, suit or proceeding is
pending against or, to the best knowledge of the Company and each of the
Guarantors, threatened against or affecting Holdings or any of its
subsidiaries before any court or arbitrator or any governmental agency,
body or official, domestic or foreign, which could reasonably be expected
to interfere with or adversely affect the issuance of the Units or in any
manner draw into question the validity or enforceability of any of the
Transaction Documents or any action taken or to be taken pursuant
thereto.
(w) Neither Holdings nor any of its subsidiaries is (i) in violation
of its charter or by-laws, (ii) in default in any respect, and no event
has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a
party or by which it is bound or to which any of its property or assets
is subject, other than any such default as would not, singularly or in
the aggregate, have a Material Adverse Effect or (iii) in violation in
any respect of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets are subject, other than any
such violation as could not, singularly or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(x) Holdings and each of its subsidiaries possess all licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate federal, state or foreign
regulatory agencies or bodies which are necessary or, in the reasonable
judgment of Holdings and the Company, desirable for the ownership of
their respective properties or the conduct of their respective businesses
as described in the Private Placement Memorandum, except where the
failure to possess or make the same would not, singularly or in the
aggregate, have a Material Adverse Effect, and, neither Holdings nor any
of its subsidiaries has received notification of any revocation or
modification of any such license, certificate, authorization or permit or
has any reason to believe that any such license, certificate,
authorization or permit will not be renewed in the ordinary course of its
business, which revocation, modification or nonrenewal would, singularly
or in the aggregate, have a Material Adverse Effect.
(y) Holdings and each of its subsidiaries have filed all federal,
state, local and foreign income and franchise tax returns required to be
filed through the date hereof and have paid all taxes due thereon (other
than those taxes being contested in good faith or those taxes currently
payable without penalty or interest, in each case for which adequate
reserves have been provided in accordance with generally accepted
accounting principles, and other than any such failure that could not
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reasonably be expected to have, singularly or in the aggregate with any
such other failures, a Material Adverse Effect), and no tax deficiency
has been determined adversely to Holdings or any of its subsidiaries
which has had (nor does the Company or any Guarantor have any knowledge
of any tax deficiency which, if determined adversely to Holdings or any
of its subsidiaries, could reasonably be expected, singularly or in the
aggregate, to have) a Material Adverse Effect.
(z) Neither Holdings nor any of its subsidiaries is (i) an "investment
company" or a company "controlled by" an investment company within the
meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the rules and regulations of the
Commission thereunder or (ii) a "holding company" or a "subsidiary
company" of a holding company or an "affiliate" thereof within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(aa) Except as would not, singularly or in the aggregate, have a
Material Adverse Effect, Holdings and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(bb) Except as would not, singularly or in the aggregate, have a
Material Adverse Effect, Holdings and each of its subsidiaries have
insurance covering their respective properties, operations, personnel and
businesses, which insurance is in amounts and insures against such losses
and risks as are, in the reasonable judgment of Holdings and the Company,
adequate to protect Holdings and its subsidiaries and their respective
businesses. Neither Holdings nor any of its subsidiaries has received
notice from any insurer or agent of such insurer that material capital
improvements or other material expenditures are required or necessary to
be made in order to continue such insurance.
(cc) Holdings and each of its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the
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conduct of their respective businesses; and the conduct of their
respective businesses will not conflict in any respect with, and Holdings
and its subsidiaries have not received any notice of any claim of
conflict with, any such rights of others which conflict, singularly or in
the aggregate with any other such conflicts, if the subject of an
unfavorable decision, ruling or finding, could reasonably be expected to
result in a Material Adverse Effect.
(dd) Holdings and each of its subsidiaries have good and marketable
title in fee simple to, or have valid rights to lease or otherwise use,
all items of real and personal property which are material to the
business of Holdings and its subsidiaries, in each case free and clear of
all liens, encumbrances, claims and defects and imperfections of title
except such as (i) do not materially interfere with the use made and
proposed to be made of such property by Holdings and its subsidiaries,
(ii) could not reasonably be expected to have, singularly or in aggregate
with all other liens, encumbrances, claims and defects and imperfections
of title, a Material Adverse Effect, (iii) arise under the New Credit
Facilities Documents or (iv) are permitted under the Indenture.
(ee) No labor disturbance by or dispute with the employees of Holdings
or any of its subsidiaries exists or, to the best knowledge of the
Company and the Guarantors, is contemplated or threatened, which
disturbance or dispute would, singularly or in the aggregate, have a
Material Adverse Effect.
(ff) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended from time
to time (the "Code")) or, except as set forth in Section 3.11(d) of the
Merger Agreement and the related schedule, "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or any of the events set
forth in Section 4043(b) of ERISA (other than events with respect to
which the 30-day notice requirement under Section 4043 of ERISA has been
waived) has occurred with respect to any employee benefit plan of
Holdings or any of its subsidiaries which could reasonably be expected to
have a Material Adverse Effect; each such employee benefit plan is in
compliance in all material respects with applicable law, including ERISA
and the Code; Holdings and each of its subsidiaries have not incurred and
do not expect to incur liability under Title IV of ERISA with respect to
the termination of, or withdrawal from, any pension plan for which
Holdings or any of its subsidiaries would have any liability; and each
such pension plan that is intended to be qualified under Section 401(a)
of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which could reasonably
be expected to cause the loss of such qualification.
