As filed with the Securities and Exchange Commission on May 22, 1997.
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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MAXXIM MEDICAL, INC.
(Exact name of registrant as specified in its charter)
TEXAS 76-0291634
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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104 INDUSTRIAL BOULEVARD, SUGAR LAND, TEXAS 77478
(Address Principal Executive Offices) (Zip Code)
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1995 EMPLOYEE STOCK OPTION PLAN
1997 EMPLOYEE STOCK OPTION PLAN
1995 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
SENIOR MANAGEMENT STOCK PURCHASE PLAN
(Full title of the plan)
KENNETH W. DAVIDSON
PRESIDENT
104 INDUSTRIAL BOULEVARD
SUGAR LAND, TEXAS 77478
(Name and address of agent for service)
(713) 240-5588
(Telephone number, including area code, of agent for service)
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COPY TO:
RITA J. LEADER
BOYER, EWING & HARRIS INCORPORATED
NINE GREENWAY PLAZA, SUITE 3100
HOUSTON, TEXAS 77046
(713) 871-2025
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================
Proposed Proposed
Title of Each Maximum Maximum
Class of Securities Amount To Be Offering Aggregate Registration
To Be Registered Registered Price Offering Fee
Per Share Price
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value, .... 512,000 Shares $ 11.48 (1) $ 5,877,760 $ 2,956.69 (1)
issuable under 1995 Employee
Stock Option Plan
Common Stock, $.001 par value, .... 500,000 Shares $ 14.50 (2) $ 7,250,000 $ 3,646.97 (2)
issuable under 1997 Employee
Stock Option Plan
Common Stock, $.001 par value, .... 30,000 Shares $ 10.73 (1) $ 321,900 $ 161.92 (1)
issuable under 1995 Non-Employee
Director Stock Option Plan
Common Stock, $.001 par value, .... 30,000 Shares $ 11.48 (1) $ 344,400 $ 173.24 (1)
issuable under 1996 Non-Employee
Director Stock Option Plan
Common Stock, $.001 par value, .... 40,000 Shares $ 11.48 (1) $ 459,200 $ 230.99 (1)
issuable under 1997 Non-Employee
Director Stock Option Plan
Common Stock, $.001 par value, .... 400,000 Shares $ 13.00 $ 5,200,000 $ 2,575.75
issuable under Senior Management
Stock Purchase Plan
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1,512,000
Totals Shares $ 19,453,260 $ 9,745.56
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</TABLE>
(1) For shares issuable pursuant to stock options granted through May 16,
1997, calculated pursuant to Rule 457(h) based on the exercise prices of
such options.
(2) For all shares issuable pursuant to the 1997 Employee Stock Option Plan,
estimated pursuant to Rule 457(c) and (h) based on the average of the
high and low prices of the Common Stock as reported on the New York
Stock Exchange on May 16, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which Maxxim Medical, Inc. ("Registrant")
previously filed with the Securities and Exchange Commission, are hereby
incorporated and made a part of this Registration Statement by reference:
1. Registrant's Annual Report on Form 10-K for the fiscal year ended
November 3, 1996.
2. Registrant's Quarterly Report filed on Form 10-Q for the quarter
ended February 2, 1997.
3. The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A, dated December 2, 1993.
All documents filed by Registrant pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of the post-effective amendment that indicates that all
securities offered hereunder have been sold or that deregisters all such
securities then remaining unsold will be deemed to be incorporated by reference
in this Registration Statement and will be part hereof from the date of filing
of such documents. Any statement contained herein or in any document
incorporated by reference herein that is modified or superseded by a statement
in any document subsequently filed by Registrant will be deemed to be modified
or superseded to the same extent for purposes of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Under Article 1302-7.06 of the Texas Miscellaneous Corporation Laws
Act, the articles of incorporation of a Texas corporation may provide that a
director of that corporation shall not be liable, or shall be liable only to the
extent provided in the articles of incorporation, to the corporation or its
shareholders for monetary damages for acts or omissions in the director's
capacity as a director, except that the articles of incorporation cannot provide
for the elimination
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or limitation of liability of a director to the extent that the director is
found liable for (i) a breach of the director's duty of loyalty to the
corporation or its shareholders, (ii) acts or omissions not in good faith that
constitutes a breach of duty of the director to the corporation or an act or
omission that involves intentional misconduct or a knowing violation of the law,
(iii) any transaction from which the director received an improper personal
benefit, or (iv) an act or omission for which the liability of a director is
expressly provided by an applicable statute. Article XI of the Company's
Restated Articles of Incorporation sets forth specific provisions for limitation
of director liability which are substantially identical to the provisions of
Article 1302- 7.06 described above and further states that a director of the
Company will not be liable to the Company or its shareholders for monetary
damages to the fullest extent permitted by any provision of the statutes of
Texas that limits the liability of a director.
In addition, Article 2.02-1 of the Texas Business Corporation Act
authorizes a Texas corporation to indemnify a person who was, is, or is
threatened to be made a named defendant or respondent in a proceeding, including
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative, or investigative because the person is or
was a director. The indemnification is permitted only if it is determined that
the person (1) conducted himself in good faith; (2) reasonably believed (a) in
the case of conduct in his official capacity as a director of the corporation,
that his conduct was in the corporation's best interests; and (b) in all other
cases, that his conduct was at least not opposed to the corporation's best
interests; and (3) in the case of any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. A person may be indemnified under
Article 2.02-1 against judgments, penalties (including excise and similar
taxes), fines, settlements, and reasonable expenses actually incurred by the
person (including court costs and attorneys' fees), but if the person is found
liable to the corporation or is found liable on the basis that personal benefit
was improperly received by him, the indemnification is limited to reasonable
expenses actually incurred and may not be made in respect of any proceeding in
which the person has been found liable for willful or intentional misconduct in
the performance of his duty to the corporation. A corporation is obligated under
Article 2.02-1 to indemnify a director or officer against reasonable expenses
incurred by him in connection with a proceeding in which he is named defendant
or respondent because he is or was a director or officer if he has been wholly
successful, on the merits or otherwise, in the defense of the proceeding. Under
Article 2.02-1 a corporation may (i) indemnify and advance expenses to an
officer, employee, agent or other person who are or were serving at the request
of the corporation as a director, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another entity to the same
extent that it may indemnify and advance expenses to directors, (ii) indemnify
and advance expenses to directors and such other persons to such further extent,
consistent with law, as may be provided in the corporation's articles of
incorporation, bylaws, action of its board of directors, or contract or as
permitted by common law and (iii) purchase and maintain insurance or another
arrangement on behalf of directors and such other persons against any liability
asserted against him and incurred by him in such a capacity or arising out of
his status as such a person. The Bylaws of the Company set forth specific
provisions for indemnification of directors, officers, agents and other persons
which are substantially identical to the provisions of Article 2.02-1 described
above. The Company maintains directors and
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<PAGE>
officers insurance in the amount of $3,000,000, with a $150,000 deductible, that
will be effective through November 1, 1997.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
An asterisk below indicates an exhibit previously filed with the
Securities and Exchange Commission (the "Commission") as an exhibit to
Registrant's Form 10-K for the fiscal year ended October 30, 1994 and
incorporated herein as indicated. Two asterisks below indicate an exhibit
previously filed with the Commission as an exhibit to Registrant's Form 10-K for
the fiscal year ended November 3, 1996 and incorporated herein as indicated.
Three asterisks below indicate an exhibit previously filed with the Commission
as an exhibit to Registrant's Annual Report of Form 10-K for the fiscal year
ended October 31, 1993 and incorporated herein as indicated. Unless indicated
otherwise, the number in parentheses following the description of each such
exhibit is the number of such exhibit in the Registration Statements or Annual
Report.
Exhibit No. Exhibit Title
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*4.1 -- 1995 Employee Stock Option Plan (Exhibit 10.10)
4.2 -- 1997 Employee Stock Option Plan
*4.3 -- 1995 Non-Employee Director Stock Option Plan (Exhibit 10.11)
**4.4 -- 1996 Non-Employee Director Stock Option Plan (Exhibit 10.12)
4.5 -- 1997 Non-Employee Director Stock Option Plan
4.6 -- Senior Management Stock Purchase Plan
5 -- Opinion of Boyer, Ewing & Harris Incorporated
23.1 -- Consent of KPMG Peat Marwick LLP
23.2 -- Consent of Boyer, Ewing & Harris Incorporated is contained in
Exhibit 5 to this Registration Statement
24 -- A power of attorney, pursuant to which amendments to this
Registration Statement may be filed, is included in the signature
pages contained in Part II of this Registration Statement
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ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement.
3
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendments shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT
IT MEETS ALL THE REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THERETO
DULY AUTHORIZED, IN THE CITY OF HOUSTON, STATE OF TEXAS, ON MAY 22, 1997.
MAXXIM MEDICAL, INC.
By:/s/ KENNETH W. DAVIDSON
Kenneth W. Davidson, Chairman of the Board,
President and Chief Executive Officer
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<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Kenneth W. Davidson and Peter M. Graham, or any
of them, each with power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all subsequent pre- and post-effective amendments and supplements to this
Registration Statement, and to file the same, or cause to be filed the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that any said attorney-in-fact and agent or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
Signatures Titles Date
---------- ------ ----
/s/ KENNETH W. DAVIDSON Chairman of the Board of Directors, May 22, 1997
(KENNETH W. DAVIDSON) President and Chief Executive
Officer (principal executive officer)
/s/ PETER M. GRAHAM Executive Vice President, Treasurer May 22, 1997
(PETER M. GRAHAM) and Chief Operating Officer
(principal financial officer)
/s/ ALAN S. BLAZEI Vice President - Controller May 22, 1997
(ALAN S. BLAZEI) (principal accounting officer)
/s/ DONALD R. DEPRIEST Director May 22, 1997
(DONALD R. DEPRIEST)
/s/ PETER G. DORFLINGER Director May 22, 1997
(PETER G. DORFLINGER)
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<PAGE>
/s/ MARTIN GRABOIS, M.D. Director May 22, 1997
(MARTIN GRABOIS, M.D.)
/s/ ERNEST J. HENLEY, PH.D. Director May 22, 1997
(ERNEST J. HENLEY, PH.D.)
/s/ RICHARD O. MARTIN, PH.D. Director May 22, 1997
(RICHARD O. MARTIN, PH.D.)
/s/ HENK R. WAFELMAN Director May 22, 1997
(HENK R. WAFELMAN)
6
Exhibit 4.2
MAXXIM MEDICAL, INC.
1997 EMPLOYEE STOCK OPTION PLAN
THIS 1997 EMPLOYEE STOCK OPTION PLAN (this "Plan") is adopted by the
Board of Directors (the "Board of Directors") of MAXXIM MEDICAL, INC., a Texas
corporation (the "Company"), effective the ____ day of _________, 1997 (the
"Adoption Date").
