<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
----------------------------------
Washington, D.C. 20549
----------------------
SCHEDULE 13D
------------
Under the Securities Exchange Act of 1934
-----------------------------------------
(Amendment No. )*
-----------------
Meridian Medical Technologies Inc.
----------------------------------
(Name of Issuer)
Common Stock, Par Value $0.10 Per Share
---------------------------------------
(Title of Class of Securities)
00086902800
-----------
(CUSIP Number)
Mr. William Austin
212-446-1930
ING (U.S.) Investment Corporation
135 East 57th Street
New York, New York 10022
------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copy to:
Walter W. Driver, Jr.
King & Spalding
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
November 20, 1996
-----------------
(Date of Event Which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box: / /
---
<PAGE> 2
Check the following box if a fee is being paid with the Statement. /X/ (A fee
is not required only if the reporting person (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosure provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 (the "Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
(Continued on following pages)
Page 2 of 15 Pages
Exhibit Index on Page 15
<PAGE> 3
<TABLE>
<CAPTION>
CUSIP NO. 00086902800
<S> <C> <C> <C>
1. NAME OF REPORTING PERSON
S.S. OR IRS IDENTIFICATION NO. OF ABOVE PERSON
ING (U.S.) Investment Corporation
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
<S> <C> <C> <C>
NUMBER OF 7. SOLE VOTING POWER 174,491
SHARES
BENEFICIALLY 8. SHARED VOTING POWER -0-
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER 174,491
REPORTING
PERSON
WITH 10 SHARED DISPOSITIVE POWER -0-
<S> <C> <C>
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
174,491
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.64%
</TABLE>
Page 3 of 15 Pages
Exhibit Index on Page 15
<PAGE> 4
<TABLE>
<S> <C>
14. TYPE OF REPORTING PERSON*
CO
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION
Page 4 of 15 Pages
Exhibit Index on Page 15
<PAGE> 5
STATEMENT PURSUANT TO RULE 13d-1
OF THE
GENERAL RULES AND REGULATIONS
UNDER THE
SECURITIES EXCHANGE ACT OF 1934
Item 1. Security and Issuer
The class of equity securities to which this Statement on Schedule 13D
relates is the common stock, par value $0.10 per share (the "Common Stock"), of
Meridian Medical Technologies, Inc. (formerly named Survival Technology, Inc.)
(the "Issuer"), a Delaware corporation, with its principal executive offices
located at 2275 Research Boulevard, Rockville, Maryland, 20850. On April 15,
1996, ING (U.S.) Capital Corporation, (formerly known as Internationale
Nederlanden (U.S.) Capital Corporation), a Delaware corporation ("ING Capital"),
entered into a credit agreement with Brunswick Biomedical Corporation
("Brunswick"), a Massachusetts corporation, which subsequently merged with and
into Issuer on November 20, 1996 (the "Merger"), as described in Item 6.
Simultaneously with entering into the Credit Agreement with Brunswick, ING
Capital entered into a Warrant Purchase Agreement with Brunswick pursuant to
which ING Capital received warrants to purchase certain shares of Brunswick
Common Stock ("Brunswick Warrants"). In connection with the Merger, the Issuer
assumed all obligations of Brunswick to ING Capital under the Credit Agreement,
the Warrant Purchase Agreement and all related documents. In connection with
assuming Brunswick's obligations relating to all outstanding warrants to acquire
Brunswick Common Stock, the Issuer issued warrants to purchase Issuer Common
Stock (the "Warrants") exercisable for 174,491 shares of non-voting Common
Stock, convertible, on a one-for-one basis, into the shares of the Common Stock
of the Issuer, as described in Item 6. ING Capital transferred the Warrants to
a wholly owned subsidiary, ING (U.S.) Investment Corporation, a Delaware
corporation, immediately following consummation of the Merger.
Item 2. Identity and Background
This statement is being filed on behalf of ING (U.S.) Investment
Corporation ("Holder"). Holder is engaged principally in the financial
investment business. The principal place of business and principal office of
Holder is located at 135 East 57th Street, New York, New York 10022. Holder is
a wholly owned subsidiary of ING Capital.
ING Capital is a wholly owned subsidiary of ING (U.S.) Capital
Financial Holdings Corporation ("U.S. Capital Holdings"), a holding company
with subsidiaries engaged principally in the financial services business. U.S.
Capital Holdings is organized under the laws of the State of Delaware. U.S.
Capital Holdings is a wholly owned subsidiary of ING (U.S.) Financial Holdings
Corporation ("U.S. Holdings"), organized under the laws of the State of
Delaware. The principal executive office of both U.S. Capital Holdings and
U.S. Holdings is located at 135 East 57th Street, New York, New York 10022.
Page 5 of 15 Pages
Exhibit Index on Page 15
<PAGE> 6
U.S. Holdings is a wholly owned subsidiary of ING Bank N.V. ("INB").
INB is organized under the laws of The Netherlands and has its principal
executive offices at De Amesterdamse Poort, 1102 MG, Amsterdam Zuid - Oost,
Postbus 1800, 1000 AV, Amsterdam, The Netherlands. INB is engaged principally
in the financial services business.
INB is a wholly owned subsidiary of ING Groep N.V. ("ING"), a holding
company organized under the laws of The Netherlands with subsidiaries engaged
principally in the financial services business. ING's principal executive
office is located at Strawinskylaan 2631, Postbus 810, 1000 AV Amsterdam, The
Netherlands.
Schedule 1 attached hereto and incorporated herein by reference sets
forth certain additional information with respect to each executive officer and
director of (i) Holder, (ii) ING Capital, (iii) U.S. Capital Holdings, (iv)
U.S. Holdings, (v) INB and (vi) ING.
During the last five years, none of (i) Holder, (ii) ING Capital,
(iii) U.S. Capital Holdings, (iv) U.S. Holdings, (v) INB and (vi) ING and,
(vii) to the best knowledge of Holder, the persons identified in Schedule 1, has
been (a) convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (b) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violations with respect to such
laws.
Item 3. Source and Amount of Funds or Other Consideration.
The funds required for the loans to the Issuer pursuant to the Credit
Agreement, which included the issuance of the Warrants of the Issuer, have been
provided from the working capital of the ING Capital. It is anticipated that
the exercise price of the Warrants will be paid from the working capital of the
Holder.
Item 4. Purpose of Transaction.
The purpose of the transaction, described in Item 6, was to provide an
inducement to ING Capital for entering into the Credit Agreement and providing
certain loans to Brunswick and the Issuer, as well as for general investment
purposes. Except as set forth above and in Item 6 and the exhibits hereto,
Holder has no plans or proposals relating to any matters specified in
paragraphs (a) through (j) of Item 4 of Schedule 13D. However, Holder reserves
the right to adopt such plans or proposals in the future, subject to applicable
regulatory requirements, if any.
Item 5. Interest in Securities of the Issuer.
(a) Holder may be deemed to own beneficially (as that term is
defined in Rule 13d-3 ("Rule 13d-3") under the Act) the shares of Common Stock
of the Issuer which it has a right to
Page 6 of 15 Pages
Exhibit Index on Page 15
<PAGE> 7
acquire pursuant to the exercise of the Warrants. According to the Issuer
there were 2,918,439 shares of Common Stock outstanding as of the effective
date of the Merger. Based on such number and assuming the exercise of the
Warrants in full, the Common Stock that Holder may be deemed to own
beneficially (as the term is defined in Rule 13d-3) represents approximately
5.64% of the outstanding Common Stock. Except as described herein, none of (i)
Holder, (ii) ING Capital, (iii) U.S. Capital Holdings, (iv) U.S. Holdings,
(v) INB and (vi) ING and, (vii) to the best knowledge of Holder, the persons
identified in Schedule 1 hereto,presently beneficially own any Issuer Common
Stock.
(b) Upon the exercise of the Warrants and subsequent conversion of
the Nonvoting Common Stock into voting Common Stock, Holder will have sole
power to vote or to direct the vote of, and to dispose or to direct the
disposition of, the Common Stock which Holder may be deemed to own beneficially
(as the term is defined in Rule 13d-3).
(c) Except as indicated herein, no transactions in the shares of
Issuer Common Stock have been effected by (i) Holder, (ii) ING Capital, (iii)
U.S. Capital Holdings, (iv) U.S. Holdings, (v) INB and (vi) ING and, (vii) to
the best knowledge of Holder, by any of the persons listed on Schedule 1
hereto, during the past 60 days.
(d) No other person is known to have the right to receive or the
power to direct the receipt of dividends from, or the proceeds from the sale
of, the securities described above.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
On April 15, 1996, ING Capital, as agent for various lenders, entered
into a credit agreement ("Credit Agreement") with Brunswick, as the borrower,
providing for a Bridge Loan in the principal amount of Eleven Million
Dollars ($11,000,000) ("Bridge Loan") having an initial maturity on October 15,
1996, which was subsequently extended to January 15, 1997. Upon consummation
of the Merger, $10,000,000 of the Bridge Loan was converted into (i) a Term
Loan to the Issuer having a final maturity on November 20, 2001; and (ii)
a Revolving Loan Commitment to the Issuer in an aggregate amount of up to Five
Million Dollars($5,000,000).
Simultaneously with entering into the Credit Agreement with Brunswick,
ING Capital entered into a Warrant Purchase Agreement with Brunswick, pursuant
to which it received Series A Warrants to acquire 33,370 shares of Brunswick
Class A Common Stock and Series B Warrants to acquire 36,298 shares of
Brunswick Class A Common Stock. The Series A and Series B Warrants were
assumed by the Issuer in connection with the Merger effective on November 20,
1996, and each Brunswick Warrant was converted into Issuer Warrants at the rate
of 2.5046 of Issuer Warrants for each Series A and Series B Brunswick Warrant.
Immediately following the Merger, ING Capital transferred the Issuer Warrants
to its affiliate ING
Page 7 of 15 Pages
Exhibit Index on Page 15
<PAGE> 8
Investment or Holder. Holder now holds Warrants to purchase 83,579 shares of
the Issuer's non-voting Class A Common Stock at an initial exercise price of
$.10 per share and Warrants to purchase 90,912 shares of the Issuer's
non-voting Class A Common Stock at an initial exercise price of $11.00 per
share. Shares of non-voting Class A Common Stock are convertible, at the
option of the Holder on a one-for-one basis, into voting Common Stock of the
Issuer.
In certain circumstances Holder has a right to require the Issuer to
repurchase the Warrant Securities (as defined in the Warrant Purchase
Agreement). These circumstances include a repurchase of the entire amount of
the Warrant Securities upon an Event of Default (as defined in the Credit
Agreement) and a portion of the Warrant Securities (the portion determined in
accordance with Section 19 of the Warrant Purchase Agreement) in the event (i)
any representation or warranty of the Issuer under any of the documents
relating to the Credit Agreement is incorrect when made in any material
respect; (ii) the Issuer defaults in performance and observance of its
obligations under the Warrant Documents; (iii) of a merger or consolidation of
the Issuer with or into any other person, except certain permitted mergers;
(iv) of a Change of Control (as defined in the Warrant Purchase Agreement); or
(v) of a refinancing under certain circumstances.
On April 15, 1996, ING Capital and Brunswick entered into a
Registration Rights Agreement, which has been assumed by Issuer in connection
with the Merger, providing for the registration, under certain circumstances,
of Common Stock issuable upon exercise of the Warrants held by Holder.
The description of the transactions contained herein is qualified in
its entirety by reference to the Credit Agreement, the Warrant Purchase
Agreement and the Registration Rights Agreement, all dated as of April 15,
1996, and the First Amendment to Credit Agreement and the First Amendment to
Warrant Purchase Agreement, the later two agreements dated as of October 25,
1996, between Brunswick and ING (U.S.) Capital Corporation, f/k/a
Internationale Nederlanden (U.S.) Capital Corporation, and the Assumption
Agreement to the Credit Agreement and the Assumption Agreement to the Warrant
Purchase Agreement, between Meridian Medical Technologies, Inc. and ING (U.S.)
Capital Corporation, both of which are dated November 20, 1996, all of which
are attached as Exhibits to this statement on Schedule 13D.
Page 8 of 15 Pages
Exhibit Index on Page 15
<PAGE> 9
Item 7. Material to be filed as Exhibits.
1. Credit Agreement, dated as of April 15, 1996, among Brunswick
Biomedical Corporation, as the Borrower, Various Lenders and
Internationale Nederlanden (U.S.) Capital Corporation as the
Agent for the Lenders.
2. Warrant Purchase Agreement, dated as of April 15, 1996,
between Brunswick Biomedical Corporation and Internationale
Nederlanden (U.S.) Capital Corporation.
3. Registration Rights Agreement, dated as of April 15, 1996,
between Brunswick Biomedical Corporation and Internationale
Nederlanden (U.S.) Capital Corporation.
4. First Amendment to Credit Agreement, dated as of October 25,
1996, between Brunswick Biomedical Corporation and
Internationale Nederlanden (U.S.) Capital Corporation.
5. First Amendment to Warrant Purchase Agreement, dated as of
October 25, 1996, between Brunswick Biomedical Corporation and
Internationale Nederlanden (U.S.) Capital Corporation.
6. Assumption Agreement to the Credit Agreement, dated as of
November 20, 1996, between Meridian Medical Technologies, Inc.
and Internationale Nederlanden (U.S.) Capital Corporation.
7. Assumption Agreement to the Warrant Purchase Agreement, dated
as of November 20, 1996, between Meridian Medical
Technologies, Inc. and Internationale Nederlanden (U.S.)
Capital Corporation.
8. $10,000,000 Term Note of Meridian Medical Technologies, Inc.
dated November 20, 1996.
9. $15,000,000 Revolving Note of Meridian Medical Technologies,
Inc. dated November 20, 1996.
10. Warrant Certificate for 90,912 Warrants of Meridian Medical
Technologies, Inc.-Certificate No.-1
11. Warrant Certificate for 83,579 Warrants of Meridian Medical
Technologies, Inc.-Certificate No.-1.
Page 9 of 15 Pages
Exhibit Index on Page 15
<PAGE> 10
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: December 2, 1996
ING (U.S.) INVESTMENT CORPORATION
By: /s/ William A. Austin
-------------------------------------
Name: William A. Austin
Title: General Counsel
Page 10 of 15 Pages
Exhibit Index on Page 15
<PAGE> 11
SCHEDULE 1
Set forth below is the name and position of each of the executive
officers and directors of (i) Holder, (ii) ING Capital, (iii) U.S. Capital
Holdings, (iv) U.S. Holdings, (v) INB and (vi) ING.
Except as otherwise indicated, the principal occupation of each person
listed below is as a Senior Officer of Holder, ING Capital, U.S. Capital
Holdings, U.S. Holdings, INB and/or ING, as the case may be. Unless otherwise
indicated, each person listed below is a citizen of The Netherlands.
The business address of each person at Holder, ING Capital, U.S.
Capital Holdings and U.S. Holdings is 135 East 57th Street, New York, New York
10022. The business address of each person at INB is De Amsterdamse Poort,
1102 MG, Amsterdam Zuid - Oost, Postbus 1800, 1000 AV, Amsterdam, The
Netherlands. The business address of each person at ING is Strawinskylaan
2631, Postbus 810, 1000 AV Amsterdam, The Netherlands.
ING (U.S.) INVESTMENT CORPORATION
<TABLE>
<CAPTION>
Executive Officers
- ------------------
Name Position
- ---- --------
<S> <C>
Timothy Schantz President
William A. Austin General Counsel
Joseph Kaminsky Senior Vice President
<CAPTION>
Directors
- ---------
Principal Occupation
Name (if other than as indicated above)
- ---- ----------------------------------
<S> <C>
Lane C. Grijns
J. Clarke Gray
</TABLE>
Page 11 of 15 Pages
Exhibit Index on Page 15
<PAGE> 12
ING (U.S.) CAPITAL CORPORATION
<TABLE>
<CAPTION>
Executive Officers
- ------------------
Name Position
- ---- --------
<S> <C>
Timothy Schantz President
Bart Staal Chief Executive Officer
J. Clarke Gray Chief Operting Officer
<CAPTION>
Directors
- ---------
Principal Occupation
Name (if other than as indicated above)
- ---- ----------------------------------
<S> <C>
Timothy Schantz Director
Bart Staal Director
J.Clarke Gray Director
</TABLE>
ING (U.S.) CAPITAL FINANCIAL HOLDINGS CORPORATION
<TABLE>
<CAPTION>
Executive Officers
- ------------------
Name Position
- ---- --------
<S> <C>
Timothy Schantz President
</TABLE>
Page 12 of 15 Pages
Exhibit Index on Page 15
<PAGE> 13
<TABLE>
<CAPTION>
Directors
- ---------
Principal Occupation
Name (if other than as indicated above)
- ---- ----------------------------------
<S> <C>
Timothy Schantz Director
Bart Staal Director, Chairman
</TABLE>
ING (U.S.) FINANCIAL HOLDINGS CORPORATION
<TABLE>
<CAPTION>
Executive Officers
- ------------------
Name Position
---- --------
<S> <C>
Lane C. Grijns President
Bart Staal Executive Vice President
<CAPTION>
Directors Principal Occupation
--------- (if other than as indicated above)
----------------------------------
<S> <C>
Lane C. Grijns Director
Bart Staal Director
H. Lindenbergh Director, Chairman
M. Minderhoud Director, Vice Chairman
</TABLE>
ING BANK N.V.
<TABLE>
<CAPTION>
Executive Officers
- ------------------
Name Position
- ---- --------
<S> <C>
G.J.A. van der Lugt Chairman
J.H.M. Lindenbergh Member
C. Maas Member
M. Minderhoud Member
<CAPTION>
Directors
- ---------
Principal Occupation
Name (if other than as indicated above)
- ---- ----------------------------------
<S> <C>
J. W. Berghuis Vice Chairman, Executive Board, Koninklijke
Pakhoed N.V.
J. Kamminga Chairman of the Board, MKB Nederland; director
of Makelaarskantoor J. Kamminga & Zonen B.V.
O.H.S. van Royen Retired
G. Verhagen Retired
P.F. van der Heijden
</TABLE>
Page 13 of 15 Pages
Exhibit Index on Page 15
<PAGE> 14
ING GROUP N.V.
<TABLE>
<CAPTION>
Executive Officers
- ------------------
Name Position
- ---- --------
<S> <C>
A.G. Jacobs Chairman
G.J.A. van der Lugt Vice Chairman
J.H. Holsboer Member
H. Huizinga Member
E. Kist Member
J.H.M. Lindenbergh Member
C. Maas Member
M. Minderhoud Member
Directors
Principal Occupation
Name (if other than as indicated above)
J.B. Erbe, Retired
Chairman
L.A.A. van den Berghe Professor at Erasmus University of Rotterdam,
(Belgium) The Netherlands (Economics and management of
insurance companies)
J.W. Berghuis Vice Chairman, Executive Board, Koninklijke
Pakhoed N.V.
J. Kamminga Chairman of the Board, MKB Nederland; director
of Makelaarskantoor J. Kamminga & Zonen B.V.
O.H.A. van Royen Retired
J.J. van Rijn Retired
G. Verhagen Retired
Vice Chairman
P.F. van der Heijden
M. Ververs Chairman of Executive Board, Wolters Kluwer N.V.
Vice Chairman
</TABLE>
Page 14 of 15 Pages
Exhibit Index on Page 15
<PAGE> 15
EXHIBIT INDEX
Exhibit Description
1. Credit Agreement, dated as of April 15, 1996, among Brunswick
Biomedical Corporation, as the Borrower, Various Lenders and
Internationale Nederlanden (U.S.) Capital Corporation as the
Agent for the Lenders.
2. Warrant Purchase Agreement, dated as of April 15, 1996,
between Brunswick Biomedical Corporation and Internationale
Nederlanden (U.S.) Capital Corporation.
3. Registration Rights Agreement, dated as of April 15, 1996,
between Brunswick Biomedical Corporation and Internationale
Nederlanden (U.S.) Capital Corporation.
4. First Amendment to Credit Agreement, dated as of October 25,
1996, between Brunswick Biomedical Corporation and
Internationale Nederlanden (U.S.) Capital Corporation.
5. First Amendment to Warrant Purchase Agreement, dated as of
October 25, 1996, between Brunswick Biomedical Corporation and
Internationale Nederlanden (U.S.) Capital Corporation.
6. Assumption Agreement to the Credit Agreement, dated as of
November 20, 1996, between Meridian Medical Technologies, Inc.
and Internationale Nederlanden (U.S.) Capital Corporation.
7. Assumption Agreement to the Warrant Purchase Agreement, dated
as of November 20, 1996, between Meridian Medical
Technologies, Inc. and Internationale Nederlanden (U.S.)
Capital Corporation.
8. $10,000,000 Term Note of Meridian Medical Technologies, Inc.
dated November 20, 1996.
9. $15,000,000 Revolving Note of Meridian Medical Technologies,
Inc. dated November 20, 1996.
10. Warrant Certificate for 90,912 Warrants of Meridian Medical
Technologies, Inc.-Certificate No.-1
11. Warrant Certificate for 83,579 Warrants of Meridian Medical
Technologies, Inc.-Certificate No.-1.
Page 15 of 15 Pages
Exhibit Index on Page 15
<PAGE> 1
EXHIBIT 1
================================================================================
CREDIT AGREEMENT
DATED AS OF APRIL 15, 1996
AMONG
BRUNSWICK BIOMEDICAL CORPORATION
AS BORROWER,
VARIOUS LENDERS
AND
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION,
AS AGENT FOR THE LENDERS
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1. DEFINITIONS
SECTION 1.1. Defined Terms ............................................................................. 2
SECTION 1.2. Use of Defined Terms ..................................................................... 25
SECTION 1.3. Cross-References ......................................................................... 25
SECTION 1.4 Accounting and Financial Determinations ................................................. 25
ARTICLE 2. COMMITMENTS
SECTION 2.1. Bridge Loan ............................................................................... 25
SECTION 2.2. Term Loan and Revolving Loan Commitment ................................................... 25
SECTION 2.2.1. Term Loan ............................................................................... 25
SECTION 2.2.2. Revolving Loan Commitment ................................................................. 25
SECTION 2.2.3. Limitations on Revolving Credit Commitment ............................................... 26
SECTION 2.3. Establishment of Reserves ................................................................. 26
SECTION 2.4. Commitment Fee ........................................................................... 26
SECTION 2.5. Increased Costs; Capital Adequacy ......................................................... 26
ARTICLE 3. LOANS AND NOTES
SECTION 3.1. Borrowing Procedure ....................................................................... 28
SECTION 3.2. Notes ..................................................................................... 28
SECTION 3.3. Principal Payments ....................................................................... 29
SECTION 3.3.1. Repayments and Prepayments ............................................................... 29
SECTION 3.3.2. Application ............................................................................... 31
SECTION 3.3.3. Revolving Loans on Borrower's Behalf ..................................................... 31
SECTION 3.4. Interest ................................................................................. 32
SECTION 3.4.1. Bridge Loan Rate ......................................................................... 32
SECTION 3.4.2. Term Loan Rate ........................................................................... 32
SECTION 3.4.3. Revolving Loan Rate ....................................................................... 32
SECTION 3.4.4. Continuation and Conversion Elections ..................................................... 32
SECTION 3.4.5. Post-Default Rates ....................................................................... 33
SECTION 3.4.6. Payment Dates ............................................................................. 33
SECTION 3.4.7. Rate Determinations ....................................................................... 34
SECTION 3.4.8. Limitation on Types of Loans ............................................................. 34
SECTION 3.4.9. Illegality ............................................................................... 34
SECTION 3.4.10. Treatment of Affected Loans ............................................................... 34
SECTION 3.4.11. Compensation ............................................................................. 35
SECTION 3.5. Taxes ..................................................................................... 35
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 3.6. Payments, Interest Rate Computations, Other Computations, etc. ............................ 37
SECTION 3.7. Proration of Payments ..................................................................... 37
SECTION 3.8. Setoff ................................................................................... 38
SECTION 3.9. Use of Proceeds ........................................................................... 38
SECTION 3.10. Replacement of Lender under Certain Circumstances ......................................... 38
ARTICLE 4. CONDITIONS TO LOANS
SECTION 4.1. Bridge Loan ............................................................................... 39
SECTION 4.1.1. Resolutions, etc. ......................................................................... 39
SECTION 4.1.2. Bridge Notes .............................................................................. 40
SECTION 4.1.3. Subsidiary Guaranty ....................................................................... 40
SECTION 4.1.4. No Contest, etc. .......................................................................... 40
SECTION 4.1.5. Certificate as to Completed Conditions, Warranties, No Default, etc. ...................... 40
SECTION 4.1.6. Opinions of Counsel ....................................................................... 41
SECTION 4.1.7. Closing Fees, Expenses, etc. .............................................................. 41
SECTION 4.1.8. Security Documents and Perfection ......................................................... 41
SECTION 4.1.9. Employment Agreements; Compensation ....................................................... 42
SECTION 4.1.10. Pension and Welfare Liabilities ........................................................... 42
SECTION 4.1.11. Insurance ................................................................................. 42
SECTION 4.1.12. Key Man Insurance ......................................................................... 42
SECTION 4.1.13. Financial Information, etc. ............................................................... 43
SECTION 4.1.14. Solvency, etc. ........................................................................... 43
SECTION 4.1.15. Acquisition ............................................................................... 43
SECTION 4.1.16. Cash Reserve Fund ......................................................................... 43
SECTION 4.1.17. Capital Contributions; Junior Subordinated Note ........................................... 44
SECTION 4.1.18. Other Documents, Certificates, Etc. ....................................................... 44
SECTION 4.2 Term Loan and Revolving Loans ............................................................. 44
SECTION 4.2.1 Resolutions, etc. ......................................................................... 44
SECTION 4.2.2. Term Notes and Revolving Notes ........................................................... 45
SECTION 4.2.3 STI Subsidiary Guaranty ................................................................... 45
SECTION 4.2.4. Release of Liens on Assets ............................................................... 45
SECTION 4.2.5. No Contest, etc. .......................................................................... 45
SECTION 4.2.6. Certificate as to Completed Conditions, Warranties, No Default, etc. ...................... 46
SECTION 4.2.7. Opinions of Counsel ....................................................................... 46
SECTION 4.2.8. Assumption Agreement ..................................................................... 46
SECTION 4.2.9. Security Documents and Perfection ......................................................... 47
SECTION 4.2.10 Financial Information, etc................................................................. 48
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SECTION 4.2.11 Solvency, etc. ........................................................................... 48
SECTION 4.2.12. Merger of Brunswick into STI ............................................................. 48
SECTION 4.2.13. Maturity of Bridge Loan ................................................................... 49
SECTION 4.2.14. Reaffirmation of Representations and Warranties ........................................... 49
SECTION 4.2.15. No Dividends; etc. ....................................................................... 49
SECTION 4.3. All Loans ................................................................................. 50
SECTION 4.3.1. Compliance with Warranties, No Default, etc. ............................................. 50
SECTION 4.3.2. Borrowing Request, etc. ................................................................... 50
SECTION 4.3.3. Satisfactory Legal Form ................................................................... 51
SECTION 4.3.4. Margin Regulations ....................................................................... 51
SECTION 4.3.5. Adverse Change ........................................................................... 51
SECTION 4.3.6. Change in Law ............................................................................. 51
ARTICLE 5. WARRANTIES, ETC.