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(gg) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind of
toxic or other wastes or other hazardous substances by, due to or caused
by Holdings or any of its subsidiaries (or, to the best knowledge of the
Company and the Guarantors, any other entity (including any predecessor)
for whose acts or omissions Holdings or any of its subsidiaries is or
could reasonably be expected to be liable) upon any of the property now
or previously owned or leased by Holdings or any of its subsidiaries, or
upon any other property, in violation of any statute or any ordinance,
rule, regulation, order, judgment, decree or permit or which would, under
any statute or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any
liability, except for any violation or liability that could not
reasonably be expected to have, singularly or in the aggregate with all
such violations and liabilities, a Material Adverse Effect; and there has
been no disposal, discharge, emission or other release of any kind onto
such property or land contiguous with such property of any toxic or other
wastes or other hazardous substances with respect to which the managers
of the Company and the Guarantors at the Executive Vice President level
and above and the vice president responsible for environmental matters of
the Company and the Guarantors has actual knowledge, except for any such
disposal, discharge, emission or other release of any kind which could
not reasonably be expected to have, singularly or in the aggregate with
all such discharges and other releases, a Material Adverse Effect.
(hh) Neither Holdings nor any of its subsidiaries or, to the best
knowledge of the Company and each of the Guarantors, any director,
officer, agent, employee or other person associated with or acting on
behalf of Holdings or any of its subsidiaries has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; (ii) made any unlawful
payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any unlawful
bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(ii) On and immediately after the Closing Date, the Company and each
of the Guarantors (after giving effect to the issuance of the Notes and
the Warrants and to the other Transactions) will be Solvent. As used in
this paragraph, the term "Solvent" means, with respect to a particular
date, that on such date (i) the fair value and present fair saleable
value of the assets of the Company or such Guarantor, as the case may be,
exceeds: (x) the total liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities) of the Company or such Guarantor,
as the case may be, and (y) the amount required to pay such
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liabilities as they become absolute and matured in the normal course of
business; (ii) the Company or such Guarantor, as the case may be, has the
ability to pay its debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) as they become
absolute and matured in the normal course of business; and (iii) neither
the Company nor such Guarantor, as the case may be, has an unreasonably
small amount of capital with which to conduct its business after giving
due consideration to the prevailing practice in the industry in which the
Company or such Guarantor, as the case may be, is engaged. In computing
the amount of such contingent liabilities at any time, it is intended
that such liabilities will be computed at the amount that, in the light
of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
(jj) Except as described in the Private Placement Memorandum, there
are no outstanding subscriptions, rights, warrants, calls or options to
acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance of, any
shares of capital stock of or other equity or other ownership interest in
Holdings or any of its subsidiaries.
(kk) None of the proceeds of the sale of the Units will be used,
directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any indebtedness
which was originally incurred to purchase or carry any margin security or
for any other purpose which would cause any of the Units to be considered
a "purpose credit" within the meanings of Regulation T, U or X of the
Board of Governors of the Federal Reserve System.
(ll) Neither Holdings nor any of its subsidiaries is a party to any
contract, agreement or understanding, other than this Agreement, with any
person that would give rise to a valid claim against Holdings or its
subsidiaries or the Purchasers for a brokerage commission, finder's fee
or like payment in connection with the sale of the Units.
(mm) The Notes and the Warrants satisfy the eligibility requirements
of Rule 144A(d)(3) under the Securities Act.
(nn) None of Holdings, any of its subsidiaries or any of their
respective affiliates has, directly or through any agent, made any offer
or sale, solicited offers to buy or otherwise negotiated in respect of
any of the Notes or the Warrants or any securities of the same or similar
class as the Notes or the Warrants, the result of which would cause the
sale of the Notes or the Warrants to fail to be entitled to the exemption
from registration afforded by Section 4(2) of
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the Securities Act. As used herein, the terms "offer" and "sale" have the
meanings specified in Section 2(3) of the Securities Act.
(oo) None of Holdings, any of its subsidiaries or any of their
respective affiliates or any other person acting on its or their behalf
has engaged, in connection with the sale of the Units, in any form of
general solicitation or general advertising within the meaning of Rule
502(c) of Regulation D under the Securities Act ("Regulation D").
(pp) Following the Transactions, there will not be, other than
pursuant to the requirements of the Registration Rights Agreement the
Shareholders Agreement and the Holdings Notes Registration Agreement, any
securities of the Company or the Guarantors registered under the
Securities Exchange Act of 1934 (the "Exchange Act"), or listed on a
national securities exchange or quoted in a U.S. automated inter-dealer
quotation system following delisting and deregistration of the common
stock of Holdings.
(qq) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in
the Private Placement Memorandum has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(rr) Any reprogramming required to permit the proper functioning in
and following the year 2000 of (i) the computer systems of Holdings and
each of its subsidiaries and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with
which the systems of Holdings or each of its subsidiaries interface) and
the testing of all such systems and equipment, as so reprogrammed, was
materially complete by October 31, 1999. The cost to Holdings and each of
its subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of the occurrence of the year 2000 to Holdings
and each of its subsidiaries (including reprogramming errors and the
failure of others' systems or equipment) did not and will not result in a
Material Adverse Effect. The computer and management information systems
of Holdings and each of its subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement
to be, sufficient to permit Holdings and its subsidiaries to conduct
their businesses without Material Adverse Effect.
