SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )
Maxxim Medical, Inc.
(Name of Issuer)
Common Stock, $0.001 par value per share
(Title of Class of Securities)
42550P100
(CUSIP Number)
Peter G. Dorflinger, One Carolane Trail, Houston, Texas 77024 (713) 467-1260
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
May 2, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and if filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ]
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however, see
the NOTES).
Page 1 of 5 Pages
<PAGE>
1 NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
PETER G. DORFLINGER
SS# ###-##-####
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP *
(a) [ ]
N/A (b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS *
PF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEM 2(d) OR 2(e) N/A
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES CITIZEN
7 SOLE VOTING POWER
NUMBER OF 3,100
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 3,100
WITH
10 SHARED DISPOSITIVE POWER
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
459,936
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES *
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.7%
14 TYPE OF REPORTING PERSON *
IN
Page 2 of 5 Pages
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CUSIP No. 42550P100 Page 3 of 5 Pages
* SEE INSTRUCTIONS BEFORE FILLING OUT
SCHEDULE 13D
ITEM 1. SECURITY AND ISSUER.
This statement relates to the common stock, par value $0.001 per
share (the "Common Stock") of Maxxim Medical, Inc., a Texas corporation (the
"Company"). The address of the principal executive offices of the Company is 104
Industrial Blvd., Sugar Land, Texas 77478.
ITEM 2. IDENTITY AND BACKGROUND.
The reporting person's name is Peter G. Dorflinger. Mr.
Dorflinger's address is One Carolane Trail, Houston, Texas 77024. Mr. Dorflinger
is Vice President and General Counsel of Advanced Medical Instruments, Inc., a
manufacturer of medical instruments and patient monitoring equipment, whose
principal business address is 3061 West Albany, Broken Arrow, Oklahoma 74012.
During the past five years Mr. Dorflinger has not been convicted in a criminal
proceeding nor has he been a party to any proceeding resulting in a judgment,
decree or final order relating to violations of federal or state securities
laws. Mr. Dorflinger is a United States citizen.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Mr. Dorflinger used his personal funds for all prior acquisitions
of the Common Stock. Mr. Dorflinger will use his personal funds for any
acquisitions of the Common Stock upon his exercise of the options described in
Item 6.
ITEM 4. PURPOSE OF TRANSACTION.
Mr. Dorflinger has acquired, and, upon exercise of the options
described in Item 6, will acquire, shares of the Common Stock for investment
purposes only. Mr. Dorflinger does not currently plan to acquire beneficial
ownership of additional shares of the Common Stock or to dispose of any of his
current beneficial ownership in shares of the Common Stock.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Mr. Dorflinger beneficially owns in the aggregate 459,936 shares
of the Common Stock, representing 5.7% of the issued and outstanding shares of
the Common Stock. Mr. Dorflinger is the record owner of, and possesses the sole
voting power and dispositive power over, 3,100 shares of the Common Stock. Mr.