W I T N E S S E T H:
WHEREAS, the Company believes that allowing certain employees to obtain
shares of common stock, $.001 par value ("Common Stock"), of the Company by
granting stock options as hereinafter provided is beneficial to the initial and
continued success of the Company;
NOW, THEREFORE, the Company agrees to provide for the granting of stock
options to certain employees of the Company, subject to the following conditions
and provisions:
1. PURPOSE. The purpose of this Plan is to secure for the Company and
its shareholders the benefits that flow from providing certain employees with
the incentive inherent in common stock ownership. The Company recognizes that an
employee stock option plan may aid in attracting and retaining employees of
exceptional ability because of the opportunity offered to acquire a proprietary
interest in the business of the Company.
2. AMOUNT OF STOCK. The total number of shares of Common Stock to be
subject to options granted pursuant to this Plan shall not exceed 500,000
shares. This total number of shares shall be subject to appropriate and
automatic increase or decrease under Section 11 of this Plan (without the need
for further action on the part of the Board of Directors of the Company), in the
event of a stock dividend, or upon a subdivision, split-up, combination or
reclassification of, the shares purchasable under such options, as contemplated
in Section 11. In the event that options granted under this Plan shall lapse or
terminate without being exercised, additional options may be granted covering
the shares not purchased under such options.
3. STOCK OPTION COMMITTEE. The Board of Directors shall from time to
time appoint a Stock Option Committee (hereinafter called the "Committee") to,
among other duties, serve under this Plan. The Committee shall consist of
either:
(i) two or more persons, each of whom are Non-Employee Directors
within the meaning of Paragraph (b)(2)(i) of Rule 16b-3, or any
successor rule ("Rule 16b-3"), promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as
amended, as such term is interpreted from time to time (hereinafter a
"Non-Employee Director"); OR
(ii) the entire Board of Directors of the Company.
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<PAGE>
The Board of Directors shall, in its discretion, establish such rules
and regulations as it may deem appropriate for the proper administration of the
Plan and shall have full authority and power to interpret and construe any
provision of the Plan or the terms and conditions of any option outstanding
under the Plan. Decisions of the Board of Directors shall be final, binding and
conclusive on all persons who have an interest in the Plan or any option
outstanding under the Plan.
4. ELIGIBILITY AND PARTICIPATION. Options may be granted pursuant to
this Plan only to employees employed by the Company or any parent or a
subsidiary of the Company (such employees being hereinafter sometimes
collectively called "employees"). From time to time, the Committee shall select
the employees to whom options may be granted and shall determine the number of
shares to be covered by each option so granted. Future as well as present
employees (including employees who are directors) shall be eligible to
participate in this Plan. Directors who are not employees of the Company or a
parent or a subsidiary of the Company shall not be eligible to participate in
this Plan. The holder of any option granted pursuant to this Plan shall not have
any of the rights of a shareholder with respect to the shares covered by the
option until one or more certificates for such shares shall be delivered to him
upon the due exercise of the option.
5. OPTION AGREEMENT. The terms and provisions of each option granted
under this Plan shall be as set forth in an Employee Stock Option Agreement
(hereinafter called an "Option Agreement"), between the Company and the employee
receiving such option in form and content substantially similar to the Option
Agreement attached hereto as EXHIBIT A.
6. PRICE. The purchase price per share of Common Stock purchasable under
options granted pursuant to this Plan shall be determined by the Committee but
shall not be less than eighty-five percent (85%) of the fair market value of a
share of Common Stock at the time the options are granted or effective date of
such grant. Such fair market value shall be determined by the Committee without
regard to any restriction other than a restriction that, by its terms, will
never lapse. The full purchase price of shares purchased shall be paid upon
exercise of the option. The purchase price per share shall be subject to
adjustment under Section 11 of this Plan. The fair market value of Common Stock
as of the Adoption Date was $________ per share.
7. EXERCISE PERIOD. Shares of Common Stock purchasable under any option
granted under this Plan will be purchasable as to twenty percent (20%) of such
shares one (1) year after the date of grant of such option, and shall become
purchasable as to an additional twenty percent (20%) of the shares upon the
expiration of each additional year thereafter until the fifth anniversary of the
date of grant of such option, at which time the option shall be exercisable in
full.
8. OPTION PERIOD. The Committee shall determine the maximum period of
time within which options granted pursuant to this Plan must be exercised after
the granting of such option, which shall be a period of time ending no later
than October 31, 2006. The actual expiration date stated in an Option Agreement
is hereinafter called the "Expiration Date". Notwithstanding any
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<PAGE>
other provision of this Plan to the contrary, no option shall be granted under
this Plan effective after the fifth anniversary of the Adoption Date.
9. TERMINATION. Each Option Agreement will provide that:
(a) If the employee for any reason whatsoever, other than death
or permanent and total disability, as defined in (b) below, ceases to be
employed by the Company, or a parent or subsidiary corporation of the
Company, and prior to such cessation, the employee was employed at all
times from the date of the granting of such option until the date of
such cessation, the option must be exercised by the employee (to the
extent that the employee is entitled to do so at the date of cessation)
within sixty (60) days following the date of cessation of employment,
subject to the Expiration Date; provided, however, that if the employee
is terminated for cause, the option will immediately terminate.
(b) If the employee becomes permanently and totally disabled, as
hereinafter defined, while employed by the Company or a parent or
subsidiary corporation of the Company, and prior to such disability the
employee was employed at all times from the date of the granting of the
option until the date of disability, the option will automatically
become exercisable in full and must be exercised by the employee at any
time within one (1) year after the date of disability or the Expiration
Date, whichever is earlier.
"Permanently and totally disabled" means being unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve (12) months. In the absence of
any specific requirements for this determination, the decision of the
Committee, as aided by any physicians designated by the Committee, shall
be conclusive, and the Board of Directors shall send written notice to
the employee of the determination that he has become permanently and
totally disabled.
(c) In the event that the employee dies while employed by the
Company or a parent or subsidiary corporation of the Company, and prior
to death the employee was employed at all times from the date of the
granting of the option until the date of death, the option will
automatically become exercisable in full and must be exercised by a
legatee or legatees of the employee under his will, or by his personal
representatives or distributees, at any time within one (1) year after
the date of death or the Expiration Date, whichever is earlier.
Nothing in (a), (b) or (c) shall extend the time for exercising
any option granted pursuant to this Plan beyond the Expiration Date.
10. ASSIGNABILITY. Each Option Agreement shall provide that the option
granted thereby shall not be transferable or assignable by the employee in any
form or fashion, and that the option
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<PAGE>
may be exercised only by the employee during his lifetime, or as otherwise
expressly set forth in EXHIBIT A hereto.
11. CHANGES IN CAPITAL STRUCTURE. Each option granted pursuant to this
Plan shall provide that if the option shall, subject to Section 12, be exercised
subsequent to any share dividend, stock split, reverse stock split, split-up,
recapitalization, merger, consolidation, combination or exchange of shares,
reorganization, or liquidation occurring after the date of the grant of the
option, as a result of which shares of any class have been issued in respect of
outstanding Common Stock or Common Stock has been changed into the same or a
different number of shares of the same or another class or classes without
payment of consideration therefor, then the employee or employees so exercising
the option shall receive, for the aggregate price paid upon such exercise, the
aggregate number and class of shares that, if Common Stock (as authorized at the
date of the grant of the option) had been purchased at the date of the grant of
the option for the same aggregate price (on the basis of the price per share set
forth in Section 6 hereof) and had not been disposed of, such employee or
employees would be holding, at the time of such exercise, as a result of such
purchase and all such share dividends, stock split, reverse stock split,
split-ups, recapitalizations, mergers, consolidations, combinations or exchanges
of shares, reorganizations, or liquidations; provided, however, that no
fractional share shall be issued upon any such exercise, and the aggregate price
paid shall be appropriately reduced on account of any fractional share not
issued.
12. CHANGE IN CONTROL. Notwithstanding anything in this Plan to the
contrary, in the event of a Change in Control (as defined below), the
unexercised options outstanding under this Plan will automatically become
exercisable in full as of the effective date of such Change in Control. In the
event of a dissolution or liquidation of the Company or a merger or
consolidation in which the Company is not the surviving corporation, any
outstanding options hereunder may be terminated by the Company as of the
effective date of such dissolution, liquidation, merger or consolidation by
giving notice to each holder thereof of its intention to do so not less than ten
(10) days preceding such effective date and permitting the exercise until such
effective date, or the Expiration Date if earlier, of all of such outstanding
options. Notwithstanding the preceding sentence, if the Company is not the
surviving corporation as a result of the Company being reorganized or merged or
consolidated with another corporation while unexercised options are outstanding
under this Plan, the surviving corporation may assume the unexercised options
outstanding under this Plan or substitute new options in the surviving
corporation for the outstanding options; provided, however, that the excess of
the aggregate fair market value of the securities subject to the options
immediately after the substitution or assumption over the aggregate option price
of such shares is not less than the excess of the aggregate fair market value of
the Common Stock subject to the outstanding option immediately before such
substitution or assumption over the aggregate option price of such Common Stock.
The existence of this Plan or of options granted hereunder shall not in any way
prevent any Change in Control transaction, and no holder of options granted
under this Plan shall have the right to prevent any such transaction.
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<PAGE>
"Change in Control" of the Company means and shall be deemed to have
occurred if and when (i) any "person" (as such term is used in Section 13(d) of
the Securities Exchange Act of 1934) becomes a beneficial owner, directly or
indirectly, of securities of the Company representing 40% or more of the
combined voting power of the Company's then outstanding securities; (ii)
individuals who were members of the Board of Directors of the Company
immediately prior to a meeting of the shareholders of the Company involving a
contest for the election of directors do not constitute a majority of the Board
of Directors following such election; (iii) the shareholders of the Company
approve the dissolution or liquidation of the Company; (iv) the shareholders of
the Company approve an agreement to merge or consolidate, or otherwise
reorganize, with or into one or more entities which are not subsidiaries of the
Company, as a result of which less than 50% of the outstanding voting securities
of the surviving or resulting entity are, or are to be, owned by former
shareholders of the Company (excluding from the term "former shareholders" a
shareholder who is, or as a result of the transaction in question becomes, an
"affiliate", as that term is used in the Securities Exchange Act of 1934 and the
Rules promulgated thereunder, of any party to such merger, consolidation or
reorganization); or (v) the shareholders of the Company approve the sale of all
or substantially all of the Company's business and/or assets to a person or
entity which is not a subsidiary of the Company.
13. REGISTRATION RIGHTS. The employees shall have no registration rights
with respect to the shares of Common Stock issuable upon exercise of the options
granted under this Plan.
14. SALE OF STOCK AFTER EXERCISE OF OPTION. Any employee exercising any
option under the terms of this Plan will be required to agree that, unless the
shares obtained as a result of such exercise have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or may otherwise be
sold pursuant to an available exemption from such registration under the
Securities Act, such employee will not dispose of any such shares thereafter
without the prior approval of the Company.
Unless the Company files a registration statement with respect to the
shares issuable under the Plan, the Company shall require that a legend be
placed on any share certificates issued through the exercise of any option
granted under this Plan with respect to the foregoing restrictions. Such legend
shall be placed either on the front or back of such share certificates and shall
note that the shares are governed by this Plan.
This Plan shall be kept at the registered office of the Company and
shall be available for inspection by any appropriate party.