(ss) Since the date as of which information is given in the Private
Placement Memorandum, except as otherwise stated therein, (i) there has
been no material adverse change or any development involving a material
adverse change in the condition (financial or otherwise), earnings,
business affairs, management
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or business of Holdings and its subsidiaries, taken as a whole, whether
or not arising in the ordinary course of business and (ii) Holdings and
its subsidiaries have not incurred any material liability or obligation,
direct or contingent, other than in the ordinary course of business or in
connection with the Transactions.
2. Purchase of the Units. (a) On the basis of the representations,
warranties and agreements contained herein, and subject to the terms and
conditions set forth herein, Holdings and the Company agree to issue and sell
to each of the Purchasers, severally and not jointly, and each of the
Purchasers, severally and not jointly, agrees to purchase from Holdings and the
Company the number of Units set forth opposite the name of such Purchaser on
Schedule 1 hereto at a purchase price equal to $761.00 per Unit. Schedule 1
also sets forth for each Purchaser the principal amount at maturity of the
Notes and the number of Warrants represented by the Units that such Purchaser
has agreed to purchase.
(b) Each Purchaser represents to Holdings and the Company that (i) it
is either (A) an "accredited investor," within the meaning of Rule 501
promulgated by the Commission under the Securities Act or (B) a Qualified
Institutional Buyer ("QIB") as defined in Rule 144A under the Securities Act
("Rule 144A"), (ii) it is acquiring the Units, the Notes and the Warrants to be
purchased by it hereunder for its own account, for investment, and not with a
view to or for sale in connection with any distribution thereof in violation of
the registration provisions of the Securities Act or the rules and regulations
promulgated thereunder, (iii) it is aware that it must bear the economic risk
of such investment for an indefinite period of time since the statutory basis
for exemption from registration under the Securities Act would not be present
if such representation meant merely that the present intention of such
Purchaser is to hold these securities for a deferred sale or for any fixed
period in the future and (iv) it can afford to bear such economic risk and can
afford to suffer the complete loss of its investment hereunder. Each Purchaser
acknowledges that the Notes and the Warrants are "restricted securities" under
the federal securities laws, have not been registered under the Securities Act
or any state securities or blue sky laws and may not be sold except pursuant to
an effective registration statement thereunder or any exemption from
registration under the Securities Act and applicable state securities laws.
Each Purchaser further acknowledges that each Note and Warrant shall include
the restrictive legend set forth below:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
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REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION."
Each Purchaser further acknowledges that the Warrants and the Underlying Shares
will be subject to the provisions of the Shareholders Agreement, which
agreement provides for certain restrictions on the transferability of the
Warrants and the Underlying Shares and will bear such other legends as may be
set forth in the Shareholders Agreement.
(c) It is hereby agreed that, for purposes of Treasury Regulations
1.1273- 2(h), (i) the aggregate "issue price" of a Unit consisting of the
$1,000 in principal amount at maturity of the Notes and one Warrant to be
purchased by the Purchasers is $738.17 (representing the $761.00 purchase price
reduced by the takedown fee referred to in Section 3(c)), (ii) the aggregate
fair market value and aggregate purchase price of each Note of $1,000 principal
amount at maturity is $716.79 and (iii) the aggregate fair market value and
aggregate purchase price of each Warrant is $21.38. Holdings, the Company and
the Purchasers agree to use the foregoing issue price, purchase prices and fair
market values for U.S. federal income tax purposes with respect to this
transaction (unless otherwise required by a final determination by the Internal
Revenue Service or a court of competent jurisdiction).
3. Delivery of and Payment for the Units. (a) Delivery of and payment
for the Units shall be made at the offices of Wachtell, Lipton, Rosen & Katz,
New York, New York, or at such other place as shall be agreed upon by the
Purchasers and the Company, at 3:30 p.m., New York City time, on November 12,
1999, or at such other time or date, not later than seven full business days
thereafter, as shall be agreed upon by the Purchasers, Holdings and the Company
(such date and time of payment and delivery being referred to herein as the
"Closing Date"). On the Closing Date, Holdings and the Company will deliver to
the Purchasers certificates evidencing an aggregate of 144,552 Units consisting
of $144,552,000 aggregate principal amount at maturity of the Notes duly
executed and authenticated by the Company and 144,552 Warrants duly executed by
Holdings and registered in the names of the Purchasers and in the amounts set
forth on Schedule 1 (and in such denominations requested by each such Purchaser
not later than two business days prior to the Closing Date).
(b) On the Closing Date, payment of the purchase price for the Units
shall be made to the Company by wire or book-entry transfer of same-day funds
to such account or accounts as Holdings and the Company shall specify prior to
the Closing Date or by such other means as the parties hereto shall agree prior
to the Closing Date against delivery to the Purchasers of the certificates
evidencing the Units. Time shall be of the essence, and delivery at the time
and place specified pursuant to this Agreement is a further condition of the
obligations of the Purchasers hereunder. On the Closing Date, the Company shall
deliver to each Purchaser, against payment of the purchase price therefor,
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certificates in definitive form representing the Notes, and Holdings shall
deliver to each Purchaser, against payment of the purchase price therefor,
certificates in definitive form representing the Warrants to be purchased by
such Purchaser, in each case registered in such names and in such denominations
as such Purchaser shall have requested not later than two business days prior
to the Closing Date.