Dorflinger beneficially owns an additional (i) 3,000 shares of the Common Stock
pursuant to an option granted by the Company under the 1994 Non-Employee
Directors' Plan (the "1994 Plan"), (ii) 3,000 shares of the Common Stock
pursuant to an option granted by the Company under the 1995 Non-Employee
Directors' Plan (the "1995 Plan"), (iii) 3,000 shares of the Common Stock
pursuant to an option granted by the Company under the 1996 Non-
Page 3 of 5 Pages
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CUSIP No. 42550P100 Page 4 of 5 Pages
Employee Directors' Stock Option Plan (the "1996 Plan"), (the 1994 Plan, the
1995 Plan and the 1996 Plan are sometimes referred to herein collectively as the
"Directors' Plans"), which options are exercisable in full within sixty (60)
days of the date hereof, and (iv) 447,836 shares of the Common Stock pursuant to
options granted by Sulzer Intermedics, Inc. ("Intermedics") pursuant to that
certain Option Agreement dated June 4, 1992 by and between Mr. Dorflinger and
Intermedics (the "Option Agreement"), as amended by that certain First Amendment
to Option Agreement dated May 2, 1997 by and between Mr. Dorflinger and
Intermedics (the "First Amendment"), which options are exercisable in full
within sixty (60) days of the date hereof.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Mr. Dorflinger has options to purchase 9,000 shares of the Common
Stock pursuant to options granted by the Company under the Directors' Plans. The
terms of each of the Directors' Plans are substantially identical, except for
exercise price and relevant dates. The grant of options to non-employee
directors of the Company is non-discretionary under each of the Directors'
Plans. Accordingly, each non-employee director of the Company at the time of the
Company's Annual Meeting of Shareholders in which each such plan was approved
was granted an option to purchase 3,000 shares of the Common Stock under each of
the Directors' Plans. The exercise price with respect to each of the Directors'
Plans is as follows: (i) under the 1994 Plan, $15.40 per share (85% of the last
reported sales price of the Common Stock on the American Stock Exchange on
November 1, 1993), (ii) under the 1995 Plan, $10.73 per share (85% of the last
reported sales price of the Common Stock on the New York Stock Exchange on
November 1, 1994), and (iii) under the 1996 Plan, $11.48 per share (85% of the
last reported sales price of the Common Stock on the New York Stock Exchange on
November 1, 1995). The options granted under the 1994 Plan, the 1995 Plan and
the 1996 Plan are presently fully exercisable through January 12, 1998, January
12, 1999 and January 12, 2000, respectively.
Mr. Dorflinger has options to purchase 447,836 shares of the
Common Stock pursuant to the Option Agreement, as amended by the First
Amendment. The options were granted in consideration of Mr. Dorflinger's
continued employment with Intermedics and his agreement not to compete with
Intermedics and not to disclose certain trade secrets and confidential
information of Intermedics. The options vested with respect to twenty-five
percent (25%) of the total number of shares purchasable on each anniversary date
of the Agreement pursuant to which Mr. Dorflinger was employed by Intermedics.
The options are now fully vested and exercisable by Mr. Dorflinger. The options
are exercisable by Mr. Dorflinger at a price of $13.80 per share. The options
granted under the Option Agreement expire on June 4, 2002; provided, however,
that the Option Agreement may be terminated by either Mr. Dorflinger or
Intermedics in the event the price per share of Common Stock trades at an
average of less than sixty percent (60%) of the exercise price of the options
for a period of ninety (90) consecutive days during the term of the Option
Agreement.
Page 4 of 5 Pages
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CUSIP No. 42550P100 Page 5 of 5 Pages
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
7.1 Option Agreement dated June 4, 1992 by and between Mr.
Dorflinger and Intermedics.
7.2 First Amendment to Option Agreement dated May 2, 1997 by
and between Mr. Dorflinger and Intermedics.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: July 14, 1997
/s/ Peter G. Dorflinger
(Signature)
Peter G. Dorflinger
(Name / Title)
Page 5 of 5 Pages
O.A. EXHIBIT 7.1
OPTION AGREEMENT
This Option Agreement (the "Agreement") is made as of the 4th day of
June, 1992, by and between Intermedics Inc., a Delaware corporation (the
"Company") and Peter G. Dorflinger (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company is the owner and holder of Four Hundred Forty-Seven
Thousand Eight Hundred Thirty-Six (447,836) shares of common stock of Henley
International, Inc., a Texas corporation (the "Henley shares");
WHEREAS, the Optionee desires an option to purchase the Henley shares;
and
WHEREAS, the Company is willing to grant the Optionee an option to
purchase the Henley Shares as an inducement to continue employment with the
Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
SECTION 1. GRANT OF OPTION. The company hereby grants to the Optionee
the option (the "Option") to purchase the Henley Shares at the exercise price of
$16.11 per share (the "Option Price") on the terms and conditions set forth in
this Agreement.