SECTION 5.1. Organization, Power, Authority, etc. ...................................................... 51
SECTION 5.2. Due Authorization ......................................................................... 52
SECTION 5.3. Validity, etc. ............................................................................ 52
SECTION 5.4. Financial Information; Solvency ........................................................... 52
SECTION 5.5. Material Adverse Change ................................................................... 53
SECTION 5.6. Absence of Default ....................................................................... 53
SECTION 5.7. Litigation, Legislation, etc. ............................................................. 53
SECTION 5.8. Regulations G, T, U and X ................................................................. 54
SECTION 5.9. Government Regulation ..................................................................... 54
SECTION 5.10. Taxes ..................................................................................... 54
SECTION 5.11. Pension and Welfare Plans ................................................................. 54
SECTION 5.12. Labor Controversies ....................................................................... 56
SECTION 5.13. Ownership of Properties; Collateral ....................................................... 56
SECTION 5.14. Intellectual Property ..................................................................... 57
SECTION 5.15. Accuracy of Information ................................................................... 57
SECTION 5.16. Insurance ................................................................................. 57
SECTION 5.17. Certain Indebtedness ..................................................................... 57
SECTION 5.18. Environmental Matters ..................................................................... 57
SECTION 5.19. No Burdensome Agreements ................................................................. 58
SECTION 5.20. Consents ................................................................................. 58
SECTION 5.21. Contracts ................................................................................. 58
SECTION 5.22. Employment Agreements ..................................................................... 58
SECTION 5.23. Condition of Property ..................................................................... 58
SECTION 5.24. Subsidiaries ............................................................................. 58
SECTION 5.25. Acquisition Agreement ..................................................................... 58
SECTION 5.26. Trade Relations ........................................................................... 59
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ARTICLE 6. COVENANTS
SECTION 6.1. Affirmative Covenants. .................................................................... 59
SECTION 6.1.1. Financial Information, etc. ............................................................... 59
SECTION 6.1.2. Maintenance of Corporate Existence, etc. .................................................. 61
SECTION 6.1.3. Foreign Qualification ..................................................................... 61
SECTION 6.1.4. Payment of Taxes, etc. ................................................................... 61
SECTION 6.1.5. Insurance ................................................................................. 62
SECTION 6.1.6. Notice of Default, Litigation, etc. ....................................................... 62
SECTION 6.1.7. Books and Records ......................................................................... 64
SECTION 6.1.8. Maintenance of Properties, Etc............................................................. 64
SECTION 6.1.9. Maintenance of Licenses and Permits ....................................................... 64
SECTION 6.1.10. Employee Plans ........................................................................... 64
SECTION 6.1.11. Environmental Management................................................................... 64
SECTION 6.1.12. Compliance with Laws ..................................................................... 64
SECTION 6.1.13. Interest Rate Protection ................................................................. 65
SECTION 6.1.14. Real Estate ............................................................................... 65
SECTION 6.1.15. Merger of Brunswick into STI ............................................................. 65
SECTION 6.1.16. Cash Reserve Account ..................................................................... 65
SECTION 6.1.17. Private Placements ....................................................................... 65
SECTION 6.2. Negative Covenants ....................................................................... 66
SECTION 6.2.1. Business Activities ....................................................................... 66
SECTION 6.2.2. Indebtedness ............................................................................. 66
SECTION 6.2.3. Liens ..................................................................................... 67
SECTION 6.2.4. Financial Condition ....................................................................... 69
SECTION 6.2.5. Capital Expenditures....................................................................... 70
SECTION 6.2.6. Lease Obligations ......................................................................... 71
SECTION 6.2.7. Investments ............................................................................... 71
SECTION 6.2.8. Restricted Payments, etc. ................................................................. 72
SECTION 6.2.9. Take or Pay Contracts; Sale/Leasebacks ................................................... 72
SECTION 6.2.10. Consolidation, Merger, Subsidiaries, etc. ................................................. 72
SECTION 6.2.11. Asset Dispositions, etc. ................................................................. 73
SECTION 6.2.12. Modification of Organic Documents, etc..................................................... 73
SECTION 6.2.13. Transactions with Affiliates ............................................................. 73
SECTION 6.2.14. Inconsistent Agreements ................................................................... 73
SECTION 6.2.15. Change in Accounting Method ............................................................... 74
SECTION 6.2.16. Change in Fiscal Year End ................................................................. 74
SECTION 6.2.17. Compliance with ERISA ..................................................................... 74
SECTION 6.2.18. Limitation on Restrictions on Subsidiary Dividends ....................................... 74
SECTION 6.2.19. Modification of Certain Documents ......................................................... 74
SECTION 6.2.20. Prohibition on Voluntary Prepayments on Subordinated Indebtedness ......................... 75
</TABLE>
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SECTION 6.2.21. Prohibition on Actions Triggering Redemption of Series D Stock ............................ 75
ARTICLE 7. EVENTS OF DEFAULT
SECTION 7.1. Events of Default ......................................................................... 75
SECTION 7.1.1. Non-Payment of Obligations ............................................................... 75
SECTION 7.1.2. Non-Performance of Certain Covenants ..................................................... 75
SECTION 7.1.3. Defaults Under Other Loan Documents; Non-Performance of Other Obligations ................. 75
SECTION 7.1.4. Bankruptcy, Insolvency, etc. .............................................................. 76
SECTION 7.1.5. Breach of Warranty ....................................................................... 76
SECTION 7.1.6. Default on Other Indebtedness, etc. ....................................................... 76
SECTION 7.1.7. Failure of Valid, Perfected Security Interest ............................................. 77
SECTION 7.1.8. Employee Plans ........................................................................... 77
SECTION 7.1.9. Judgments ................................................................................. 78
SECTION 7.1.10. Cessation of Business, Dissolution ....................................................... 78
SECTION 7.1.11. Subordinated Debt Documents ............................................................... 78
SECTION 7.2. Action if Bankruptcy ..................................................................... 78
SECTION 7.3. Action if Other Event of Default ......................................................... 78
ARTICLE 8. THE AGENT
SECTION 8.1. Actions ................................................................................... 79
SECTION 8.2. Funding Reliance, etc. ................................................................... 79
SECTION 8.3. Exculpation ............................................................................... 80
SECTION 8.4. Successor ................................................................................. 80
SECTION 8.5. Loans by the Agent ....................................................................... 80
SECTION 8.6. Credit Decisions ......................................................................... 80
SECTION 8.7. Copies, etc. ............................................................................. 81
ARTICLE 9. MISCELLANEOUS
SECTION 9.1. Waivers, Amendments, etc. ................................................................. 81
SECTION 9.2. Notices ................................................................................... 82
SECTION 9.3. Costs and Expenses ........................................................................ 83
SECTION 9.4. Indemnification ........................................................................... 84
SECTION 9.5. Survival ................................................................................. 85
SECTION 9.6. Severability ............................................................................. 86
SECTION 9.7. Headings ................................................................................. 86
SECTION 9.8. Counterparts, Effectiveness, etc. ......................................................... 86
SECTION 9.9. Governing Law; Entire Agreement ........................................................... 86
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SECTION 9.10. Successors and Assigns ................................................................... 87
SECTION 9.11. Sale and Transfers, Participations, etc. ................................................. 87
SECTION 9.12. Other Transactions ....................................................................... 89
SECTION 9.13. Confidentiality ........................................................................... 90
SECTION 9.14. Change in Accounting Principles ........................................................... 90
SECTION 9.15. Waiver of Jury Trial, Etc. ............................................................... 90
SECTION 9.16. Limitation of Liability ................................................................... 91
SECTION 9.17. Usury Savings Clause ..................................................................... 91
SECTION 9.18. Effectiveness of Execution and Delivery by STI ........................................... 92
</TABLE>
SCHEDULES AND EXHIBITS
Schedule 1 - Disclosure Schedule
Exhibit A - Assumption Agreement
Exhibit B - Borrowing Request
Exhibit C-1 - Bridge Note
Exhibit C-2 - Revolving Note
Exhibit C-3 - Term Note
Exhibit D - Compliance Certificate
Exhibit E - Continuation/Conversion Notice
Exhibit F - Acknowledgment of Interest Rate Contract Counterparty
Exhibit G - Transfer Supplement
Exhibit H - Opinion of Counsel to STI
(to be delivered on the Merger Consummation Date)
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<PAGE> 8
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of April 15, 1996, among BRUNSWICK
BIOMEDICAL CORPORATION, a Massachusetts corporation ("Brunswick"), various
lenders as are, or may become, parties hereto (individually a "Lender" and,
collectively, the "Lenders"), and INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL
CORPORATION, a Delaware corporation, as Agent for the Lenders.
W I T N E S S E T H:
RECITALS.
A. Pursuant to a Stock Purchase Agreement, dated as of
March 18, 1996, between Brunswick and the Estate of Dr. Stanley J. Sarnoff,
Brunswick has agreed to acquire 1,888,126 shares of Common Stock, $.10 par
value, of Survival Technology, Inc., a Delaware corporation ("STI");
B. After giving effect to such acquisition, Brunswick
will seek to merge with and into STI (the "Merger"), with STI being the
surviving corporation and assuming all obligations of Brunswick hereunder;
C. Brunswick desires to obtain from the Lenders (a) a
Bridge Loan in an aggregate principal amount of Eleven Million Dollars
($11,000,000) having an initial maturity on October 15, 1996, unless extended
for an additional ninety-day period as permitted herein, $10,000,000 of which
will be converted, upon consummation of the Merger, into a Term Loan in the
principal amount of Ten Million Dollars ($10,000,000) having a final maturity
on the fifth anniversary of the Merger; and (b) a Revolving Loan Commitment in
an aggregate amount of up to Five Million Dollars ($5,000,000), pursuant to
which Revolving Loans will be made to the Borrower from time to time from the
date of the Merger to but excluding the Revolving Loan Commitment Termination
Date;
D. The Lenders are willing, on the terms and conditions
set forth herein (a) to make such Bridge Loan on the date hereof and (b) upon
consummation of the Merger to convert up to $10,000,000 of the outstanding
principal balance of the Bridge Loan into the Term Loan and to extend the
Revolving Loan Commitment; and
E. The Bridge Loan, the Term Loan and the Revolving
Loans will be used in the manner described in Section 3.9 below;
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
<PAGE> 9
ARTICLE 1.
DEFINITIONS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Acquisition" means the acquisition by Brunswick from the
Estate of 1,888,126 shares of Common Stock, $.10 par value, of STI in exchange
for the payment of the Purchase Price pursuant to the terms and conditions of
the Acquisition Agreement.
"Acquisition Agreement" means that certain Stock Purchase
Agreement, dated as of March 18, 1996, between Brunswick and the Estate, as
amended, modified or supplemented to the date hereof.
"Affiliate" of any Person means any other Person which,
directly or indirectly, controls or is controlled by or under common control
with such Person (excluding any trustee under, or any committee with
responsibility for administering, any Plan). A Person shall be deemed to be
"controlled by" any other Person if such other Person possesses, directly or
indirectly, power (a) to vote 5% or more of the securities having ordinary
voting power for the election of directors of such Person, or (b) to direct or
cause the direction of the management or policies of such Person whether by
contract or otherwise; provided that (i) no Lender shall be deemed to
constitute an Affiliate of the Borrower, and (ii) no member of the Hewson
family or their transferees who owns, directly or indirectly, together with all
other members of the Hewson family or such transferees, 10% or less of the
securities having ordinary voting power for the election of directors of
Technology shall be deemed to constitute an Affiliate of the Borrower or of
Technology.
"Agent" means ING as agent for the Lenders pursuant hereto, or
such other Person as shall have subsequently been appointed as the successor
agent pursuant to Section 8.4.
"Agreement" means, on any date, this Credit Agreement as
originally in effect on the Closing Date and as thereafter from time to time
amended, supplemented, amended and restated, extended or otherwise modified and
in effect.
"Applicable Lending Office" means, with respect to any Lender,
the branch or office of such Lender at which Loans of a certain type are
maintained.
"Assumption Agreement" means the Assumption Agreement and
Supplement to Pledge and Security Agreement, dated as of the Merger
Consummation Date, to be executed and delivered by STI in favor of the Agent
and the Lenders in the form of Exhibit A.
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<PAGE> 10
"Authorized Officer" means, relative to any Loan Party those
officers of such Loan Party whose signatures, incumbency and authority shall
have been certified to the Agent and the Lenders pursuant to Section 4.1.1 or
Section 4.2.1.
"Base Rate Loans" means Loans, or portions thereof, interest
rates on which are determined on the basis of the ING Alternate Base Rate.
"Borrower" means, except as otherwise specified in Article 5,
(a) at all times prior to the Merger Consummation Date, Brunswick, and (b) at
all times on and after the Merger Consummation Date, STI.
"Borrowing" means the Loans or portions thereof of the same
type and, in the case of Eurodollar Loans, having the same Interest Period, in
each case made, converted or continued by the Lenders on the same Business Day
pursuant to the same Borrowing Request or Continuation/Conversion Notice in
accordance with Sections 3.1 or 3.4.4, respectively.
"Borrowing Request" means a loan request and certificate duly
executed by an Authorized Officer of the Borrower in the form of Exhibit B.
"Bridge Loan" means, collectively, the loan or loans, in an
aggregate principal amount of $11,000,000, made by the Lenders on the Closing
Date to the Borrower pursuant to Section 2.1.
"Bridge Loan Applicable Margin" shall mean (a) 2.50% during
the period commencing on the Closing Date and ending on the 180th-day following
the Closing Date and (b) 4.00% thereafter.
"Bridge Loan Commitment" means the collective commitments of
the Lenders to make the Bridge Loan pursuant to Section 2.1 if the conditions
set forth in Section 4.1 and Section 4.3 are met.
"Bridge Note" means a promissory note of the Borrower dated
the date hereof and substantially in the form of Exhibit C-1, and shall also
refer to all other promissory notes accepted from time to time in substitution
or renewal thereof.
"Bridge Percentage" of any Lender means at any time, in
respect of the Bridge Loan, the percentage set forth opposite such Lender's
signature hereto under the caption "Percentage" as the same may be adjusted
pursuant to Section 9.11.
"Brunswick" means Brunswick Biomedical Corporation, a
Massachusetts corporation.
"Brunswick Patent Assignment" means the Collateral Assignment
and Security Agreement (Patents), dated as of the Closing Date, made by
Brunswick in favor of the Agent, for its benefit and the ratable benefit of the
Lenders, as originally in effect on the Closing Date and as
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<PAGE> 11
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified and in effect.
"Brunswick Pledge Agreement" means the Stock and Notes Pledge
Agreement, dated as of the Closing Date, made by Brunswick in favor of the
Agent, for itself and the ratable benefit of the Lenders, as originally in
effect on the Closing Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect,
pursuant to which Brunswick shall pledge to the Agent all of the issued and
outstanding Stock of its direct Subsidiaries held by Brunswick (including,
without limitation, the STI Shares) and all promissory notes and other
instruments and securities held by Brunswick, as security for the Obligations.
"Brunswick Security Agreement" means the Security Agreement,
dated as of the Closing Date, made by Brunswick and each of its Subsidiaries
located in the United States (other than STI and its Subsidiaries and other
than the Inactive Subsidiaries) in favor of the Agent, for its benefit and the
ratable benefit of the Lenders, as originally in effect on the Closing Date and
as thereafter from time to time amended, supplemented, amended and restated or
otherwise modified and in effect.
"Brunswick Subsidiary Guaranty" means the Subsidiary Guaranty,
dated as of the Closing Date, made by each Subsidiary (other than STI and its
Subsidiaries and other than the Inactive Subsidiaries) of Brunswick located in
the United States in favor of the Agent and the Lenders, as originally in
effect on the Closing Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect.
"Brunswick Trademark Assignment" means the Collateral
Assignment and Security Agreement (Trademarks), dated as of the Closing Date,
made by Brunswick in favor of the Agent, for its benefit and the ratable
benefit of the Lenders, as originally in effect on the Closing Date and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified and in effect.
"Business Day" means:
(a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in New
York, New York; and
(b) relative to the making, continuing, prepaying or
repaying of any Eurodollar Loans, any day on which dealings in Dollars are
carried on in the London interbank market.
"Capitalized Lease Liabilities" means all monetary obligations
of the Borrower and its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, are or would be classified as capitalized
leases.
"Cash Equivalent Investment" means, at any time:
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<PAGE> 12
(a) any direct obligation issued or guaranteed by the
United States of America or any agency or instrumentality thereof and backed by
the full faith and credit of the United States of America, or issued by any
state or political subdivision or public instrumentality thereof, (i) which
has a remaining maturity at the time of purchase of not more than one (1) year
or which is subject to a repurchase agreement with any Lender or any Eligible
Lending Institution exercisable within one (1) year from the time of purchase
so long as such direct obligation remains in the possession of the Borrower or
in the possession of any Lender and (ii) which, in the case of obligations of
any state or political subdivision or public instrumentality thereof, is rated
AA or better by Moody's Investors Service, Inc.;
(b) certificates of deposit, time deposits, demand
deposits and bankers' acceptances, having a remaining maturity at the time of
purchase of not more than one (1) year, issued by any Lender or by any Eligible
Lending Institution;
(c) corporate obligations rated Prime-1 by Moody's
Investors Service, Inc. or A-1 by Standard & Poor's Corporation, having a
remaining maturity at the time of purchase of not more than one (1) year; and
(d) shares of funds registered under the Investment
Company Act of 1940, as amended, having assets of at least $100,000,000 which
invest only in obligations described above and which shares are rated by
Moody's Investors Service, Inc. or Standard & Poor's Corporation in one of the
two highest rating categories assigned by such agencies for obligations of such
nature.
"Cash Flow" means, for any period, an amount equal to (without
duplication) the consolidated Net Income of the Borrower and its Subsidiaries,
plus depreciation, amortization of intangible assets and other non-cash charges
of the Borrower and its Subsidiaries, minus non-cash credits and revenues, plus
decreases in the Borrower's and its Subsidiaries' working capital (excluding
changes in cash, Cash Equivalent Investments and current maturities of
Indebtedness), minus increases in the Borrower's and its Subsidiaries' working
capital (excluding changes in cash, Cash Equivalent Investments and current
maturities of Indebtedness).
"Cash Reserve Account" means an interest-bearing cash reserve
account established by the Borrower at SunTrust Bank, Atlanta in favor of the
Agent, subject to the terms of the Cash Reserve Account Agreement, in which
account the Borrower shall deposit or cause to be deposited on the Closing
Date, out of the proceeds of the Bridge Loan, $1,000,000 and from which account
the Agent shall be irrevocably authorized by the Borrower to withdraw funds
sufficient to pay from time to time accrued and unpaid interest on the Bridge
Loan which has become due and payable.
"Cash Reserve Account Agreement" means the Collateral Account
Agreement, dated as of the Closing Date, between Brunswick, the Agent and
SunTrust Bank, Atlanta, pursuant to which Brunswick shall grant to the Agent a
security interest in the Cash Reserve Account.
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<PAGE> 13
"Change in Control" means (a) at any time prior to the Merger
Consummation Date, (i) the sale, transfer or other disposition by EM
Industries, Inc. or Mylan Laboratories, Inc. of any shares of Stock held by
such Persons as of the Closing Date other than to an Affiliate of such Person,
or (ii) the failure of James H. Miller (or a Person of comparable
qualifications and experience) to serve as chief executive officer of the
Borrower, and (b) from and after the Merger Consummation Date, (i) the
acquisition by any Person or group of Persons (other than an employee benefit
plan solely for employees of STI and its Subsidiaries) of beneficial ownership
of more than 20% of the outstanding Stock of the Borrower (within the meaning
of Section 13(d) or 14(d) of the Securities and Exchange Act of 1934, as
amended, and the applicable rules and regulations thereunder) other than as a
result of the Merger, (ii) during any period of 12 consecutive months (whether
commencing before or after the Merger Consummation Date), the failure of
individuals who on the first day of such period were directors of the Borrower
(together with any replacement or additional directors who were nominated or
elected by a majority of directors then in office) to constitute a majority of
the Board of Directors of the Borrower, or (iii) the failure of James H. Miller
(or a Person of comparable qualifications and experience) to serve as chief
executive officer of the Borrower.
"Charges" means all federal, state, county, city, municipal,
local, foreign or other governmental (including, without limitation, PBGC) (a)
taxes at the time due and payable and (b) levies, assessments, charges, liens,
claims or encumbrances upon or relating to (i) the Collateral, (ii) the
Obligations, (iii) the Borrower's and its Subsidiaries' employees, payroll,
income or gross receipts, (iv) the Borrower's and its Subsidiaries' ownership
or use of their assets, or (v) any other aspect of the Borrower's and its
Subsidiaries' business.
"Closing Date" means April 15, 1996, the date of the funding
of the Bridge Loan.
"Closing Date Pro Forma Balance Sheet" means the pro forma
balance sheet of Brunswick as of January 31, 1996 prepared by Brunswick based
on the financial statements described in clauses (a)(i) and (ii) of Section 5.4
and assuming that the transactions contemplated by this Agreement to occur on
the Closing Date, including the Acquisition and the Bridge Loan, occurred on
January 31, 1996.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by the Borrower or any
Subsidiary in or upon which a Lien is granted to the Agent, for its benefit and
the ratable benefit of the Lenders, under any of the Loan Documents.
"Commitment" means, collectively, the Lenders' Bridge Loan
Commitments, Revolving Loan Commitments and Term Loan Commitments.
"Commitment Letter" means the Commitment Letter dated March
18, 1996 between Brunswick and ING.
"Commonly Controlled Entity" means, with respect to any
Person, an entity or trade or business, whether or not incorporated, which is
from time to time a member of a controlled group
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<PAGE> 14
or a group under common control with such Person within the meaning of Sections
414(b), 414(c), 414(m) or 414(o) of the IRC or Section 4001(a)(14) of ERISA.
Unless otherwise indicated in this Agreement, Commonly Controlled Entity shall
refer to a Commonly Controlled Entity with respect to the Borrower.
"Compliance Certificate" means a certificate duly executed by
the chief executive, accounting or financial Authorized Officer of the Borrower
in the form of Exhibit D, together with such changes as the Required Lenders
may from time to time reasonably request through the Agent for purposes of
monitoring the Borrower's compliance herewith.
"Consolidated Capital Expenditures" means, for any period,
without duplication, the sum of (a) the gross dollar amount of additions during
such period to property, plant, equipment and other fixed assets of the
Borrower and its Subsidiaries, including those additions made in the ordinary
course of business, but excluding routine maintenance and repairs, plus (b) the
aggregate amount of Capitalized Lease Liabilities incurred during such period
by the Borrower and its Subsidiaries.
"Continuation/Conversion Notice" means a notice of
continuation or conversion and certificate duly executed by the chief
executive, accounting or financial Authorized Officer of the Borrower in the
form of Exhibit E attached hereto.
"Contractual Obligation" means, relative to any Person, any
provision of any security issued by such Person or of any Instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default" means any Event of Default or any condition or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disclosure Schedule" means the Disclosure Schedule attached
hereto as Schedule 1, as it may be amended, supplemented or otherwise modified
from time to time by the Borrower with the consent of the Required Lenders as
provided in Section 4.3.2.
"Dollar" and the sign "$" mean lawful money of the United
States.
"EBITDA" means, for any period, an amount equal to Net Income
plus (to the extent deducted in determining Net Income) interest expense,
provisions for income taxes, depreciation and amortization of intangible
assets, in each case for the Borrower and its Subsidiaries on a consolidated
basis.
"Eligible Lending Institution" means a financial institution
having a branch or office in the United States and having capital and surplus
and undivided profits aggregating at least $100,000,000 and rated Prime-1 or
better by Moody's Investors Service, Inc. or A-1 or better by Standard & Poor's
Corporation.
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"Environment" means soil, surface waters, ground waters, land,
streams, sediments, surface or subsurface strata and ambient air.
"Environmental Laws" means all federal, state, local and
foreign laws or regulations, codes, common law, consent agreements, orders,
decrees, judgments or injunctions issued, promulgated, approved or entered
thereunder relating to pollution or protection of the Environment, natural
resource or occupational health and safety.
"Environmental Liabilities and Costs" means all liabilities,
obligations, responsibilities, remedial actions, losses, damages, punitive
damages, consequential damages, treble damages, costs and expenses (including
all reasonable fees, disbursements and expenses of counsel, expert and
consulting fees and costs of investigation and feasibility studies), fines,
penalties, settlement costs, sanctions and interest incurred as a result of
any claim or demand, by any Person, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute, any
Environmental Law, permit, order, variance or agreement with a Governmental
Authority or other Person, arising from or related to the administration of any
Environmental Law or arising from environmental, health or safety conditions or
a release or threatened release resulting from the past, present or future
operations of the Borrower or its Subsidiaries or affecting any of their
properties, or any release or threatened release for which the Borrower or any
of its Subsidiaries is otherwise responsible under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, together with
the regulation thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"ERISA Insolvency" or "ERISA Insolvent" means, at any
particular time, a Multiemployer Pension Plan is insolvent within the meaning
of Section 4245 of ERISA.
"Estate" means the Estate of Dr. Stanley J. Sarnoff.
"Estate Registration Rights Agreement" means the Registration
Rights Agreement, dated September 14, 1990, between STI and the Estate,
pursuant to which the Estate was granted the right, upon the terms and subject
to the conditions set forth therein, to require STI to register the STI Shares
under the Securities Act of 1933, as amended, which right will be acquired by
Brunswick pursuant to the Acquisition Agreement and collaterally assigned to
the Agent, for its benefit and the ratable benefit of the Lenders, pursuant to
Section 4.1.8(g).
"Estate Stock Pledge Agreement" means the Stock Pledge
Agreement, dated as of the Closing Date, between the Estate and Brunswick
regarding the STI Shares.
"Estate Subordinated Note" means the Subordinated Promissory
Note, dated the Closing Date, made by Brunswick payable to the Estate in the
principal amount of $4,700,000, and delivered by Brunswick to the Estate in
partial payment of the Purchase Price.
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"Eurodollar Base Rate" means, with respect to any Borrowing of
Eurodollar Loans for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) which appears on Telerate
Page 3750 for Dollar deposits comparable to the amount of such Borrowing in the
London interbank market as of 11:00 a.m. London time (or as soon thereafter as
practicable) on the date two (2) Business Days prior to the first day of such
Interest Period having a term comparable to such Interest Period. If such
Telerate Page is unavailable, the "Eurodollar Base Rate" shall mean with
respect to any Borrowing of Eurodollar Loans for any Interest Period therefor,
the arithmetic average (rounded upwards, if necessary, to the nearest 1/16 of
1%) of the rates per annum which appear on the Reuters Screen LIBO Page, or if
such Reuters Screen LIBO Page is unavailable, the "Eurodollar Base Rate" shall
mean with respect to any Borrowing of Eurodollar Loans for any Interest Period
therefor, the arithmetic average (rounded upwards, if necessary, to the nearest
1/16 of 1%) of the rates per annum for Dollar deposits comparable to the amount
of such Borrowing offered to each of the Reference Lenders in the London
interbank market as of 11:00 a.m. London time (or as soon thereafter as
practicable) on the date two (2) Business Days prior to the first day of such
Interest Period of Dollar deposits having a term comparable to such Interest
Period.
"Eurodollar Loans" means Loans or portions thereof interest
rates on which are determined on the basis of the Eurodollar Rate.
"Eurodollar Rate" means, with respect to any Borrowing of
Eurodollar Loans for any Interest Period therefor, the rate per annum (rounded
upward, if necessary, to the nearest 1/16 of 1%) determined by the Agent to be
equal to (i) the Eurodollar Base Rate for such Borrowing for such Interest
Period divided by (ii) one (1) minus the Reserve Requirement. The Eurodollar
Rate for any Interest Period will be determined initially by the Agent on the
basis of the Reserve Requirement in effect on the date two (2) Business Days
prior to the commencement of such Interest Period and, from time to time
thereafter during such Interest Period, such Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Requirement during such Interest Period.
"Event of Default" means any of the events set forth in
Section 7.1.