(c) On the Closing Date, Holdings and the Company shall, jointly and
severally, pay to each Purchaser or its designee, by wire transfer in same-day
funds, a takedown fee equal to 3.00% of the purchase price of each Unit
purchased by such Purchaser on the Closing Date (which fee equals $22.83 per
Unit) and, to the extent requested to be paid on the Closing Date, all the
reasonable fees of and disbursements to, Cravath, Swaine & Moore, counsel to
the Purchasers, incurred in connection with the issuance and sale of the Notes
and the Warrants.
4. Further Agreements of the Company and the Guarantors. Each of the
Company and the Guarantors agrees with each of the Purchasers:
(a) at all times prior to the Closing Date, to advise the Purchasers
promptly and, if reasonably requested, confirm such advice in writing, of
the happening of any event which makes any statement of a material fact
made in the Private Placement Memorandum untrue or which requires the
making of any additions to or changes in the Private Placement Memorandum
(as amended or supplemented from time to time) in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(b) if at any time prior to the Closing Date any event shall occur or
condition exist as a result of which it is necessary, in the opinion of
counsel for the Purchasers or counsel for the Company, to amend or
supplement the Private Placement Memorandum in order that the Private
Placement Memorandum will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the
time it is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Private Placement Memorandum to
comply with applicable law, to promptly prepare such amendment or
supplement as may be necessary to correct such untrue statement or
omission or so that the Private Placement Memorandum, as so amended or
supplemented, will comply with applicable law and to deliver copies
thereof to the Purchasers;
(c) for so long as the Notes or the Warrants are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Notes or the Warrants and
prospective purchasers of the Notes or the Warrants designated by such
holders, upon request of such
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holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless
Holdings or the Company is then subject to and in compliance with Section
13 or 15(d) of the Exchange Act (the foregoing agreement being for the
benefit of the holders from time to time of the Units, the Notes or the
Warrants and prospective purchasers of the Units, the Notes or the
Warrants designated by such holders);
(d) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case
may be, not to, and to cause its affiliates not to, and not to authorize
or knowingly permit any person acting on their behalf to, solicit any
offer to buy or offer to sell the Notes by means of engaging in any form
of general solicitation or general advertising within the meaning of Rule
502 (c) of Regulation D under the Securities Act; and not to offer, sell,
contract to sell or otherwise dispose of, or negotiate in respect of,
directly or indirectly, any securities of the same or similar class as
the Notes or the Warrants under circumstances where such offer, sale,
contract, negotiation or disposition could be integrated with the sale of
the Notes or the Warrants in a manner which would cause the exemption
afforded by Section 4(2) of the Securities Act to cease to be applicable
to the sale of the Units as contemplated by this Agreement and the
Private Placement Memorandum;
(e) during the period from the Closing Date until two years after the
Closing Date not to, and not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Notes or the
Warrants that have been reacquired by them, except for Notes and Warrants
purchased by Holdings, the Company or any of their respective affiliates
and resold in a transaction registered under the Securities Act or unless
the Notes or the Warrants bear a legend specifying the date of such
resale;
(f) not to, for so long as the Notes or the Warrants are outstanding,
be or become, or be or become owned by, an open-end investment company,
unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act,
and to not be or become, or be or become owned by, a closed-end
investment company required to be registered under the Investment Company
Act, but not registered thereunder;
(g) to do and perform all things required to be done and performed by
it under this Agreement that are within its control prior to or after the
Closing Date, and to use its best efforts to satisfy all conditions
precedent on its part to the delivery of the Units;
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(h) not to take any action prior to the execution and delivery of the
Indenture which, if taken after such execution and delivery, would have
violated any of the covenants contained in the Indenture;
(i) not to take any action prior to the Closing Date which would
require the Private Placement Memorandum to be amended or supplemented
pursuant to Section 4(b);
(j) to apply the net proceeds from the sale of the Units as set forth
in the Private Placement Memorandum under the heading "Summary--Sources
and Uses" and "Use of Proceeds";
(k) to cause each of Wachtell, Lipton, Rosen & Katz, Shumaker, Loop &
Kendrick, LLP and Vinson & Elkins (as such firms and counsel may allocate
such opinions) to furnish to the Purchasers their written opinions, as
counsel for the Company and the Guarantors, addressed to the Purchasers
and dated as of the Closing Date, in form and substance reasonably
satisfactory to the Purchasers, such opinions together to be
substantially in the form set forth in Annex B hereto;
(l) to furnish to the Purchasers a certificate, dated as of the
Closing Date, of the respective Chief Executive Officers and Chief
Financial Officers of the Company and each of the Guarantors stating that
(i) such officers have carefully examined the Private Placement
Memorandum, (ii) in their opinion, the Private Placement Memorandum, as
of its date, did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and since the
date of the Private Placement Memorandum, no event has occurred which
should have been set forth in a supplement or amendment to the Private
Placement Memorandum so that the Private Placement Memorandum (as so
amended or supplemented) would not include any untrue statement of a
material fact and would not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, (iii) as of the Closing Date, the representations and
warranties of the Company or the particular Guarantor, as applicable, in