15. AMENDMENT OF THE PLAN. The Board of Directors may from time to time
alter, amend, suspend or discontinue this Plan and make rules for its
administration.
16. OPTIONS DISCRETIONARY. The granting of options under this Plan shall
be entirely discretionary, and nothing in this Plan shall be deemed to give any
employee of the Company or any parent or subsidiary of the Company any right to
participate in this Plan or to receive options.
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<PAGE>
No provision of this Plan or any Option Agreement evidencing any options granted
under this Plan shall confer any right upon any employee to be employed by the
Company or any parent or subsidiary of the Company for any period of specific
duration.
17. SHAREHOLDER APPROVAL. This Plan will be submitted to the
shareholders of the Company (the "Shareholders") for approval and shall be
approved by a majority vote of the shares represented in person or by proxy at a
meeting at which a quorum is present, at the annual meeting held within one year
of the Adoption Date. If the Plan is not approved by the Shareholders by such
date, the Plan and all options granted hereunder will automatically terminate.
18. TERMINATION OF PLAN. Unless terminated earlier, this Plan shall
terminate effective five (5) years from the Adoption Date. Any option
outstanding under this Plan at the time of the termination of this Plan shall
remain in effect until such option shall have been exercised or the Expiration
Date thereof occurs, whichever is earlier.
19. EXHIBITS. EXHIBIT A (attached) is hereby incorporated into this Plan
by reference.
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<PAGE>
EXHIBIT "A"
MAXXIM MEDICAL, INC.
EMPLOYEE STOCK OPTION AGREEMENT
THIS EMPLOYEE STOCK OPTION AGREEMENT (this "Agreement"), dated to be
effective as of _____________, ______ (the Effective Date"), by and between
MAXXIM MEDICAL, INC., a Texas corporation (the "Company"), and
_______________________, an individual (the "Optionee");
W I T N E S S E T H:
WHEREAS, the Optionee is currently employed by the Company or by a
parent or a subsidiary of the Company;
WHEREAS, in consideration of the Optionee's record of employment or
other service with the Company or any subsidiary or parent and to provide the
Optionee with additional incentive to further the business of the Company, the
Company has agreed to grant the Optionee options to purchase shares of common
stock, $.001 par value ("Common Stock"), of the Company; and
WHEREAS, by granting the Optionee options to purchase shares of Common
Stock pursuant to the terms of this Agreement, the Company intends to carry out
the purposes set forth in the 1997 Employee Stock Option Plan of the Company
(the "Plan") adopted by the Board of Directors of the Company (the "Board of
Directors"); and
WHEREAS, the Company and the Optionee desire to set forth the terms and
conditions of such options to purchase Common Stock;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee the option
(the "Option") to purchase all or any part of an aggregate of __________________
(_____) shares of Common Stock (such shares, as increased or decreased in
accordance with Section 10 hereof, being referred to herein as the "Option
Shares") for a purchase price of ______________ and ___/100 Dollars ($_____) per
share (the "Exercise Price"), upon the additional terms and conditions
hereinafter set forth.
2. AVAILABILITY OF OPTION SHARES AND TERM OF OPTION. Subject to the
fulfillment by Optionee of the conditions set forth in Sections 6 and 7 hereof
and also subject to the terms of Sections 10 and 15 hereof, the Option shall be
first exercisable as to twenty percent (20%) of the Option Shares one (1) year
after the Effective Date, and shall become exercisable as to an additional
twenty percent (20%) of the Option Shares upon the expiration of each additional
year
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<PAGE>
thereafter until the fifth anniversary of the Effective Date, at which time the
Option shall be exercisable in full. The Option shall expire and terminate as to
any Option Shares not purchased by the Optionee on or before the sixth
anniversary of the Effective Date (the "Expiration Date"), subject to earlier
termination as set forth in Section 15.
3. METHOD OF EXERCISING THE OPTION. Subject to the limitations contained
in Section 2, the Option shall be exercised by the Optionee delivering to the
Company, on or before to the Expiration Date or the date of any earlier
termination pursuant to Section 15 (i) written notice from the Optionee stating
that the Optionee is exercising the Option and specifying the number of Option
Shares that the Optionee desires to purchase ("Notice"), and (ii) a check
payable to the order of the Company in an amount equal to the then current
Exercise Price multiplied by the number of Option Shares that the Optionee has
indicated he desires to purchase in the Notice (the "Payment"). The Option may
be exercised as to all, or any whole number, of the Option Shares exercisable as
of the date of the Notice. The failure of the Optionee to exercise the Option as
to all of the Option Shares available for exercise as of the date of the Notice
shall not be deemed to be a waiver or forfeiture of the Optionee's right to
later exercise the Option as to any Option Shares not previously purchased. For
purposes of Section 2 hereof, the exercise of the Option to purchase the Option
Shares specified in the Notice shall be deemed to have taken place on the date
that Notice and Payment are actually received by the Company in accordance with
this Section 3.
4. TRANSFERABILITY OF OPTION. The Option shall be exercisable (i) during
the Optionee's lifetime, only by the Optionee, or his guardian or legal
representative, or (ii) in the event of his death, by his heirs or legatees in
accordance with his will or the laws of descent and distribution (but only to
the extent the Option would be exercisable by the Optionee under Section 2 or as
set forth in Section 15), and shall not otherwise be transferable or assignable,
in whole or in part.
5. PAYMENT OF TAXES UPON EXERCISE. The Optionee understands and
acknowledges that under currently applicable law, the Optionee may be required
to include in his taxable income, at the time of exercise of the Option, the
amount by which the value of the Option Shares purchased (the "Exercise Shares")
exceeds the Exercise Price paid. The Optionee hereby authorizes the Company to
withhold Exercise Shares of a value equivalent to the amount of tax required to
be withheld by the Company out of any taxable income derived by the Optionee
upon exercise of the Option; provided, however, that the Optionee may, in the
alternative, in order to satisfy such withholding requirement, deliver to the
Company cash or other shares of Common Stock owned by the Optionee.
6. COVENANT NOT TO COMPETE. The Optionee agrees that for so long as he
is employed by the Company and for ________ (___) ________ thereafter, he shall
not, directly or indirectly, for his own account or for the account of others
(i) engage, within any market area served by the Company, as principal, agent,
trustee or through the agency of any corporation, partnership, association or
agency, in any business which is a Competitor, as hereinafter defined, or (ii)
own more than five percent (5.0%) of the outstanding capital stock, or be a
member or employee of any partnership which is a Competitor, or an owner or
employee of any Competitor. For purposes
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<PAGE>
of this Section 6, a business will be deemed to be a "Competitor" if its
business involves the manufacture, distribution or marketing of any physical
therapy, home pain management or hospital products of the type, or competitive
with, any such product manufactured or distributed by the Company. The Optionee
further agrees that for so long as he is employed by the Company, and for
________ (___) ________ thereafter, he will not, either directly or indirectly,
through any person, firm, association, or corporation with which he is now or
may hereafter become associated, cause or induce any present or future employee
of the Company to leave the employ of the Company to accept employment with the
Optionee or with any Competitor. The parties understand and agree that if any of
the restrictions placed upon the Optionee herein relating to time, geographical
area or scope of activity are deemed more extensive than is necessary to protect
the good will or other business interests of the Company under the laws of the
State of Texas (or any other jurisdiction in which the employee may be actually
employed and by reason of which the law of such other jurisdiction properly
applies with respect to interpretation of Sections 6 or 7 hereof), then the
parties hereto agree to amend the terms hereof to such time, geographical area
and scope of activity and alter the degree and extent of such provisions by the
minimal amount of amendment or alteration necessary to bring such provisions
within the ambit of enforceability within the State of Texas. For purposes of
Sections 6 or 7 hereof, the term "Company" shall include any parent or
subsidiary of the Company. For purposes of this Agreement, the term "subsidiary"
shall mean any subsidiary corporation, partnership, joint venture or other
similar entity or vehicle of which the Company owns twenty-five percent (25%) or
more of the equity or other ownership interest therein.
7. NONDISCLOSURE OF COMPANY SECRETS. The Optionee acknowledges that in
the course of his employment or other relationship with the Company, he has had
and may continue to have access to certain trade secrets and proprietary
information of the Company, know-how, programs, lists of customers, information
regarding inventions, whether patentable or not, tools, machines, mechanisms,
and fixtures which are secret and used in the business of the Company, items and
processes, whether of design, manufacturing or service, information regarding
employee compensation, techniques of production or other information which may
yield greater efficiency or capacity of production, methods, techniques, and
systems concerning design, pricing or manufacturing which are proprietary to the
Company or to the Company's customers or suppliers, or which is developed by the
Optionee in the performance of his duties, and other confidential information
and knowledge concerning the business of the Company (hereinafter collectively
referred to as the "Information") which the Company desires to protect. The
Optionee understands that the Information is confidential and has been or will
be received or learned by him in confidence, and the Optionee agrees that unless
and until such information shall become a matter of public knowledge, he will
not reveal any such Information to any third party for any reason or under any
circumstances, either during or subsequent to his employment by the Company,
other than in the ordinary course of his duties for the benefit of the Company,
or as required by applicable law.
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<PAGE>
8. INVESTMENT REPRESENTATION/SECURITIES LAW REQUIREMENTS. The Optionee
represents that the Option Shares available for purchase by the Optionee under
this Agreement will be acquired only for investment and not with a view toward
resale or distribution. The Optionee agrees and understands that the Option
Shares may be restricted securities as defined in Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), and, in such case,
may not be sold, assigned or transferred, unless the sale, assignment or
transfer of such shares is registered under the Securities Act and applicable
blue sky laws, as now in effect or hereafter amended or under applicable
exemptions therefrom. In the case of any sale under such an exemption, the
Company will require an opinion of counsel in form and substance satisfactory to
the Company from counsel acceptable to the Company that such registrations are
not required. The Optionee further understands and agrees that, unless issued
pursuant to an effective registration statement under the Securities Act, the
following legend shall be set forth on each certificate representing Option
Shares:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 or under the blue sky laws
of any state, and may not be sold, assigned or transferred except upon
such registration or upon receipt by the Company of an opinion of
counsel in form and substance satisfactory to the Company from counsel
acceptable to the Company that such registrations are not required for
such sale, assignment or transfer."
9. NO RIGHTS AS SHAREHOLDER. The Optionee shall not have any rights as a
shareholder with respect to any of the Option Shares until the date of issuance
by the Company of a stock certificate to the Optionee for such shares. Except as
otherwise provided in Section 10 hereof, the Optionee shall not be entitled to
any dividends, cash or otherwise, or any adjustment of the Exercise Price of any
of the Option Shares for such dividends, if the record date therefor is prior to
the date of issuance of such stock certificate. Upon valid exercise of the
Option by the Optionee, the Company agrees to cause a valid stock certificate
for the number of Option Shares then purchased to be issued and delivered to the
Optionee within seven (7) business days.