"Excess Cash Flow" means, for any Fiscal Year, the excess of :
(a) Cash Flow for such Fiscal Year minus (b) the sum of (i) the lesser of the
amount of Consolidated Capital Expenditures permitted during such Fiscal Year
pursuant to Section 6.2.5 and actual Consolidated Capital Expenditures during
such Fiscal Year, plus (ii) scheduled repayments of the Term Loan under clause
(c) of Section 3.3.1 during such Fiscal Year and scheduled repayments of other
Indebtedness permitted under Section 6.2.2 during such Fiscal Year.
"Extension Criteria" means (1) all filings and registrations
required to be made with the Securities and Exchange Commission in connection
with the Merger shall have been submitted and no stop order or other action
which would unreasonably delay or prevent the effectiveness of any such filing
or registration shall exist, (2) all procedural matters related to the Merger
shall have been completed by the respective Boards of Directions of Brunswick
and STI, including, without
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<PAGE> 17
limitation, approving and authorizing the Merger, and (3) the Agent, based upon
the advice of its counsel, shall have determined to its satisfaction that there
are no material impediments to the orderly consummation of the Merger.
"Facility Fee Letter" means the letter agreement, dated as of
the Closing Date, between ING and the Borrower.
"Fair Saleable Value Balance Sheet" means, with respect to
Brunswick or STI, as the case may be, a hypothetical balance sheet of such
Person, prepared by such Person based on the Closing Date Pro Forma Balance
Sheet or the Merger Pro Forma Balance Sheet, as applicable, setting forth (a)
the assets of such Person (restated at the fair saleable value thereof based
upon such evidence of the fair saleable value thereof as such Person shall
reasonably deem pertinent), (b) the liabilities of such Person (including all
liabilities and obligations of such Person, fixed or contingent, direct or
indirect, disputed or undisputed, and whether or not required to be reflected
on a balance sheet prepared in accordance with GAAP), and (c) the excess of
such assets over such liabilities. The amount of attributed contingent
liabilities shall be discounted to reflect the likelihood that such liabilities
shall become payable.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to:
(a) the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York; or
(b) if such rate is not so published for any day which is
a Business Day, the arithmetic average of the quotations for such transactions
received by the Agent, in its sole discretion, either from (i) three federal
funds brokers of recognized standing selected by the Agent in its sole
discretion or (ii) the Reference Lenders.
"Financing Statements" means the financing statements under
the Uniform Commercial Codes of the applicable jurisdictions, filed with
respect to the Security Documents pursuant to clause (c) of Section 4.1.8 or
clause (c) or (d) of Section 4.2.9.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means, subject to Sections 6.2.16 and 9.14 (b),
(a) at any time prior to the Merger Consummation Date, the accounting period of
Brunswick commencing on the Closing Date and ending on June 30, 1996 or, if
Brunswick shall have changed its Fiscal Year end to July 31 as permitted under
Section 6.2.16, July 31, 1996, and each twelve-month accounting period ending
June 30 or July 31, as the case may be, thereafter and (b) from and after the
Merger Consummation Date, the accounting period of STI commencing on the Merger
Consummation Date and ending on
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<PAGE> 18
the first July 31 to occur thereafter, and each twelve-month accounting period
ending on July 31 thereafter. References to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "1996 Fiscal Year") refer to the
Fiscal Year ending on a date in such calendar year.
"Foreign Lender" means any Lender organized under the laws of
a jurisdiction outside the United States.
"F.R.S. Board" means the Board of Governors of the Federal
Reserve System (or any successor).
"GAAP" means generally accepted accounting principles in
effect from time to time in the United States.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"herein", "hereof", "hereto", "hereunder" and similar terms
contained in this Agreement or any other Loan Document refer to this Agreement
or such other Loan Document, as the case may be, as a whole and not to any
particular Section, clause or provision of this Agreement or such other Loan
Document.
"Inactive Subsidiaries" means, collectively, Brunswick
Biomedical Investment Corporation, a Massachusetts corporation, and Pharmapak,
Inc., a Delaware corporation.
"including" means including without limiting the generality of
any description preceding such term.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money
(including all notes payable and drafts accepted representing extensions of
credit) and all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments on which interest charges are customarily
paid;
(b) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person (to
the extent required by GAAP to be included on the balance sheet of such Person);
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<PAGE> 19
(d) whether or not so included as liabilities in
accordance with GAAP (i) all obligations of such Person to pay the deferred
purchase price of property or services (excluding trade accounts payable for
other than borrowed money arising in the ordinary course of business) and
indebtedness secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse, and (ii) all obligations of such
Person in respect of, and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise assure a creditor against loss in respect of,
Indebtedness of another Person;
(e) all net obligations of such Person under Interest
Rate Contracts; and
(f) all obligations of such Person to redeem, purchase or
otherwise retire or extinguish any of its Stock at a fixed or determinable date
(whether by operation of a sinking fund or otherwise), at another's option or
upon the occurrence of a condition not solely within the control of such Person
(e.g., redemption from future earnings).
"Indemnified Liabilities" has the meaning set forth in Section
9.4.
"ING" means Internationale Nederlanden (U.S.) Capital
Corporation.
"ING Alternate Base Rate" means a fluctuating rate of interest
per annum equal to the higher of:
(a) the arithmetic average of rates of interest announced
by each of the Reference Lenders from time to time at such Reference Lender's
principal New York City office as its prime (or base) rate for U.S. domestic
commercial loans; and
(b) the Federal Funds Rate from time to time in effect
plus 1/2 of 1% (0.50%).
Changes in the rate of interest on the Base Rate Loans shall take effect on the
date of each change in the ING Alternate Base Rate. The Agent shall give
notice promptly to the Borrower and the Lenders of changes in the ING Alternate
Base Rate.
"Instrument" means any contract, agreement, letter of credit,
indenture, mortgage, deed, certificate of title, document or writing (whether
by formal agreement, letter or otherwise) under which any obligation is
evidenced, assumed or undertaken, any Lien (or right or interest therein) is
granted or perfected, or any property (or right or interest therein) is
conveyed.
"Intellectual Property" means, collectively, (a) patents,
patent rights and patent applications, copyrights and copyright applications,
trademarks, trademark rights, trade names, trade name rights, service marks,
service mark rights, applications for registration of trademarks, trade names
and service marks, fictitious names registrations and trademark, trade name and
servicemark registrations, including the names "Brunswick Biomedical
Corporation", "Survival Technology, Inc."
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<PAGE> 20
and all derivations thereof, and (b) patent licenses, trademark licenses,
copyright licenses and other licenses to use any of the items described in
clause (a), or any other items necessary to conduct or operate the business of
the Borrower and its Subsidiaries.
"Interest Coverage Ratio" means, for any period, the ratio of
(a) EBITDA for such period to (b) Interest Expense during such period.
"Interest Expense" means, for any period, the sum of (a) the
Borrower's consolidated interest expense accrued during such period in respect
of all Indebtedness of the Borrower and its Subsidiaries, minus (b) the
Borrower's consolidated interest expense accrued during such period in respect
of the Estate Subordinated Note and the Junior Subordinated Note to the extent
that, in accordance with the terms of the Estate Subordinated Note and the
Junior Subordinated Note, such interest expense is added to the respective
principal amounts thereof and is not paid by the Borrower in cash.
"Interest Period" means, relative to any Eurodollar Loans
comprising part of the same Borrowing, the period beginning on (and including)
the date on which such Eurodollar Loans are made or continued as, or converted
into, Eurodollar Loans pursuant to Section 3.1 or Section 3.4.4 and ending on
(but excluding) the date which numerically corresponds to such date one, two,
three or six months thereafter (or, if such month has no numerically
corresponding date, on the last Business Day of such month), in either case as
the Borrower may select in its relevant notice pursuant to Section 3.1 or
Section 3.4.4; provided, however, that:
(a) the Borrower shall not be permitted to select
Interest Periods to be in effect at any one time which have expiration dates
occurring on more than three (3) dates with respect to the Term Loan and two
(2) dates with respect to the Revolving Loans;
(b) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period shall end
on the Business Day next preceding such numerically corresponding date);
(c) in the case of Interest Periods for Revolving Loans,
no such Interest Period may end later than the Stated Maturity Date for
Revolving Loans; and
(d) in the case of Interest Periods for the Term Loan, no
such Interest Period may end later than (i) the Stated Maturity Date of the
Term Loan, or (ii) the date of any principal repayment with respect to the Term
Loan as set forth in clause (c) of Section 3.3.1, if on such date the Borrower
otherwise would be required to repay any portion of any Borrowing prior to the
end of the Interest Period relative to such Borrowing.
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<PAGE> 21
"Interest Rate Contract" means any interest rate cap agreement,
interest rate collar agreement, interest rate swap agreement or other agreement
or arrangement designed to protect against fluctuations in interest rates.
"Interest Rate Contract Counterparty" means any counterparty
to an Interest Rate Contract which the Borrower is required to enter into
pursuant to Section 6.1.13.
"Internal Revenue Service" means the Internal Revenue Service
of the United States of America.
"Investment" means, relative to any Person:
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel and similar advances to officers, employees
and consultants made in the ordinary course of business);
(b) any ownership or similar interest held by such Person
in any other Person; and
(c) the purchase of any debt or equity securities or
instruments issued by any other Person (including, without limitation, Stock,
notes, debentures, drafts and acceptances, trust certificates, partnership
interests or units or membership interests in limited liability companies).
The amount of any Investment of the nature referred to in clause (a) or (b)
shall be the original principal or capital amount thereof less all returns of
principal or equity thereon (and without adjustment by reason of the financial
condition of such other Person) and shall, if made by the transfer or exchange
of property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such property.
"IRC" means the Internal Revenue Code of 1986, as amended, and
any successor statute of similar import, together with the regulations
thereunder, in each case as in effect from time to time. References to
sections of the IRC also refer to any successor sections.
"Junior Subordinated Note" means the Subordinated Promissory
Note, dated the Closing Date, made by Brunswick payable to EM Industries, Inc.
in the principal amount of $1,000,000.
"Lender" means any of the various lenders as are, or may
become, parties to this Agreement.
"Lender Parties" means, collectively, the Agent and each
Lender, and each of their respective successors and assigns, and each of the
respective officers, directors, employees, attorneys and agents of the Agent
and each Lender and of each of their respective successors and assigns,
indemnified by the Borrower as provided in Section 9.4.
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"Lien" means any mortgage, pledge, hypothecation, assignment,
charge, deposit arrangement, encumbrance, lien (statutory or other), adverse
claim or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any financing lease involving substantially
the same economic effect as any of the foregoing and the filing of any
financing statement under the UCC or comparable law of any jurisdiction).
"Loan" means, as the context may require, the Bridge Loan, the
Term Loan or the Revolving Loans.
"Loan Documents" means, collectively, this Agreement, the
Notes, each Security Document, the Brunswick Subsidiary Guaranty, each
Borrowing Request, any Interest Rate Contract entered into by the Borrower with
a Lender that has executed and delivered to the Agent an acknowledgment in the
form of Exhibit F, each other Instrument executed and delivered by the Borrower
or any of its Subsidiaries as of the date hereof or at any time thereafter and,
from and after the Merger Consummation Date, the STI Subsidiary Guaranty, in
connection with the transactions contemplated by this Agreement, in each case,
as amended, modified or supplemented from time to time.
"Loan Party" means any of the Borrower, its Subsidiaries and
Affiliates which is a party to any of the Loan Documents.
"Loss" means any loss, damage, destruction, theft, or seizure
of, or any other casualty with respect to, or any condemnation of, any property
or asset of any Person in an amount in excess of $100,000 individually or
$250,000 in the aggregate for any Fiscal Year; and the "amount" of any Loss
means (i) if such asset or property is repaired or replaced, the greater of (A)
the cost to repair or replace the property or asset that was the subject of
such Loss and (B) the amount of insurance proceeds or condemnation awards
payable as a result of such Loss, and (ii) if such asset or property is not
repaired or replaced, the amount of insurance proceeds or condemnation awards
payable as a result of such loss.
"Material Adverse Change" means a material adverse change in
(a) the condition (financial or otherwise), operations, performance, business,
properties or prospects of the Borrower and its Subsidiaries taken as a whole;
or (b) the rights and remedies of the Lenders or the Agent under the Loan
Documents; or (c) the ability of the Borrower to repay the Obligations or of
the Borrower or any Subsidiary to perform their respective obligations under
the Loan Documents; or (d) the legality, validity or enforceability of any Loan
Document; or (e) the Liens granted the Agent pursuant to the Security Documents.
"Maturity" means relative to any Loan or portion thereof, the
earlier of such Loan's Stated Maturity Date or such other date when such Loan
or portion thereof shall be or become due and payable in accordance with the
terms of this Agreement, whether by required repayment, prepayment, declaration
or otherwise.
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"Merger" means the merger of Brunswick with and into STI with
STI being the surviving corporation.
"Merger Consummation Date" means the date on which the Merger
has been consummated and all conditions set forth in Section 4.2 and Section
4.3 have been satisfied or waived in writing by the Lenders and the Agent.
"Merger Pro Forma Balance Sheet" means the pro forma balance
sheet of the Borrower as of the Merger Consummation Date, prepared by the
Borrower based upon the financial statements described in clause (a) of Section
5.4, and after giving effect to the transactions contemplated by this Agreement
to occur on the Merger Consummation Date, including the consummation of the
Merger, the conversion of $10,000,000 of the Bridge Loan into the Term Loan and
the making of the Revolving Loans to be made on the Merger Consummation Date.
"Monthly Payment Date" means the last day of each calendar
month or, if such day is not a Business Day, the immediately preceding Business
Day.
"Mortgage" means any mortgage, deed of trust, deed to secure
debt, leasehold mortgage, leasehold deed of trust or leasehold deed to secure
debt covering real property, as such instruments are originally executed or
supplemented, amended, renewed, extended or otherwise modified from time to
time.
"Multiemployer Pension Plan" means a Multiemployer Plan which
is subject to Subtitle E of Title IV of ERISA.
"Multiemployer Plan" means a Plan which is a "multiemployer
plan" within the meaning of Section 3(37) of ERISA.
"Net Disposition Proceeds" means, with respect to any
disposition of the assets of the Borrower or any Subsidiary (including the
disposition by Brunswick of any Stock of STI other than as a result of the
Merger), the excess of: (a) the gross cash proceeds received by the Borrower or
any Subsidiary from such disposition (including any cash proceeds subsequently
received in respect of notes and other non-cash proceeds received by the
Borrower or any of its Subsidiaries from such disposition), minus (b) the sum
of (i) all reasonable out-of-pocket fees and expenses incurred in connection
therewith, plus (ii) all taxes paid or payable in connection with such sale.
"Net Income" means, as to any Person, for any period, the net
income (or loss) of such Person for such period, determined in accordance with
GAAP, but excluding extraordinary gains or losses for such period.
"Net Securities Proceeds" means, with respect to the issuance
or sale by the Borrower or any Subsidiary of any equity or debt securities (not
including upon the exercise of existing stock options or employee stock
options, the issuance of equity securities pursuant to any dividend
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<PAGE> 24
reinvestment plan or the incurrence of Indebtedness to finance Consolidated
Capital Expenditures to the extent permitted under Section 6.2.2), the excess
of: (a) the gross cash proceeds received by the Borrower or any Subsidiary from
such issuance and sale; minus (b) all reasonable out-of-pocket fees and
expenses incurred in connection with such issuance and sale; minus (c) the
amount of such proceeds required to be applied to the prepayment of the Estate
Subordinated Note pursuant to Section 4 of the Estate Subordinated Note as in
effect on the Closing Date.
"Note" means, as the context may require, any Bridge Note,
Term Note or Revolving Note.
"Notes" means, collectively, the Bridge Notes, the Term Notes
and the Revolving Notes.
"Obligations" means all payment and performance obligations of
the Loan Parties (monetary or otherwise) arising under or in connection with
this Agreement, the Notes and the other Loan Documents.
"Organic Document" means, relative to any Person, its articles
or certificate of incorporation or organization or certificate of limited
partnership, its bylaws, partnership or operating agreement or other
organizational documents, and all stockholders agreements, voting trusts and
similar arrangements applicable to any of its Stock or partnership interests or
other ownership interests.
"Participant" means the banks or other entities that purchase
participating interests in any Loan, Note, Revolving Loan Commitment or other
interest hereunder, as provided in clause (a) of Section 9.11.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means any Plan which is subject to the
provisions of Title IV of ERISA, or to the provisions of Section 302 of ERISA
or Section 412 of the IRC.
"Percentage" means, as the context requires, either (a) the
Bridge Percentage, (b) the Revolving Percentage, (c) the Term Percentage or (d)
all of the above.
"Person" means any natural person, corporation, partnership,
limited liability company, firm, association, government, governmental agency
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" shall mean, at a particular time, any employee benefit
plan (within the meaning of Section 3(3) of ERISA), which is covered by ERISA
and in respect of which the Borrower, a
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<PAGE> 25
Subsidiary or a Commonly Controlled Entity is (or, if such plan were terminated
at such time, would under Section 4069 of ERISA be deemed to be) an "employer"
as defined in Section 3(5) of ERISA.
"Plan Reorganization" means with respect to any Multiemployer
Pension Plan, the condition that such plan is in reorganization within the
meaning of such term as used in Section 4241 of ERISA.
"Plan Reportable Event" means (i) a reportable event described
in Section 4043 of ERISA and regulations thereunder (other than any reportable
event described in Section 4043(b)(2) or (7)), (ii) a withdrawal by a
"substantial employer" (within the meaning of Section 4001(a)(2) of ERISA) from
a Single Employer Plan to which more than one employer contributes, as referred
to in Section 4063(b) of ERISA, or (iii) a cessation of operations at a
facility causing more than twenty percent (20%) of participants under a Single
Employer Plan to be separated from employment, as referred to in Section
4062(e) of ERISA.
"Pledge Agreement" means any of the Brunswick Pledge Agreement
or the STI Pledge Agreement.
"Post-Default Rate" means (a) in the case of each Loan, the
sum of the rate per annum otherwise applicable to such Loan from time to time
plus two percent (2%) per annum and (b) in the case of all other Obligations,
the sum of the highest rate per annum then applicable to any Loan (other than
by application of the Post-Default Rate) plus two percent (2%) per annum.
"Pro Forma Balance Sheets" means the Closing Date Pro Forma
Balance Sheet, the Trial Merger Pro Forma Balance Sheet, and the Merger Pro
Forma Balance Sheet.
"Projections" means the projected balance sheets and
statements of operations and changes in cash flows of the Borrower (after
giving effect to the Merger) for the Fiscal Years 1997 - 1999 inclusive,
prepared by the Borrower on an annual basis for the 1997 - 1999 Fiscal Years,
together with supporting details and a statement of underlying assumptions,
which have been delivered to the Lenders prior to the Closing Date.
"Purchase Money Indebtedness" means Indebtedness incurred to
finance part or all of (but not more than) the purchase price of equipment in
which neither the Borrower nor any of its Subsidiaries had an interest at any
time prior to such purchase.
"Purchase Price" means "Purchase Price" as that term is
defined in the Acquisition Agreement.
"Purchasing Lender" means any Person purchasing all or any
part of the rights and obligations under this Agreement and the Notes of any
Lender pursuant to a Transfer Supplement in accordance with Section 9.11.
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<PAGE> 26
"Quarterly Payment Date" means the last day of each March,
June, September and December or, if such day is not a Business Day, the
immediately preceding Business Day.
"Reference Lenders" means, collectively, The Chase Manhattan
Bank, N.A., Citibank, N.A. and Morgan Guaranty Trust Company of New York.
"Register" means the register for the recordation of the names
and addresses of the Lenders and the Revolving Loan Commitment of, and the
principal amounts of the Loans owing to, each Lender from time to time, as
provided in clause (c) of Section 9.11.
"Regulatory Approval" means each and every approval, consent,
filing and registration by or with any federal, state or other regulatory
authority (domestic or foreign) necessary to authorize or permit the execution,
delivery or performance of this Agreement, the Notes or any other Loan
Document, for the granting of any security contemplated hereby or thereby, for
the validity or enforceability hereof or thereof, or for the consummation of
the transaction contemplated by the Loan Documents, including, without
limitation, the Acquisition and the Merger.
"Regulatory Change" means, as to any or all of the Lenders or
the Agent, the adoption of or any change in (including, without limitation, any
change in the interpretation of) any:
(a) United States federal or state law or foreign law
applicable to the Agent or such Lender; or
(b) regulation, interpretation, directive, guideline or
request (whether or not having the force of law) applicable to the Agent or
such Lender of any court or Governmental Authority charged with the
interpretation or administration of any law referred to in clause (a) or of any
central bank or fiscal, monetary or other authority having jurisdiction over
the Agent or such Lender.
"Required Lenders" means, as the context may require at any
time, Lenders having, in the aggregate, 66-2/3% or more of (a) the Bridge Loans
at any time prior to the Merger Consummation Date, and (b) the Revolving Loan
Commitment, the Revolving Loans and the Term Loan on and after the Merger
Consummation Date.
"Requirements of Law" means, as to any Person, the Organic
Documents of such Person, and all federal, state and local laws, rules,
regulations, orders, decrees or other determinations of an arbitrator, court or
other Governmental Authority, including, without limitation, all disclosure and
other requirements of ERISA, the requirements of Environmental Laws and
Environmental Permits, the requirements of OSHA, in each case applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Reserve Requirement" means, relative to any Interest Period
for any Eurodollar Loans, from time to time during such Interest Period, the
reserve percentage (expressed as a decimal)
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<PAGE> 27
equal to the maximum aggregate reserve requirements (including all basic,
emergency, supplemental, marginal and other reserves and taking into account
any transitional adjustments or other scheduled changes in reserve
requirements) specified under regulations issued from time to time by the
F.R.S. Board and then applicable to assets or liabilities consisting of or
including "Eurodollar Liabilities", as currently defined under Regulation D of
the F.R.S. Board, having a term approximately equal or comparable to such
Interest Period.
"Responsible Officer" means the chief executive officer, the
chief operating officer and the chief financial officer of the Borrower.
"Revolving Loan" means, relative to any Lender, any loan made
by such Lender to the Borrower pursuant to Section 2.2.2.
"Revolving Loan Availability" means, on any date, the excess
of (a) the Revolving Loan Commitment Amount minus (b) the then aggregate
principal amount of all outstanding Revolving Loans.
"Revolving Loan Commitment" means the collective commitments
of the Lenders to make Revolving Loans pursuant to Section 2.2.2 if the
conditions set forth in Section 4.2 and Section 4.3 are met.
"Revolving Loan Commitment Amount" means $5,000,000.
"Revolving Loan Commitment Termination Date" means the
earliest of:
(a) the Stated Maturity Date for Revolving Loans;
(b) immediately and without further action upon the
occurrence of any Event of Default described in Section 7.1.4;
(c) immediately when any other Event of Default shall
have occurred and be continuing and either:
(i) the Revolving Loans shall be declared to be
due and payable pursuant to Section 7.3; or
(ii) in the absence of such declaration, the
Agent, acting at the direction of the Required Lenders, shall give
notice to the Borrower that the Revolving Loan Commitment has been
terminated; and
(d) immediately upon the occurrence of a Change in
Control.
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<PAGE> 28
"Revolving Note" means a promissory note of the Borrower dated
the date hereof and substantially in the form of Exhibit C-2, and shall also
refer to all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Revolving Percentage" of any Lender means, at any time, in
respect of the Revolving Loan Commitment and the Revolving Loans, the
percentage set forth opposite such Lender's signature hereto under the caption
"Percentage," as the same may be adjusted pursuant to Section 9.11.
"Secretary" means, with respect to any Person, the secretary,
assistant secretary, clerk, assistant clerk or comparable officer of such
Person.
"Security Documents" means, collectively, the Brunswick Pledge
Agreement, the Brunswick Security Agreement, the Brunswick Patent Agreement,
the Brunswick Trademark Assignment, the Technology Patent Assignment, the
Technology Trademark Assignment, the Cash Reserve Account Agreement, the
assignment of the Interest Rate Contracts described in Section 6.1.13, the
collateral assignment of the Estate Registration Rights Agreement described in
clause (g) of Section 4.1.8, the collateral assignment of rights under
Acquisition Agreement and all other documents described in clause (f) of
Section 4.1.8, each other Instrument at any time delivered in connection with
this Agreement to secure the Obligations and, from and after the Merger
Consummation Date, the Assumption Agreement, the STI Security Agreement, STI
Patent Assignment, STI Trademark Assignment, the STI Pledge Agreement, the
Mortgages described in clause (h) of Section 4.2.9, the Share Charge and the
assignment of "key-man" life insurance described in clause (i) of Section 4.2.9.
"Senior Debt Leverage Ratio" means, for any period, the ratio
of (a) the aggregate outstanding principal amount of the Loans as of the last
day of such period to (b) EBITDA for such period.
"Senior Debt Service" means, for any period, the sum of (a)
Interest Expense with respect to the Loans during such period, plus (b)
principal repayments, if any, of the Loans during such period required to be
made pursuant to clause (c) of Section 3.3.1.
"Senior Debt Service Ratio" means, for any period, the ratio
of (a) EBITDA for such period to (b) Senior Debt Service for such period.
"Share Charge" means the Share Charge, dated the Merger
Consummation Date, made by STI in favor of the Agent, for its benefit and the
ratable benefit of the Lenders, in respect of all of the outstanding shares of
STI International Limited held by STI, in form and substance satisfactory to
the Agent.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, other than a Multiemployer Plan.
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<PAGE> 29
"Solvent" means, with respect to any Person on a particular
date, that on such date (i) the fair value of the assets of such Person (both
at fair valuation and at present fair saleable value) is, on the date of
determination, greater than the total amount of liabilities of such Person
(including all liabilities and obligations of such Person, fixed or contingent,
direct or indirect, disputed or undisputed, and whether or not required to be
reflected on a balance sheet prepared in accordance with GAAP), (ii) such
Person is able to pay all liabilities of such Person as they mature, and (iii)
such Person does not have unreasonably small capital with which to carry on its
business. The amount attributed to contingent liabilities shall be discounted
to reflect the likelihood that such liabilities shall become payable.
"Stated Maturity Date" means, (a) with respect to the Bridge
Loan, October 15, 1996, unless the Borrower requests a ninety-day extension in
writing and the Extension Criteria have been met, in which case the Stated
Maturity Date shall be January 15, 1997, and (b) with respect to the Term Loan
and the Revolving Loans, the fifth anniversary of the Merger Consummation Date.
"STI" means Survival Technology, Inc., a Delaware corporation.
"STI Patent Assignment" means, collectively, each Collateral
Assignment and Security Agreement (Patents), dated as of the Merger
Consummation Date, in substantially the form of the Brunswick Patent
Assignment, made by STI or one of its Subsidiaries in favor of the Agent, for
its benefit and the ratable benefit of the Lenders, as originally in effect on
the Merger Consummation Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect.
"STI Pledge Agreement" means the Stock and Notes Pledge
Agreement, dated as of the Merger Consummation Date, in substantially the form
of the Brunswick Pledge Agreement, made by STI in favor of the Agent, for
itself and the ratable benefit of the Lenders, as originally in effect on the
Merger Consummation Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect,
pursuant to which STI shall pledge to the Agent all of the issued and
outstanding stock of its Subsidiaries located in the United States and all
promissory notes and other instruments and securities held by STI, as security
for the Obligations.
"STI Security Agreement" means the Security Agreement, dated
as of the Merger Consummation Date, in substantially the form of the Brunswick
Security Agreement, made by STI and each of its Subsidiaries located in the
United States (other than the Inactive Subsidiaries) in favor of the Agent, for
its benefit and the ratable benefit of the Lenders, as originally in effect on
the Merger Consummation Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect.