this Agreement are true and correct in all material respects, and the
Company or the particular Guarantor, as applicable, have complied in all
material respects with all agreements and satisfied all conditions on
their part to be performed or satisfied hereunder on or prior to the
Closing Date and (iv) subsequent to the date of the most recent financial
statements contained in the Private Placement Memorandum, there has been
no material adverse change in the financial position or results of
operations of Holdings and its subsidiaries, taken as a whole, or any
material change, or any material development, in or affecting the
condition
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(financial or otherwise), results of operations, business or prospects of
Holdings and its subsidiaries, taken as a whole;
(m) to furnish to the Purchasers, on or prior to the Closing Date, a
counterpart of the Registration Rights Agreement which shall have been
duly executed and delivered by each of the Company and the Guarantors;
(n) to furnish to the Purchasers, on or prior to the Closing Date, (i)
the Indenture which shall have been duly executed and delivered by the
Company, the Guarantors and the Trustee, and (ii) the Notes which shall
have been duly executed and delivered by the Company and duly
authenticated by the Trustee;
(o) to furnish to the Purchasers, on or prior to the Closing Date, a
counterpart of the Shareholders Agreement which shall have been duly
executed and delivered by of Holdings and each other party thereto other
than the Purchasers;
(p) to furnish to the Purchasers, on or prior to the Closing Date, (i)
a counterpart of the Warrant Agreement, which shall have been duly
executed and delivered by Holdings and the Warrant Agent, and (ii) the
Warrants which shall have been duly executed and delivered by Holdings;
and
(q) to furnish to the Purchasers, on or prior to the Closing Date,
true and complete copies of all the Transaction Documents (and all
related closing documents), which shall have been duly executed and
delivered by all the parties thereto, including, without limitation, the
Services Agreement, the Credit Agreement and other New Credit Facilities
Documents and the Supplemental Indenture.
5. Conditions to Purchasers' Obligations. The respective obligations
of the Purchasers hereunder are subject, on and as of the date hereof and the
Closing Date, to the satisfaction of the following terms and conditions:
(a) The representations and warranties of the Company and each of the
Guarantors set forth in this Agreement that are qualified as to
materiality shall be true and correct in all respects, as of the date
hereof and as of the Closing Date as though made as of such time, except
to the extent such representations and warranties expressly relate to an
earlier date (in which case such representations and warranties shall be
true and correct in all respects as of such earlier date) and the
representations and warranties of the Company and each of the Guarantors
set forth in this Agreement that are not qualified as to materiality
shall be true and correct in all material respects, as of the date hereof
and as of the Closing Date as though made as of such time, except to the
extent such representations and
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warranties expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date). The Company and each of the Guarantors
shall have performed or complied in all material respects with all
obligations and covenants required by this Agreement to be performed or
complied with by the Company and each of the Guarantors on or prior to
the Closing Date. All the statements made by the Company and each of the
Guarantors and their respective officers made in any certificates
delivered pursuant hereto shall be accurate in all material respects.
(b) The Private Placement Memorandum (and any amendments or
supplements thereto) shall have been printed and copies distributed to
the Purchasers; and no stop order suspending the sale of the Units in any
jurisdiction shall have been issued and no proceeding for that purpose
shall have been commenced or shall be pending or threatened.
(c) The Company and the Guarantors shall have furnished to the
Purchasers such certificates, opinions and other documents as are
customary in connection with the closing of transactions similar to the
transactions contemplated by this Agreement.
(d) The capitalization of Holdings and its subsidiaries shall be as
contemplated by the commitment letters each dated as of October 22, 1999
entered into by each of the Purchasers (other than GS Mezzanine Partners,
L.P.) with Fox Paine Maxxim and the commitment letter dated as of August
13, 1999 among Fox Paine Maxxim, Fox Paine Circon and GS Mezzanine
Partners, L.P., as amended on October 29, 1999 (each a "Purchaser
Commitment Letter" and collectively the "Purchaser Commitment Letters"),
and the commitment letter dated as of June 12, 1999 among Fox Paine
Maxxim, The Chase Manhattan Bank and Chase Securities, Inc., as amended
on September 30, 1999, and November 1, 1999 (the "Chase Commitment
Letter"), except where any change to such capitalization is on terms that
are not materially adverse to the Purchasers and the investment
contemplated by such Purchaser Commitment Letters and the Chase
Commitment Letter.
(e) Subsequent to June 13, 1999, there shall not have been any event,
change or development that has constituted or constitutes a Company
Material Adverse Effect (as defined in the Merger Agreement), in each
case other than actions taken pursuant to or as disclosed in the Merger
Agreement.
(f) The Merger Agreement shall be in full force and effect.
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(g) (i) The issuance of the Units, the Notes and the Warrants shall be
in compliance with existing law and no action shall have been taken and
(ii) no statute, rule, regulation or order shall have been enacted,
adopted or issued by any governmental agency or body which would, as of
the Closing Date, prevent the issuance or sale of the Units, the Notes or
the Warrants; and no injunction, restraining order or order of any other
nature by any federal or state court of competent jurisdiction shall have
been issued as of the Closing Date which would prevent the issuance or
sale of the Units, the Notes or the Warrants.
(h) The Investors shall have previously made, or shall substantially
concurrently with the sale of the Units hereunder make, payments in
respect of the entire amount of the Investor Equity Contribution.