10. CORPORATE PROCEEDINGS OF THE COMPANY. Notwithstanding anything in
this Agreement to the contrary, in the event of a Change in Control (as defined
in the Plan), the Option will automatically become exercisable in full as of the
effective date of such Change in Control. In the event of a dissolution or
liquidation of the Company or a merger or consolidation in which the Company is
not the surviving corporation, the Option may be terminated by the Company as of
the effective date of such dissolution, liquidation, merger or consolidation by
giving notice to Optionee of its intention to do so not less than ten (10) days
preceding such effective date and permitting the exercise until such effective
date, or the Expiration Date if earlier, of the Option. Notwithstanding the
preceding sentence, if the Company is not the surviving corporation as a result
of the Company being reorganized or merged or consolidated with another
corporation while the Option is outstanding, the surviving corporation may
assume the Option or substitute a new option in the surviving corporation for
the Option; provided, however, that the excess of the aggregate fair market
value of the securities subject to the options immediately after the
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<PAGE>
substitution or assumption over the aggregate option price of such shares is not
less than the excess of the aggregate fair market value of the Option Shares
immediately before such substitution or assumption over the Exercise Price of
Option Shares. The existence of the Option shall not in any way prevent any
Change of Control transaction, and Optionee shall have no right to prevent any
such transaction.
If the Option shall be exercised subsequent to any share dividend, stock
split, reverse stock split, split-up, recapitalization, merger, consolidation,
combination or exchange of shares, reorganization, or liquidation occurring
after the Effective Date, as a result of which shares of any class have been
issued in respect of outstanding Common Stock or Common Stock has been changed
into the same or a different number of shares of the same or another class or
classes without payment of consideration therefor, then the Optionee shall
receive, for the Exercise Price paid upon such exercise, the aggregate number
and class of shares that, if the Option Shares had been purchased at the
Effective Date and had not been disposed of, the Optionee would be holding, at
the time of such exercise, as a result of such purchase and all such share
dividends, stock split, reverse stock split, split-ups, recapitalizations,
mergers, consolidations, combinations or exchanges of shares, reorganizations,
or liquidations; provided, however, that no fractional share shall be issued
upon any such exercise, and the Exercise Price shall be appropriately reduced on
account of any fractional share not issued.
The issuance by the Company of shares of stock of any class of
securities convertible into shares of stock of any class, including Common
Stock, or the issuance by the Company of Common Stock for cash, property or
services rendered, either upon direct sale or upon the exercise of rights,
options or warrants to subscribe therefor, or the conversion of shares or
obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or Exercise Price of shares of Common Stock then subject to the
Option.
11. NOTICES. All notices, demands and other communications required or
permitted hereunder, shall be deemed to have been properly given or delivered
when delivered personally or sent by certified or registered mail, return
receipt requested with all postage fully prepaid, addressed to the respective
parties hereto as follows:
If to the Company: ----------------------------
----------------------------
Attn: President
If to Optionee: ----------------------------
----------------------------
----------------------------
Any party hereto may change the above designated address by notice to
the other party hereto of such new address given in accordance with this Section
11.
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<PAGE>
12. JOINDER OF SPOUSE. The Optionee's spouse is fully aware of,
understands and fully consents and agrees to the provisions of this Agreement
and its binding effect upon any interest, community or otherwise, she may have
in any of the Option Shares or this Agreement, and she hereby evidences such
awareness, understanding, consent and agreement by execution of this Agreement.
13. FRACTIONAL SHARES. Notwithstanding any other provision of this
Agreement, the Company shall not be required to issue any fractional shares, and
to the extent that the terms hereof would otherwise require such issuance of
fractional shares, the number of shares actually issued shall be rounded down to
the nearest whole share.
14. TRANSFERABILITY; BINDING EFFECT. The Option may be exercised only by
the persons described in Section 4. Subject to the foregoing, all covenants,
terms, agreements and conditions of this Agreement shall be binding upon, inure
to the benefit of, and be enforceable by, the Company and the Optionee and their
respective heirs, executors, administrators, successors and assigns.
15. TERMINATION.
(a) If the Optionee for any reason whatsoever, other than death
or permanent and total disability, as defined in (b) below, ceases to be
employed by the Company, or a parent or subsidiary corporation of the
Company, and prior to such cessation, the Optionee was employed at all
times from the date of the granting of the Option until the date of such
cessation, the Option must be exercised by the Optionee (to the extent
that the Optionee is entitled to do so at the date of cessation) within
sixty (60) days following the date of cessation of employment, subject
to the Expiration Date; provided, however, that if the Optionee is
terminated for cause, the Option will immediately terminate.
(b) If the Optionee becomes permanently and totally disabled, as
hereinafter defined, while employed by the Company or a parent or
subsidiary corporation of the Company, and prior to such disability the
Optionee was employed at all times from the date of the granting of the
Option until the date of disability, the Option will automatically
become exercisable in full and must be exercised by the Optionee at any
time within one (1) year after the date of disability or the Expiration
Date, whichever is earlier.
"Permanently and totally disabled" means being unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve (12) months. In the absence of
any specific requirements for this determination, the decision of the
Company, as aided by any physicians designated by the Company, shall be
conclusive, and the Company shall send written notice to the Optionee of
the determination that the Optionee has become permanently and totally
disabled.
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<PAGE>
(c) In the event that the Optionee dies while employed by the
Company or a parent or subsidiary corporation of the Company, and prior
to death the Optionee was employed at all times from the date of the
granting of the Option until the date of death, the Option will
automatically become exercisable in full and must be exercised by a
legatee or legatees of the Optionee under the Optionee's will, or by the
Optionee's personal representatives or distributees, at any time within
one (1) year after the date of death or the Expiration Date, whichever
is earlier, and if not so exercised, the Option shall thereupon
terminate.
Nothing in (a), (b) or (c) shall extend the time for exercising
the Option granted pursuant to this Agreement beyond the Expiration Date.
16. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the Company and the Optionee and their respective heirs,
executors, administrators, successors and assigns.
17. GOVERNING LAW. This Agreement shall be governed by the laws of
Texas, and the laws of the United States applicable in Texas [Florida?].
18. CAPTIONS. The Section headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
the Agreement.
19. COUNTERPARTS. This Agreement may be executed in multiple original
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date first written above, to be effective as of the Effective Date.
COMPANY:
MAXXIM MEDICAL, INC.,
a Texas corporation
By:______________________________
Kenneth W. Davidson, President
OPTIONEE:
---------------------------------
---------------------------------
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---------------------------------
---------------------------------,
spouse of Optionee
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Exhibit 4.5
MAXXIM MEDICAL, INC.
1997 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
THIS 1997 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN (this "Plan") is
adopted by the Board of Directors (the "Board of Directors") of MAXXIM MEDICAL,
INC., a Texas corporation (the "Company"), effective the 3rd day of April, 1997
(the "Adoption Date").
W I T N E S S E T H:
WHEREAS, the Company believes that allowing certain non-employee
directors of the Company to obtain shares of common stock, $.001 par value
("Common Stock"), of the Company by granting stock options as hereinafter
provided is beneficial to the initial and continued success of the Company;
NOW, THEREFORE, the Company agrees to provide for the granting of stock
options to the non-employee directors of the Company, subject to the following
conditions and provisions:
1. PURPOSE. The purpose of this Plan is to secure for the Company and
its stockholders the benefits that flow from providing its non-employee
directors with the incentive inherent in common stock ownership. The Company
recognizes that stock option plan may allow the Company to attract and retain
qualified and competent persons for service as members of the Company's Board of
Directors because of the opportunity offered to acquire a proprietary interest
in the business of the Company.
2. AMOUNT OF STOCK. The total number of shares of Common Stock to be
subject to options granted pursuant to this Plan shall not exceed 40,000 shares.
This total number of shares shall be subject to appropriate and automatic
increase or decrease under Section 10 of this Plan (without the need for further
action on the part of the Board of Directors of the Company), in the event of a
stock dividend, or upon a subdivision, split-up, combination or reclassification
of, the shares purchasable under such options, as contemplated in Section 10.
3. ELIGIBILITY AND PARTICIPATION. Options may be granted pursuant to
this Plan only to non-employee directors of the Company (such non-employee
directors being hereinafter sometimes called "directors"). Directors who are
employees of the Company or a parent or a subsidiary of the Company shall not be
eligible to participate in this Plan. The holder of any option granted pursuant
to this Plan shall not have any of the rights of a shareholder with respect to
the shares covered by the option until one or more certificates for such shares
shall be delivered to him upon the due exercise of the option.
4. OPTION AGREEMENT. The terms and provisions of each option granted
under this Plan shall be as set forth in a Non-Employee Director Stock Option
Agreement (hereinafter called an
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<PAGE>
"Option Agreement"), between the Company and the director receiving such option
in form and content substantially similar to the Option Agreement attached
hereto as EXHIBIT A.
5. OPTIONS SHARES. On the date of the 1997 Annual Meeting of
Shareholders of the Company, the Company shall grant to each director elected at
such meeting an option to purchase 5,000 shares of Common Stock. In addition, on
the date that any new director is elected at an Annual Meeting of the
Shareholders of the Company during the term of this Plan, the Company shall
grant to each such new director an option to purchase 5,000 shares of Common
Stock.
6. PRICE. The purchase price per share of Common Stock purchasable under
options granted pursuant to this Plan shall be eighty-five percent (85%) of the
opening price per share of the Common Stock on the New York Stock Exchange, or
such other exchange as the Common Stock may then be traded, on the day such
options are granted; provided that the purchase price per share of Common Stock
purchasable under options granted on the date of the 1997 Annual Meeting of
Shareholders of the Company shall be Eleven and 48/100 Dollars ($11.48). The
full purchase price of shares purchased shall be paid upon exercise of the
option. The purchase price per share shall be subject to adjustment under
Section 10 of this Plan.
7. EXERCISE PERIOD. All shares of Common Stock purchasable under any
option granted under this Plan will be purchasable one year following the grant
of such option; provided that the director granted such option must have served
as a director of the Company at all times from the date of grant.
8. OPTION PERIOD. The period of time within which options granted
pursuant to this Plan must be exercised shall be a period of three (3) years
after such option first becomes exercisable. The actual expiration date stated
in an Option Agreement is hereinafter called the "Expiration Date."
9. TERMINATION. Each Option Agreement will provide that:
(a) If the director for any reason whatsoever, other than death
or permanent and total disability, as defined in (b) below, ceases to be
a director of the Company, the option must be exercised by the director
within one (1) year after the date of such termination, but in no event
later than the Expiration Date.
(b) If the director becomes permanently and totally disabled, as
hereinafter defined, while serving as a director of the Company, the
option will automatically become exercisable in full and must be
exercised by the director at any time within one (1) year after the date
of disability or the Expiration Date, whichever is earlier.
"Permanently and totally disabled" means being unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve (12) months. In the absence of
any specific requirements for this determination, the decision of the
Board of Directors of the Company, as aided by any physicians designated
by the Board of Directors shall be conclusive, and the Board of
Directors shall send written notice to the director of the determination
that he has become permanently and totally disabled.
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<PAGE>
(c) In the event that the director dies while serving as a
director of the Company, the option will automatically become
exercisable in full and must be exercised by a legatee or legatees of
the director under his will, or by his personal representatives or
distributees, at any time within one (1) year after the date of death or
the Expiration Date, whichever is earlier.