"STI Subsidiary Guaranty" means the Subsidiary Guaranty, dated
as of the Merger Consummation Date, in substantially the form of the Brunswick
Subsidiary Guaranty, made by each Subsidiary (other than the Inactive
Subsidiaries) of STI located in the United States in favor of the
22
<PAGE> 30
Agent and the Lenders, as originally in effect on the Merger Consummation Date
and as thereafter from time to time amended, supplemented, amended and restated
or otherwise modified and in effect.
"STI Shares" means the 1,888,126 shares of Common Stock, $.10
par value, of STI purchased by Brunswick pursuant to the Acquisition Agreement.
"STI Trademark Assignment" means, collectively, each
Collateral Assignment and Security Agreement (Trademarks), dated as of the
Merger Consummation Date, in substantially the form of the Brunswick Trademark
Assignment, made by STI or one of its Subsidiaries in favor of the Agent, for
its benefit and the ratable benefit of the Lenders, as originally in effect on
the Merger Consummation Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect.
"Stock" means all shares of capital stock of or in a
corporation, whether voting or non-voting, and including, without limitation,
common stock and preferred stock.
"Subsidiary" of any corporation means any other corporation
greater than 50% of the outstanding shares of Stock of which having ordinary
voting power for the election of directors is owned directly or indirectly by
such corporation, and, except as otherwise indicated herein, references to
Subsidiaries shall refer to Subsidiaries of the Borrower. Unless otherwise
indicated, references to Subsidiaries of Brunswick on the Closing Date and as
of any time thereafter, but prior to the Merger Consummation Date, shall
include STI and its Subsidiaries.
"Subsidiary Note" means a promissory note made by a Subsidiary
payable to the Borrower and meeting the requirements of Section 6.2.7(e).
"Taxes" means all taxes, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Agent, taxes imposed on or measured by its net
income and franchise taxes imposed on it.
"Technology" means Brunswick Biomedical Technologies, Inc., a
Massachusetts corporation and a Subsidiary of the Borrower.
"Technology Patent Assignment" means the Collateral Assignment
and Security Agreement (Patents), dated as of the Closing Date, made by
Technology in favor of the Agent, for its benefit and the ratable benefit of
the Lenders, as originally in effect on the Closing Date and as thereafter from
time to time amended, supplemented, amended and restated or otherwise modified
and in effect.
"Technology Trademark Assignment" means the Collateral
Assignment and Security Agreement (Trademarks), dated as of the Closing Date,
made by Technology in favor of the Agent, for its benefit and the ratable
benefit of the Lenders, as originally in effect on the Closing Date and
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<PAGE> 31
as thereafter from time to time amended, supplemented, amended and restated or
otherwise modified and in effect.
"Term Loan" means, collectively, the loans, in an aggregate
principal amount equal to $10,000,000, to be converted from $10,000,000 of the
outstanding principal balance of the Bridge Loan on the Merger Consummation
Date pursuant to Section 2.2.1.
"Term Loan Commitment" means the collective commitments of the
Lenders to extend the Term Loan pursuant to Section 2.2.1 by converting
$10,000,000 of the outstanding principal balance of the Bridge Loan into the
Term Loan on the Merger Consummation Date if the conditions set forth in
Section 4.2 and Section 4.3 are met.
"Term Note" means a promissory note of the Borrower dated the
date hereof and substantially in the form of Exhibit C-3, and shall also refer
to all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Term Percentage" of any Lender means, at any time, in respect
of the Term Loan, the percentage set forth opposite such Lender's signature
hereto under the caption "Percentage," as the same may be adjusted pursuant to
Section 9.11.
"Total Debt Leverage Ratio" means, for any period, the ratio
of (a) the aggregate outstanding principal amount of all Indebtedness of the
Borrower and its Subsidiaries as of the last day of such period to (b) EBITDA
for such period.
"Transfer Supplement" means a Transfer Supplement,
substantially in the form of Exhibit G, executed pursuant to Section 9.11.
"Trial Merger Pro Forma Balance Sheet" means the pro forma
balance sheet of the Borrower, assuming the Merger will occur on August 1,
1996, prepared by Brunswick based on the financial statements described in
clauses a(i) - (iv) of Section 5.4 and the Projections and after giving effect
to the transactions contemplated to occur on the Closing Date.
"type" means, relative to any Borrowing or Loan, the portion
thereof being maintained as a Base Rate Loan or a Eurodollar Rate Loan.
"UCC" means the Uniform Commercial Code of any applicable
jurisdiction, as in effect from time to time.
"United States" or "U.S." means the United States of America,
its 50 States and the District of Columbia.
"written" or "in writing" means any form of written
communication or a communication by means of telephonic facsimile device.
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<PAGE> 32
SECTION 1.2. Use of Defined Terms. Unless otherwise
defined or the context otherwise requires, terms for which meanings are
provided in this Agreement shall have such meanings when used in the Disclosure
Schedule and each Note, Borrowing Request, Compliance Certificate,
Continuation/Conversion Notice, notice and other communication delivered from
time to time in connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise
specified, references in this Agreement and in each other Loan Document to any
Article or Section are references to such Article or Section of this Agreement
or such other Loan Document, as the case may be, and unless otherwise
specified, references in any Article, Section, or definition to any clause are
references to such clause of such Section, Article or definition.
SECTION 1.4. Accounting and Financial Determinations.
Unless otherwise specified, all accounting terms used herein or in any other
Loan Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared
in accordance with GAAP.
ARTICLE 2.
COMMITMENTS
SECTION 2.1. Bridge Loan. Subject to the terms and
conditions of this Agreement, each Lender severally and for itself alone agrees
to make a single Loan to the Borrower on the Closing Date equal to its Bridge
Percentage of $11,000,000.
SECTION 2.2. Term Loan and Revolving Loan Commitment.
Subject to the terms and conditions of this Agreement, each Lender severally
and for itself alone agrees to make its Term Percentage of the Term Loan
described in Section 2.2.1 and to provide its Revolving Percentage of the
Revolving Loan Commitment described in Section 2.2.2.
SECTION 2.2.1. Term Loan. On the Merger Consummation Date,
each Lender will convert a portion of the Bridge Loan equal to its Term
Percentage of $10,000,000, which portion shall thereafter constitute such
Lender's portion of the Term Loan.
SECTION 2.2.2. Revolving Loan Commitment. Each Lender will,
from time to time on any Business Day occurring during the period commencing on
the Merger Consummation Date and continuing to (but not including) the
Revolving Loan Commitment Termination Date, make Revolving Loans to the
Borrower equal to its Revolving Percentage of the aggregate amount of any
Borrowing of Revolving Loans requested by the Borrower to be made on such
Business Day in accordance with Section 3.1.
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<PAGE> 33
SECTION 2.2.3. Limitations on Revolving Credit Commitment.
No Lender shall be required to make any Revolving Loan, if after giving effect
thereto:
(a) the then aggregate outstanding principal amount of
all Revolving Loans would exceed the Revolving Loan Commitment Amount less the
amount of reserves established by the Agent pursuant to Section 2.3; or
(b) the then aggregate outstanding principal amount of
such Lender's Revolving Loans would exceed its Revolving Percentage of an
amount equal to the Revolving Loan Commitment Amount less the amount of
reserves established by the Agent pursuant to Section 2.3.
Subject to the terms hereof, the Borrower may from time to time borrow, prepay
and reborrow Revolving Loans, in all cases pursuant to the Revolving Loan
Commitment.
SECTION 2.3. Establishment of Reserves. The Agent shall
have the right to establish, in such amounts, and with respect to such matters,
as the Agent, based on the Agent's customary credit considerations, shall deem
necessary or appropriate, reserves with respect to (i) Charges and Liens; (ii)
Environmental Liabilities and Costs, (iii) sums as to which the Agent and the
Lenders are permitted to make Revolving Loans on the Borrower's behalf under
Section 3.3.3 of this Agreement; and (iv) by thirty (30) days prior written
notice by the Agent to the Borrower, such other matters, events, conditions or
contingencies as to which the Agent, based on the Agent's customary credit
considerations, reasonably determines reserves should be established from time
to time hereunder.
SECTION 2.4. Commitment Fee. The Borrower agrees to pay
to the Agent, for the account of each Lender, a nonrefundable fee for the
period from the Closing Date to and including the Revolving Loan Commitment
Termination Date, equal to such Lender's Revolving Percentage of one-half of
one percent (0.50%) per annum of the difference between (A) the Revolving Loan
Commitment Amount and (B) the average daily aggregate outstanding principal
amount of all Revolving Loans. The fee described in this Section 2.4 shall be
calculated on a daily basis and shall be payable by the Borrower in arrears on
each Monthly Payment Date and on the Revolving Loan Commitment Termination Date.
SECTION 2.5. Increased Costs; Capital Adequacy. (a) The
Borrower shall pay to each Lender from time to time on demand such amounts as
such Lender may determine to be reasonably necessary to compensate it or its
holding company for any costs which such Lender determines are attributable to
its making or maintaining Loans, or maintaining Commitments hereunder or its
obligation to make any such Loans hereunder, or any reduction in any amount
receivable by such Lender hereunder in respect of any such Loans, Commitments
or obligation, in each case resulting from any Regulatory Change which: (i)
changes the basis of taxation of any amounts payable to such Lender under this
Agreement in respect of any of such Loans or Commitments (other than taxes
imposed on or measured by the overall net income of such Lender or of its
Applicable Lending Office); or (ii) imposes or modifies any reserve, special
deposit, deposit
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<PAGE> 34
insurance or assessment, minimum capital, capital ratio or similar requirements
relating to any extensions of credit or other assets of, or any deposits with
or other liabilities of, such Lender or any holding company of such bank
(including, without limitation, a request or requirement which affects the
manner in which any Lender or the holding company of any thereof allocates
capital resources to commitments, including the Commitments and obligations of
such Lender hereunder). Each Lender will notify the Borrower of any event
occurring after the date of this Agreement which will entitle such Lender to
compensation pursuant to this clause (a) as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation.
(b) Without limiting the effect of the foregoing
provisions of this Section 2.5 (but without duplication), the Borrower shall
pay to each Lender from time to time upon demand by such Lender such amounts as
the Lender may determine to be reasonably necessary to compensate such Lender
for any costs which it determines are attributable to the maintenance by it or
its holding company, pursuant to any law or regulation of any jurisdiction or
any interpretation, directive or request (whether or not having the force of
law) of any court or governmental or monetary authority, whether in effect on
the date of this Agreement or thereafter, of capital in respect of its Loans
its obligation to make the Loans hereunder (such compensation to include,
without limitation, an amount equal to any reduction in return on assets or
equity of such Lender or its holding company to a level below that which it
could have achieved but for such law, regulation, interpretation, directive or
request). The Lender will notify the Borrower with a copy to the Agent) if it
is entitled to compensation pursuant to this clause (b) as promptly as
practicable after it determines to request such compensation.
(c) Each notice delivered by any Lender pursuant to this
Section 2.5 shall contain a statement of such Lender as to any such additional
amount or amounts (including calculations thereof in reasonable detail) which
shall, in the absence of manifest error, be conclusive of the matters stated
therein and be binding upon the Borrower. In determining such amount, any
Lender may use any method of averaging and attribution that it in good faith
shall deem applicable.
(d) Upon the receipt by the Borrower from any Lender of a
claim for compensation pursuant to this Section 2.5, the Borrower may obtain a
replacement bank, financial institution or other lender satisfactory to the
Borrower and the Agent to acquire and assume all or part of such affected
Lender's Loans and Commitments and such affected Lender shall transfer all or
such part of its Loans and Commitments upon receipt of the purchase price
therefor (which shall equal the outstanding principal amount of its Loans plus
all accrued and unpaid interest and fees to the date of purchase, plus all
other amounts owing by the Borrower) to such affected Lender under this
Agreement. Any such replacement bank, financial institution or other lender
shall be subject to the prior written consent of the Agent, which consent shall
not be unreasonably withheld.
ARTICLE 3.
LOANS AND NOTES
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SECTION 3.1. Borrowing Procedure. By delivery of a
Borrowing Request to the Agent on or before 11:00 a.m., New York City time, on
any day, the Borrower may request that the Bridge Loan be made on such day. By
delivering a Borrowing Request to the Agent at the Agent's Atlanta Office on or
before 11:00 a.m., New York City time, on a Business Day, the Borrower may (a)
request, on not less than one (1) Business Day's advance notice in the case of
Base Rate Loans and not less than three (3) Business Days' advance notice in
the case of Eurodollar Loans, that the Term Loan be made on the Merger
Consummation Date; and (b) from time to time request, on not less than one (1)
nor more than three (3) Business Days' notice, in the case of Base Rate Loans,
and not less than three (3) nor more than five (5) Business Days' notice in the
case of Eurodollar Loans, that a Borrowing of Revolving Loans be made on the
Business Day specified in such Borrowing Request. Borrowings of Base Rate
Loans shall be in a minimum aggregate amount equal to $250,000 and in integral
multiples of $50,000 or, if less, the amount of the Revolving Loan Availability
immediately prior to such Borrowing. Borrowings of Eurodollar Loans shall be
in a minimum aggregate amount of $500,000 and in integral multiples of
$100,000. The Term Loan shall be made on the Merger Consummation Date, and
each Revolving Loan shall be made on the Business Day specified in the
Borrowing Request therefor, which Business Day shall be on or after the Merger
Consummation Date. On such Business Day, each Lender shall, on or before 2:00
p.m., New York City time, deposit same day funds with the Agent in an amount
equal to such Lender's Percentage of the requested Borrowing, such deposit to
be made to such account as the Agent shall specify from time to time by notice
to the Lenders. The proceeds of all Borrowings shall be made available to the
Borrower by wire transfer of such proceeds to such transferees, or to such
accounts of the Borrower, as the Borrower shall have specified in the Borrowing
Request therefor; provided, however, that in each case the Agent shall be
required to make available to the Borrower the proceeds of any Borrowing only
to the extent received by it in same day funds from the Lenders. No Lender's
obligation to make any Loan shall be affected by any other Lender's failure to
make any Loan.
SECTION 3.2. Notes. All Loans made by each Lender shall
be evidenced:
(a) in the case of such Lender's portion of the Bridge
Loan, by a Bridge Note payable to the order of such Lender in a principal
amount equal to such Lender's Bridge Percentage of the Bridge Loan;
(b) in the case of such Lender's portion of the Term
Loan, by a Term Note payable to the order of such Lender in a principal amount
equal to such Lender's Term Percentage of the Term Loan; and
(c) in the case of such Lender's Revolving Loans, by a
Revolving Note payable to the order of such Lender in a principal amount equal
to such Lender's Revolving Percentage of the Revolving Loan Commitment Amount.
The Borrower hereby irrevocably authorizes each Lender to make (or cause to be
made) appropriate notations on a grid schedule attached to such Lender's
Revolving Note (or on a continuation of any
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such grid attached to any Revolving Note and made a part thereof), which
notations shall evidence, inter alia, the date and outstanding principal amount
of the Revolving Loans evidenced thereby. The notations on any such grid (and
on any such continuation) indicating the outstanding principal amount of such
Lender's Revolving Loans shall be presumptive evidence of the principal amount
thereof owing and unpaid, but the failure to record any such amount on any such
grid (or on any such continuation) shall not limit or otherwise affect the
obligations of the Borrower hereunder or under such Note to make payments of
principal of or interest on such Loans when due.
SECTION 3.3. Principal Payments. Repayments and
prepayments of principal of the Loans shall be made in accordance with this
Section 3.3.
SECTION 3.3.1. Repayments and Prepayments. The Borrower
will make payment in full of all unpaid principal of each Loan at its Stated
Maturity Date (or such earlier date as such Loan may become or be declared due
and payable pursuant to Article 7). Prior thereto, the Borrower:
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal amount
of any Loans; provided, however, that (i) as to partial prepayments of the
Bridge Loan or the Term Loan, all such voluntary prepayments shall require at
least three (3) Business Days prior notice to the Agent, (ii) as to the Bridge
Loan, the Term Loan and the Revolving Loans, all such voluntary prepayments
shall be in a minimum amount of $50,000 (subject to the Borrower's right to
prepay in full the entire unpaid principal amount of the Bridge Loan, the Term
Loan or the Revolving Loans, as the case may be), and (iii) as to the voluntary
prepayment in full of the Bridge Loan and the Term Loan and the termination of
the Revolving Loan Commitment, such prepayment shall require at least five (5)
Business Days prior written notice to the Agent;
(b) shall, on any Business Day on which the aggregate
outstanding principal amount of all Revolving Loans exceeds the Revolving Loan
Commitment Amount, make a mandatory prepayment of the outstanding principal
amount of Revolving Loans in an amount equal to such excess amount;
(c) shall, on each Quarterly Payment Date, commencing on
the third (3rd) Quarterly Payment Date occurring after the Merger Consummation
Date, make a scheduled payment of a portion of the outstanding principal amount
of the Term Loan in an amount equal to the lesser of (i) the outstanding
principal balance of the Term Loan, and (ii) the amount shown below opposite
each such Quarterly Payment Date:
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<TABLE>
<CAPTION>
Quarterly
Quarterly Payment Dates Occuring Principal
During the Period from: Payment
-------------------------------- ---------
<S> <C>
Merger Consummation Date through but
excluding the first anniversary of the
Merger Consummation Date $250,000
First anniversary of the Merger Consummation
Date through but excluding the second
anniversary of the Merger Consummation Date $500,000
Second anniversary of the Merger Consummation
Date through but excluding the third
anniversary of the Merger Consummation Date $500,000
Third anniversary of the Merger Consummation
Date through but excluding the fourth
anniversary of the Merger Consummation Date $625,000
Fourth anniversary of the Merger Consummation
Date through and including the Stated Maturity
Date for the Term Loan $750,000
</TABLE>
(d) shall, concurrently with the receipt by the Borrower
or any Subsidiary of any Net Disposition Proceeds (other than from dispositions
of assets permitted under clause (a) of Section 6.2.11) which in the aggregate
equal or exceed $250,000 in any Fiscal Year, if received prior to the Merger
Consummation Date, make a mandatory prepayment of the Bridge Loan, and if
received after the Merger Consummation Date, make a mandatory prepayment of the
Term Loan, in each case in an aggregate amount equal to such Net Disposition
Proceeds; provided that this clause (d) of Section 3.3.1 shall not in any event
be deemed a consent to any disposition by the Borrower or any Subsidiary which
is otherwise prohibited by the terms of this Agreement or of any of the other
Loan Documents;
(e) shall, concurrently with the receipt by the Borrower
or any Subsidiary of any Net Securities Proceeds, if received prior to the
Merger Consummation Date make a mandatory prepayment of the Bridge Loan, and if
received after the Merger Consummation Date make a mandatory prepayment of the
Term Loan, in each case in an aggregate amount equal to such Net Securities
Proceeds; provided that this clause (e) of Section 3.3.1 shall not in any event
be deemed a consent to any issuance of Stock or the incurrence of Indebtedness
by the Borrower or any Subsidiary which is otherwise prohibited by the terms of
this Agreement or of any of the other Loan Documents;
(f) shall, concurrently with the delivery of the
financial information required under clause (a)(i) of Section 6.1.1 (but in no
event later than the date such information is required to be delivered), make a
mandatory prepayment of a portion of the outstanding principal amount of the
Term Loan in an amount equal to 75% of Excess Cash Flow for the Fiscal Year
with respect to which such financial information was delivered or is required
to be delivered;
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(g) shall, within 180 days after receipt by the Borrower
or any Subsidiary or the Agent of any condemnation awards with respect to any
Loss, make a mandatory prepayment of the Loans in an amount by which such
condemnation awards exceed the actual cost incurred to replace or restore the
property or asset which was the subject of such Loss as nearly as practicable
to conditions prior to such Loss;
(h) shall, within 180 days after receipt by the Borrower
or any Subsidiary or the Agent of any insurance proceeds with respect to any
Loss resulting from a casualty, make a mandatory prepayment of the Loans in an
amount by which such insurance proceeds exceed the actual cost incurred by the
Borrower or such Subsidiary to repair or replace the property or asset which
was the subject of the Loss or deemed Loss giving rise to such insurance
proceeds;
(i) shall, within 180 days after receipt by the Borrower
or any Subsidiary or the Agent of any insurance proceeds with respect to any
Loss resulting from a liability, make a mandatory prepayment of the Loans in an
amount by which such insurance proceeds exceed the amount of the liability to
be satisfied with such proceeds (to the extent such liability is so satisfied);
(j) shall, concurrently with the receipt by the Borrower
of any proceeds of the life insurance policies described in clause (c) of
Section 6.1.5, make a mandatory prepayment of the Loans in an amount equal to
the amount of such insurance proceeds;
(k) shall, concurrently with the receipt by the Borrower
of any amount payable by the Estate to the Borrower pursuant to or as a result
of the breach by the Estate of the Acquisition Agreement, make a mandatory
prepayment in an aggregate amount equal to the amount so received;
(l) shall, on the earlier of the Merger Consummation Date
or the Stated Maturity Date for the Bridge Loan, repay the Bridge Loan in an
amount equal to the cash balance on deposit in the Cash Reserve Account on such
date (and the Borrower hereby irrevocably authorizes and directs the Agent to
apply such cash balance for such purpose); and
(m) shall prepay the entire outstanding principal amount
of the Loans together with accrued and unpaid interest and all of the
outstanding Obligations hereunder upon the occurrence of a Change in Control.
SECTION 3.3.2. Application. Each prepayment or repayment of
principal required under clauses (d) through (k) of Section 3.3.1 prior to the
Merger Consummation Date shall be applied to the Bridge Loan and, subsequent to
the Merger Consummation Date, shall be applied in inverse order to the
scheduled installments due on the Term Loan under clause (c) of Section 3.3.1.
SECTION 3.3.3. Revolving Loans on Borrower's Behalf. The
Lenders are authorized to, and at their option may, make Revolving Loans on
behalf of the Borrower for payment of all fees, expenses, charges, costs,
principal and interest owed by the Borrower to the Lenders or the Agent under
this Agreement and the other Loan Documents. Such Revolving Loans shall be
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made when and as the Borrower fails promptly to pay same, and all such
Revolving Loans shall constitute Revolving Loans made to the Borrower and shall
be secured by all of the Collateral.
SECTION 3.4. Interest. Interest on the outstanding
principal amount of the Loans and other outstanding Obligations shall accrue
and be payable in accordance with this Section 3.4.
SECTION 3.4.1. Bridge Loan Rate. Subject to Section 3.4.5,
the Bridge Loan shall accrue interest at a rate per annum equal to the ING
Alternate Base Rate (as in effect from time to time) plus the Bridge Loan
Applicable Margin.
SECTION 3.4.2. Term Loan Rate. Subject to Section 3.4.5,
the Term Loan or any portion thereof shall accrue interest at the following
rates per annum, at the election of the Borrower, pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice:
(a) during such periods as the Term Loan or portion
thereof is a Base Rate Loan, the ING Alternate Base Rate (as in effect
from time to time) plus 1.50%, and
(b) during such periods as the Term Loan or portion
thereof is a Eurodollar Loan, for each Interest Period relating
thereto, the Eurodollar Rate for and Interest Period plus 3.50%.
SECTION 3.4.3. Revolving Loan Rate. Subject to Section
3.4.5, Borrowings of Revolving Loans shall accrue interest at the following
rates per annum, at the election of the Borrower pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice:
(a) during such periods as such Borrowing consists of
Base Rate Loans, the ING Alternate Base Rate (as in effect from time
to time) plus 1.25%, and
(b) during such periods as such Borrowing consists of
Eurodollar Loans, for each Interest Period relating thereto, the
Eurodollar Rate for such Interest Period plus 3.25%.
SECTION 3.4.4. Continuation and Conversion Elections. By
delivering a Continuation/Conversion Notice to the Agent on or before 11:00
a.m., New York City time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than three (3) nor more than five (5) Business
Days' notice, that all or any portion in an aggregate minimum amount of
$500,000 and an integral multiple of $100,000 of Revolving Loans or the Term
Loan be, in the case of Base Rate Loans, converted to Eurodollar Loans or, in
the case of Eurodollar Loans, continued as Eurodollar Loans; provided, however,
that:
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(a) each such continuation or conversion shall be pro
rata among the applicable outstanding Term Percentages of the Term Loan or
Revolving Percentages of Revolving Loans, as the case may be, of all Lenders;
and
(b) no portion of the outstanding principal amount of any
Loan may be continued as, or converted into, a Eurodollar Loan when any Default
has occurred and is continuing.
The Agent shall give prompt telephonic notice to each Lender of the interest
rate determined pursuant to this Section 3.4.4 with respect to such Loans.
Absent delivery of a Continuation/Conversion Notice with respect to any
Eurodollar Loan at least three (3) Business Days before the last day of the
then current Interest Period with respect thereto, such Eurodollar Loan shall,
on such last day, automatically convert to a Base Rate Loan.
SECTION 3.4.5. Post-Default Rates. From and after the
occurrence of an Event of Default and during the continuance thereof, the
Borrower shall pay interest (after as well as before judgment) on the
outstanding principal amount of all Loans and other Obligations at a rate per
annum equal to the Post-Default Rate applicable to such Loans and Obligations.
SECTION 3.4.6. Payment Dates. Accrued interest on any Loans
shall be payable, without duplication:
(a) on the Stated Maturity Date applicable to such Loans;
(b) with respect to any portion of any Loan prepaid or
repaid pursuant to Section 3.3.1, on the date such prepayment or repayment is
due as provided in Section 3.3.1 and, in the case of a voluntary prepayment, on
the date set forth in any notice required for such prepayment;
(c) with respect to Base Rate Loans, on each Monthly
Payment Date, commencing with the first such day following the Closing Date;
(d) with respect to Eurodollar Loans, on the last day of
each applicable Interest Period (and if such Interest Period shall exceed three
months, also on the numerically corresponding day of the third calendar month
after the commencement of such Interest Period);
(e) with respect to any Base Rate Loans converted into
Eurodollar Loans on a day which is not a Monthly Payment Date, on the date of
such conversion; and
(f) on the date of acceleration of such Loans pursuant to
Section 7.2 or Section 7.3.
Interest accruing at the Post-Default Rate and, to the extent permitted by
applicable law, interest on overdue amounts (including overdue interest), shall
be payable upon demand. The Borrower hereby irrevocably authorizes and directs
the Agent to withdraw from the Cash Reserve Account on each
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day that accrued interest on the Bridge Loan shall be due and payable in
accordance with this Section 3.4.6, an amount equal to the amount of accrued
interest so due and payable and to apply such amount withdrawn from the Cash
Reserve Account to the payment of such interest.
SECTION 3.4.7. Rate Determinations. All determinations by
the Agent of the rate of interest applicable to any Loan shall be conclusive in
the absence of manifest error.
SECTION 3.4.8. Limitation on Types of Loans. Anything
herein to the contrary notwithstanding, if on or prior to the determination of
any Eurodollar Rate for any Interest Period:
(a) the Agent determines in good faith, which
determination shall be conclusive, that quotations of interest rates for the
relevant deposits referred to in the definition of "Eurodollar Rate" are not
being provided in the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for Eurodollar Loans as provided
herein; or
(b) the Required Lenders determine in good faith, which
determination shall be conclusive, and notify the Agent that the relevant rates
of interest referred to in the definition of "Eurodollar Rate" upon the basis
of which the rate of interest for Eurodollar Loans for such Interest Period is
to be determined are not likely to cover adequately the cost to such Lenders of
making or maintaining Eurodollar Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof,
and so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurodollar Loans, to continue Eurodollar Loans or
to convert Base Rate Loans into Eurodollar Loans, and the Borrower shall, on
the last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Loans, either prepay such Loans or such Loans shall be converted
into Base Rate Loans in accordance with Section 3.4.10 hereof.