SECTION 2. OPTIONEE'S COVENANTS. The Optionee agrees:
(a} to remain in the employ of and to render to the Company services for
a period of four (4) years from the date of this Agreement, provided that the
Company shall be under no obligation to retain the Optionee in its employ;
(b) not to become an employee, agent, officer, director, partner, or
owner of any business which manufactures or markets any medical device which is
in competition with any medical device manufactured or marketed by the Company
without the prior written consent of the Company. This covenant shall remain in
effect while the Optionee is employed by the Company and for a period of two (2)
years thereafter; and
(c) not to disclose or use any trade secrets, confidential or
proprietary information relating to the Company which is not generally known,
cannot be readily ascertained from inspection of the Company's products and
which has been expressly or implicitly protected from unrestricted use by
persons not
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associated with the Company.
SECTION 3. EXERCISE OF OPTION AND PAYMENT OF OPTION PRICE.
(a) Subject to the fulfillment by the Optionee of the conditions set
forth in Section 2(a), twenty-five percent (25%) of the Option shall become
vested and exercisable on each anniversary of the date of this Agreement in
which the Optionee is employed by the Company. On the fourth anniversary date of
this Agreement, this Option shall be fully vested and exercisable if the
Optionee has been in continuous employment by the Company for a period of four
(4) years from the effective date of this Agreement. This option shall terminate
on the tenth anniversary date of this Agreement.
(b) On exercise of this Option in whole or in part, the Optionee shall
deliver to the Company an executed and completed "Notice of Exercise of Option"
in the form attached to this Agreement and the Option Price for any portion of
the Option being exercised.
(c) The Optionee shall be entitled to accumulate and carry over any
unexercised portion of the Option to any subsequent period, provided that at the
time of exercise of such portion of the Option, the Optionee shall meet all
conditions required by this Agreement.
(d) Notwithstanding subsection 3 (a) or any other provision in this
Agreement to the contrary, the Optionee's employment by Company shall not be a
condition to exercise this Option in whole or in part to the extent such Option
is vested on the date exercised.
SECTION 4.ACCELERATED VESTING. The entire number of Henley Shares then
subject to the Option shall become immediately vested and exercisable in the
event of:
(a) approval by the Board of Directors of Henley International, Inc.
("Henley") of a merger or consolidation of Henley with, or into, another
corporation as a result of which Henley is not the surviving corporation;
provided that the Option is exercised before the earlier of one hundred eighty
(180) days after the effective date of the merger or consolidation or the
expiration date of the Option;
(b) approval by the Board of Directors of Henley of the sale by Henley
of all or substantially all of its assets, provided that the Option is exercised
before the date the sale is consummated;
(c) approval by the Board of Directors of Henley of the
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spin-off of substantial assets or a subsidiary of Henley in a distribution to
the shareholders of Henley; provided that the Option is exercised prior to the
record date for determining shareholders of Henley entitled to participate in
the spin-off;
(d) approval by the Board of Directors of Henley of (i) the sale of a
subsidiary contributing revenues in excess of twenty-five percent (25%) of net
revenues of Henley and consolidated companies, (ii) the sale of substantially
all of the assets of a subsidiary contributing revenues in excess of twenty-five
percent (25%) of net revenue of Henley and consolidated companies, or (iii) the
public offering of the securities of a subsidiary, coupled with a resolution
adopted by the Board of Directors of Henley within twelve (12) months of the
close of any such sale or public offering resolving to purchase shares of Henley
with a substantial portion of the proceeds of such sale or public offering to
the shareholders of Henley (as used herein, "substantial" means fifty percent
(50%) or more of the proceeds); provided that the Option is exercised within
twenty-one (21) days of adoption of a resolution authorizing the purchase of
shares of the Company or prior to the record date for determining shareholders
of Henley entitled to participate in distribution to shareholders, as
applicable, respectively;
(e) the commencement of a tender offer for more than fifty percent (50%)
of the shares of common stock of Henley;
(f) approval by the Board of Directors of Henley of the liquidation or
dissolution of Henley; provided that the Option is exercised before the
effective date of such liquidation or dissolution; and
(g) termination of the Optionee's employment with the Company unless
such termination is by the Company for Cause or by the Optionee other than for
Good Reason.