Nothing in (a), (b) or (c) shall extend the time for exercising
any option granted pursuant to this Plan beyond the Expiration Date.
10. ASSIGNABILITY. Each Option Agreement shall provide that the option
granted thereby shall not be transferable or assignable by the director in any
form or fashion, and that the option may be exercised only by the director
during his lifetime, or as otherwise expressly set forth in EXHIBIT A hereto.
11. CHANGES IN CAPITAL STRUCTURE. Each option granted pursuant to this
Plan shall provide that if the option shall, subject to Section 12, be exercised
subsequent to any share dividend, stock split, reverse stock split, split-up,
recapitalization, merger, consolidation, combination or exchange of shares,
reorganization, or liquidation occurring after the date of the grant of the
option, as a result of which shares of any class have been issued in respect of
outstanding Common Stock or Common Stock has been changed into the same or a
different number of shares of the same or another class or classes, then the
director or directors so exercising the option shall receive, for the aggregate
price paid upon such exercise, the aggregate number and class of shares that, if
Common Stock (as authorized at the date of the grant of the option) had been
purchased at the date of the grant of the option for the same aggregate price
(on the basis of the price per share set forth in Section 6 hereof) and had not
been disposed of, such director or directors would be holding, at the time of
such exercise, as a result of such purchase and all such share dividends, stock
split reverse stock split, split-ups, recapitalizations, mergers,
consolidations, combinations or exchanges of shares, reorganizations, or
liquidations; provided, however, that no fractional share shall be issued upon
any such exercise, and the aggregate price paid shall be appropriately reduced
on account of any fractional share not issued.
12. CHANGE IN CONTROL. Notwithstanding anything in this Plan to the
contrary, in the event of a Change in Control (as defined below), the
unexercised options outstanding under this Plan will automatically become
exercisable in full as of the effective date of such Change in Control. In the
event of a dissolution or liquidation of the Company or a merger or
consolidation in which the Company is not the surviving corporation, any
outstanding options hereunder may be terminated by the Company as of the
effective date of such dissolution, liquidation, merger or consolidation by
giving notice to each holder thereof of its intention to do so not less than ten
(10) days preceding such effective date and permitting the exercise until such
effective date, or the Expiration Date if earlier, of all of such outstanding
options. Notwithstanding the preceding sentence, if the Company is not the
surviving corporation as a result of the Company being reorganized or merged or
consolidated with another corporation while unexercised options are outstanding
under this Plan, the surviving corporation may assume the unexercised options
outstanding under this Plan or substitute new options in the surviving
corporation for the outstanding options; provided, however, that the
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excess of the aggregate fair market value of the securities subject to the
options immediately after the substitution or assumption over the aggregate
option price of such shares is not less than the excess of the aggregate fair
market value of the Common Stock subject to the outstanding option immediately
before such substitution or assumption over the aggregate option price of such
Common Stock. The existence of this Plan or of options granted hereunder shall
not in any way prevent any Change in Control transaction, and no holder of
options granted under this Plan shall have the right to prevent any such
transaction.
"Change in Control" of the Company means and shall be deemed to have
occurred if and when (i) any "person" (as such term is used in Section 13(d) of
the Securities Exchange Act of 1934) becomes a beneficial owner, directly or
indirectly, of securities of the Company representing 40% or more of the
combined voting power of the Company's then outstanding securities; (ii)
individuals who were members of the Board of Directors of the Company
immediately prior to a meeting of the shareholders of the Company involving a
contest for the election of directors do not constitute a majority of the Board
of Directors following such election; (iii) the shareholders of the Company
approve the dissolution or liquidation of the Company; (iv) the shareholders of
the Company approve an agreement to merge or consolidate, or otherwise
reorganize, with or into one or more entities which are not subsidiaries of the
Company, as a result of which less than 50% of the outstanding voting securities
of the surviving or resulting entity are, or are to be, owned by former
shareholders of the Company (excluding from the term "former shareholders" a
shareholder who is, or as a result of the transaction in question becomes, an
"affiliate", as that term is used in the Securities Exchange Act of 1934 and the
Rules promulgated thereunder, of any party to such merger, consolidation or
reorganization); or (v) the shareholders of the Company approve the sale of
substantially all of the Company's business and/or assets to a person or entity
which is not a subsidiary of the Company.
13. REGISTRATION RIGHTS. The directors shall have no registration rights
with respect to the shares of Common Stock issuable upon exercise of the options
granted under this Plan.
14. SALE OF STOCK AFTER EXERCISE OF OPTION. Any director exercising any
option under the terms of this Plan will be required to agree that, unless the
shares obtained as a result of such exercise have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or may otherwise be
sold pursuant to an available exemption from such registration under the
Securities Act, such director will not dispose of any such shares thereafter
without the prior approval of the Company.
Unless the Company files a registration statement with respect to the
shares issuable under the Plan, the Company shall require that a legend be
placed on any share certificates issued through the exercise of any option
granted under this Plan with respect to the foregoing restrictions. Such legend
shall be placed either on the front or back of such share certificates and shall
note that the shares are governed by this Plan.
This Plan shall be kept at the registered office of the Company and
shall be available for inspection by any appropriate party.
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<PAGE>
15. AMENDMENT OF THE PLAN. The Board of Directors may from time to time
alter, amend, suspend or discontinue this Plan and make rules for its
administration; provided, however, that the Plan may not be amended more than
once every six (6) months, other than to conform to changes in the Internal
Revenue Code, the Employee Retirement Income Security Act, or the rules
thereunder.
16. SHAREHOLDER APPROVAL. This Plan will be submitted to the
shareholders of the Corporation (the "Shareholders") for approval and shall be
approved by the vote of a majority of the shares represented at a meeting at
which a quorum is present or by written consent of the a majority of the
Shareholders.
17. TERMINATION OF PLAN. Unless terminated earlier, this Plan shall
terminate effective the date of the 2001 Annual Meeting of Shareholders. Any
option outstanding under this Plan at the time of the termination of this Plan
shall remain in effect until such option shall have been exercised or the
Expiration Date thereof occurs, whichever is earlier.
18. EXHIBITS. EXHIBIT A (attached) is hereby incorporated into this Plan
by reference.
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<PAGE>
EXHIBIT "A"
MAXXIM MEDICAL, INC.
NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
THIS NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT (this "Agreement"),
effective as of , 199 (the Effective Date"), by and between MAXXIM MEDICAL,
INC., a Texas corporation (the "Company"), and , an individual residing in
(the "Optionee");
W I T N E S S E T H:
WHEREAS, the Optionee is a member of the Board of Directors of the
Company but is neither an employee nor an executive officer of the Company on
the effective date hereof; and
WHEREAS, in consideration of the Optionee's past service to the Company
and to provide the Optionee with additional incentive to remain as a director of
the Company, the Company has agreed to grant the Optionee options to purchase
shares of common stock, $.001 par value ("Common Stock"), of the Company; and
WHEREAS, by granting the Optionee options to purchase shares of Common
Stock pursuant to the terms of this Agreement, the Company intends to carry out
the purposes set forth in the 1997 Non-Employee Directors' Stock Option Plan of
the Company (the "Plan") adopted by the Board of Directors of the Company (the
"Board of Directors"); and
WHEREAS, the Company and the Optionee desire to set forth the terms and
conditions of such options to purchase Common Stock;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee the option
(the "Option") to purchase all or any part of an aggregate of Five Thousand
(5,000) shares of Common Stock (such shares, as increased or decreased in
accordance with Section 8 hereof, being referred to herein as the "Option
Shares") for a purchase price of per share (the "Exercise Price"), upon the
additional terms and conditions hereinafter set forth.
2. AVAILABILITY OF OPTION SHARES AND TERM OF OPTION. The Option shall be
fully exercisable one year from the date hereof (the "Vesting Date"), such
vesting expressly conditioned upon the Optionee having served as a director of
the Company at all times from the date of grant up to the date preceding the
Vesting Date. The Option shall expire and terminate as to any Option Shares not
purchased by the Optionee on or prior to the expiration of three years from the
Vesting Date (the "Expiration Date"), subject to earlier termination as set
forth in Section 13.
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<PAGE>
3. METHOD OF EXERCISING THE OPTION. Subject to the limitations contained
in Section 2, the Option shall be exercised by the Optionee delivering to the
Company, on or prior to the Expiration Date or the date of any earlier
termination pursuant to Section 13 (i) written notice from the Optionee stating
that the Optionee is exercising the Option, and specifying the number of Option
Shares that the Optionee desires to purchase ("Notice"), and (ii) a check
payable to the order of the Company in an amount equal to the then current
Exercise Price multiplied by the number of Option Shares that the Optionee has
indicated he desires to purchase in the Notice (the "Payment"). The Option may
be exercised as to all, or any whole number, of the Option Shares exercisable as
of the date of the Notice. The failure of the Optionee to exercise the Option as
to all of the Option Shares available for exercise as of the date of the Notice
shall not be deemed to be a waiver or forfeiture of the Optionee's right to
later exercise the Option as to any Option Shares not previously purchased. For
purposes of Section 2 hereof, the exercise of the Option to purchase the Option
Shares specified in the Notice shall be deemed to have taken place on the date
that Notice and Payment are actually received by the Company in accordance with
this Section 3.
4. TRANSFERABILITY OF OPTION. The Option shall be exercisable (i) during
the Optionee's lifetime only by the Optionee, or his guardian or legal
representative, or (ii) in the event of his death, by his heirs or legatees in
accordance with his will or the laws of descent and distribution (but only to
the extent the Option would be exercisable by the Optionee under Section 2 or as
set forth in Section 13), and shall not otherwise be transferable or assignable,
in whole or in part.
5. PAYMENT OF TAXES UPON EXERCISE. The Optionee understands and
acknowledges that under currently applicable law, the Optionee may be required
to include in his taxable income, at the time of exercise of the Option, the
amount by which the value of the Option Shares purchased (the "Exercise Shares")
exceeds the Exercise Price paid. The Optionee hereby authorizes the Company to
withhold Exercise Shares of a value equivalent to the amount of tax required to
be withheld by the Company out of any taxable income derived by the Optionee
upon exercise of the Option; provided, however, that the Optionee may, in the
alternative, in order to satisfy such withholding requirement, deliver to the
Company cash or other shares of Common Stock owned by the Optionee.
6. INVESTMENT REPRESENTATION/SECURITIES LAW REQUIREMENTS. The Optionee
represents that the Option Shares available for purchase by the Optionee under
this Agreement will be acquired only for investment and not with a view toward
resale or distribution. The Optionee agrees and understands that the Option
Shares may be restricted securities as defined in Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), and, in such case,
may not be sold, assigned or transferred, unless the sale, assignment or
transfer of such shares is registered under the Securities Act and applicable
blue sky laws, as now in effect or hereafter amended or under applicable
exemptions therefrom. In the case of any sale under such an exemption, the
Company will require an opinion of counsel in form and substance satisfactory to
the Company from counsel acceptable to the Company that such registrations are
not required. The Optionee further understands and agrees that, unless issued
pursuant to an effective registration statement under the Securities Act, the
following legend shall be set forth on each certificate representing Option
Shares:
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<PAGE>
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 or under the blue sky laws
of any state, and may not be sold, assigned or transferred except upon
such registration or upon receipt by the Company of an opinion of
counsel in form and substance satisfactory to the Company from counsel
acceptable to the Company that such registrations are not required for
such sale, assignment or transfer."