SECTION 3.4.9. Illegality. Notwithstanding any other
provision of this Agreement, in the event that it becomes unlawful for any
Lender or its Applicable Lending Office to honor its obligation to make or
maintain Eurodollar Loans hereunder, then such Lender shall promptly notify the
Borrower thereof (with a copy to the Agent) and such Lender's obligation to
make or continue, or to convert Base Rate Loans into, Eurodollar Loans shall be
suspended until such time as such Lender may again make and maintain Eurodollar
Loans (in which case the provisions of Section 3.4.10 hereof shall be
applicable). If requested by the Borrower, any such Lender shall use
reasonable efforts to designate another Applicable Lending Office, provided
that such designation would not, in the discretion of such Lender exercised in
good faith, be materially disadvantageous to such Lender or in any manner
contrary to such Lender's policy.
SECTION 3.4.10. Treatment of Affected Loans. If the
obligation of any Lender to make Eurodollar Loans or continue, or to convert
Base Rate Loans into, Eurodollar Loans shall be suspended pursuant to Sections
3.4.8 or 3.4.9 hereof, such Lender's Eurodollar Loans shall be automatically
converted into Base Rate Loans on the last day(s) of the then current Interest
Period(s)
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for Eurodollar Loans (or, in the case of a conversion required by Sections
3.4.8 or 3.4.9 hereof, on such earlier date as such Lender may specify to the
Borrower with a copy to the Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Sections 3.4.8 or
3.4.9 hereof which gave rise to such conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans
have been so converted, all payments and prepayments of principal which would
otherwise be applied to such Lender's Eurodollar Loans shall be applied instead
to its Base Rate Loans; and
(b) all Loans which would otherwise be made or continued
by such Lender as Eurodollar Loans shall be made or continued instead as Base
Rate Loans and all Base Rate Loans of such Lender which would otherwise be
converted into Eurodollar Loans shall remain as Base Rate Loans.
Promptly after the circumstances specified in Sections 3.4.8 or 3.4.9 which
gave rise to the conversion of such Lender's Eurodollar Loans pursuant to this
Section 3.4.10 no longer exist, such Lender shall give the Agent and the
Borrower notice thereof, and the Borrower may thereafter request conversion of
such Loans to Eurodollar Loans, subject to the subsequent application of
Section 3.4.8 or 3.4.9.
SECTION 3.4.11. Compensation. The Borrower shall pay to the
Agent for the account of each Lender, upon the request of such Lender through
the Agent, such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost or expense which
such Lender determines is attributable to:
(a) any payment, prepayment or conversion of a Eurodollar
Loan made by such Lender for any reason (including, without limitation, the
acceleration of the Loans pursuant to Article 7 hereof) on a date other than
the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason
(including, without limitation, the failure of any of the conditions precedent
specified in Article 4 hereof to be satisfied) to borrow a Eurodollar Loan from
such Lender on the date for such borrowing specified in the Borrowing Request
given pursuant to Section 3.1 hereof.
SECTION 3.5. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes or any other Loan Document shall be made,
in accordance with this Section 3.5, free and clear of and without deduction
for any and all present or future Taxes. If the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or
under any Note to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
3.5), such Lender or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such
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deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law;
(b) In addition, the Borrower agrees to pay any present
or future stamp or documentary taxes or intangibles taxes or any other excise
or property taxes, transfer taxes, charges or similar levies which arise from
any payment made hereunder or under the Notes or from the execution, delivery
or registration of, or otherwise with respect to this Agreement, the Notes, or
any other Loan Document;
(c) The Borrower will indemnify each Lender and the Agent
for the full amount of the taxes, charges and levies described in clauses (a)
and (b) of this Section 3.5 (including, without limitation, any such taxes,
charges and levies imposed by any jurisdiction on amounts payable under this
Section 3.5) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such taxes, charges and levies were
correctly or legally asserted. Payment under this clause (c) shall be made
within 30 days from the date such Lender or the Agent (as the case may be)
makes written demand therefor;
(d) Within 30 days after the date of any payment of
Taxes, the Borrower will furnish to the Agent, at its address referred to in
Section 9.2, the original or a certified copy of any receipt received by the
Borrower evidencing payment thereof;
(e) On or prior to the Closing Date and on or prior to
the first Business Day of each calendar year thereafter, each Foreign Lender
shall provide the Agent and the Borrower with two properly executed original
Forms 4224 and 1001 (or any successor form) prescribed by the Internal Revenue
Service or other documents satisfactory to the Borrower and the Agent, and
properly executed Internal Revenue Service Forms W-8 or W-9, as the case may
be, certifying (i) as to such Foreign Lenders's status for purposes of
determining exemption from United States withholding taxes with respect to all
payments to be made to such Foreign Lender hereunder and under the Notes or
(ii) that all payments to be made to such Foreign Lender hereunder and under
the Notes are subject to such taxes at a rate reduced to zero by an applicable
tax treaty. Each Foreign Lender agrees to provide the Agent and the Borrower
with new forms prescribed by the Internal Revenue Service upon the expiration
or obsolescence of any previously delivered form, or after the occurrence of
any event requiring a change in the most recent forms delivered by it to the
Agent and the Borrower;
(f) In the event that the Agent or any Lender receives a
refund or credit that, in the good faith determination of the Agent or such
Lender, is attributable to any taxes paid on its behalf by the Borrower in
accordance with this Section 3.5, the Agent or such Lenders, as the case may
be, shall pay an amount equal to such refund or credit to the Borrower; and
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(g) Without prejudice to the survival of any other
agreement hereunder, the agreements and obligations contained in this Section
3.5 shall survive the payment in full of principal and interest hereunder and
under the Notes.
SECTION 3.6. Payments, Interest Rate Computations, Other
Computations, etc. All payments by the Borrower pursuant to this Agreement,
the Notes or any other Loan Document, (a) in respect of principal or interest
on the Bridge Notes, shall be made by the Borrower to the Agent for the account
of the Lenders, pro rata according to their respective unpaid principal amounts
of the Bridge Notes, (b) in respect of principal or interest on the Term Notes,
shall be made by the Borrower to the Agent for the account of the Lenders, pro
rata according to their respective unpaid principal amounts of the Term Notes
and, (c) in respect of principal or interest on the Revolving Notes, shall be
made by the Borrower to the Agent for the account of the Lenders, pro rata
according to their respective unpaid principal amounts of the Revolving Notes.
The payment of the commitment fee referred to in Section 2.4 shall be made by
the Borrower to the Agent for the account of the Lenders entitled thereto pro
rata according to their respective Revolving Percentages. All other amounts
payable to the Agent or any Lender under this Agreement or any other Loan
Document (except under the Facility Fee Letter) shall be paid to the Agent for
the account of the Person entitled thereto. All such payments required to be
made to the Agent shall be made, without setoff, deduction or counterclaim, not
later than 2:00 p.m., New York City time, on the date due, in immediately
available funds, to such account as the Agent shall specify from time to time
by notice to the Borrower. Funds received after that time shall be deemed to
have been received by the Agent on the next following Business Day. The Agent
shall promptly remit in the type of funds received to each Lender notified to
the Agent its share, if any, of such payments received by the Agent for the
account of such Lender or holder. All interest and fees shall be computed on
the basis of the actual number of days (including the first day but excluding
the last day) occurring during the period for which such interest or fee is
payable over a year comprised of 360 days (365 days in the case of interest
computed on the basis of the ING Alternate Base Rate). Whenever any payment to
be made shall otherwise be due on a day which is not a Business Day, such
payment shall be made on the immediately preceding Business Day.
SECTION 3.7. Proration of Payments. If any Lender shall
obtain any payment or other recovery (whether voluntary, involuntary, by
application of setoff or otherwise) on account of principal of or interest on
any Loan or other Obligations in excess of such Lender's or holder's pro rata
share of payments then or therewith obtained thereon by all Lenders, such
Lender which has received in excess of its pro rata share shall purchase from
the other Lenders such participations in such Notes or other Obligations held
by them as shall be necessary to cause such purchaser to share the excess
payment or other recovery ratably with each of them; provided, however, that if
all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing holder, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 3.7 may, to the fullest extent permitted by
law, exercise all its rights of payment (including pursuant to Section 3.8)
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation. If under any
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applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.7 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.7 to share in the benefits of any recovery on such secured claim.
SECTION 3.8. Setoff. In addition to and not in limitation
of any rights of any Lender under applicable law, each Lender shall, upon the
occurrence and during the continuance of any Event of Default, have the right
to appropriate and apply to the payment of the Obligations owing to it
(whether or not then due), and (as security for such Obligations) the Borrower
hereby grants to each Lender, a continuing security interest in, any and all
balances, credits, deposits, accounts or moneys of the Borrower then or
thereafter maintained with such Lender; provided, however, that any such
appropriation and application shall be subject to the provisions of Section 3.7.
SECTION 3.9. Use of Proceeds.
(a) The Borrower shall use the proceeds of the Bridge
Loan on the Closing Date (i) to pay a portion of the Purchase Price, and (ii)
to pay costs and expenses arising in connection with the transactions
contemplated hereby which are set forth in Item 1 (Transaction Costs) of the
Disclosure Schedule, all as more specifically described in Item 2 (Sources and
Uses) of the Disclosure Schedule.
(b) By conversion of $10,000,000 of the outstanding
principal balance of the Bridge Loan into the Term Loan, the Term Loan shall
constitute an extension and renewal of such portion of the Bridge Loan, and the
Term Loan shall not constitute or otherwise be deemed a repayment, refinancing
or novation of any portion of the Bridge Loan.
(c) The Borrower shall use the proceeds of (i) the
Revolving Loans made on the Merger Consummation Date to refinance the remaining
principal balance of the Bridge Loan after conversion of $10,000,000 thereof
into the Term Loan, and to refinance in full the outstanding Indebtedness of
STI described in Item 3 (Indebtedness of STI to be Refinanced) of the
Disclosure Schedule and (ii) the Revolving Loans made after the Merger
Consummation Date for the on-going working capital needs of the Borrower.
(d) No part of the proceeds of any Loans shall be used
for any purpose which violates Regulations G, T, U or X of the F.R.S. Board.
SECTION 3.10. Replacement of Lender Under Certain
Circumstances. If (x) the obligation of any Lender to make Eurodollar Loans or
to continue, or to convert Base Rate Loans into, Eurodollar Loans shall be
suspended pursuant to Sections 3.4.8 or 3.4.9 or (y) the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender in respect of which the Borrower is
required to increase amounts payable to such Lender under subsection (a) of
Section 3.5, in either such case the Borrower may obtain a replacement bank,
financial institution or other lender to acquire and assume all or part of
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such affected Lender's Loans and Revolving Loan Commitment and such affected
Lender shall transfer all or such part of its Loans and Revolving Loan
Commitment upon receipt of the purchase price therefor (which shall equal the
outstanding principal amount of its Loans plus all accrued and unpaid interest
and fees to the date of purchase, plus all other amounts owing by the Borrower
to such affected Lender under this Agreement. Any such replacement bank,
financial institution or other lender shall be subject to the prior written
consent of the Agent, which consent shall not be unreasonably withheld.
ARTICLE 4.
CONDITIONS TO LOANS
SECTION 4.1. Bridge Loan. The obligations of the Lenders
to fund the Bridge Loan on the Closing Date shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 4.1.
SECTION 4.1.1. Resolutions, etc. The Agent shall have
received:
(a) a certificate, dated the Closing Date, of the
Secretary of each Loan Party as of the Closing Date as to:
(i) resolutions of its Board of Directors, then in full
force and effect authorizing the execution, delivery and performance
of the Loan Documents to which such Loan Party is a party and the
related transactions contemplated thereby, and
(ii) the incumbency and signatures of those of its
officers authorized to act with respect to the Loan Documents to which
it is party, upon which certificate each Lender may conclusively rely
until it shall have received further certificates of the Secretary of
such Loan Party canceling or amending such prior certificates;
(b) copies of the Organic Documents of each Loan Party as
of the Closing Date certified by, in the case of the charters, the appropriate
Governmental Authority of the State of such Loan Party's incorporation and, in
the case of its other Organic Documents, such Loan Party's Secretary, which
documents shall be satisfactory to the Agent;
(c) a so-called "good standing" certificate with respect
to each Loan Party as of the Closing Date from the appropriate Governmental
Authority of the State of its incorporation;
(d) evidence of qualification of each Loan Party as of
the Closing Date to do business in each other jurisdiction in which the failure
to so qualify could result in a Material Adverse Change; and
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(e) such other documents (certified if requested) as the
Agent or the Required Lenders may reasonably request, with respect to this
Agreement, the Notes, any other Loan Document, the transactions contemplated
hereby and thereby, or any Organic Document, Contractual Obligation or
Regulatory Approval.
SECTION 4.1.2. Bridge Notes. The Agent shall have received
for the account of each Lender, such Lender's Bridge Note, in each case duly
executed and delivered pursuant to clause (a) of Section 3.2.
SECTION 4.1.3. Subsidiary Guaranty. The Agent shall have
received for the account of each Lender the Brunswick Subsidiary Guaranty, duly
executed and delivered by each Subsidiary of Brunswick located in the United
States, other than STI and its Subsidiaries and other than the Inactive
Subsidiaries.
SECTION 4.1.4. No Contest, etc. No litigation, arbitration,
governmental investigation, injunction, proceeding or inquiry shall be pending
or, to the knowledge of Brunswick, threatened which:
(a) seeks to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief from Brunswick, Technology or,
to the knowledge of Brunswick, the Estate, as a result of, the transactions
contemplated by or in connection with the Acquisition Agreement, this Agreement
or any Loan Document; or
(b) would, in the opinion of the Agent, be materially
adverse to any of the parties hereto with respect to the transactions
contemplated hereby;
No litigation set forth in Item 4 (Litigation) of the Disclosure Schedule, in
the reasonable opinion of the Agent, could result in a Material Adverse Change
or give rise to any liability on the part of the Agent or any Lender in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.
SECTION 4.1.5. Certificate as to Completed Conditions,
Warranties, No Default, etc. The Agent shall have received a certificate,
dated the Closing Date, of the chief executive officer of Brunswick, to the
effect that:
(a) all conditions precedent set forth in this Section
4.1 and in Section 4.3 have been satisfied;
(b) all representations and warranties set forth in
Article 5 are true and correct in all material respects;
(c) all representations and warranties set forth in the
Loan Documents are true and correct in all material respects; and
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(d) no Default has occurred and is continuing.
SECTION 4.1.6. Opinion of Counsel. The Agent shall have
received opinion letters, dated the Closing Date and addressed to the Agent and
all Lenders, from Palmer & Dodge, counsel to Brunswick and its Subsidiaries, in
form and substance satisfactory to the Agent, and covering such matters as the
Agent may request, including the Acquisition.
SECTION 4.1.7. Closing Fees, Expenses, etc. The Agent shall
have received the facility fee, which was due and payable pursuant to the terms
of the Facility Fee Letter, and all costs and expenses which have been invoiced
and are payable upon the initial Borrowing pursuant to Section 9.3.
SECTION 4.1.8. Security Documents and Perfection. The Agent
shall have received:
(a) The Brunswick Security Agreement, duly executed by an
Authorized Officer of Brunswick and each Subsidiary of Brunswick located in the
United States, other than STI and its Subsidiaries and other than the Inactive
Subsidiaries;
(b) The Brunswick Patent Assignment and the Brunswick
Trademark Assignment duly executed by an Authorized Officer of Brunswick, and
the Technology Patent Assignment and Technology Trademark Assignment duly
executed by an Authorized Officer of Technology;
(c) Evidence of all filings of the Financing Statements
with respect to the Brunswick Security Agreement and other Security Documents
executed on the Closing Date; searches or other evidence as to the absence of
any perfected security interests or Liens (except those previously disclosed to
and consented to by the Lenders); and evidence that all other actions
(including all actions necessary such that the Brunswick Patent Assignment, the
Brunswick Trademark Assignment, the Technology Patent Assignment and the
Technology Trademark Assignment are acceptable for filing in the United States
Patent and Trademark Office and the payment of all documentary, intangibles,
filing and recording taxes and fees) with respect to the Liens created by the
Security Documents executed on the Closing Date have been taken as are
necessary or appropriate to perfect such Liens;
(d) The Brunswick Pledge Agreement, duly executed by an
Authorized Officer of Brunswick;
(e) All (i) stock certificates and undated stock powers
duly executed in blank relating thereto with respect to the pledged securities
under the Brunswick Pledge Agreement, which pledged securities shall consist of
the STI Shares and all outstanding Stock held by Brunswick in its other
Subsidiaries located in the United States (other than the Inactive
Subsidiaries) and (ii) all promissory notes and other instruments owned by
Borrower duly endorsed in blank pledged under the Brunswick Pledge Agreement;
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(f) A collateral assignment to the Agent, for its benefit
and the ratable benefit of the Lenders, of Brunswick's rights under the
Acquisition Agreement and all other documents executed or delivered by the
Estate pursuant to the Acquisition Agreement, duly consented to by the Estate,
which assignment shall be in form and substance satisfactory to the Agent;
(g) A collateral assignment to the Agent, for its benefit
and the ratable benefit of the Lenders, of Brunswick's rights under the Estate
Registration Rights Agreement, which assignment and registration rights shall
be in form and substance satisfactory to the Agent;
(h) The Cash Reserve Account Agreement, duly executed by
Brunswick, the Agent and SunTrust Bank, Atlanta.
SECTION 4.1.9. Employment Agreements; Compensation. The
Agent shall have received copies of all employment agreements to which
Brunswick or any of its Subsidiaries is a party (including STI or any of its
Subsidiaries), and the Agent shall be satisfied in all respects with the levels
of compensation (including, without limitation, fees, wages, salaries, deferred
payment arrangements, stock options, incentive plans and pension or employee
benefit contributions) paid to key members of management.
SECTION 4.1.10. Pension and Welfare Liabilities. The Agent
shall have received (i) the most recent actuarial valuation report for each
Single Employer Plan, if any, and a copy of Schedule B to the Annual Report on
Form 5500 of the Internal Revenue Service for each such Single Employer Plan
most recently filed with the Internal Revenue Service, and (ii) a report
prepared by Brunswick in form and substance satisfactory to the Agent detailing
any liabilities of Brunswick and each of its Subsidiaries and of STI and each
of its Subsidiaries, and of each Commonly Controlled Entity of Brunswick or STI
for post-retirement benefits under Plans which are welfare benefit plans.
SECTION 4.1.11. Insurance. The Agent shall have received
evidence satisfactory to it that the insurance maintained by Brunswick, STI and
their respective Subsidiaries is issued by an insurance company with a Best's
rating of "A" or better and a financial size category of not less than XII, is
in amounts satisfactory to the Agent and, in the case of insurance maintained
by Brunswick and its Subsidiaries (other than STI and its Subsidiaries), under
policies naming the Agent as loss payee (in the case of casualty insurance
policies) and as additional insured (in the case of liability policies), and
otherwise complying with the requirements of this Agreement and the Security
Documents.
SECTION 4.1.12. Key Man Insurance. Brunswick shall have
purchased "key-man" life insurance policies in the total amount of $500,000 on
the life of James H. Miller.
SECTION 4.1.13. Financial Information, etc. The Agent shall
have received the historical financial statements referred to in Section 5.4,
the Closing Date Pro Forma Balance Sheet, a Fair Saleable Value Balance Sheet
for Brunswick as of the Closing Date, the Trial Merger Pro Forma Balance Sheet
and the Projections.
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SECTION 4.1.14. Solvency, etc. The Fair Saleable Value
Balance Sheet for Brunswick as of the Closing Date shall show that the assets
of Brunswick are at least $6,540,888 greater than the liabilities of Brunswick
(including all liabilities and obligations of Brunswick, fixed or contingent,
direct or indirect, disputed or undisputed, and whether or not required to be
reflected on a balance sheet prepared in accordance with GAAP, except to the
extent noted thereon); and the Agent shall have received a certificate of the
chief executive officer of Brunswick dated the Closing Date, stating that,
after giving effect to the consummation of the transactions contemplated by
this Agreement to occur on the Closing Date (including the Acquisition and the
making of the Bridge Loan), each of Brunswick and Technology is Solvent.
SECTION 4.1.15. Acquisition. The Acquisition Agreement shall
remain in full force and effect and shall not have been amended, modified or
supplemented without the Agent's approval, all conditions precedent to the
consummation by Brunswick of the transactions contemplated by the Acquisition
Agreement shall have been fully satisfied or waived with the consent of the
Agent, Brunswick shall have delivered to the Agent evidence satisfactory to the
Agent that the Acquisition shall be consummated simultaneously with the funding
of the Bridge Loan substantially in accordance with the terms of the
Acquisition Agreement, and Brunswick shall have delivered to the Agent each of
the following:
(a) resolutions of the boards of directors and, to the
extent required, the stockholders of Brunswick, certified by the Secretary of
Brunswick, to be duly adopted and in full force and effect on the Closing Date,
authorizing the execution, delivery and performance of the Acquisition
Agreement;
(b) certified copies of all documents evidencing any
other necessary corporate action, consents and Regulatory Approvals with
respect to the consummation of the transactions contemplated by the Acquisition
Agreement; and
(c) a certificate from the chief executive officer of
Borrower to the effect that attached thereto are true and correct copies of the
Acquisition Agreement and each of the material documents, instruments and
agreements executed and delivered pursuant to the Acquisition Agreement and
making such statements of fact concerning the Acquisition and the other
transactions consummated pursuant to such agreements as the Agent shall
reasonably request.
SECTION 4.1.16. Cash Reserve Fund. Brunswick shall have
established the Cash Reserve Account for the benefit of the Agent and shall
have irrevocably directed the Agent to deposit from the proceeds of the Bridge
Loan the sum of $1,000,000 in the Cash Reserve Account.
SECTION 4.1.17. Capital Contributions; Junior Subordinated
Note. The Agent shall have received evidence that, since August 1, 1995,
Brunswick has received not less than $7,000,000 in cash proceeds from the
issuance of its Stock, and $1,000,000 in cash proceeds from the issuance of the
Junior Subordinated Note.
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SECTION 4.1.18. Other Documents, Certificates, Etc. The
Agent shall have received such other documents, certificates, opinions of
counsel or other materials as it reasonably requests from any Loan Party.
SECTION 4.2. Term Loan and Revolving Loans. The
obligations of the Lenders to fund the Term Loan and Revolving Loans on the
Merger Consummation Date shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section 4.2.
SECTION 4.2.1. Resolutions, etc. The Agent shall have
received:
(a) a certificate, dated the Merger Consummation Date, of
the Secretary of STI as to:
(i) resolutions of its Board of Directors, then in full
force and effect authorizing (A) the Merger, (B) the execution,
delivery and performance of the Assumption Agreement, the Term Notes,
the Revolving Notes and all other Loan Documents to which such Loan
Party is a party and (C) the related transactions contemplated
thereby, and
(ii) the incumbency and signatures of those of its
officers authorized to act with respect to the Assumption Agreement,
the Term Notes, the Revolving Notes and all Loan Documents to which it
is party, upon which certificate each Lender may conclusively rely
until it shall have received further certificates of the Secretary of
such Loan Party canceling or amending such prior certificates;
(b) a certificate, dated as of the Merger Consummation
Date, of the Secretary of each Subsidiary of STI executing a Loan Document as
of the Merger Consummation Date as to:
(i) resolutions of its Board of Directors, then in full
force and effect, authorizing the execution, delivery and performance
of each Loan Document to which such Subsidiary is a party and the
transactions contemplated thereby, and
(ii) the incumbency and signature of those of its officers
authorized to act with respect to all Loan Documents to which it is a
party, upon which certificate each Lender may conclusively rely until
it shall have received further certificates of the Secretary of such
Subsidiary canceling or amending such prior certificate;
(c) copies of the Organic Documents of STI and each
Subsidiary of STI executing a Loan Document as of the Merger Consummation Date
certified by, in the case of charters, the appropriate Governmental Authority
of the State of such Loan Party's incorporation and, in the case of its other
Organic Documents, such Loan Party's Secretary, which documents shall be
satisfactory to the Agent;
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(d) a so-called "good standing" certificate with respect
to STI and each Subsidiary of STI executing a Loan Document as of the Merger
Consummation Date from the appropriate Governmental Authority of the State of
its incorporation;
(e) evidence of qualification of STI and each Subsidiary
of STI to do business in each other jurisdiction in which the failure to so
qualify could result in a Material Adverse Change; and
(f) such other documents (certified if requested) as the
Agent may reasonably request, with respect to this Agreement, the Notes, any
other Loan Document, the transactions contemplated hereby and thereby, or any
Organic Document, Contractual Obligation or Regulatory Approval.
SECTION 4.2.2. Term Notes and Revolving Notes. The Agent
shall have received for the account of each Lender, such Lender's Term Note and
Revolving Note, in each case, duly executed and delivered by STI pursuant to
clauses (b) and (c) of Section 3.2.
SECTION 4.2.3. STI Subsidiary Guaranty. The Agent shall
have received for the account of each Lender the STI Subsidiary Guaranty, duly
executed and delivered by each Subsidiary of STI located in the United States,
other than the Inactive Subsidiaries.
SECTION 4.2.4. Release of Liens on Assets. All Indebtedness
of STI and its Subsidiaries described in Item 3 (Indebtedness of STI to be
Refinanced) of the Disclosure Schedule shall have been repaid in full and all
holders of such Indebtedness shall have acknowledged such repayment, released
STI and its Subsidiaries from any liability in respect of such Indebtedness,
and released all Liens on the assets securing such Indebtedness pursuant to
UCC-3 Termination Statements and other Instruments as shall be suitable or
appropriate in connection therewith.
SECTION 4.2.5. No Contest, etc. No litigation, arbitration,
governmental investigation, injunction, proceeding or inquiry shall be pending
or, to the knowledge of Brunswick or STI, threatened which:
(a) seeks to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief as a result of, the Merger or
the transactions contemplated by or in connection with this Agreement, the
Assumption Agreement or any other Loan Document; or
(b) would, in the reasonable opinion of the Agent be
materially adverse to any of the parties hereto with respect to the
transactions contemplated hereby;
No litigation set forth in Item 4 (Litigation) of the Disclosure Schedule, in
the reasonable opinion of the Agent, could result in a Material Adverse Change
or give rise to any liability on the part of the Agent or any Lender in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.
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SECTION 4.2.6. Certificate as to Completed
Conditions, Warranties, No Default, etc. The Agent shall have received a
certificate, dated the Merger Consummation Date, of the chief executive officer
of STI to the effect that;
(a) all conditions precedent set forth in this Section
4.2 and in Section 4.3 have been satisfied;
(b) all representations and warranties set forth in
Article 5 are true and correct in all material respects;
(c) all representations and warranties set forth in the
Loan Documents are true and correct in all material respects; and
(d) no Default has occurred and is continuing.
SECTION 4.2.7. Opinions of Counsel. The Agent shall have
received opinion letters, dated the Merger Consummation Date and addressed to
the Agent and all Lenders, from
(a) counsel to STI and its Subsidiaries, substantially in
the form of Exhibit H;
(b) counsel to STI in the States of Maryland and Missouri,
in form and substance reasonably satisfactory to the Agent and covering such
matters as the Agent may request;
(c) counsel to STI and STI International, Limited in
England, in form and substance reasonably satisfactory to the Agent and
covering such matters relating to the Share Charge and STI International,
Limited, as the Agent may request; and
(d) if required by the Agent, counsel to STI and
Brunswick Biomedical Limited in Ireland, in form and substance reasonably
satisfactory to the Agent and covering such matters related to Brunswick
Biomedical Limited and a share charge over Stock of Brunswick Biomedical
Limited owned by STI or any of its Subsidiaries as the Agent may request.
SECTION 4.2.8. Assumption Agreement. The Agent shall have
received the Assumption Agreement duly executed by an Authorized Officer of STI.