(i) All the Transactions, other than the sale of the Units, shall be
consummated substantially concurrently with the sale of the Units
hereunder.
6. Termination. The obligations of the Purchasers hereunder may be
terminated by the Purchasers, in their absolute discretion, by notice given to
and received by Holdings or the Company prior to delivery of and payment for
the Units (a) if, prior to that time, any of the events described in Section
5(g)(ii) shall have occurred and be continuing or (b) at any time after
December 31, 1999.
7. Defaulting Purchasers. (a) If, on the Closing Date, any Purchaser
defaults in the performance of its obligations under this Agreement, the
non-defaulting Purchasers or Holdings may make arrangements for the purchase of
the Units which such defaulting Purchaser agreed but failed to purchase by
other persons satisfactory to Holdings, the Company and the non-defaulting
Purchasers, but if no such arrangements are made within 36 hours after such
default, this Agreement shall terminate without liability on the part of the
non-defaulting Purchasers or the Company, except that the Company and the
Guarantors will continue to be liable for the payment of expenses to the extent
set forth in Section 10 and except that the provisions of Section 8 shall not
terminate and shall remain in effect. As used in this Agreement, the term
"Purchasers" includes, for all purposes of this Agreement, unless the context
otherwise requires, any party not listed in Schedule 1 hereto that, pursuant to
this Section 7, purchases Units which a defaulting Purchaser agreed but failed
to purchase.
(b) Nothing contained herein shall relieve a defaulting Purchaser of
any liability it may have to Holdings, the Company or any non-defaulting
Purchaser for damages caused by its default. If other persons are obligated or
agree to purchase the Units of a defaulting Purchaser, either the
non-defaulting Purchasers, Holdings or the Company may postpone the Closing
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Purchasers may be
necessary in any document or arrangement.
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8. Indemnification. (a) The Company and each of the Guarantors hereby
jointly and severally agree to defend, indemnify and hold harmless each
Purchaser, its respective affiliates, officers, directors, stockholders,
trustees, employees and representatives, and each person, if any, who controls
any such person within the meaning of the Securities Act or the Exchange Act
(collectively referred to herein as the "Indemnitees"), from and against any
and all liabilities, obligations, losses, damages, claims, and the related
costs and expenses, including, without limitation, legal fees and other
expenses incurred in the investigation, defense, appeal and settlement of
claims, actions, suits and proceedings (collectively referred to herein as the
"Indemnified Liabilities"), incurred by the Indemnitees as a result of, or
arising out of or relating to the Transactions, (it being understood and agreed
that such Indemnified Liabilities do not include losses by the Purchasers of
all or a portion of their investment in the Notes and Warrants except as a
result of a breach by the Company and the Guarantors of their obligations under
this Agreement, the Warrant Agreement, the Registration Rights Agreement, the
Indenture, the Warrants or the Notes (collectively, the "Unit Documents") and
provided that this parenthetical shall in no way be deemed to limit or effect
the rights and obligations of the Company and the Guarantors under the Unit
Documents otherwise than under this Section 8) including, without limitation:
(i) any action or failure to act by any of Holdings or any of its
subsidiaries;
(ii) any statements or omissions made in any disclosure or other
information or materials used in connection with the Transactions;
(iii) the execution, delivery, performance or enforcement of this
Agreement, the other Transaction Documents or any other instrument or
document contemplated hereby or thereby or any act, event or transaction
related or attendant thereto or contemplated hereby or thereby, or any
action or inaction by any Indemnitee under or in connection herewith or
therewith; or
(iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract,
tort or other theory and regardless of whether any Indemnitee is a party
thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that (x) such Indemnified Liabilities are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or wilful misconduct of such Indemnitee or (y) such
Indemnified Liabilities of a Purchaser result from disputes among such
Purchaser and one or more other Purchasers. If and to the extent that the
foregoing undertaking may be unenforceable for any reason each of the
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Company and the Guarantors jointly and severally hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
(b) The obligations of the Company and each Guarantor under this
Section 8 shall be in addition to any liability that the Company and each
Guarantor may otherwise have and shall survive the payment or prepayment in
full or transfer of any Unit and the enforcement of any provision hereof or
thereof.
9. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the several Purchasers, the
Company, the Guarantors and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except as provided in Section 8 with respect to affiliates, officers,
directors, stockholders, trustees, employees, representatives, agents and
controlling persons of the Purchasers. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 9, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
10. Expenses. The Company and each of the Guarantors, jointly and
severally, agree, whether or not the sale of the Units hereunder or any other
transactions contemplated hereby shall be consummated, to pay and hold the
Purchasers harmless against the reasonable fees and disbursements to Cravath,
Swaine & Moore, counsel to the Purchasers. The obligations of the Company and
Guarantors under this Section 10 shall survive the payment for or transfer of
any Unit, the enforcement of any provision hereof or thereof, any such
amendments and waivers or consents. The Purchasers shall not be responsible for
any fees or disbursements of the accountants or any other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement which are not otherwise specifically provided for in this Section 10.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Guarantors and
the Purchasers contained in this Agreement or made by or on behalf of the
Company, the Guarantors or the Purchasers pursuant to this Agreement or any
certificate delivered pursuant hereto shall survive the delivery of and payment
for the Units and shall remain in full force and effect, regardless of any
termination or cancelation of this Agreement or any investigation made by or on
behalf of any of them or any of their respective affiliates, officers,
directors, employees, representatives, agents or controlling persons.