(i) Termination of the Optionee's employment by the Company for "Cause"
shall mean termination:
(aa) upon the willful and continued failure by the Optionee to
substantially perform his duties with the Company (other than any such failure
resulting from his incapacity due to physical or mental illness) after a written
demand for substantial performance is delivered to the Optionee by the Board of
Directors of the Company, which demand specifically identifies the manner in
which the Board of Directors believes that the Optionee has not substantially
performed his duties, or
(bb) the willful engaging by the Optionee in conduct
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which is demonstrably and materially injurious to the Company, monetarily or
otherwise.
(ii) The Optionee shall be entitled to terminate his employment for Good
Reason. For purposes of this Agreement, "Good Reason" shall mean, without his
express consent, the occurrence of any of the following circumstances:
(aa) the assignment to the Optionee of any duties inconsistent
with the position in the Company that the Optionee held immediately prior to the
effective date of this Agreement or a significant adverse alteration in the
nature or status of the Optionee's responsibilities or the conditions of his
employment from those in effect immediately prior to the effective date of this
Agreement;
(bb) a reduction by the Company in the Optionee's annual base
salary in effect immediately prior to the effective date of this Agreement or as
the same may be increased from time to time, except for across the board salary
reductions similarly affecting all management personnel of the Company;
(cc) the relocation of the Company's offices at which the
Optionee is principally employed immediately prior to the effective date of this
Agreement to a location more than one hundred (100) miles from Angleton, Texas;
(dd) the failure by the Company to continue in effect any
material compensation or benefit plan in which the Optionee participates
immediately prior to the effective date of this Agreement; provided, however,
the Optionee acknowledges that this Option is granted in lieu of the Optionee's
participation in a long term incentive cash plan which the Company intends to
implement to replace management's participation in the PSP and the Optionee
further acknowledges that he shall have no right to participate in such long
term incentive cash plan or the PSP until after the fourth anniversary date of
this Agreement; or
(ee) the failure by the Company to pay the Optionee any portion
of his current compensation. The Optionee's right to terminate his employment
pursuant to this subsection shall not be affected by his incapacity due to
physical or mental illness. The Optionee's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any circumstance
constituting Good Reason hereunder.
(iii) Any purported termination of the Optionee's employment by the
Company or by the Optionee shall be communicated by written notice to the other
party indicating the specific termination provision relied upon and shall set
forth in reasonable detail the facts and circumstances claimed
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to provide a basis for termination of employment under the provision so
indicated. The Option shall cease and terminate aa to any Henley Shares not
exercised before the end of the periods specified in subsections 4(a), (b), (c),
(d), (e), and (f). The parties acknowledge that the Company has no obligation or
duty to notify the Optionee of any event described in subsections 4(a), (b),
(c), (d}, (e), or (f).
SECTION 5. DEATH OF OPTIONEE. In the event of the Optionee's death prior
to the expiration of this Agreement, the Option may be exercised as to the
number of shares vested on the date of Optionee's death, within one (l) year
after the Optionee's death, but no later than ten (10) years from the date of
this Agreement, by the executors or administrators of the Optionee's estate or
by any person or persons who acquire this Option directly from the Optionee's
estate by bequest or inheritance.
SECTION 6. NONTRANSFERABILITY OF OPTION. This Option is not transferable
by the Optionee otherwise than by will or under the laws of descent and
distribution.
SECTION 7. RECAPITALIZATION. The number of shares covered by this
Option, and the price per share thereof, shall be proportionately adjusted for
any increase or decrease in the number of issued shares of Henley common stock
resulting from a subdivision or consolidation of shares subject to the dividend
or stock split (but only on the shares subject to the Option) or any other
increase or decrease in the number of such shares affected without receipt of
consideration by the Company.