SECTION 4.2.9. Security Documents and Perfection. The Agent
shall have received:
(a) The STI Security Agreement, duly executed by an
Authorized Officer of STI and each Subsidiary of STI located in the United
States, other than the Inactive Subsidiaries;
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(b) The STI Patent Assignment and the STI Trademark
Assignment duly executed by an Authorized Officer of STI and each Subsidiary of
STI located in the United States, other than the Inactive Subsidiaries;
(c) Evidence of all filings of the Financing Statements
with respect to the STI Security Agreement and the other Security Documents
executed and delivered by STI and its Subsidiaries on the Merger Consummation
Date; evidence that all other actions (including all actions necessary such
that the STI Patent Assignment and the STI Trademark Assignment are acceptable
for filing in the United States Patent and Trademark Office and the payment of
all documentary, intangibles, filing and recording taxes and fees) with respect
to the Liens created by the Security Documents executed by STI and its
Subsidiaries on the Merger Consummation Date have been taken as are necessary
or appropriate to effect such Liens;
(d) UCC amendments to all Financing Statements naming
Brunswick as debtor and filed pursuant to clause (c) of Section 4.1.8, amending
such Financing Statements to reflect that the debtor with respect to such
Financing Statements is STI as successor by merger to Brunswick, in each case
duly executed by the Borrower;
(e) searches or other evidence as to the absence of any
perfected security interests or Liens (except those permitted under Section
6.2.3 and those to be released pursuant to Section 4.2.4.) against STI or any
of its property; and evidence that all other actions with respect to the Liens
created by the Security Documents have been taken as are necessary or
appropriate to continue the perfection of Liens granted thereunder; and
(f) The STI Pledge Agreement and the Share Charge, duly
executed by an Authorized Officer of STI, and if requested by the Agent prior
to the Merger Consummation Date, a share charge (or the equivalent thereof)
pursuant to which sixty-six and two-thirds (66 2/3%) of the outstanding Stock
of Brunswick Biomedical Limited shall be pledged to the Agent, duly executed by
an Authorized Officer of STI and any Subsidiary of STI that owns such Stock;
(g) all (i) stock certificates and undated stock powers
duly executed in blank relating thereto with respect to the pledged securities
under the STI Pledge Agreement, which pledged securities shall constitute
(after giving effect to the Merger) all outstanding stock of all Subsidiaries
of STI located in the United States (other than the Inactive Subsidiaries) and
sixty-six and two-thirds percent (66-2/3%) of the outstanding stock of all
Subsidiaries of STI located outside the United States; provided, however, STI
and its Subsidiaries shall not have to pledge any shares of outstanding Stock
of Brunswick Biomedical Limited unless requested by the Agent prior to the
Merger Consummation Date; and (ii) all promissory notes and other instruments
owned by STI duly endorsed in blank pledged under the STI Pledge Agreement.
(h) Mortgages covering the real property owned and leased
by STI which is identified on Item 5 (Mortgaged Property) of the Disclosure
Schedule, together with such title insurance policies, title searches,
abstracts of title or other title work as may be required by the Agent
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with regard to such real property, insuring the security title of the Agent in
such real property and including such endorsements as the Agent shall require,
as well as surveys, valuations of properties and assets, certificates of
occupancy, deeds, leases, tenant subordination agreements, leasehold
assignments and related consents of landlords, and such environmental reports,
assessments and diligence as the Agent shall require; and
(i) An assignment to the Agent, for its benefit and the
ratable benefit of the Lenders, of the insurance policies described in Section
4.1.12 (with respect to which the insurer shall have executed and delivered to
the Agent a written consent), which assignment shall be in form and substance
satisfactory to the Agent.
SECTION 4.2.10. Financial Information, etc. The Agent shall
have received unaudited consolidated balance sheets of STI as of the last day
of each Fiscal Quarter subsequent to the Fiscal Quarter ending January 31, 1996
and ending prior to the Merger Consummation Date and the related consolidated
statements of income for each of such Fiscal Quarters, and, if available, the
consolidated audited balance sheets of STI as of July 31, 1996, as well as the
Merger Pro Forma Balance Sheet, a Fair Saleable Value Balance Sheet for STI as
of the Merger Consummation Date, and, to the extent required to reflect
historical experience, revisions to the Projections delivered as of the Closing
Date.
SECTION 4.2.11. Solvency, etc. The Fair Saleable Value
Balance Sheet for STI as of the Merger Consummation Date shall show that the
assets of STI (after giving effect to the Merger) are at least $6,540,888
greater than the liabilities of STI (after giving effect to the Merger)
(including all liabilities and obligations of STI, fixed or contingent, direct
or indirect, disputed or undisputed, and whether or not required to be
reflected on a balance sheet prepared in accordance with GAAP, except to the
extent noted thereon); and the Agent shall have received a certificate of the
chief executive officer of STI dated the Merger Consummation Date, stating that
after giving effect to the consummation of the transactions contemplated by
this Agreement to occur on the Merger Consummation Date (including the Merger,
the making of the Revolving Loans to be made on the Merger Consummation Date
and the conversion of $10,000,000 of the Bridge Loan into the Term Loan), STI
and each of its Subsidiaries (other than the Inactive Subsidiaries) is Solvent.
SECTION 4.2.12. Merger of Brunswick into STI. The Agent shall
have received:
(a) evidence that all filings and registrations required
to be made with the Securities and Exchange Commission in connection with the
consummation of the Merger shall have been submitted and, to the extent
applicable, approved, and shall be effective;
(b) copies of all agreements, instruments, and documents
executed, delivered or furnished in connection with the Merger (the "Merger
Documents"), and evidence that the Merger Documents remain in full force and
effect and have not have been amended, modified or supplemented and that all
conditions precedent to the consummation of the Merger have been fully
satisfied or waived;
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(c) each of the following, in form and substance
satisfactory to the Agent:
(i) resolutions of the boards of directors and, to the
extent required, the stockholders of Brunswick and STI, certified by
the Secretary of Brunswick and STI, respectively, to be duly adopted
and in full force and effect on the Merger Consummation Date,
authorizing and approving the Merger and the execution, delivery and
performance of the Merger Documents;
(ii) certified copies of all documents evidencing any
other necessary corporate action, consents and Regulatory Approvals
with respect to the consummation of the Merger;
(iii) a certificate from the chief executive officer of
Borrower (A) to the effect that attached thereto are true and correct
copies of the Merger Documents and each of the material documents,
instruments and agreements executed and delivered pursuant thereto,
that the Merger has been consummated in accordance with all applicable
law, rules and regulations, including all securities and antitrust
laws and regulations, and that all Regulatory Approvals required in
connection with the Merger have been obtained, and (B) making such
other statements of fact concerning the Merger as the Agent shall
reasonably request;
(d) a certificate from the chief executive officer of
Borrower certifying that no shareholder of STI has exercised or that no
shareholder of STI is entitled to exercise any appraisal rights they may have
in connection with the Merger, whether such rights arise as a matter of law or
otherwise; and
(e) a certificate from the chief executive officer of
Borrower certifying that shareholders of Brunswick holding no more than three
percent (3%) of the outstanding capital stock of Brunswick have exercised any
appraisal rights they may have in connection with the Merger, whether such
rights arise as a matter of law or otherwise.
SECTION 4.2.13. Maturity of Bridge Loan. The date of the
conversion of $10,000,000 of the outstanding principal balance of the Bridge
Loan and the funding of the Revolving Loans to be funded on the Merger
Consummation Date shall be on or prior to the Stated Maturity Date of the
Bridge Loan.
SECTION 4.2.14. Reaffirmation of Representations and
Warranties. The Borrower shall have reaffirmed as of the Merger Consummation
Date, in form and substance satisfactory to the Agent, each of the
representations and warranties made in Article 5 of this Agreement, except for
any such representation or warranty expressly made as of a particular date,
which STI shall have reaffirmed as of such date. In addition, STI shall have
represented and warranted to the Agent and the Lenders the following (which
shall be deemed to supplement the representations and warranties in Article 5):
(i) the Merger Pro Forma Balance Sheet has been prepared in accordance with
GAAP consistently applied (except to the extent based upon estimates)
throughout the periods involved and presents fairly in all material respects
the matters reflected
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therein, (ii) as of the Merger Consummation Date, neither STI nor its
Subsidiaries has material contingent liabilities or material liabilities for
taxes, long-term leases or unusual forward or long-term commitments which are
not reflected in such Merger Pro Forma Balance Sheet, (iii) as of the Merger
Consummation Date, after giving effect to the consummation of the transactions
contemplated by this Agreement and the other Loan Documents to occur on the
Merger Consummation Date (including the Merger, the conversion of $10,000,000
of the outstanding principal balance of the Bridge Loan into the Term Loan and
the making of the Revolving Loans contemplated to be made on the Merger
Consummation Date), STI is solvent, and (iv) each of the Security Documents
executed on the Merger Consummation Date creates a fully perfected first lien
on, and security interest in, all right, title and interest of the Loan Parties
executing such Security Documents in all of the Collateral described therein,
other than Liens permitted under Section 6.2.3.
SECTION 4.2.15. No Dividends; etc. Since the Closing Date,
STI shall not have declared or paid any dividends or other distributions on its
Stock, and no material increase shall have occurred in the liabilities,
liquidated or contingent, of STI and its Subsidiaries and no material decrease
shall have occurred in the assets of STI and its Subsidiaries.
SECTION 4.3. All Loans. Without duplication of any
conditions precedent required to be satisfied pursuant to Section 4.1 or
Section 4.2, the obligations of the Lenders to make any Loan, shall be subject
to the satisfaction of each of the additional conditions precedent set forth in
this Section 4.3.
SECTION 4.3.1. Compliance with Warranties, No Default, etc.
The representations and warranties set forth in Article 5 (including from and
after the Merger Consummation Date, those representations and warranties set
forth in Section 4.2.14) shall have been true and correct in all material
respects as of the date initially made. In addition, both before and after
giving effect to the making of any such Loan and the application of the proceeds
thereof,
(a) such representations and warranties shall be
true and correct in all material respects with the same effect as if
then made (except to the extent expressly made as of a specified date,
in which case such representations and warranties shall be true as of
such specified date);
(b) all representations and warranties set forth
in the Security Documents shall be true and correct in all material
respects with the same effect as if then made (except to the extent
expressly made as of a specified date, in which case such
representations and warranties shall be true as of such specified
date);
(c) no material adverse development shall have
occurred in any litigation, arbitration or governmental investigation,
proceeding or inquiry disclosed pursuant to Section 5.7 which renders
such litigation, arbitration or governmental investigation or inquiry
or proceeding, in the reasonable opinion of the Required Lenders,
likely to be adversely determined and, if adversely determined, could
result in a Material Adverse Change; and
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(d) no Default shall have occurred and be continuing.
SECTION 4.3.2. Borrowing Request, etc. The Agent shall have
received a duly completed Borrowing Request. The delivery of any such
Borrowing Request, and the acceptance by the Borrower of the proceeds of any
such Loan, shall constitute a representation and warranty by the Borrower that
on the date of such request for a Loan, and before and after giving effect to
the making of such Loan and the application of any proceeds of such Loan, all
statements set forth in Section 4.3.1 are true and correct. In the event that,
in connection with the delivery of any such Borrowing Request the Borrower is
required to amend any Item of the Disclosure Schedule in order that the
statement set forth in clause (a) or (b) of Section 4.3.1 shall be true and
correct, the Borrower shall deliver to the Agent at least three (3) Business
Days prior to the date of the Borrowing requested or to be requested, a request
that such Item of the Disclosure Schedule be amended, and the Agent shall
promptly forward such request to the Lenders. To the extent that the Required
Lenders agree to such requested amendment or otherwise make any Loans after
receipt of such request, the representations and warranties proposed to be
amended by such amendment to the Disclosure Schedule will be deemed amended for
purposes of this Agreement.
SECTION 4.3.3. Satisfactory Legal Form. All documents
executed or submitted by or on behalf of the Borrower or any Subsidiary shall
be reasonably satisfactory in form and substance to the Agent and its counsel,
the Agent and its counsel shall have received all information, and such
counterpart originals or such certified or other copies of such Instruments, as
the Agent or its counsel may request. All legal matters incident to the
transactions contemplated by this Agreement shall be satisfactory to counsel to
the Agent.
SECTION 4.3.4. Margin Regulations. The making of such Loan
and the use of the proceeds thereof shall not violate Regulations G, T, U and X
of the F.R.S. Board.
SECTION 4.3.5. Adverse Change. In the reasonable judgment
of the Required Lenders, no Material Adverse Change shall have occurred since
the Closing Date.
SECTION 4.3.6. Change in Law. On the date of such Loan, no
change shall have occurred in applicable law, or in applicable regulations
thereunder or in interpretations thereof by any court or Governmental Authority
which, in the opinion of any Lender, would make it illegal for such Lender to
make the Loan required to be made on such date.
ARTICLE 5.
WARRANTIES, ETC.
In order to induce the Lenders and the Agent to enter into
this Agreement, to engage in the transactions contemplated herein and in the
other Loan Documents and to make the Loans, the
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Borrower represents and warrants to the Agent and each Lender as set forth in
this Article 5; provided, however, that to the extent any representation or
warranty made by Brunswick prior to the Merger Consummation Date relates to STI
or any of its Subsidiaries, such representation or warranty is made to the best
knowledge of Brunswick.
SECTION 5.1. Organization, Power, Authority, etc. Each of
the Borrower and its Subsidiaries (i) is a corporation validly organized and
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified to do business and is in good standing as
a foreign corporation in each jurisdiction where the failure to so qualify
could result in a Material Adverse Change, and (iii) has full power and
authority, and, except as set forth in Item 6 (Governmental Licenses) of the
Disclosure Schedule, holds all governmental licenses, permits, registrations
and other Regulatory Approvals required under all Requirements of Law, to own
and hold under lease its property and to conduct its business as conducted
prior to the Closing Date and as contemplated to be conducted subsequent to the
Closing Date and the Merger Consummation Date. Each Loan Party has full power
and authority to enter into and perform its Obligations under this Agreement,
the Notes and each other Loan Document executed or to be executed by it and to
incur Indebtedness hereunder or under the Subsidiary Guaranty, as the case may
be.
SECTION 5.2. Due Authorization. The execution and
delivery by each Loan Party of each Loan Document executed or to be executed by
it, and the incurrence and performance by such Loan Party of its respective
Obligations have been duly authorized by all necessary corporate action, do not
require any Regulatory Approval (except those Regulatory Approvals already
obtained), do not and will not conflict with, result in any violation of, or
constitute any default under, any provision of any Organic Document or
Contractual Obligation of such Loan Party or any law or governmental regulation
or court decree or order, and will not result in or require the creation or
imposition of any Lien on such Loan Party's properties pursuant to the
provisions of any Contractual Obligation of such Loan Party.
SECTION 5.3. Validity, etc. Each of this Agreement, the
Notes and the other Loan Documents constitutes the legal, valid and binding
obligation of each Loan Party executing and delivering such Loan Document,
enforceable in accordance with its terms subject to the effect of any
applicable bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally, and the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
SECTION 5.4. Financial Information; Solvency.
(a) Except as disclosed in Item 7 (Exceptions to GAAP) of
the Disclosure Schedule, all balance sheets, all statements of operations,
stockholders' equity and cash flows, and all other financial information of
Brunswick and STI which have been furnished by or on behalf of Brunswick or STI
to the Agent and the Lenders for the purposes of or in connection with this
Agreement or any transaction contemplated hereby, including:
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(i) the consolidated audited balance sheets of Brunswick
as of June 30, 1994 and June 30, 1995, and the related consolidated
statements of income and cash flows for each of the two (2) fiscal
years of Brunswick ending June 30, 1994 and June 30, 1995, together
with the opinion thereon of Arthur Andersen LLP;
(ii) the unaudited consolidated balance sheets of
Brunswick as of September 30, 1995 and December 31, 1995, and the
related consolidated statements of income for each of the fiscal
quarters of Brunswick ending September 30, 1995 and December 31, 1995;
(iii) the consolidated audited balance sheets of STI as of
July 31, 1994 and July 31, 1995, and the related consolidated
statements of income and cash flows for each of the two (2) fiscal
years of STI ending July 31, 1994 and July 31, 1995, each as included
in its annual report on Form 10-K filed with the Securities and
Exchange Commission, together with the opinion thereon of Price
Waterhouse LLP;
(iv) the unaudited consolidated balance sheets of STI as
of October 31, 1995 and January 31, 1996 and the related consolidated
statements of income for each of the fiscal quarters of STI ending
October 31, 1996 and January 31, 1996, each as included in its
quarterly report on Form 10-Q filed with the Securities and Exchange
Commission;
(v) the Closing Date Pro Forma Balance Sheet;
(vi) the Trial Merger Pro Forma Balance Sheet; and
(vii) the Projections;
have been prepared in accordance with GAAP consistently applied (except to the
extent items in the Closing Date Pro Forma Balance Sheet, the Trial Merger Pro
Forma Balance Sheet, and the Projections are based upon estimates) throughout
the periods involved and present fairly in all material respects the matters
reflected therein subject, in the case of unaudited statements, to changes
resulting from normal year-end audit adjustments and except as to the absence
of footnotes. As of the Closing Date, neither Brunswick nor STI nor any of
their respective Subsidiaries has material contingent liabilities or material
liabilities for taxes, long-term leases or unusual forward or long-term
commitments which are not reflected in the financial statements described in
clauses (i), (ii), (iii), (iv), (v) and (vi).
(b) After giving effect to the consummation of the
transactions contemplated by this Agreement and the other Loan Documents to
occur on the Closing Date (including the Acquisition and the Bridge Loan),
Brunswick is Solvent.
SECTION 5.5. Material Adverse Change. (a) Since June 30,
1995, there has been no material adverse change in the condition (financial or
otherwise), operations, performance, business, properties or prospects of the
Brunswick and its Subsidiaries (other than STI and its
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Subsidiaries), taken as a whole, or in any industry in which the Borrower or
any of its Subsidiaries (other than STI and its Subsidiaries) is engaged in any
material respect.
(b) Since July 31, 1995, there has been no material
adverse change in the condition (financial or otherwise), operations,
performance, business, properties or prospects of STI and its Subsidiaries,
taken as a whole, or in any industry in which STI or any of its Subsidiaries is
engaged in any material respect.
SECTION 5.6. Absence of Default. Neither the Borrower nor
any Subsidiary is in default in the payment of (or in the performance of any
obligation applicable to) any Indebtedness, or is in material default under any
regulation of any Governmental Agency or court decree or order, or is in
default under any Requirements of Law which default could result in a Material
Adverse Change.
SECTION 5.7. Litigation, Legislation, etc. Except as
disclosed in Item 4 (Litigation) of the Disclosure Schedule, there is no
pending or, to the knowledge of the Borrower, threatened litigation,
arbitration or governmental investigation, proceeding or inquiry which, if
adversely determined, could result in a Material Adverse Change; and none of
the proceedings set forth in such Item 4 seeks to amend, modify or enjoin the
transactions contemplated hereby or is likely to be adversely determined.
There is no legislation, governmental regulation or judicial decision that
could result in a Material Adverse Change.
SECTION 5.8. Regulations G, T, U and X. Neither the
Borrower nor any Subsidiary is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying Margin Stock (as defined in F.R.S. Board Regulation G or U) and,
except for the STI Shares prior to the Merger Consummation Date, no assets of
the Borrower or any Subsidiary consist of Margin Stock. The Loans hereunder
will not be used for a purpose which violates, or would be inconsistent with,
F.R.S. Board Regulation G, T, U or X.
SECTION 5.9. Government Regulation. Neither the Borrower
nor any Subsidiary is an "investment company" within the meaning of the
Investment Holding Company Act of 1940, as amended, or a "holding company," or
a "subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company," within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or
subject to regulation under the Federal Power Act, the Interstate Commerce Act
or any other federal or state law limiting its ability to incur Indebtedness or
to execute, deliver or perform the Loan Documents to which it is party.
SECTION 5.10. Taxes. Each of the Borrower and its present
or past Subsidiaries has filed all tax returns and reports required by law to
have been filed by it and has paid all taxes and Charges thereby shown to be
owing, except any such taxes or Charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
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SECTION 5.11. Pension and Welfare Plans. (a) Except as
disclosed in Item 8 (Benefit Plans) of the Disclosure Schedule, neither the
Borrower nor any Subsidiary or Commonly Controlled Entity has assumed any
material liability under any employee benefit plan, fund, program,
arrangement, agreement or commitment maintained by or on behalf of or
contributed to by or on behalf of any entity or trade or business which,
together with any of such corporations, is treated as a single employer under
Sections 414(b), (c), (m) or (o) of the IRC. Neither the Borrower nor any
Subsidiary or Commonly Controlled Entity shall be subject (directly or
indirectly) to any material liability, tax or penalty whatsoever to any person
whomsoever with respect to any employee benefit plan, fund, program,
arrangement, agreement or commitment described in the immediately preceding
sentence.
(b) No Reportable Event which could result in a Material
Adverse Change has occurred during the six-year period prior to the date on
which this representation is made or deemed made with respect to any Single
Employer Plan. The Borrower, each Commonly Controlled Entity, each Subsidiary,
each Plan, and each trust maintained pursuant to any such Plan have complied in
all material respects with the applicable provisions of ERISA, the IRC, and any
other applicable laws. Except as disclosed in Item 8 (Benefit Plans) of the
Disclosure Schedule, the present value of all "benefit liabilities" (within the
meaning of Section 4001(a)(16) of ERISA) under each Single Employer Plan
maintained by the Borrower, any Subsidiary or any Commonly Controlled Entity
(based on those assumptions that would be used in a termination of each such
Plan) did not, as of the last annual valuation date for which an actuarial
valuation report has been done, exceed the value of the assets of such Plan as
of such date. Except as disclosed in such Item 8, neither the Borrower nor any
Commonly Controlled Entity or Subsidiary has incurred any liability to the PBGC
or to any other Person under Section 4062, 4063 or Section 4064 of ERISA on
account of the termination of, or its withdrawal from, a Single Employer Plan,
and no Lien has been imposed on the assets of the Borrower or any Commonly
Controlled Entity or Subsidiary under Section 4068 of ERISA. To the knowledge
of the Borrower and any Commonly Controlled Entities and Subsidiaries, there
does not exist any event or condition which would permit the institution of
proceedings to terminate any Single Employer Plan pursuant to Section 4042 of
ERISA. Except as disclosed in Item 8 of the Disclosure Schedule, no
"accumulated funding deficiency" (as defined in Section 302 of ERISA or Section
412 of IRC), whether or not waived, exists with respect to any Pension Plan.
The Borrower and each Commonly Controlled Entity and Subsidiary have timely
made in full each quarterly installment payment to any Pension Plan required
under Section 302(e) of ERISA or Section 412(m) of the IRC and have also made
full and timely payment of any other costs or expenses related to such a Plan.
The Borrower and all Commonly Controlled Entities and Subsidiaries have made
full and timely payment of all contributions to Multiemployer Plans required
under ERISA, the IRC or applicable collective bargaining agreements. Neither
the Borrower nor any Commonly Controlled Entity or Subsidiary has had a
complete or partial withdrawal from any Multiemployer Pension Plan and the
liability to which the Borrower or any Commonly Controlled Entity or Subsidiary
would become subject under ERISA if the Borrower or any such Commonly
Controlled Entity or Subsidiary were to withdraw completely from all
Multiemployer Pension Plans as of the valuation date most closely preceding the
date hereof is not in excess of $200,000. No such Multiemployer Pension Plan
has been terminated or is in Plan Reorganization or ERISA Insolvent, nor, to
the knowledge of the
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Borrower and any Commonly Controlled Entities and Subsidiaries, is any such
Multiemployer Pension Plan likely to be terminated or to become in Plan
Reorganization or ERISA Insolvent. To the knowledge of the Borrower and any
Commonly Controlled Entities and Subsidiaries, no "accumulated funding
deficiency" (as defined in Section 302 of ERISA or Section 412 of the IRC),
whether or not waived, exists with respect to any Multiemployer Plan. The
present value (determined using assumptions which are reasonable in respect of
the benefits provided and the employees participating) of the aggregate
liability of the Borrower and each Subsidiary and Commonly Controlled Entity
for post-retirement benefits to be provided to their current and former
employees under Plans which are welfare benefit plans (as defined in Section
3(1) of ERISA) is not in excess of $200,000. No written notice of liability
has been received with respect to the Borrower, any of its Subsidiaries, or any
Plan for any "prohibited transaction" (within the meaning of Section 4975 of
the IRC or Section 406 of ERISA), nor has any such prohibited transaction
resulting in material liability to the Borrower or any of its Subsidiaries
occurred. Neither the Borrower nor any Subsidiary or Commonly Controlled
Entity will, as a result of consummating the transactions contemplated by this
Agreement (pursuant to the provisions of the Agreement, by operation of law or
otherwise) (i) have incurred or become liable for any tax assessed by the
Internal Revenue Service for any alleged violations of Section 4975 of the IRC
or any civil penalty imposed by the Department of Labor for any alleged
violations of Section 406 of ERISA, (ii) have caused or permitted to occur any
"prohibited transaction" within the meaning of such Section 4975 of the IRC or
Section 406 of ERISA with respect to any Plan for which no exemption is
available or (iii) have incurred any liability to the PBGC (other than ordinary
and usual PBGC premium liability) or any liability for complete or partial
withdrawal to any Multiemployer Plan. Neither the Holding Company, the
Borrower nor any Subsidiary is subject (directly or indirectly) to, and no
facts exist which could subject the Holding Company, the Borrower or any
Subsidiary (directly or indirectly) to, any other liability, penalty, tax or
lien whatsoever, which could result in a Material Adverse Change and which is
directly or indirectly related to any Plan, including, but not limited to,
liability for any damages or penalties arising under Title I or Title IV of
ERISA, liability for any tax or penalty resulting from a loss of deduction
under Section 404 or 419 of the IRC, any tax or penalty under chapter 43 of the
IRC, or any taxes or penalties under any other applicable law, but excluding
any liability to make contributions or pay premiums to or under an ongoing Plan
before the last due date on which such contributions or premiums could be paid
or made without penalty or to pay benefits when due in accordance with Plan
terms.
SECTION 5.12. Labor Controversies. Except as disclosed in
Item 9 (Labor Controversies) of the Disclosure Schedule, there are no labor
controversies pending or, to the best knowledge of the Borrower, threatened,
relating to the Borrower or any Subsidiary. There is (i) no unfair labor
practice complaint pending against the Borrower, or any of its Subsidiaries or,
to the best knowledge of the Borrower, threatened against any of them, before
the National Labor Relations Board, and no arbitration proceeding arising out
of or under any collective bargaining agreement or the Borrower's internal
grievance procedures is so pending against the Borrower or any of its
Subsidiaries or, to the best knowledge of the Borrower, threatened against any
of them, (ii) no strike, labor dispute, slowdown or stoppage is pending against
the Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries
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and (iii) no union representation question existing with respect to the
employees of the Borrower or any of its Subsidiaries. Each of the Borrower and
its Subsidiaries is in compliance in all material respects with all collective
bargaining agreements to which it is subject.
SECTION 5.13. Ownership of Properties; Collateral. (a)
Each of the Borrower and its Subsidiaries owns good title to all of its
material personal properties and assets of any nature whatsoever, free and
clear of all Liens except as permitted pursuant to Section 6.2.3.
(b) The provisions of the Brunswick Security Agreement
are effective to create in favor of the Agent for the benefit of the Agent and
the Lenders, a legal, valid and enforceable security interest in all right,
title and interest of the Loan Parties in the Collateral described therein,
and, upon the filing of the Financing Statements and any required filing in
the United States Patent and Trademark Office pursuant to Section 4.1.8, the
Security Documents will create a fully perfected first Lien on, and the
security interest in, all right, title and interest of the Loan Parties in all
of the Collateral described therein, to the extent that a security interest
therein can be perfected by such a filing, subject to no other Liens other than
Liens permitted by Section 6.2.3.