7. NO RIGHTS AS SHAREHOLDER. The Optionee shall not have any rights as a
shareholder with respect to any of the Option Shares until the date of issuance
by the Company of a stock certificate to the Optionee for such shares. Except as
otherwise provided in Section 10 hereof, the Optionee shall not be entitled to
any dividends, cash or otherwise, or any adjustment of the Exercise Price of any
of the Option Shares for such dividends, if the record date therefor is prior to
the date of issuance of such stock certificate. Upon valid exercise of the
Option by the Optionee, the Company agrees to cause a valid stock certificate
for the number of Option Shares then purchased to be issued and delivered to the
Optionee within seven (7) business days.
8. CORPORATE PROCEEDINGS OF THE COMPANY. Notwithstanding anything in
this Agreement to the contrary, in the event of a Change in Control (as defined
in the Plan), the Option will automatically become exercisable in full as of the
effective date of such Change in Control. In the event of a dissolution or
liquidation of the Company or a merger or consolidation in which the Company is
not the surviving corporation, the Option may be terminated by the Company as of
the effective date of such dissolution, liquidation, merger or consolidation by
giving notice to Optionee of its intention to do so not less than ten (10) days
preceding such effective date and permitting the exercise until such effective
date, or the Expiration Date if earlier, of the Option. Notwithstanding the
preceding sentence, if the Company is not the surviving corporation as a result
of the Company being reorganized or merged or consolidated with another
corporation while the Option is outstanding, the surviving corporation may
assume the Option or substitute a new option in the surviving corporation for
the Option; provided, however, that the excess of the aggregate fair market
value of the securities subject to the options immediately after the
substitution or assumption over the aggregate option price of such shares is not
less than the excess of the aggregate fair market value of the Option Shares
immediately before such substitution or assumption over the Exercise Price of
Option Shares. The existence of the Option shall not in any way prevent any
Change of Control transaction, and Optionee shall have no right to prevent any
such transaction.
If the Option shall be exercised subsequent to any share dividend, stock
split, reverse stock split, split-up, recapitalization, merger, consolidation,
combination or exchange of shares, reorganization, or liquidation occurring
after the Effective Date, as a result of which shares of any class have been
issued in respect of outstanding Common Stock or Common Stock has been changed
into the same or a different number of shares of the same or another class or
classes without payment of consideration therefor, then the Optionee shall
receive, for the Exercise Price paid upon such exercise, the aggregate number
and class of shares that, if the Option Shares had been purchased at the
Effective Date and had not been disposed of, the Optionee would be holding, at
the time of such exercise, as a result of such purchase and all such share
dividends, stock split, reverse stock split, split-ups, recapitalizations,
mergers, consolidations, combinations or exchanges of shares,
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<PAGE>
reorganizations, or liquidations; provided, however, that no fractional share
shall be issued upon any such exercise, and the Exercise Price shall be
appropriately reduced on account of any fractional share not issued.
The issuance by the Company of shares of stock of any class of
securities convertible into shares of stock of any class, including Common
Stock, or the issuance by the Company of Common Stock, for cash, property or
services rendered, either upon direct sale or upon the exercise of rights,
options or warrants to subscribe therefor, or the conversion of shares or
obligations of the Company convertible into such shares or other securities,
shall not affect, and no adjustment by reason thereof shall be made with respect
to, the number or Exercise Price of shares of Common Stock then subject to the
Option.
9. NOTICES. All notices, demands and other communications required or
permitted hereunder shall be deemed to have been properly given or delivered
when delivered personally or sent by certified or registered mail, return
receipt requested with all postage fully prepaid, addressed to the respective
parties hereto as follows:
If to the Company: 104 Industrial Blvd.
Sugar Land, Texas 77478
Attn: President
If to Optionee: ------------------------
------------------------
------------------------
Any party hereto may change the above designated address by notice to
the other party hereto of such new address given in accordance with this Section
9.
10. JOINDER OF SPOUSE. The Optionee's spouse is fully aware of,
understands and fully consents and agrees to the provisions of this Agreement
and its binding effect upon any interest, community or otherwise, she may have
in any of the Option Shares or this Agreement, and she hereby evidences such
awareness, understanding, consent and agreement by execution of this Agreement.
11. FRACTIONAL SHARES. Notwithstanding any other provision of this
Agreement, the Company shall not be required to issue any fractional shares, and
to the extent that the terms hereof would otherwise require such issuance of
fractional shares, the number of shares actually issued shall be rounded down to
the nearest whole share.
12. TRANSFERABILITY; BINDING EFFECT. The Option shall be exercisable
only by the persons described in Section 4. Subject to the foregoing, all
covenants, terms, agreements and conditions of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the Company and the
Optionee and their respective heirs, executors, administrators, successors and
assigns.
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<PAGE>
13. TERMINATION.
(a) If the Optionee for any reason whatsoever, other than death
or permanent and total disability, as defined in (b) below, ceases to be
a director of the Company, the option must be exercised by the director
within one (1) year after the date of such termination, if such
termination date is prior to the Expiration Date.
(b) If the Optionee becomes permanently and totally disabled, as
hereinafter defined, while serving as a director of the Company, the
Option will automatically become exercisable in full and must be
exercised by the Optionee at any time within one (1) year after the date
of disability or the Expiration Date, whichever is earlier.
"Permanently and totally disabled" means being unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve (12) months. In the absence of
any specific requirements for this determination, the decision of the
Company, as aided by any physicians designated by the Company, shall be
conclusive and the Company shall send written notice to the Optionee of
the determination that the Optionee has become permanently and totally
disabled.
(c) In the event that the Optionee dies while serving as a
director of the Company, the option will automatically become
exercisable in full and must be exercised by a legatee or legatees of
the Optionee under the Optionee's will, or by the Optionee's personal
representatives or distributees, at any time within one (1) year after
the date of death or the Expiration Date, whichever is earlier, and if
not so exercised, the Option shall thereupon terminate.
Nothing in (a), (b) or (c) shall extend the time for exercising
the Option granted pursuant to this Agreement beyond the Expiration Date.
14. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the Company and the Optionee and their respective heirs,
executors, administrators, successors and assigns.
15. GOVERNING LAW. This Agreement shall be governed by the laws of
Texas, and the laws of the United States applicable in Texas.
16. CAPTIONS. The Section headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
the Agreement.
17. COUNTERPARTS. This Agreement may be executed in multiple original
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date first written above, to be effective as of the Effective Date.
COMPANY:
MAXXIM MEDICAL, INC.,
a Texas corporation
By:______________________________
Kenneth W. Davidson, President
OPTIONEE:
---------------------------------
---------------------------------
---------------------------------,
Spouse of Optionee
- 6 -
Exhibit 4.6
MAXXIM MEDICAL,
INC.
SENIOR MANAGEMENT STOCK PURCHASE PLAN
THIS SENIOR MANAGEMENT STOCK PURCHASE PLAN (this "Plan") is adopted by
the Board of Directors (the "Board of Directors") of MAXXIM MEDICAL, INC., a
Texas corporation (the "Company"), effective as of the 9th day of May, 1997 (the
"Adoption Date").
1. PURPOSE. The purpose of this Plan is to advance the interests of the
Company and its subsidiaries by providing stock ownership opportunities to
senior management of the Company, or any parent or subsidiary of the Company,
who contribute significantly to the management, growth and financial success of
the Company and its subsidiaries. The Company recognizes that aligning executive
officers' and key employees' personal interests more closely with those of the
shareholders and with the Company's financial performance will benefit the long
term growth of the Company while aiding it in attracting and retaining employees
of exceptional ability.
2. ADMINISTRATION. The Board of Directors shall, in its discretion,
establish such rules and regulations as it may deem appropriate for the proper
administration of the Plan and shall have full authority and power to interpret
and construe any provision of the Plan. Decisions of the Board of Directors
shall be final, binding and conclusive on all persons who have an interest in
the Plan. The Board of Directors may, in its discretion, appoint a committee
consisting of two or more persons, each of whom are non-employee directors to
administer this Plan.
3. AMOUNT OF STOCK. The total number of shares of common stock, $.001
par value ("Common Stock"), of the Company to be available for purchase pursuant
to this Plan shall not exceed 400,000 shares (the "Shares"). If any Shares
available for purchase hereunder are not subscribed for in accordance with the
terms of this Plan, such Shares will be available for future rights to purchase
granted to eligible recipients hereunder.
4. ELIGIBILITY AND PARTICIPATION. Only executive officers or persons
deemed to be key employees of the Company or any parent or a subsidiary of the
Company may purchase Shares pursuant to the Plan(the "Purchasers"). Future as
well as present employees(in- cluding employees who are directors) shall be
eligible to be Purchasers under the Plan. Directors who are not employees of the
Company or a parent or a subsidiary of the Company shall not be eligible to be
Purchasers under the Plan. The names of the Purchasers currently eligible to
participate in the Plan, and the number of shares each is eligible to purchase,
are listed on Exhibit A hereto.
<PAGE>
5. VOLUNTARY AND DISCRETIONARY NATURE OF PLAN. The granting of the right
to purchase Shares under this Plan shall be entirely discretionary with the
Board of Directors, and nothing in this Plan shall be deemed to give any
employee of the Company or of any parent or subsidiary of the Company any right
to participate in this Plan or to purchase Shares. Nothing herein may be
construed to limit or restrict the right of the Company or any parent or
subsidiary of the Company to terminate the employment of any Purchaser at any
time, with or without cause, or to increase or decrease the compensation of such
Purchaser from the rate of compensation in existence at the time the Purchaser
received the right to purchase Shares under the Plan. Purchasers are under no
obligation to purchase any or all of the Shares made available for purchase by
them.
6. PRICE. The purchase price per share of Common Stock under this Plan
shall be $13.00 per share the closing sale price per share of the Common Stock
on the New York Stock Exchange on April 30, 1997. Payment for the Shares shall
be made by means of a full recourse promissory note in the form attached hereto
as Exhibit B (the "Promissory Note"), the payment of which shall be partially
secured by a pledge of the Shares.
7. RIGHTS AS SHAREHOLDER. Upon execution of the Promissory Note in
payment for the Shares, the Company shall cause to be issued to the Purchaser a
certificate representing the number of Shares purchased, and the Purchaser will
be the record holder of such Shares with all rights of a shareholder with
respect thereto, including the right to vote such Shares and the right to
receive all dividends and distributions declared and paid with respect to such
Shares, subject to the pledge of such dividends and distributions to the Company
under the Promissory Note. Each certificate representing Shares will be
deposited by the Purchaser receiving such certificate with the Company, together
with a stock power endorsed in blank in fulfillment of the pledge of the Shares.
Until the payment in full of the related Promissory Notes, the certificates will
bear a legend stating that such Shares were acquired under this Plan and are
governed by the terms and provisions hereof and the related Subscription
Agreement and Promissory Note.