If Henley shall be the surviving corporation of any merger or
consolidation, the Option shall pertain to and apply to the securities to which
a holder of the number of shares subject to the Option would have been entitled.
In the event of a change in the Henley Shares as presently constituted
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be Henley Shares under
this Option.
SECTION 8. RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights as
a shareholder with respect to the Henley Shares covered by this Option until the
date of the transfer and issuance of a stock certificate to him for such shares.
No adjustment shall be made for dividends or distributions or other rights for
which the record date is prior to the date such stock certificate is transferred
and issued, except as otherwise provided in Section 7.
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SECTION 9. FEDERAL SECURITIES LAWS.
(a) The Optionee represents and warrants that he understands that the
Henley Shares have not been registered under the Securities Act of 1933, as
amended (the "Act"), and that such shares may not be freely tradable and must be
held indefinitely until such time, if any, as the Henley Shares are either
registered under the Act or transfer may be made pursuant to an exemption from
such registration as is accorded by said Act or the rules and regulations
promulgated thereunder.
(b) The Optionee further represents and warrants that the Henley Shares
are being acquired for his own account for investment and not with a view to the
distribution thereof, except in the event the Henley Shares subject to this
Option are registered under the Act or in the event of a resale of such shares
without such registration would otherwise be permissible in the opinion of
counsel for Henley.
SECTION 10. EARLY TERMINATION OF OPTION. Notwithstanding Subsection 3(a)
or any other provision of this Agreement to the contrary, in the event the
Henley Shares trade at an average of less than fifty percent (50%) of the Option
Price for a period of ninety (90) consecutive days during the term of this
Agreement, either party may elect to terminate this Agreement effective upon
notice to the other party.
SECTION 11. SECTION HEADINGS. The descriptive headings of this Agreement
have been inserted for convenience only and shall not be deemed to limit or
otherwise affect the construction of any provision thereof.
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provision of this Agreement shall be deemed prohibited or invalid under such
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, and such prohibition or invalidity shall not
invalidate the remainder of such provision or the other provisions of thin
Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hand on the day
and year first written above.
COMPANY:
INTERMEDICS INC.
ANDRE BUCHEL /s/
Andre P. Buchel
Chairman, President
and Chief Executive Officer
OPTIONEE:
PETER G. DORFLINGER /s/
Peter G. Dorflinger
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NOTICE OF EXERCISE OF OPTION
To: Intermedics Inc.
4000 Technology Drive
Angleton, Texas 77515
Attention: President
The undersigned, pursuant to the Option Agreement dated May ____, 1992,
by and between Intermedics Inc. and Peter G. Dorflinger, hereby exercises his
option to the extent of _________ shares of Henley International, Inc. common
stock as provided therein.
The Option Price for such shares is enclosed by check made
payable to Intermedics Inc. in the amount of $______________.
The undersigned requests that the Henley Shares to be transferred
pursuant to the exercise of the Option be issued in his name and delivered to
him as set forth below.
Dated: _________________
Peter G. Dorflinger
____________________
Address
____________________
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O.A. Exhibit 7.2
FIRST AMENDMENT TO OPTION AGREEMENT
THIS FIRST AMENDMENT TO OPTION AGREEMENT ("First Amendment") is made and
entered into as of the 2nd day of May, 1997, by and between Sulzur Intermedics
Inc., a Delaware corporation (the "Company"), formerly known as Intermedics
Inc., having a principal place of business at 4000 Technology Drive, Angleton,
Texas, and Peter G. Dorflinger, a citizen of the State of Texas (the
"Optionee"), residing at One Carolane Trail, Houston, Texas 77024- 5120,
W I T N E S S E T H
WHEREAS, the Company and the Optionee are parties to that certain Option
Agreement dated June 4, 1992 (the "Option Agreement");
WHEREAS, the Company and the Optionee desire to amend the Option
Agreement as hereinafter provided;
NOW, THEREFORE, for and in consideration of the mutual promises set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this First
Amendment agree as follows:
1. The first whereas clause of the recitals in the Option Agreement is
hereby amended by deleting same in its entirety and substituting therefor the
following:
"WHEREAS, the Company is the owner and holder of Four Hundred
Forty-Seven Thousand Eight Hundred Thirty-Six (447,836) shares of common
stock of Maxxim Medical, Inc., a Texas corporation, formerly known as
Henley International, Inc., (the "Maxxim Medical Shares");
2. The defined term, Henley Shares, is hereby deleted at each instance
in which it appears in the Option Agreement and the term, Maxxim Medical Shares,
defined in Paragraph 1 above is substituted therefor.