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12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing and delivered in person or overnight courier
service, mailed by first-class mail addressed as follows or delivered via
telecopy transmission:
(a) if to the Purchasers:
GS Mezzanine Partners, L.P.
GS Mezzanine Partners Offshore, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street, 10th Floor
New York, New York 10004
Attn: Ben Adler, Esq.
(telecopier no.: 212-357-5505)
John Hancock Mutual Life Insurance Company
John Hancock Variable Life Insurance Company
Signature 3 Limited
Merrill Lynch International
200 Clarendon Street
Boston, Massachusetts 02117
Attn: Manager, Investment Accounting Division, B-3
(telecopier no.: 617-572-0628)
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attn: Securities Department
(telecopier no.: 414-299-7124)
Chase Equity Associates, L.P.
c/o Chase Capital Partners
380 Madison Avenue, 12th Floor
New York, New York 10017
Attn: Eric Green
(telecopier no.: 212-622-3101)
CIBC WMC, Inc.
c/o CIBC Capital Partners
161 Bay Street, 8th Floor
Toronto Ontario M5J 2S8
Canada
Attn: Managing Director
(telecopier no.: 416-594-8637)
29
30
Merrill Lynch, Pierce, Fenner & Smith Incorporated
250 Vesey Street
World Financial Center, North Tower
New York, New York 10281
(telecopier no.: 212-449-7750)
Nationwide Life Insurance Company
One Nationwide Plaza
Columbus, Ohio 43215
Attn: Corporate Fixed-Income Securities
(telecopier no.: 614-249-4553)
Deutsche Bank AG, New York Branch
130 Liberty Street, 29th Floor
New York, New York 10006
Attn: Kristine Cicardo
(telecopier no.: 212-619-1502)
with an additional copy to:
Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
Attn: Mark Fedorcik
(telecopier no.: 212-469-2883)
Credit Suisse First Boston Corporation
11 Madison Avenue
New York, New York 10010
Attn: Richard Gallant
(telecopier no.: 212-325-9136)
(b) if to the Company or any Guarantor:
10300 49th Street North
Clearwater, Florida 33762
Attention: Corporate Secretary
(telecopier no.: 727-561-2180)
The Company, the Guarantors or the Purchasers, by notice to the other
parties, may designate additional or different addresses for subsequent notices
or communications.
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31
13. Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
15. Submission to Jurisdiction; Waiver of Service and Venue. (a) Each
of the parties hereto hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the U.S. District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, the Units or any other document, instrument or agreement executed or
delivered in connection herewith or therewith, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement, the Units or any other
document, instrument or agreement executed or delivered in connection herewith
or therewith shall affect any right that any of the parties hereto may
otherwise have to bring any action or proceeding relating to this Agreement,
the Units or any other document, instrument or agreement executed or delivered
in connection herewith or therewith against the Company, the Guarantors or
their properties in the courts of any jurisdiction.
(b) Each of the parties hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement, the
Units or any other document, instrument or agreement executed or delivered in
connection herewith or therewith in any court referred to in Section 15(a).
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 12. Nothing in this
Agreement, the
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Units or any other document, instrument or agreement executed or delivered in
connection herewith or therewith will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
16. WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE UNITS
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THEREWITH WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT, TORT OR OTHER THEORY. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
17. [This paragraph has been left blank intentionally]
18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
parties hereto.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
21. Previous Agreements. This Agreement supersedes any other agreement
existing between the Purchasers, Holdings and the Company concerning the
purchase of the Units pursuant to the Purchaser Commitment Letters, provided
that (a) provisions relating to confidentiality of any such Purchaser
Commitment Letter shall remain in full force and effect and (b) all the
provisions other than paragraph 7(i) of the Purchaser Commitment Letter dated
August 13, 1999 among Fox Paine Maxxim, Fox Paine Circon and GS Mezzanine
Partners, L.P., as amended on October 29, 1999, shall remain in full force and
effect.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
MAXXIM MEDICAL GROUP, INC.,
by /s/ Kenneth W. Davidson
--------------------------------
Name: Kenneth W. Davidson
Title: Chairman, President and
Chief Executive Officer
MAXXIM MEDICAL, INC., a Texas
corporation,
by /s/ Kenneth W. Davidson
--------------------------------
Name: Kenneth W. Davidson
Title: Chairman, President and
Chief Executive Officer
MAXXIM MEDICAL, INC., a Delaware
corporation,
by /s/ Kenneth W. Davidson
--------------------------------
Name: Kenneth W. Davidson
Title: Chairman, President and
Chief Executive Officer
FABRITEK LAROMANA, INC.,
by /s/ Kenneth W. Davidson
--------------------------------
Name: Kenneth W. Davidson
Title: President, Secretary and
Treasurer
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MAXXIM INVESTMENT
MANAGEMENT, INC.,
by /s/ Peter M. Graham
------------------------------
Name: Peter M. Graham
Title: Chief Operating Officer,
Secretary and Senior
Executive Vice President
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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/ Melina Higgins
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
c/o Goldman, Sachs & Co.
85 Broad Street, 10th Floor
New York, New York 10004
Attention: Ben Adler, Esq.