8. RIGHTS UPON TERMINATION. If the employment of the Purchaser with the
Company is terminated for any reason other than Purchaser's death at any time
prior to the payment in full of the Promissory Note given in payment for his
Shares, then the maturity date of the Promissory Note shall be accelerated to
the date and under the circumstances described below:
(a) FOR CAUSE. If the Purchaser's employment with the Company is
terminated for Cause, as hereinafter defined, then the maturity date of the
Promissory Note of that Purchaser shall be immediately
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<PAGE>
accelerated to the effective date of termination for Cause established by the
Company. For purposes of this Plan, the Company shall have "Cause" to terminate
the Purchaser's employment upon (A) the willful and continued failure by the
Purchaser to substantially perform his duties to the Company (other than any
such failure resulting from the Purchaser's incapacity due to physical or mental
illness) or regular failure to follow the specific directives of the Board,
after demand for substantial performance that specifically identifies the manner
in which the Company believes the Purchaser has not substantially performed his
duties is delivered by the Company, or (B) the willful engaging by the Purchaser
in misconduct which is materially injurious to the Company, monetarily or
otherwise. No act, or failure to act, on the Purchaser's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Company. Notwithstanding the foregoing, the Purchaser shall not
be deemed to have been terminated for Cause without (i) reasonable notice to the
Purchaser setting forth the reasons for the Company's intention to terminate for
Cause, (ii) an opportunity for the Purchaser, together with his counsel, to be
heard before the Board, and (iii) delivery to the Purchaser of a notice of
termination finding that, in the good faith opinion of the Board, the Purchaser
was guilty of conduct set forth above and specifying the particulars thereof in
detail.
(b) WITHOUT CAUSE. If the Purchaser's employment with the Company is
terminated by the Company without Cause, or by the Purchaser or the Company
because of a Change in Control of the Company (as defined below), or if his
health shall become impaired to an extent that makes his continued performance
of his duties hereunder hazardous to his physical or mental health or his life,
then the maturity date of the Promissory Note of that Purchaser shall be
immediately accelerated to the date that is six months after the effective date
of termination established by the Company, but in no event later than the stated
maturity date under the Promissory Note. For purposes of this Plan, "Change in
Control" shall mean a change in control of a nature that would be required to be
reported in response to Item 5(f) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934 (the "Exchange Act"); provided that,
without limitation, such a change in control shall be deemed to have occurred if
(X) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than the Company or the Purchaser, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 40% or more of the
combined voting power of the Company's then outstanding securities, or (Y)
during any period of two consecutive years while the Promissory Notes are
outstanding, individuals who at the Adoption Date constitute the Board cease for
any reason to constitute at least a majority thereof, unless the election of
each director who was not a director at the beginning
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<PAGE>
of such period has been approved in advance by directors representing at least
two-thirds of the directors then in office who were directors at the beginning
of the period. If the Purchaser's employment is terminated without Cause because
of the impairment of his health as described above, the Purchaser shall furnish
the Company with a written statement from a qualified doctor to such effect and,
at the Company's request, the Purchaser shall submit to an examination by a
doctor selected by the Company. Such doctor must concur in the conclusion
contained in the written statement furnished by the Purchaser in order for the
termination to be considered to be without Cause and not voluntary on the part
of the Purchaser.
(c) VOLUNTARY. If the Purchaser's employment with the Company is
terminated voluntarily by the Purchaser, then the maturity date of the
Promissory Note of that Purchaser shall be immediately accelerated to the date
that is three months after the effective date of termination established by the
Company, but in no event later than the stated maturity date under the
Promissory Note.
9. FORFEITURE OF GAIN. If the Purchaser sells the Shares prior to the
expiration of three years from the effective date of the sale of the Shares to
him for any reason other than pursuant to a Change in Control of the Company, or
a merger, acquisition or other corporate transaction pursuant to which the
Shares are effectively sold, converted or transferred by operation of law, then
fifty percent (50%) of any gain realized by the Purchaser upon such sale shall
be forfeited and paid over to the Company immediately upon such sale. The
purpose of this forfeiture is to further and promote the purpose of this Plan as
stated in Section 1 hereof, and therefore shall not be applicable to the sale of
Shares by the heirs or legal representatives of a Purchaser in the event of his
death.
10. REGISTRATION OF SHARES. Although it is the intention of the Company
to register the sale of the Shares under the Securities Act prior to their sale
under this Plan, all Purchasers of the Shares will be required to agree that,
unless such Shares have been registered or may otherwise be sold pursuant to an
available exemption from such registration under the Securities Act, the Shares
may not be sold without the prior approval of the Company. The Shares will be
purchased by the Purchaser pursuant to the terms of the Subscription Agreement
attached hereto as Exhibit C. The Purchasers may also be considered to be
affiliates, as that term is defined in Rule 144, and be subject to further
restrictions on the sale of the Shares. The Company may require that a legend be
placed on all certificates representing any Shares with respect to the foregoing
restrictions.
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<PAGE>
11. AMENDMENT OF THE PLAN. The Board of Directors may from time to time
alter, amend, suspend or discontinue this Plan and make rules for its
administration.
12. ASSIGNABILITY. The rights to purchase the Shares under this Plan
shall not be transferable or assignable by the Purchaser, and the Shares may be
purchased only by the Purchaser during his lifetime. Except as otherwise
provided herein, the provisions of this Plan shall be binding on the heirs,
successors and legal representatives of the Company and the Purchasers.
13. EXHIBITS. The list of Purchasers and number of Shares available for
purchase by each attached as Exhibit A, the Promissory Note attached as Exhibit
B, and the Subscription Agreement attached as Exhibit C, are hereby incorporated
into this Plan by reference.
-5-
<PAGE>
EXHIBIT A
PURCHASER NO. OF SHARES
-6-
<PAGE>
EXHIBIT B
THIS NOTE IS ISSUED TO SECURE PAYMENT FOR SHARES OF MAXXIM MEDICAL,
INC. STOCK SOLD TO THE MAKER UNDER THE SENIOR MANAGEMENT STOCK
PURCHASE PLAN OF THE COMPANY (THE "PLAN") AND IS GOVERNED BY THE
TERMS AND CONDITIONS OF THE PLAN AND THE RELATED SUBSCRIPTION
AGREEMENT, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST BY THE MAKER AT
THE EXECUTIVE OFFICES OF THE COMPANY.
PROMISSORY NOTE
$___________ Houston, Texas May __, 1997
FOR VALUE RECEIVED, the undersigned promises to pay to the order of
MAXXIM MEDICAL, INC. (the "Company"), at its principal executive offices, the
principal sum of _______________________________________________ DOLLARS
($________________), in lawful money of the United States of America, which
shall be legal tender in payment of all debts and dues, public and private, at
the time of payment. This Note shall not bear interest, except as specifically
set forth below in the event of default hereon.
This Note shall be due and payable in full three years from the date set
forth hereinabove, subject to acceleration upon termination of the Maker's
employment with the Company under the conditions and to the dates as described
in the Plan. The undersigned Maker shall have the right and privilege of
prepaying this Note at any time or times, in whole or in part, without notice or
penalty, in principal amounts of no less than $5,000. All past due installments
of principal shall bear interest at the highest rate permitted by applicable
law, or if no such maximum rate is established by applicable law, then at the
rate of eighteen percent (18%) per annum.
The Maker, as well as any persons or entities to become liable for the
payment of this Note, hereby expressly waive demand or presentment for payment
of this Note, notice of nonpayment, protest, suit, acceleration, intention to
accelerate, diligency and/or any notice of, or defense on account of, the
extension of time of payment or change in the method of payments, and/or any
modification of the terms hereof or of the Plan or any instrument securing or
guaranteeing the payment hereof, and consent to any and all renewals and
extensions in the time of payment hereof, and/or any modification of the terms
hereof or of the Plan or any instrument securing or guaranteeing the payment
hereof, and to any substitutions, exchange or release of any security herefor or
the release of any party primarily or secondarily liable herefor, and further
agree that the acceptance of late payment hereunder by the Company, waiver or
other forgiveness of any other defaults by Maker,
<PAGE>
shall not constitute a waiver by the Company of any subsequent defaults, late
payments or other violations of the Maker's obligations hereunder and/or in the
terms of any instrument securing or guaranteeing the payment hereof.
If this Note is not paid when due (whether the same becomes due by
acceleration or otherwise) and is placed in the hands of an attorney for
collection, or if suit is filed hereon, or if this Note shall be collected by
legal proceedings or through a probate or bankruptcy court, the undersigned
Maker agrees to pay all costs of collection, including reasonable attorneys'
fees.
This Note shall be construed in accordance with the laws of the State of
Texas and the laws of the United States applicable to transactions in Texas.
Unless changed in accordance with law, the applicable rate ceiling under Texas
law shall be the indicated rate ceiling from time to time in effect as provided
in Tex. Rev. Civ. Stat. Ann. art. 5069-1.04, as amended.
The payment of this Note is secured by the pledge of ____________ shares
of Common Stock of Maxxim Medical, Inc., $.001 par value, sold to Maker pursuant
to the Plan, together with all proceeds, monies, income and benefits
attributable or accruing to said property which Maker is or may hereafter become
entitled to receive on account of said property, including, but not by way of
limitation, all dividends and other distributions on or with respect thereto
whether payable in cash, stock or other property and all subscription and other
rights (collectively, the "Collateral"). Maker hereby pledges, assigns,
transfers, delivers and grants to the Company a security interest in the
Collateral to secure performance and payment of all obligations and indebtedness
of Maker hereunder, and delivers the certificate representing the Collateral to
the Company, together with a stock power endorsed in blank, to secure such
pledge. This pledge of and grant of a security interest in the Collateral shall
not be construed as relieving Maker from full personal liability on this Note
and for any deficiency thereon, or impair or affect any other security for the
payment of this Note.
A portion of the Collateral may be released from this pledge upon
partial payment of the Note without altering, varying or diminishing in any way
the force, effect, lien, security interest or charge of this pledge as to the
Collateral not expressly released, and this pledge shall continue as a first and
prior lien and charge on all of the Collateral not expressly released until this
Note has been paid in full. Partial release of the Collateral upon prepayment of
a portion of the principal amount of the Note may be made in the sole discretion
of the Company in the amounts deemed appropriate by it, and subject to the
further provisions of the Plan.
All notices hereunder shall be in writing and shall be deemed to have
been delivered on the date personally delivered or on the date mailed, first
class, registered or certified mail, postage prepaid, if addressed to the
respective parties hereto at their addresses as shown in the corporate records
of the Company.
IN WITNESS WHEREOF, the Maker has executed this Note as of the date
first above written.
MAKER:
<PAGE>
----------------------------------
Name:_____________________________
The Company as secured party:
MAXXIM MEDICAL, INC.