SECTION 5.14. Intellectual Property. Each of the Borrower
and its Subsidiaries owns or licenses all such Intellectual Property, and has
obtained assignments of all licenses and other rights, as the Borrower
considers necessary for or as are otherwise material to the conduct of the
business of the Borrower and its Subsidiaries as now conducted without,
individually or in the aggregate, any infringement upon rights of other Persons
which could result in a Material Adverse Change. All Intellectual Property
owned or licensed from third Persons described in this Section 5.14 is set
forth in Item 10 (Intellectual Property) of the Disclosure Schedule.
SECTION 5.15. Accuracy of Information. All factual
information heretofore or contemporaneously furnished by or on behalf of the
Borrower in writing to the Agent or any Lender for purposes of or in connection
with this Agreement or any transaction contemplated hereby is true and accurate
in every material respect on the date as of which such information is dated or
certified and as of the date of execution and delivery of this Agreement by the
Agent or such Lender and such information is not incomplete by omitting to
state any material fact necessary to make such information not misleading.
Neither this Agreement nor any document or statement furnished to the Agent or
any of the Lenders by or on behalf of the Borrower contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements contained herein or therein not materially
misleading. The Agent and the Lenders recognize that the Projections are not
to be viewed as facts and that actual results during the period or periods
covered by the Projections may differ from the projected or forecasted results.
SECTION 5.16. Insurance. All policies of insurance in
effect of any kind or nature owned by or issued to the Borrower and its
Subsidiaries, including policies of life, fire, theft, product liability,
public liability, property damage, other casualty, employee fidelity, workers'
compensation, property and liability insurance, (a) are listed in Item 11
(Insurance) of the Disclosure Schedule as of the Closing Date, (b) are,
together with all policies of employee health and welfare and
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title insurance, in full force and effect, (c) comply in all respects with the
applicable requirements set forth herein and in the Security Documents and (d)
are of a nature and provide such coverage as is customarily carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Borrower and its Subsidiaries operate. Neither
the Borrower nor any of its Subsidiaries provides any of its insurance through
self-insurance except as disclosed in Item 11 of the Disclosure Schedule.
SECTION 5.17. Certain Indebtedness. Item 12 (Existing
Indebtedness) of the Disclosure Schedule sets forth all Indebtedness of
Brunswick and its Subsidiaries as of the Closing Date, which (a) is for
borrowed money, or (b) is not incurred in the ordinary course of the business
of the Borrower or any Subsidiary in a manner and to the extent consistent with
past practice, or (c) is material to the financial condition, operations,
businesses, properties or prospects of the Borrower or any Subsidiary.
SECTION 5.18. Environmental Matters. Except as disclosed
in Item 13 (Environmental Matters) of the Disclosure Schedule, the Borrower and
each of its Subsidiaries are in compliance in all material respects with all
applicable Environmental Laws, and to the best of the Borrower's knowledge,
there are no conditions or circumstances associated with the currently or
previously owned, operated, used or leased properties or current or past
operations of the Borrower or any Subsidiary which may give rise to
Environmental Liabilities and Costs which could result in a Material Adverse
Change or which may give rise to any Environmental Lien.
SECTION 5.19. No Burdensome Agreements. Neither the
Borrower nor any Subsidiary is a party to or has assumed any indenture, loan or
credit agreement or any lease or other agreement or instrument or subject to
any charter or other corporate restriction that could result in a Material
Adverse Change.
SECTION 5.20. Consents. Except as disclosed in Item 14
(Consents) of the Disclosure Schedule, the Borrower and its Subsidiaries have
all material permits and governmental consents and Regulatory Approvals
necessary under Requirements of Law or, in the reasonable business judgment of
the Borrower, deemed advisable under Requirements of Law, in connection with
the transactions contemplated hereby (including the Acquisition, the Merger and
the Loans) and the ongoing business and operations of the Borrower and its
Subsidiaries.
SECTION 5.21. Contracts. Set forth in Item 15 (Contracts)
of the Disclosure Schedule is an accurate and complete list of all material
Contractual Obligations of the Borrower and its Subsidiaries as of the Closing
Date. Each such material Contractual Obligation is in full force and effect in
accordance with the terms thereof. There are no material defaults by the
Borrower or any Subsidiary or, to the Borrower's knowledge after due inquiry,
any other default in existence under any such material Contractual
Obligations, in each case that could result in a Material Adverse Change.
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SECTION 5.22. Employment Agreements. Set forth in Item 16
(Employment Contracts) of the Disclosure Schedule is a complete and accurate
list of each employment agreement to which the Borrower or any Subsidiary is a
party, or by which it is bound.
SECTION 5.23. Condition of Property. All of the assets and
properties owned by, leased to or used by the Borrower and its Subsidiaries
material to the conduct of their business are in adequate operating condition
and repair, ordinary wear and tear excepted, and are free and clear of known
defects except for defects which do not substantially interfere with the use
thereof in the conduct of normal operations.
SECTION 5.24. Subsidiaries. Item 17 (Subsidiaries) of the
Disclosure Schedule sets forth all Subsidiaries of Brunswick.
SECTION 5.25. Acquisition Agreement. The closing of the
transactions contemplated by the Acquisition Agreement shall occur on the
Closing Date simultaneously with the making of the Bridge Loan, and the
Borrower has not waived or in any way amended, without the prior written
consent of the Agent, any condition to the obligations to consummate the
Acquisition. A true and complete copy of the Acquisition Agreement (including
all exhibits, schedules and amendments thereto) has been delivered to the
Agent. The Borrower is not in default under the Acquisition Agreement or under
any instrument or document to be delivered in connection therewith. The
representations and warranties made in the Acquisition Agreement by the
Borrower and, to the best knowledge of the Borrower, the Estate are true and
correct in all material respects on and as of the Closing Date as though made
on and as of such date.
SECTION 5.26. Trade Relations. There exists no actual or,
to the best of Borrower's knowledge, threatened termination, cancellation or
limitation of, or any modification or change in, the business relationship of
the Borrower with any customer or group of customers of the Borrower.
ARTICLE 6.
COVENANTS
SECTION 6.1. Affirmative Covenants. The Borrower agrees
with each Lender that until all Obligations (other than Obligations that
expressly survive the termination of this Agreement pursuant to Section 9.5)
have been paid and performed in full and the Commitments have terminated, the
Borrower will perform the Obligations set forth in this Section 6.1; provided,
however, that to the extent that prior to the Merger Consummation Date any of
the Obligations of Brunswick set forth in this Section 6.1 relate to STI and
its Subsidiaries, Brunswick's obligation to cause STI or such Subsidiary to
perform any act or to refrain from performing any act shall be subject to
Brunswick's fiduciary duties to the other shareholders of STI.
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SECTION 6.1.1. Financial Information, etc. The Borrower
will furnish, or will cause to be furnished, to each Lender and to the Agent
copies of its financial statements, reports and information:
(a) (i) promptly when available and in any event within
ninety (90) days after the close of each Fiscal Year, a consolidated
and consolidating balance sheet at the close of such Fiscal Year, and
related consolidated and consolidating statements of operations,
retained earnings, and cash flows for such Fiscal Year, of the
Borrower and its Subsidiaries (with comparable information at the
close of and for the prior Fiscal Year), certified (in the case of
consolidated statements) without qualification by Arthur Andersen
L.L.P., Price Waterhouse LLP or other independent public accountants
satisfactory to the Agent, together with a report containing
management's discussion and analysis of the financial condition and
results of operation of the Borrower and its Subsidiaries (the
delivery by the Borrower to the Agent of the Borrower's annual report
on Form 10-K filed under the Securities Exchange Act of 1934, as
amended, shall satisfy the requirements of this clause (a)(i));
(ii) promptly when available and in any event within
ninety (90) days after the close of each Fiscal Year, a letter report
of such independent public accountants at the close of such Fiscal
Year to the effect that it has reviewed the provisions of this
Agreement and the most recent Compliance Certificate being furnished
pursuant to clause (a)(iii) of this Section 6.1.1 and that, in the
course of performing its duties it did not become aware of any Default
or Event of Default or any miscalculation in such Compliance
Certificate relating to the financial tests set forth in Section 6.2.4
or relating to the calculation of Excess Cash Flow, except as such may
be disclosed in such statement; and
(iii) promptly when available and in any event within
ninety (90) days after the close of each Fiscal Year, a Compliance
Certificate calculated as of the computation date at the close of such
Fiscal Year; and
(b) promptly when available and in any event within
forty-five (45) days after the close of each Fiscal Quarter, consolidated and
consolidating balance sheets at the close of such Fiscal Quarter, and
consolidated and consolidating statements of operations, retained earnings, and
cash flows for such Fiscal Quarter and for the period commencing at the close
of the previous Fiscal Year and ending with the close of such Fiscal Quarter,
of the Borrower and its Subsidiaries (with comparable information at the close
of and for the corresponding Fiscal Quarter of the prior Fiscal Year and for
the corresponding portion of such prior Fiscal Year), certified by the chief
executive or financial officer of the Borrower, together with a brief report
containing management's discussion and analysis of the financial condition and
results of operations of the Borrower and its Subsidiaries (including a
discussion and analysis of any changes compared to prior results) (the delivery
by the Borrower of its quarterly report with respect to any Fiscal Quarter on
Form 10-Q filed under the Securities Exchange Act of 1934, as amended, shall
satisfy the requirements of this clause (b) with respect to such Fiscal
Quarter) (subject to normal recurring year end adjustments);
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(c) promptly when available and in any event within
thirty (30) days after the close of each calendar month of each Fiscal Year
(other than a calendar month that is the last month of a Fiscal Quarter),
consolidated and consolidating balance sheets at the close of such month, and
consolidated and consolidating statements of operations, retained earnings, and
cash flows for such month and for the period commencing at the close of the
previous Fiscal Year and ending with the close of such month, of the Borrower
and its Subsidiaries (with comparable information at the close of and for the
corresponding month of the prior Fiscal Year and for the corresponding portion
of such prior Fiscal Year), certified by the chief executive or financial
officer of the Borrower, together with a brief report containing management's
discussion and analysis of the financial condition and results of operations of
the Borrower and its Subsidiaries (including a discussion and analysis of any
changes compared to prior results);
(d) promptly upon preparation of any update to the
business plan described in clause (g) of this Section 6.1.1 for the remaining
term of Borrower's then current Fiscal Year as in the Borrower's reasonable
judgment is required, a copy of such update; and
(e) within forty-five (45) days after the close of each
Fiscal Quarter, a Compliance Certificate calculated as of the close of such
Fiscal Quarter;
(f) promptly upon receipt thereof, copies of all detailed
financial and management reports submitted to the Borrower by its independent
public accountants in connection with each annual or interim audit made by such
independent public accountants of the books of the Borrower or any Subsidiary;
(g) within ten (10) days prior to the end of each Fiscal
Year of the Borrower, (i) a business plan of the Borrower and its Subsidiaries,
in form, scope and detail satisfactory to the Agent, and (ii) consolidated and
consolidating operating budgets for the twelve (12) months following the end of
such Fiscal Year, prepared on a monthly basis, and for each Fiscal Year
thereafter through the 2001 Fiscal Year, prepared on an annual basis, which
budgets shall include estimated capital expenditures and other costs to be
incurred by the Borrower and its Subsidiaries, on a consolidated and
consolidating basis, during the applicable Fiscal Year, in each case, with
accompanying detail, together with a report containing management's discussion
and analysis of the projected financial condition and results of operations of
the Borrower and its Subsidiaries;
(h) promptly after approved by the Borrower's Board of
Directors, any updates or revisions to any business plan described in clause
(g) of this Section 6.1.1, in addition to those described in clause (d) of this
Section 6.1.1;
(i) promptly upon the sending or filing thereof, copies
of all reports that the Borrower sends to its security holders generally, and
copies of all reports and registration statements that the Borrower or any of
its Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange; and
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(j) such other information with respect to the financial
condition, business, property, assets, revenues and operations of the Borrower
and any Subsidiary as the Agent or the Required Lenders may from time to time
reasonably request.
SECTION 6.1.2. Maintenance of Corporate Existence, etc.
Except as permitted by Section 6.2.10, the Borrower will cause to be done at
all times all things necessary to maintain and preserve the corporate existence
of the Borrower and each Subsidiary (other than the Inactive Subsidiaries).
SECTION 6.1.3. Foreign Qualification. The Borrower will,
and will cause each Subsidiary to, cause to be done at all times all things
necessary to be duly qualified to do business and be in good standing as a
foreign corporation in each jurisdiction where the failure to so qualify could
result in a Material Adverse Change.
SECTION 6.1.4. Payment of Taxes, etc. The Borrower will,
and will cause each Subsidiary to, pay and discharge, as the same become due
and payable, (a) all Charges against it or on any of its property, as well as
claims of any kind which, if unpaid, might become a Lien upon any one of its
properties, and (b) all lawful claims for labor, materials, supplies, services
or otherwise before any thereof become a default; provided, however, that the
foregoing shall not require the Borrower or any Subsidiary to pay or discharge
any such Charge or claim so long as it shall be diligently contesting the
validity thereof in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves in accordance with GAAP.
SECTION 6.1.5. Insurance. In addition to any insurance
required to be maintained pursuant to any other Loan Document, the Borrower
will, and (with respect to the insurance described in clauses (a) and (b)
below) will cause each Subsidiary to, maintain or cause to be maintained:
(a) insurance with respect to its properties and business
against such casualties, contingencies and liabilities (including, without
limitation, in the case of STI, business interruption insurance) and of such
types and in such amounts as are customary in the industries in which the
Borrower and Subsidiaries are engaged, and will furnish to the Agent annual
certification from the respective insurers (or their authorized agents) of the
extent of all insurance maintained by the Borrower and its Subsidiaries in
accordance with this Section 6.1.5; and
(b) the "key-man" life insurance policy referred to in
Section 4.1.12, which policy shall at all times have a minimum face value of
not less than $500,000 in the aggregate.
Each such policy shall be issued by an insurance company with a Best's rating
of "A" or better and a financial size category of not less than XII shall be in
effect on the Closing Date. The premiums for each such policy shall be paid as
such premiums shall come due. All policies of casualty insurance shall contain
an endorsement, in the form submitted to the Borrower by the Agent, showing
loss payable to the Agent, for its benefit and the ratable benefit of the
Lenders, as their interests may
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appear. All policies of liability insurance, including, without limitation,
all primary and umbrella liability policies, shall name the Agent, for its
benefit and the ratable benefit of the Lenders, as additional insured. All
such insurance policies shall provide, or shall be properly endorsed to
provide, that the insurer shall give the Agent not less than 10 days prior
written notice of any cancellation or non-renewal of any such policy. The
Borrower shall retain all the incidents of ownership of the insurance
maintained pursuant to this Section 6.1.5, but shall not borrow upon or
otherwise impair its right to receive the proceeds of such insurance. So long
as no Event of Default has occurred and is continuing, the Borrower and its
Subsidiaries shall have the right to use the proceeds of casualty insurance to
repair or replace damaged or destroyed property, shall have the right to use
the proceeds of business interruption insurance for its ongoing business needs
and shall have the right to use the proceeds of liability insurance to pay
covered claims.
SECTION 6.1.6. Notice of Default, Litigation, etc. Upon a
Responsible Officer learning thereof, the Borrower will give prompt written
notice (with a description in reasonable detail) to the Agent of:
(a) the occurrence of any Default;
(b) the occurrence of any litigation, arbitration or
governmental investigation or proceeding not previously disclosed in writing by
the Borrower to the Lenders which has been instituted or, to the knowledge of
the Borrower, is threatened against, the Borrower or any Subsidiary or to which
any of its properties, assets or revenues is subject which, if adversely
determined, could result in a Material Adverse Change;
(c) any material development which shall occur in any
litigation, arbitration or governmental investigation or proceeding previously
disclosed by the Borrower to the Lenders pursuant to Section 5.7 which renders
such litigation, arbitration or governmental investigation likely to be
adversely determined and, if adversely determined, could result in a Material
Adverse Change;
(d) the occurrence of any other circumstance which could
result in a Material Adverse Change;
(e) the occurrence of any Loss; and
(f) (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Single Employer Plan, or any withdrawal
from, or the termination, Plan Reorganization or ERISA Insolvency of any
Multiemployer Pension Plan, (ii) the institution of proceedings or the taking
of any other action by the PBGC or the Borrower or any Commonly Controlled
Entity or Subsidiary or any Multiemployer Pension Plan with respect to the
withdrawal from, or the termination, Plan Reorganization or ERISA Insolvency
of, any Single Employer Plan or Multiemployer Pension Plan, or the receipt of
notice by the Borrower or any Commonly Controlled Entity or Subsidiary that the
institution of any such proceedings or the taking of any such action is under
consideration or anticipated, (iii) the institution of any proceedings or other
action by the
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Internal Revenue Service or the Department of Labor with respect to the minimum
funding requirements of any Pension Plan, or the receipt of notice by the
Borrower or any Commonly Controlled Entity or Subsidiary that the institution
of any such proceedings or the taking of any such action is under consideration
or anticipated, (iv) the occurrence or expected occurrence of any event which
could result in the incurrence of unpredictable contingent event benefits under
Section 302 of ERISA or Section 412 of the IRC with respect to any Pension
Plan, (v) any event or condition which could increase the liability of the
Borrower or any Commonly Controlled Entity or Subsidiary with respect to
post-retirement welfare benefits under any Plan, or (vi) the occurrence of any
other event or condition with respect to any Plan which could subject the
Borrower or any Subsidiary (directly or indirectly) to any tax, penalty or
liability under Title I or Title IV of ERISA, Section 404 or 419 and Chapter 43
of the IRC, or any other applicable laws, and in each case in clauses (i)
through (vi) above, such event or condition, together with all other events or
conditions, if any, could subject the Borrower or any Subsidiary (directly or
indirectly) to any tax, fine, penalty, or other liabilities in amounts which in
the aggregate could result in a Material Adverse Change. Upon the request of
the Agent, the Borrower will deliver to each of the Lenders a true and complete
copy of each annual report (Form 5500) of each Plan (other than a
Multi-Employer Plan) required to be filed with the Internal Revenue Service,
promptly after the filing thereof; and
(g) the condemnation or threat of condemnation with
respect to any property used or necessary in the conduct of the businesses of
the Borrower or any of its Subsidiaries.
SECTION 6.1.7. Books and Records. The Borrower will, and
will cause each Subsidiary to, keep books and records reflecting all of its
business affairs and transactions in accordance with GAAP and, subject to any
government security limitations, permit the Agent and each Lender or any of
their respective representatives upon one Business Day's notice, during normal
business hours, to visit all of its offices, to discuss its financial matters
with its officers and independent public accountants and to examine (and, at
the expense of the Borrower, photocopy extracts from) any of its books or other
corporate records. The Borrower shall pay any fees of its independent public
accountants incurred in connection with the Agent's or any Lender's exercise of
its rights pursuant to this Section 6.1.7; provided that unless an Event of
Default shall have occurred and be continuing, the Borrower shall be required
to pay any such fees only in respect of the Agent's exercise of its rights
pursuant to this Section 6.1.7 for one occasion during each Fiscal Year. On or
prior to the Closing Date (and upon consummation of the Merger) the Borrower
will deliver a letter to its independent public accountants authorizing such
public accountants to discuss the Borrower's financial matters with the Agent
and each Lender or any of their respective representatives whether or not a
representative of the Borrower is present; provided that the Borrower shall
have been given prior notice and an opportunity to be present.
SECTION 6.1.8. Maintenance of Properties, Etc. The Borrower
will maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties (real and personal and including all intangible
assets), except obsolete properties, which are used or necessary in the conduct
of its business in good working order and condition, ordinary wear and tear
excepted.
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SECTION 6.1.9. Maintenance of Licenses and Permits. The
Borrower will maintain and preserve, and will cause each of its Subsidiaries to
maintain and preserve, all Intellectual Property, rights, permits, licenses,
Regulatory Approvals and privileges issued under or arising under any
Requirements of Law to the extent material to the conduct of the business of
the Borrower or any of its Subsidiaries.
SECTION 6.1.10. Employee Plans. The Borrower will at all
times comply in all material respects with the provisions of ERISA and the IRC
which are applicable to any of the Plans, and cause each of its Subsidiaries so
to do.
SECTION 6.1.11. Environmental Management. The Borrower will
adopt and maintain prudent solid and hazardous waste management and disposal
practices, including at a minimum such practices as are required or dictated
from time to time by current and future Environmental Laws and Environmental
Permits.
SECTION 6.1.12. Compliance with Laws. The Borrower will, and
will cause each Subsidiary to, comply with all applicable Requirements of Law;
provided, however, that this Section 6.1.12 shall not apply to any circumstance
of noncompliance that together with all other noncompliance could not result in
a Material Adverse Change.
SECTION 6.1.13. Interest Rate Protection. Within 90 days
after the Merger Consummation Date, the Borrower shall obtain and thereafter
maintain in full force and effect, from ING or an Eligible Lending Institution,
one or more Interest Rate Contracts, protecting the Borrower against increases
in the Eurodollar Rate for an aggregate notional amount equal to 50% of the
aggregate principal amount of the Term Loan for a term of five (5) years. ING
shall make available to the Borrower various proposals for Interest Rate
Contracts. Should the Borrower obtain any proposal for Interest Rate Contracts
from a source other than ING, the Borrower agrees that ING shall have a right
to provide such Interest Rate Contracts on the same terms as those set forth in
such proposal. The Borrower will collaterally assign such Interest Rate
Contracts to the Agent, for its benefit and the ratable benefit of the Lenders,
pursuant to documentation acceptable to the Agent.
SECTION 6.1.14. Real Estate. If the Borrower shall acquire a
fee interest in real estate which the Agent reasonably designates as material
to the Borrower or a leasehold interest in real estate with respect to which
the Borrower shall have made substantial tenant improvements or improvements
uniquely configured for the Borrower's business requirements, in either case,
at any time prior to the date on which all Commitments have terminated and all
Obligations under this Agreement have been paid in full, the Borrower will
execute a Mortgage subject only to the Liens described in clauses (c) and (h)
of Section 6.2.3, in form and substance satisfactory to the Agent, in favor of
the Agent, for its benefit and the ratable benefit of the Lenders, and shall
use its reasonable efforts to deliver to the Agent such title insurance
policies, surveys and landlords' estoppel agreements with respect thereto as
the Agent shall reasonably request.
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SECTION 6.1.15. Merger of Brunswick into STI. Brunswick
shall use its best efforts to merge with and into STI, with STI being the
surviving corporation, to cause STI to take any action required to be taken in
order that the conditions set forth in Sections 4.2 and 4.3 are satisfied on or
prior to the Stated Maturity Date for the Bridge Loan, and to cause STI to
refrain from taking any action if the result of such action would be to prevent
any conditions set forth in Section 4.2 or 4.3 from being met on or prior to
the Maturity Date for the Bridge Loan or at any time thereafter.
SECTION 6.1.16. Cash Reserve Account. The Borrower agrees to
establish the Cash Reserve Account for the benefit of the Agent. The Borrower
hereby irrevocably authorizes the Agent to withdraw funds from the Cash Reserve
Account at any time that accrued and unpaid interest with respect to the Bridge
Loan has become due and payable and to apply such funds to the payment of such
interest.
SECTION 6.1.17. Private Placements. The Borrower hereby
grants to ING a right of first refusal for a period of one year following the
Closing Date to manage and serve as placement agent, on an exclusive basis, in
assisting the Borrower in any private placement of debt securities. In the
event that the Borrower desires to issue through a private placement debt
securities to institutional investors, the Borrower shall, prior to entering
into any agreement with any other party in connection with such issuance, give
notice to ING of the terms of such issuance. ING shall have the right to
manage and serve as placement agent, on an exclusive basis, in connection with
such private placement of debt securities on terms that are at least as
favorable to the Borrower as the terms of any proposal made by any other party.
Once ING has exercised its rights to manage and serve as placement agent, the
Borrower agrees that it shall use its best efforts to assist ING in its efforts
to place such debt securities on the Borrower's behalf.
SECTION 6.2. Negative Covenants. The Borrower agrees with
each Lender that until all Commitments have terminated and all Obligations
(other than Obligations that expressly survive the termination of this
Agreement pursuant to Section 9.5) have been paid and performed in full, the
Borrower will perform the Obligations set forth in this Section 6.2. provided,
however, that to the extent that prior to the Merger Consummation Date any of
the Obligations of Brunswick set forth in this Section 6.1 relate to STI and
its Subsidiaries, Brunswick's obligation to cause STI or such Subsidiary to
perform any act or to refrain from performing any act shall be subject to
Brunswick's fiduciary duties to the other shareholders of STI.
SECTION 6.2.1. Business Activities. The Borrower will not,
and will not permit any Subsidiary to, engage in any business activity, except
those in the fields in which the Borrower and its Subsidiaries are engaged on
the Closing Date and such activities as may be incidental or related thereto.
SECTION 6.2.2. Indebtedness. The Borrower will not, and
will not permit any Subsidiary to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness other than:
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(a) Indebtedness in respect of the Loans and other
Obligations;
(b) Indebtedness in respect of the Interest Rate
Contracts required pursuant to Section 6.1.13 to the extent such do not
constitute Obligations;
(c) obligations that constitute Indebtedness solely by
virtue of being secured by Liens permitted under Section 6.2.3;
(d) Indebtedness in respect of liabilities resulting from
(i) endorsements of negotiable instruments in the ordinary course of business;
and (ii) surety bonds and other bonds issued for the Borrower's account in the
ordinary course of business;
(e) Indebtedness of Brunswick and its Subsidiaries
existing on the Closing Date and set forth in Item 12 (Existing Indebtedness)
of the Disclosure Schedule, excluding, however, from and after the Merger
Consummation Date (i) Indebtedness owed to Syntex Laboratories, Inc. unless
prior to the Merger Consummation Date, Syntex Laboratories, Inc. expressly
agrees, in form and substance satisfactory to the Agent, that (A) the Agent may
be granted a lien on the property subject to a lien in favor of Syntex
Laboratories, Inc. and (B) Syntex Laboratories, Inc. enters into an
intercreditor agreement, in form and substance satisfactory to the Agent,
pursuant to which Syntex Laboratories, Inc. will agree, among other things, to
give the Agent notice of any default under such Indebtedness and, upon request
by any Lender, to sell such Indebtedness to such Lender for the principal
amount then outstanding, plus accrued and unpaid interest, but without premium
or penalty, and (ii) such Indebtedness set forth in Item 3 (Indebtedness of STI
to be Refinanced) of the Disclosure Schedule.