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/ Melina Higgins
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
c/o Goldman, Sachs & Co.
85 Broad Street, 10th Floor
New York, New York 10004
Attention: Ben Adler, Esq.
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JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY,
by /s/ Stephen J. Blewitt
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Manager, Investment Accounting
Division, B-3
JOHN HANCOCK VARIABLE LIFE
INSURANCE COMPANY,
by /s/ Stephen J. Blewitt
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Manager, Investment Accounting
Division, B-3
SIGNATURE 3 LIMITED,
by JOHN HANCOCK MUTUAL LIFE
INSURANCE COMPANY, as Portfolio Advisor,
by /s/ Stephen J. Blewitt
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Manager, Investment Accounting
Division, B-3
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MERRILL LYNCH INTERNATIONAL,
by JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, as Manager under that certain
Bond Purchase and Asset Management Agreement dated as of June 22, 1999,
by /s/ Stephen J. Blewitt
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
200 Clarendon Street
Boston, Massachusetts 02117
Attention: Manager, Investment Accounting
Division, B-3
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY,
by /s/ Gary A. Poliner
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Law Department
CHASE EQUITY ASSOCIATES, L.P.,
by CHASE CAPITAL PARTNERS,
its general partner,
by /s/ John O'Connor
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
c/o Chase Capital Partners
380 Madison Avenue, 12th Floor
New York, New York l00l7
Attention: Eric Green
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CIBC WMC, INC.,
by /s/ Ken Kilgour
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
c/o CIBC Capital Partners
161 Bay Street, 8th Floor
Toronto, Ontario M5J 2S8
Canada
Attention: Managing Director
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
by /s/ Christopher K. Stout
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
250 Vesey Street
World Financial Center, North Tower
New York, New York 10281
Attention: Christopher Stout
NATIONWIDE LIFE INSURANCE COMPANY,
by /s/ Jerry D. Cohen
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Attention: Corporate Fixed-Income Securities
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DEUTSCHE BANK AG,
NEW YORK BRANCH,
by /s/ William W. Archer
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
31 West 52nd Street.
New York, New York 10019
Attention: Mark Fedorcik
CREDIT SUISSE FIRST BOSTON
CORPORATION,
by /s/ Richard Gallant
-----------------------------------
Authorized Signatory
Address for notices pursuant to Section 8(b):
11 Madison Avenue
New York, New York 10010
Attention: Richard Gallant
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SCHEDULE 1
Principal
Amount of
Number of Notes at Number of
Purchasers Units Maturity Warrants
GS Mezzanine Partners, L.P. 25,649 $ 25,649,000 25,649
GS Mezzanine Partners
Offshore, L.P. 13,773 13,773,000 13,773
John Hancock Mutual Life
Insurance Company 21,682 $ 21,682,000 21,682
John Hancock Variable Life
Insurance Company 1,314 $ 1,314,000 1,314
Signature 3 Limited 657 $ 657,000 657
Merrill Lynch International 9,199 $ 9,199,000 9,199
The Northwestern Mutual Life
Insurance Company 32,852 $ 32,852,000 32,852
Chase Equity Associates, L.P. 13,140 $ 13,140,000 13,140
CIBC WMC, Inc. 6,572 $ 6,572,000 6,572
Merrill Lynch, Pierce, Fenner &
Smith Incorporated 6,571 $ 6,571,000 6,571
Nationwide Life Insurance
Company 6,571 $ 6,571,000 6,571
Bankers Trust Corporation 3,286 $ 3,286,000 3,286
Credit Suisse First Boston
Corporation 3,286 $ 3,286,000 3,286
Total 144,552 $144,552,000 144,552
======= ============ =======
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SCHEDULE 2
Subsidiaries of Holdings as of the Closing Date
MAXXIM MEDICAL GROUP, INC.
State/County of Incorporation: Delaware
Address: 10300 49th Street North
Clearwater, Florida 33762
MAXXIM MEDICAL, INC.
State/County of Incorporation: Delaware
Address: 10300 49th Street North
Clearwater, Florida 33762
FABRITEK LAROMANA, INC.
State/Country of Incorporation: Mississippi
Address: 10300 49th Street North
Clearwater, Florida 33762
MAXXIM INVESTMENT MANAGEMENT, INC.
State/Country of Incorporation: Nevada
Address: 1325 Airmotive Way, Suite 130
Reno Nevada 89902
MAXXIM MEDICAL FSC, INC.
State/Country of Incorporation: Barbados
Address: Hastings
Christ Church, Barbados
MAXXIM MEDICAL CANADA, LIMITED
State/Country of Incorporation: Canada
Address: 2460 South Sheridan Way
Mississauga, Ontario, Canada
MAXXIM MEDICAL HOLDINGS EUROPE B.V.
State/Country of Incorporation: Netherlands
Address: Lederstraat 1
5223 AW's - Hertogenbosch
The Netherlands
42
MAXXIM MEDICAL EUROPE B.V.
State/Country of Incorporation: Netherlands
Address: Lederstraat 1
5223 AW's - Hertongenbosch
The Netherlands
MAXXIM MEDICAL BELGIUM N.V.
State/Country of Incorporation: Belgium
Address: Nachtegaalstraat #4
B-9320 Aalst
Erembodegem, Belgium