By________________________________
<PAGE>
EXHIBIT C
SUBSCRIPTION AGREEMENT
This Subscription Agreement dated effective as of May __, 1997, by and
between Maxxim Medical, Inc., a Texas corporation (the "Company"), and the
undersigned officer of the Company (the "Shareholder")
WITNESSETH
WHEREAS, the Board of Directors of the Company has adopted a Senior
Management Stock Purchase Plan (the "Plan") pursuant to which the Shareholder
has been given the opportunity to purchase up to ______ shares of the common
stock, $.001 par value, of the Company (the "Shares"), under the terms and
conditions contained in that Plan; and
WHEREAS, the Shareholder desires to purchase certain of the Shares upon
the terms and for the consideration set forth in the Plan;
NOW, THEREFORE, the parties hereto agree as follows:
1. SUBSCRIPTION AND PAYMENT. Shareholder hereby subscribes to purchase
the number of Shares set forth on the signature page of this Subscription
Agreement at a purchase price of $13.00 per share, as established by the Plan.
As consideration for the purchase of the Shares, Shareholder is delivering to
the Company, and the Company hereby acknowledges receipt of, his promissory note
payable to the Company in the aggregate principal amount of the purchase price
of the Shares indicated on the signature page hereof, and the stock certificates
evidencing the Shares pledged to the Company to secure payment of the note.
2. REPRESENTATIONS AND WARRANTIES. The Shareholder hereby represents and
warrants to the Company, its officers, directors, stockholders, affiliates,
agents, employees and representatives as follows:
(a) INVESTMENT INTENT. (I) the Shares are being acquired solely for the
account of the Shareholder, for investment, and not with a view to or for the
resale, distribution, subdivision or fractionalization thereof, (ii) the
Shareholder has no contract, understanding, undertaking agreement or arrangement
with any person except for the Company to sell, transfer or pledge to any person
the Shares or any part thereof, (iii) the Shareholder has no present plans to
enter into any such contract, undertaking, agreement or arrangement, (iv) the
Shareholder understands the legal consequences of the foregoing representations
and warranties to mean that the Shareholder must bear the economic risk of the
investment in the Shares for an indefinite period of time, (v) the Shareholder
has such knowledge and experience in financial and business matters that the
Shareholder is capable of evaluating the merits and risks of acquiring the
Shares, and (vi) the Shareholder acknowledges that the acquisition of the Shares
involves a high degree of risk which may result in the loss of the total amount
of Shareholder's investment in the Shares.
<PAGE>
(b) SECURITIES COMPLIANCE. The Shareholder understands that no sale,
distribution, transfer or other disposition of the Shares can be made by the
Shareholder unless the Shares have been registered under the Securities Act of
1933, as amended (the "Act"), and applicable securities laws of any other
relevant jurisdiction, or exemptions from such registrations are available, as
evidenced by an opinion of counsel satisfactory to the Company, with respect to
the proposed sale, distribution, transfer or other disposition. Any purchaser on
resale or transferee of the Shares will also be required to meet the suitability
requirements applicable to the Shareholder, and such purchaser or the
Shareholder will be required to bear all expenses of such transfer (including
the costs of any legal advice or opinions required).
(c) EXPERIENCE. Shareholder is an executive officer or key employee of
the Company and is knowledgeable and experienced in investments involving
medical products and services generally, and the business and prospects of the
Company specifically. Shareholder has such knowledge and experience in financial
and business matters that he is capable of evaluating the risks of any
investment in the Shares and making an informed investment decision.
(d) NO GENERAL SOLICITATION. The Shares have been offered to the
Shareholder without any form of general solicitation or advertising of any type
by or on behalf of the Company or any of its officers, directors, shareholders,
employees, agents or representatives.
(e) ACCESS TO INFORMATION. The Shareholder has (i) read the Company's
Annual Report on Form 10-K for the fiscal year 1996, the Company's proxy
statement and annual report furnished to shareholders for their annual meeting
on April 3, 1997, the Company's Form 10-Q for the quarter ended February 2, 1997
and any other reports or documents required to be filed under the Securities
Exchange Act of 1934, as amended, by the Company since the last fiscal year end,
(ii) had an opportunity to ask questions and receive answers concerning the
actual and proposed business and affairs of the Company, and is satisfied with
the results thereof, and (iii) been given access, if requested, to all documents
with respect to the Company or the Plan, as well as to such other information
that the Shareholder has requested, in order to evaluate fully the merits and
risks of an investment in the Shares.
(f) EXEMPT STATUS. The Shareholder understands that the Shares to be
sold hereunder are being offered and sold in reliance upon exemptions from
registration under the Act and state securities laws. The Shareholder
understands that the Company and its officers, directors, shareholders, agents,
employees and representatives are relying on, among other things, the
representations and warranties of the Shareholder set forth herein in offering
and selling the Shares to the Shareholder in reliance upon exemptions available
under the Act and state securities laws.
(g) DOMICILE. The Shareholder is a bona fide resident of the State of
____________.
3. RESTRICTIONS ON TRANSFER. In addition to the restrictions set forth
above, the Shareholder understands and agrees that (i) the Company is under no
obligation to register the Shares or to perfect any exemption for resale of the
Shares under applicable securities laws, (ii) if they are
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<PAGE>
not registered the Shares will be restricted securities, and must be fully paid
for, and the Promissory Note given in consideration therefor fully paid and
canceled, for a full year under Rule 144, before a public resale of the Shares
can be made and (iii) a legend may be placed on each certificate evidencing any
of the Shares and stop transfer instructions may be issued by the Company to
restrict the resale, pledge, hypothecation or other transfer of the Shares in
contravention of this Agreement.
4. IMPUTED INTEREST. Shareholder understands and acknowledges that under
currently applicable law the Shareholder may be required to include in his
taxable income the value of imputed interest on the promissory note paid for the
Shares; provided, however, that the Shareholder may at his option pay to the
Company interest at the rate that would be imputed under applicable law.
5. NOTICE. All communications hereunder will be in writing and, if sent
to the Shareholder, will be mailed, delivered or faxed to Shareholder at the
address set forth in the records of the Company, or if sent to the Company, will
be mailed, delivered or faxed to its principal executive offices, Attention:
Chief Executive Officer.
6. SPOUSAL CONSENT. If Shareholder is married, Shareholder's spouse must
execute and deliver to the Company a spousal consent in the form set forth on
the signature page hereof with all of the blanks appropriately completed. If
such consent is not executed on the date this Agreement is delivered to the
Company, Shareholder shall be deemed to have represented and warranted to the
Company that Shareholder is not married and that no person has any community
property interest in the Shares.
7. AMENDMENT. This Agreement may not be modified or amended except by
written instrument executed by or on behalf of each of the parties hereto.
8. WAIVERS. The observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) by the party entitled to enforce such term, but such waiver shall
be effective only if in a writing signed by the party or parties against which
such waiver is to be asserted. Unless otherwise expressly provided herein, no
delay on the part of any party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party hereto of any right, power or privilege hereunder operate
as a waiver of any other right, power or privilege hereunder nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder.
9. ENTIRE AGREEMENT. This Agreement and the Plan, including the
exhibits, documents and agreements expressly referred to herein and therein,
constitute the entire agreement between the parties hereto with respect to the
matters covered hereby, and any other prior or contemporaneous oral or written
understandings or agreements with respect to the matters covered hereby are
expressly superseded by this Agreement. There are no oral or unwritten
agreements between the parties.
10. SEVERABILITY. If any provision of this Agreement, or the application
of such provision
-3-
<PAGE>
to any person or circumstances, shall be declared judicially to be invalid,
unenforceable or void, such decision will not have the effect of invalidating or
voiding the remainder of this Agreement or affect the application of such
provision to other persons or circumstances, and the parties hereto agree that
the part or parts of this Agreement so held to be invalid, unenforceable or void
will be deemed to have been stricken herefrom and the remainder of this
Agreement will have the same force and effect as if such part or parts had never
been included herein. Any such finding of invalidity or unenforceability shall
not prevent the enforcement of such provision in any other jurisdiction to the
maximum extent permitted by applicable law.
11. APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Texas.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto effective as of the date first above written.
Maxxim Medical, Inc.: The Shareholder:
- ---------------------------- -----------------------------------
Kenneth W. Davidson, President Name:______________________________
No. of Shares Subscribed For:__________
Principal Amount of Note: _____________
SPOUSAL CONSENT AND AGREEMENT
The undersigned spouse of ______________________ joins in the
Subscription Agreement set forth above (the "Agreement") with respect to any
interest, community property interest or otherwise, in the Shares that may be
issued under the Agreement and the promissory note and related pledge of shares
to the Company in exchange for such Shares. The undersigned has read the
Agreement, is not acting under any coercion, and has had the opportunity to
retain independent counsel for personal representation purposes and to explain
the legal consequences of this Spousal Consent and Agreement. The undersigned
agrees that any termination of the undersigned's marriage to the Shareholder
named above for any reason shall not have the effect of removing any Shares
otherwise subject to the Agreement from the coverage thereof.
Date: _______________________, 1997.
--------------------------------
Print Name_______________________
-4-
EXHIBIT 5
May 22, 1997
Maxxim Medical, Inc.
104 Industrial Boulevard
Sugar Land, Texas 77478
Attn: Mr. Kenneth W. Davidson
Gentlemen:
We have acted as counsel for Maxxim Medical, Inc., a Texas corporation
(the "Corporation"), in connection with the registration with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), of up to 1,512,000 shares of the Corporation's
common stock, $.001 par value (the "Common Stock"), issuable under certain stock
option and stock purchase plans of the Corporation (the "Plans").
We have made such inquiries and examined such documents as we have
considered necessary or appropriate for the purpose of giving the opinions
hereinafter set forth, including:
(i) the Restated Articles of Incorporation of the Corporation, as filed
with the Secretary of State of Texas and as amended to date;
(ii) the Bylaws and stock ledgers and transfer books of the Corporation
and the records of the official proceedings of shareholders and directors
of the Corporation through the date of this opinion;
(iii) the Registration Statement of the Corporation on Form S-8, including
attachments, to be filed with the Commission on May 22, 1997 (the
"Registration Statement"); and
(iv) such other documents as we have deemed necessary for the expression
of the opinions contained herein, including, but not limited to, all of
the Exhibits to the Registration Statement.
We have assumed the genuineness and authenticity of all signatures on all
original documents, the authenticity of all documents submitted to us as
originals, the conformity to
<PAGE>
Maxxim Medical, Inc.
December 5, 1994
Page 2
originals of all documents submitted to us as copies and the due authorization,
execution, delivery or recordation of all documents where due authorization,
execution, delivery or recordation are prerequisites to the effectiveness
thereof.
Based upon the foregoing, and having regard for such legal considerations
as we deem relevant, we are of the opinion (limited, in all respects, to the
laws of the United States and the State of Texas) that:
(i) the Corporation is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Texas; and
(ii) upon payment of the cash consideration required to be paid for the
Common Stock, as set forth in, and in accordance with, the Registration
Statement and the Plans and ancillary stock option and subscription
agreements, the Common Stock will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Commission as an
Exhibit to the Registration Statement.
Yours very truly,
BOYER, EWING & HARRIS INCORPORATED
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated January 16, 1997 included in Maxxim Medical,
Inc.'s Annual Report on Form 10-K for the year ended November 3, 1996.
KPMG Peat Marwick L.L.P.
Houston, Texas
May 20, 1997