3. Section 1 of the Option Agreement is hereby amended by deleting same
in its entirety and substituting therefor the following:
"SECTION 1. GRANT OF OPTION. The Company hereby grants to the
Optionee the option (the "Option") to purchase the Maxxim Medical
Shares at the exercise price of $13.80 per share (the "Option Price") on
the terms and conditions set forth in this Agreement.
4. Subsection (b) of Section 3 of the Option Agreement is
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hereby amended by deleting same in its entirety and substituting therefor the
following:
"(b) On exercise of this Option in whole or in part, the
Optionee shall deliver to the Company an executed and completed "Notice
of Exercise of Option" in the form attached to the First Amendment as
Attachment 1 and either (i) the Option Price in the event the Optionee
notifies the Company that he does not intend to immediately sell the
Maxxim Shares acquired by exercising the Option or (ii) an executed and
completed instruction letter in the form attached to this First
Amendment as Attachment 2 in the event the Optionee notifies the Company
that he intends to immediately sell the shares acquired by exercising
the Option."
5. Section 3 of the Option Agreement is hereby amended by redesignating
subsections (c) and (d) as subsections (e) and (f), respectively, and adding new
subsections (c) and (d) as follows:
"(c) At the request of the Optionee, the Company will promptly
deliver the Maxxim Shares to John R. Boyer Jr., Esq., Boyer, Ewing &
Harris, The Coastal Tower, 9 Greenway Plaza, Suite 3100, Houston, Texas
77046, counsel to Maxxim Medical, and request that it remove any legends
restricting the transfer of the Maximum Medical Shares and/or issue new
certificates representing the Maxxim Medical Shares in the denominations
designated by the Optionee.
(d) At the request of the Optionee, the Company will promptly
open an account with DLS Capital Partners, Inc. in the name of the
Company at the Optionee's expense and deposit the Maxxium Medical Shares
therein to facilitate the exercise of the Option by the Optionee and
subsequent sale of the Maxxim Shares by the Optionee in an open market
or private transaction. The Optionee hereby holds the Company harmless
and releases the Company from and waives any and all claims, damages,
and loss of whatever nature arising out of the actions or failures to
act by DLS Capital Partners, Inc, except to the extent of the written
instructions which the Company provides such firm."
6. Subsection (a) of Section 4 of the Option Agreement is hereby amended
by deleting same in its entirety and substituting therefor the following:
"(a) approval by the Board of Directors of Maxxim Medical, Inc.
("Maxxim Medical") of a merger or consolidation of Maxxim Medical with,
or into, another corporation as a result of which Maxxim Medical is not
the surviving corporation; provided that the Option is exercised before
the earlier of one hundred eighty (180) days after the effective date of
the merger or consolidation or the expiration date of
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the Option;"
7. Section 10 of the Option Agreement is hereby amended by deleting same
in its entirety and substituting therefor the following:
"SECTION 10. EARLY TERMINATION OF OPTION. Notwithstanding
Section 3(a) or any other provision of this Agreement to the contrary,
in the event the Maxxim Shares trade at an average of less than sixty
percent (60%) of the Option Price for a period of ninety (90)
consecutive days during the term of this Agreement, either party may
elect to terminate this Agreement effective upon notice to the other
party within twenty (20) days of the occurrence of said event. "
8. The defined term, Henley, is hereby deleted at each instance in which
it appears in the Option Agreement and the term, Maxxim Medical, defined in
paragraph 4 above is substituted therefor.
9. Unless expressly amended herein, all other provisions of the Option
Agreement shall continue in full force and effect. Unless otherwise defined
herein, all terms defined in the Option Agreement shall have the same meaning in
this First Amendment.
10. This First Amendment contains the entire agreement and understanding
between the parties respecting the subject matter hereof and supersedes all
prior and collateral agreements and understandings, regardless of form or
nature, between the parties respecting the subject matter. No extension,
modification, or supplement to this First Amendment will be effective unless
made in writing signed by a duly authorized officer of the Company and the
Optionee. This First Amendment will be binding on and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. This
First Amendment may be executed in multiple counterparts, each of which will
constitute an original, but all of the which together will constitute one and
the same agreement. The validity, construction, and enforcement of this First
Amendment and all matters related thereto or in connection therewith will be
governed by the laws of the State of Texas.
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The parties having read, understood and reached agreement on each and
every provision, term, and condition in this First Amendment, acknowledge and
confirm same by their signatures or that of their respective duly authorized
officers below, as of the date first set forth above.
SULZER INTERMEDICS INC.
A. BUCHEL /s/
Andre P. Buchel, Sole Director
PETER G. DORFLINGER /s/
Peter G. Dorflinger
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ATTACHMENT 1
NOTICE OF EXERCISE OF OPTION
TO: Sulzer Intermedics Inc.
4000 Technology Drive
Angleton, Texas 77515
Attention: President
The undersigned, pursuant to the Option Agreement dated June 4, 1992, by
and between Intermedics Inc. and Peter G. Dorflinger herby exercises his Option
to the extent of ________shares of Maxxim Medical, Inc. common stock as provided
herein.
The Option Price for such shares is enclosed by check made payable to
Intermedics in the amount of $ __________ or, together with Federal income tax
withholding requirements, is to be withheld from the proceeds of sale and
delivered to Sulzer Intermedics pursuant to the instruction letter attached and
executed by the Optionee.
The undersigned requests that the Maxxim Shares to be transferred
pursuant the exercise of the Option be:
_____ assigned, transferred, conveyed, issued, and delivered him as set
forth below.
_____ sold pursuant to the instruction letter executed by the Optionee
and delivered with this Notice.
Dated:__________________
Peter G. Dorflinger
One Carolane Trail
Houston, Texas 77024-5120
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<PAGE>
ATTACHMENT 2
TRANSMITTAL LETTER TO BROKERAGE FIRM
[DATE]
VIA FEDERAL EXPRESS
DLS Capital Partners, Inc.
3860 W. Northwest Highway, Suite 401
Dallas, Texas 75220
Re: Common shares of Maxxim Medical, Inc. ("Maxxim Medical
Shares") in Account No._______________
Dear _____________:
The Maxxix Medical Shares in the referenced account are subject to an
option in favor of Peter G. Dorflinger which Mr. Dorflinger has exercised to the
extent of __________ shares.
You are hereby instructed to sell ______________Maxxim Medical Shares
pursuant to market, limit, stop order, stop loss, all or none, or do not reduce
orders as specified by Mr. Dorflinger verbally or in writing and remit directly
to Sulzer Intermedics from the proceeds of the sale an amount equal to $13.80
per share times number of shares sold ($ ________ ) plus ____% to cover Sulzer
Intermedics Federal tax withholding obligations. You are hereby further
instructed to pay to balance of the proceeds less commissions or fees, if any
directly to Mr. Dorflinger or as he instructs. All unsold Maxxim Medical Shares
shall remain in Sulzer Intermedics Inc.'s account.
Very truly yours,
Sulzer Intermedics, Inc.
Nicholas A. Loiacono
Treasurer
and
Peter G. Dorflinger
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