(f) Indebtedness of any Subsidiary (other than an
Inactive Subsidiary) owing to the Borrower, provided that such Indebtedness is
evidenced by a demand promissory note that is pledged to the Agent, for its
benefit and the benefit of the Lenders, as security for the Obligations
pursuant to the Pledge Agreement;
(g) Capitalized Lease Liabilities incurred after the
Closing Date; provided that (i) the aggregate amount of such Capitalized Lease
Liabilities incurred by the Borrower and its Subsidiaries during any Fiscal
Year which in accordance with GAAP is attributable to principal, together with
the aggregate principal amount of all Purchase Money Indebtedness of the
Borrower and its Subsidiaries incurred during such Fiscal Year, does not exceed
$1,000,000, (ii) payments under each capitalized lease giving rise to such
Capitalized Lease Liabilities shall be made in equal periodic installments,
(iii) the original term of each capitalized lease giving rise to such
Capitalized Lease Liabilities shall not be less than seventy-five percent (75%)
of the useful life of the item of property for which such Capitalized Lease
Liabilities are incurred and (iv) the Consolidated Capital Expenditures
financed by such Capitalized Lease Liabilities are not prohibited under Section
6.2.5;
(h) Purchase Money Indebtedness incurred after the
Closing Date; provided that (i) the aggregate amount of such Indebtedness
incurred by the Borrower and its Subsidiaries during
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<PAGE> 75
any Fiscal Year, together with the aggregate amount of any Capitalized Lease
Liabilities of the Borrower and its Subsidiaries incurred during such Fiscal
Year that in accordance with GAAP is attributable to principal, does not exceed
$1,000,000, (ii) such Indebtedness provides for the payment of principal in
equal periodic installments, (iii) each issue of such Purchase Money
Indebtedness shall have an original term that is not less than seventy-five
(75%) of the useful life of the item of property for which such Purchase Money
Indebtedness is incurred, and (iv) the Consolidated Capital Expenditures
financed by such Purchase Money Indebtedness are not prohibited under Section
6.2.5;
(i) Indebtedness evidenced by the Estate Subordinated
Note;
(j) Indebtedness evidenced by the Junior Subordinated
Note;
(k) extensions, refinancings, replacements and renewals
of any of the foregoing Indebtedness described in clause (e) (other than
Capitalized Lease Liabilities) and clause (i) of this Section 6.2.2; provided
that the principal amount thereof is not increased, such extension,
refinancing, replacement or renewal does not impose more burdensome terms upon
the Borrower or its Subsidiaries, as the case may be, than the Indebtedness
being extended, refinanced, replaced or renewed and, in the case of any
Indebtedness that constitutes an extension, refinancing, replacement or renewal
of the Estate Subordinated Note, such Indebtedness does not have a stated final
maturity that is earlier than the Stated Maturity Date for the Term Loan, such
Indebtedness does not require any principal amortization and such Indebtedness
otherwise is subordinated in right of payment to the prior payment of "Senior
Debt" (as such term is defined in the Estate Subordinated Note as in effect on
the Closing Date) to the same extent and in the same manner as the Estate
Subordinated Note.
SECTION 6.2.3. Liens. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or suffer to exist any Lien
upon any of its property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens in favor of the Agent or the Lenders granted
pursuant to any Loan Document;
(b) Liens identified in Item 19 of the Disclosure
Schedule, excluding, however, from and after the Merger Consummation Date, (i)
Liens in favor of First Pennsylvania Bank, which the Borrower agrees to have
promptly terminated after the Closing Date, and (ii) Liens in favor of Merrill
Lynch Business Financial Services, Inc.;
(c) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter payable with penalty
or being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books;
(d) Liens of carriers, warehousemen, mechanics, and
materialmen incurred in the ordinary course of business for sums not overdue or
being contested in good faith by appropriate
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proceedings (which proceedings have the effect of preventing the forfeiture or
sale of the asset subject to such Lien) and for which adequate reserves shall
have been set aside on its books;
(e) Liens (other than Liens arising under ERISA or
Section 412(n) of the Code) incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or other forms
of governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on
surety or appeal bonds;
(f) judgment Liens with respect to judgments to the
extent such judgments do not constitute an Event of Default described in
Section 7.1.9;
(g) Liens which arise by operation of law under Article 2
of the UCC in favor of unpaid sellers of goods, or liens in items or any
accompanying documents or proceeds of either arising by operation of law under
Article 4 of the UCC in favor of a collecting bank;
(h) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and other restrictions,
charges or encumbrances (whether or not recorded) affecting the use of
property, which do not materially detract from the value of such property or
impair the use thereof;
(i) Liens upon any equipment acquired by the Borrower or
any of its Subsidiaries after the Closing Date to secure Indebtedness permitted
under clause (h) of Section 6.2.2 or arising by virtue of a capital lease
permitted under clause (g) of Section 6.2.2;
(j) Leases and subleases granted to others in the
ordinary course of business not interfering in any material respect with any
business of the Borrower or any of its Subsidiaries;
(k) Liens which constitute rights of set-off of a
customary nature or bankers' liens with respect to amounts on deposit, whether
arising by operation of law or by contract, in connection with arrangements
entered into with banks in the ordinary course of business; and
(l) Liens consisting of precautionary UCC-1 filings in
respect of operating leases to the extent permitted under Section 6.2.6;
(m) the Lien on the STI Shares in favor of the Estate to
the extent arising pursuant to the Estate Stock Pledge Agreement, and
subordinated to the Lien of the Agent in the STI shares on the terms and
conditions set forth therein; and
(n) extensions, renewals or replacements of any Lien
referred to in clause (b) of this Section 6.2.3, other than any Lien granted to
Syntex Laboratories, Inc., provided that the principal amount of the obligation
secured thereby is not increased and that any such extension, renewal or
replacement is limited to the property originally encumbered thereby.
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SECTION 6.2.4. Financial Condition. From and after the
Merger Consummation Date, the Borrower hereby covenants and agrees as set forth
below:
(a) Senior Debt Leverage Ratio. The Borrower will not
permit its Senior Debt Leverage Ratio with respect to the twelve-month period
ending on the last day of any Fiscal Quarter to be greater than the ratio set
forth opposite such Fiscal Quarter (for each Fiscal Quarter ending prior to the
first anniversary of the Merger Consummation Date, such ratio to be calculated
as provided in clause (g) of this Section 6.2.4):
<TABLE>
<CAPTION>
Fiscal Quarter Ending: Ratio
---------------------- -----
<S> <C>
October 31, 1996 3.2:1.0
January 31, 1997 2.8:1.0
April 30, 1997 2.5:1.0
July 31, 1997 2.1:1.0
October 31, 1997 1.8:1.0
January 31, 1998 1.5:1.0
April 30, 1998 1.3:1.0
July 31, 1998 1.1:1.0
October 31, 1998 1.0:1.0
January 31, 1999 0.9:1.0
April 30, 1999 0.8:1.0
July 31, 1999 and thereafter 0.7:1.0
</TABLE>
(b) Total Debt Leverage Ratio. The Borrower will not
permit its Total Debt Leverage Ratio with respect to the twelve-month period
ending on the last day of any Fiscal Quarter to be greater than the ratio set
forth opposite such Fiscal Quarter (for each Fiscal Quarter ending prior to the
first anniversary of the Merger Consummation Date, to be calculated as provided
in clause (g) of this Section 6.2.4):
<TABLE>
<CAPTION>
Fiscal Quarter Ending: Ratio
---------------------- -----
<S> <C>
October 31, 1996 5.0:1.0
January 31, 1997 4.5:1.0
April 30, 1997 3.6:1.0
July 31, 1997 3.0:1.0
October 31, 1997 2.7:1.0
January 31, 1998 2.3:1.0
April 30, 1998 2.0:1.0
July 31, 1998 1.7:1.0
October 31, 1998 1.6:1.0
January 31, 1999 1.4:1.0
April 30, 1999 1.3:1.0
</TABLE>
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<TABLE>
<S> <C>
July 31, 1999 and thereafter 1.2:1.0
</TABLE>
(c) Senior Debt Service Ratio. The Borrower will not
permit its Senior Debt Service Ratio with respect to the twelve-month period
ending on the last day of any Fiscal Quarter to be less than the ratio set
forth below opposite such Fiscal Quarter (for each Fiscal Quarter ending prior
to the first anniversary of the Merger Consummation Date, such ratio to be
calculated as provided in clause (g) of this Section 6.2.4):
<TABLE>
<CAPTION>
Fiscal Quarter Ending: Ratio
---------------------- -----
<S> <C>
October 31, 1996 3.5:1.0
January 31, 1997 3.8:1.0
April 30, 1997 3.9:1.0
July 31, 1997 4.0:1.0
October 31, 1997 3.4:1.0
January 31, 1998 3.1:1.0
April 30, 1998 3.2:1.0
July 31, 1998 3.5:1.0
October 31, 1998 3.7:1.0
January 31, 1999 4.1:1.0
April 30, 1999 4.4:1.0
July 31, 1999 and thereafter 4.8:1.0
</TABLE>
(d) Interest Coverage Ratio. The Borrower will not
permit its Interest Coverage Ratio with respect to the twelve-month period
ending on the last day of any Fiscal Quarter to be less than the ratio set
forth below opposite such Fiscal Quarter (for each Fiscal Quarter ending prior
to the first anniversary of the Merger Consummation Date, such ratio to be
calculated as provided in clause (g) of this Section 6.2.4):
<TABLE>
<CAPTION>
Fiscal Quarter Ending: Ratio
---------------------- -----
<S> <C>
October 31, 1996 3.0:1.0
January 31, 1997 3.5:1.0
April 30, 1997 4.0:1.0
July 31, 1997 5.0:1.0
October 31, 1997 5.8:1.0
January 31, 1998 6.3:1.0
April 30, 1998 7.3:1.0
July 31, 1998 7.5:1.0
October 31, 1998 7.0:1.0
January 31, 1999 6.9:1.0
April 30, 1999 6.8:1.0
July 31, 1999 and thereafter 7.5:1.0
</TABLE>
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(e) Net Worth. The Borrower will not permit its net
worth determined in accordance with GAAP as of the last day of any Fiscal
Quarter, commencing with the Fiscal Quarter ending on July 31, 1996 and
continuing thereafter, to be less than (1) $19,500,000 plus (2) 75% of Net
Income (but not loss) for each Fiscal Quarter ending after July 31, 1996
through and including the last day of the Fiscal Quarter in which this covenant
is being tested; provided, however, that the amount set forth in clause (1)
above shall be reduced by the amount, if any, by which any goodwill resulting
from the Merger is allocated to research and development and is expensed by the
Company on its income statement for the Fiscal Quarter during which the Merger
occurs.
(f) EBITDA. The Borrower will not permit EBITDA for the
twelve-month period ending on the last day of any Fiscal Quarter to be less
than the amount set forth opposite such Fiscal Quarter (for each Fiscal Quarter
ending prior to the first anniversary of the Merger Consummation Date, such
amount to be calculated as provided in clause (g) of this Section 6.2.4):
<TABLE>
<CAPTION>
Fiscal Quarter Ending: Amount
---------------------- -----------
<S> <C>
October 31, 1996 $ 5,000,000
January 31, 1997 $ 5,500,000
April 30, 1997 $ 6,500,000
July 31, 1997 $ 8,000,000
October 31, 1997 $ 8,500,000
January 31, 1998 $ 9,000,000
April 30, 1998 $10,000,000
July 31, 1998 $11,500,000
October 31, 1998 $12,000,000
January 31, 1999 $13,000,000
April 30, 1999 $14,000,000
July 31, 1999 and thereafter $15,000,000
</TABLE>
(g) Calculations for Stub Periods. Notwithstanding
anything contained herein to the contrary, calculation of all items relating to
income or expense (including, without limitation, EBITDA and Interest Expense)
for any period ending prior to the first anniversary of the Merger Consummation
Date shall be made by annualizing all items relating to income or expense for
the period consisting of the full Fiscal Quarter(s) elapsed from the Merger
Consummation Date to the end of such period and by using the actual scheduled
repayments of Indebtedness occurring during such period.
SECTION 6.2.5. Capital Expenditures. The Borrower will not,
and will not permit any Subsidiary to make or commit to make Consolidated
Capital Expenditures, except that, during any Fiscal Year, the Borrower and its
Subsidiaries may make Consolidated Capital Expenditures (including the amount
of Capitalized Lease Liabilities incurred during such Fiscal Year that in
accordance with GAAP is attributable to principal) which in the aggregate do
not exceed the
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<PAGE> 80
amount set forth below opposite such Fiscal Year (in the case of the 1996
Fiscal Year, for the period commencing on the Closing Date and ending on July
31, 1996):
<TABLE>
<CAPTION>
Fiscal Year: Amount
------------ ----------
<S> <C>
1996 $3,500,000
1997 $2,000,000
1998 $2,500,000
1999 $3,000,000
2000 $3,000,000
2001 $3,000,000
</TABLE>
provided further, however, that expenditures from insurance proceeds received
upon the occurrence of a Loss which are made to replace or repair damaged or
destroyed assets will not be included in the foregoing calculation.
SECTION 6.2.6. Lease Obligations. The Borrower will not,
and will not permit any Subsidiary to, create or suffer to exist any obligation
for the payment of rent for any property under any operating lease or agreement
to lease having a term of one year or more, except for (a) leases in existence
on the Closing Date and described in Item 20 (Leases) of the Disclosure
Schedule, and (b) any lease of real property entered into by the Borrower or
any Subsidiary after the Closing Date in the ordinary course of business;
provided, however, that no such lease shall subject the Borrower or any
Subsidiary to Environmental Liabilities and Costs and that the aggregate amount
of payments due from the Borrower and its Subsidiaries for all leases referred
to in this Section 6.2.6 during any Fiscal Year set forth below is less than
the amount set forth below opposite such Fiscal Year (in the case of the 1996
Fiscal Year, for the period commencing on the Closing Date and ending on July
31, 1996):
<TABLE>
<CAPTION>
Fiscal Year: Amount
<S> <C>
1996 $1,000,000
1997 $1,000,000
1998 $1,250,000
1999 $1,250,000
2000 $1,250,000
2001 $1,250,000
</TABLE>
SECTION 6.2.7. Investments. The Borrower will not, and will
not permit any Subsidiary to, make, incur, assume or suffer to exist any
Investment in any other Person except:
(a) Cash Equivalent Investments;
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(b) deposits for utilities, security deposits under
leases and similar prepaid expenses;
(c) accounts receivable arising in the ordinary course of
business;
(d) Investments existing on the Closing Date and disclosed
in Item 21 (Existing Investments) of the Disclosure Schedule;
(e) Investments in the form of Indebtedness made by the
Borrower in its Subsidiaries (other than Inactive Subsidiaries) to the extent
such Investments are evidenced by demand promissory notes in principal amounts
equal to the amount of such Investments, payable to the Borrower and pledged by
the Borrower in favor of the Agent pursuant to the Pledge Agreements;
(f) Investments in the form of equity made by the
Borrower in its Subsidiaries (other than Inactive Subsidiaries) to the extent
permitted under subsection (b) of Section 6.2.10;
(g) Investments (including debt obligations) received in
connection with a bankruptcy or reorganization of customers or suppliers and in
settlement of delinquent obligations of, and other disputes with, customers or
suppliers arising in the ordinary course of business, provided that if such
Investments are evidenced by promissory notes or other instruments, and such
instruments are pledged to the Agent, for its benefit and the benefit of the
Lenders;
(h) Investments arising under Interest Rate Contracts; and
(i) Investments consisting of deposit accounts of the
Borrower and its Subsidiaries maintained in the ordinary course of business.
SECTION 6.2.8. Restricted Payments, etc. The Borrower will
not declare, pay or make any dividend or distribution (in cash, property or
obligations) on any shares of any class of Stock (now or hereafter outstanding)
of the Borrower or on any warrants, options or other rights in respect of any
class of Stock (now or hereafter outstanding) of the Borrower or apply, or
permit any Subsidiary to apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other retirement of any shares of any
class of Stock (now or hereafter outstanding), of the Borrower or any
Subsidiary, or make any deposit for any of the foregoing; provided, however,
that (i) the Borrower may redeem Series D Preferred Stock from the State of
Maryland in accordance with the terms of the Stock Purchase Agreement between
Brunswick and the State of Maryland as in effect on the Closing Date and (ii)
after the Merger Consummation Date, the Borrower may redeem restricted shares
of Stock from any officer or employee who has purchased such restricted shares
of Stock since the Merger Consummation Date, provided that the Borrower may not
redeem such restricted shares of Stock for more than the purchase price paid by
such officer or employee for such restricted shares of Stock.
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SECTION 6.2.9. Take or Pay Contracts; Sale/Leasebacks. (a)
The Borrower will not, and will not permit any Subsidiary to, enter into or be
a party to any arrangement for the purchase of materials, supplies, other
property or services if such arrangement by its express terms requires that
payment be made by the Borrower or such Subsidiary regardless of whether or not
such materials, supplies, other properties or services are delivered or
furnished to it.
(b) The Borrower will not enter into, or permit any
Subsidiary to enter into, any arrangement with any Person providing for the
leasing by the Borrower or one or more Subsidiaries of any property or assets,
which property or assets has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person except as permitted by Section
6.2.2(g).
SECTION 6.2.10. Consolidation, Merger, Subsidiaries, etc.
(a) The Borrower will not, and will not permit any Subsidiary to, liquidate or
dissolve, consolidate with, or merge into or with, any Person, or purchase or
otherwise acquire all or substantially all of the assets or any Person (or of
any operating division or unit thereof), except that (i) any such Subsidiary
may liquidate or dissolve voluntarily into, and may merge with and into, the
Borrower or any wholly-owned Subsidiary other than an Inactive Subsidiary (so
long as the Borrower or such wholly-owned Subsidiary is the surviving
corporation), and (ii) Brunswick and STI may consummate the Merger provided
that they simultaneously comply with the conditions set forth in Section 4.2
and Section 4.3.
(b) The Borrower will not, and will not permit any
Subsidiary to, create any Subsidiary or transfer any assets to any Subsidiary;
provided, however, that the Borrower or any Subsidiary may create or transfer
assets to any Subsidiary, provided that neither Brunswick nor any Subsidiary
shall transfer more than 20% of its respective assets to Subsidiaries, in the
aggregate and, to the extent any new Subsidiary is created, such Subsidiary
executes and delivers to the Agent, for its benefit and the ratable benefit of
the Lenders, (i) security agreements, collateral assignments, pledge
agreements, UCC financing statements and other documents, all substantially in
the form of the Security Documents executed and delivered as of the Closing
Date, granting to the Agent, for its benefit and the ratable benefit of the
Lenders, Liens on all of its assets subject only to Liens permitted under
Section 6.2.3 and (ii) a guaranty in substantially the form of the Brunswick
Subsidiary Guaranty executed and delivered as of the Closing Date.
SECTION 6.2.11. Asset Dispositions, etc. The Borrower will
not, and will not permit any Subsidiary to, sell, transfer, lease or otherwise
dispose of, or grant options, warrants or other rights with respect to, any of
its assets (including accounts receivable and capital stock of Subsidiaries) to
any Person, unless (a) such disposition is made in the ordinary course of
business and consists of inventories; or (b) such disposition constitutes a
disposition of obsolete or retired assets no longer used in the business of the
Borrower and its Subsidiaries.
SECTION 6.2.12. Modification of Organic Documents, etc. The
Borrower will not consent to any amendment, supplement or other modification of
any of the terms or provisions contained in, or applicable to, the charter or
the by-laws of the Borrower, except for any amendment,
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supplement or other modification which does not adversely affect the Borrower's
ability to pay or perform the Obligations.
SECTION 6.2.13. Transactions with Affiliates. The Borrower
will not, and will not permit any Subsidiary to, enter into, or cause, suffer
or permit to exist:
(a) any arrangement or contract with any of its
Affiliates (other than its Subsidiaries) of a nature customarily entered into
by Persons which are Affiliates of each other (including management or similar
contracts or arrangements relating to the allocation of revenues, expenses or
otherwise) requiring any payments to be made by the Borrower or any
Subsidiaries to any such Affiliate, other than the transactions provided for in
the Loan Documents; and
(b) any other transaction, arrangement or contract with
any of its Affiliates which is on terms which are less favorable than are
obtainable from any Person which is not one of its Affiliates.
SECTION 6.2.14. Inconsistent Agreements. The Borrower will
not, and will not permit any Subsidiary to, enter into any material agreement
containing any provision which would be violated or breached in any material
respect by any Loan or by the performance by the Borrower or any Subsidiary of
its obligations hereunder or under any Loan Document.
SECTION 6.2.15. Change in Accounting Method. The Borrower
will not, and will not permit any Subsidiary to, make any change in accounting
treatment and reporting practices except as required by GAAP.
SECTION 6.2.16. Change in Fiscal Year End. The Borrower will
not change its Fiscal Year end without the Required Lenders' prior written
consent, which consent will not be unreasonably withheld but will not be given
with respect to more than one such change during the term of this Agreement,
except that Brunswick may change its Fiscal Year end to July 31 as a result of
or in contemplation of the Merger.
SECTION 6.2.17. Compliance with ERISA. The Borrower will
not, and will not permit any Subsidiary to take, or fail to take, any action
with respect to a Plan, including establishing, amending, or terminating or
withdrawing from any Plan, without first obtaining the Agent's written consent,
where such action or failure to act could result in any liabilities under the
IRC, ERISA, or any other applicable law which individually or in the aggregate
could result in a Material Adverse Change.
SECTION 6.2.18. Limitation on Restrictions on Subsidiary
Dividends. The Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any such
Subsidiary to (a) pay dividends or make other distributions on its Stock or
other interests or participations in profits owned by the Borrower or any
Subsidiary of the Borrower or pay any
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Indebtedness owed to the Borrower or any Subsidiary of the Borrower, (b) make
loans or advances to the Borrower or any Subsidiary of the Borrower or (c)
transfer any of its property or assets to the Borrower or any Subsidiary of the
Borrower, except for such encumbrances and restrictions existing under or by
reason of this Agreement and the other Loan Documents.
SECTION 6.2.19. Modification of Certain Documents. The
Borrower shall not amend or modify, or consent to any amendment or modification
of, any of the terms of the Estate Subordinated Note, the Junior Subordinated
Note or the Estate Stock Pledge Agreement, the effect of which is to (i)
increase the principal amount thereof, (ii) increase the interest rate
applicable thereto, or cause any accrued interest thereon to be payable in cash
at any time prior to the second anniversary of the Closing Date, (iii) alter or
in any way modify the subordination provisions thereof (together with any
definitions used therein), (iv) require any amortization of principal or any
prepayment of interest, (v) impose on the Borrower or any of its Subsidiaries
any additional or more burdensome obligations or covenants, (vi) impose on the
Borrower any additional or more burdensome events of default or other events or
conditions the effect of which would be to accelerate, or to permit the
acceleration of, the stated maturity of the Estate Subordinated Note or the
Junior Subordinated Note (or to permit any holder thereof to require the
Borrower to redeem or repurchase the Estate Subordinated Note or the Junior
Subordinated Note) or to allow the Estate (or any successor thereto) to
exercise any remedies under the Estate Stock Pledge Agreement, (vii) modify the
Estate Stock Pledge Agreement in any manner such that the Lien granted pursuant
thereto is not released upon consummation of the Merger, or (viii) adversely
affect any right or interest of the Agent or any Lender.
SECTION 6.2.20. Prohibition on Voluntary Prepayments on
Subordinated Indebtedness. The Borrower will not, and will not permit any of
its Subsidiaries to, make any voluntary or optional payment or prepayment on,
or redemption or acquisition for value of the Estate Subordinated Note, the
Junior Subordinated Note or any Indebtedness incurred to refinance the Estate
Subordinated Note (as permitted pursuant to clause (k) of Section 6.2.2);
provided, however, that the Borrower may repay the Estate Subordinated Note to
the extent such payment is required pursuant to Section 4.1 of the Estate
Subordinated Note as in effect on the Closing Date.
SECTION 6.2.21. Prohibition on Actions Triggering Redemption
of Series D Stock. The Borrower will not relocate its office located in the
State of Maryland on the Closing Date to any location outside the State of
Maryland or take any other action that would permit the State of Maryland to
require the redemption of the Series D Preferred Stock.
ARTICLE 7.
EVENTS OF DEFAULT
SECTION 7.1. Events of Default. The term "Event of
Default" shall mean any of the events set forth in this Section 7.1.
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SECTION 7.1.1. Non-Payment of Obligations. The Borrower
shall default:
(a) in the payment or prepayment when due of any
principal of any Loan;
(b) in the payment when due of the interest payable in
respect of any Loan, the commitment fee provided for in Section 2.4 hereof and
such default shall continue unremedied for a period of five (5) days; or
(c) in the payment when due of any Obligation (other than
an Obligation referenced in clause (a) or (b) of this Section 7.1.1) and such
default shall continue unremedied for a period of five (5) days after a notice
thereof shall have been given to the Borrower by the Agent or any Lender or a
Responsible Officer of the Borrower shall have actual knowledge thereof.
SECTION 7.1.2. Non-Performance of Certain Covenants. The
Borrower shall default in the due performance and observance of any of its
obligations under Section 6.1 and such default shall continue unremedied for a
period of ten (10) days after notice thereof shall have been given to the
Borrower by the Agent (or if such default is not reasonably susceptible to cure
within ten (10) days, such longer period as is reasonably needed to effect such
cure, but in no event longer than thirty (30) days from the date notice is
given, so long as the Borrower promptly commences and diligently pursues such
cure), or shall default in the due performance or observation of any of its
obligations under Section 6.2.
SECTION 7.1.3. Defaults Under Other Loan Documents;
Non-Performance of Other Obligations. Any "Event of Default" shall occur under
the other Loan Documents; or the Borrower or any Subsidiary shall default in
the due performance and observance of any other obligation, covenant or
agreement contained herein or in any other Loan Document and such default shall
continue unremedied for a period of ten (10) days after notice thereof shall
have been given to the Borrower by the Agent (or if such default is not
reasonably susceptible to cure within ten (10) days, such longer period as is
reasonably needed to effect such cure, but in no event longer than thirty (30)
days from the date notice is given, so long as the Borrower promptly commences
and diligently pursues such cure).
SECTION 7.1.4. Bankruptcy, Insolvency, etc. The Borrower or
any Subsidiary shall:
(a) become insolvent or generally fail to pay, or admit
in writing its inability to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or other custodian for the
Borrower or any Subsidiary or any property of any thereof, or make a general
assignment for the benefit of creditors;
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(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for the Borrower or any Subsidiary or for a
substantial part of the property of any thereof, and such trustee, receiver,
sequestrator or other custodian shall not be discharged within sixty (60) days;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or proceeding under
any bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect of the Borrower or any Subsidiary, and, if such case or
proceeding is not commenced by the Borrower or such Subsidiary, such case or
proceeding shall be consented to or acquiesced in by Borrower or such
Subsidiary or shall result in the entry of an order for relief or shall remain
for sixty (60) days undismissed; or
(e) take any corporate action authorizing, or in
furtherance of, any of the foregoing.
SECTION 7.1.5. Breach of Warranty. Any representation or
warranty of the Borrower hereunder or in any other Loan Document or in any
other writing furnished by or on behalf of the Borrower to the Agent or any
Lender for the purposes of or in connection with this Agreement or any such
Loan Document is or shall be incorrect when made in any material respect.
SECTION 7.1.6. Default on Other Indebtedness, etc. (a) Any
Indebtedness of the Borrower or any Subsidiary in an aggregate principal amount
exceeding $500,000 (i) shall be duly declared to be or shall become due and
payable prior to the stated maturity thereof (other than as a result of any
mandatory prepayments required under Section 3.3.1 of this Agreement, Section
4.1 of the Estate Subordinated Note or any provision of any instrument
governing any such Indebtedness that provides for the mandatory prepayment
thereof with insurance proceeds or the like as a result of any casualty loss
relating to any property securing such Indebtedness), or (ii) shall not be paid
as and when the same becomes due and payable including any applicable grace
period; or (b) there shall occur and be continuing any event under any
Instrument relating to any Indebtedness of the Borrower or any Subsidiary in an
aggregate principal amount exceeding $500,000, the effect of which is to cause
such Indebtedness to become due prior to its stated maturity or to permit the
holder or holders of such Indebtedness, or a trustee, agent or other
representative on behalf of such holder or holders, to cause such Indebtedness
to become due prior to its stated maturity or to require (or permit the holder
or holders to require) the Borrower or any Subsidiary to redeem, repurchase or
otherwise acquire or retire such Indebtedness for value.
SECTION 7.1.7. Failure of Valid, Perfected Security
Interest. The security interest or Lien in the Collateral and all proceeds
thereof, securing the Obligations shall cease to be valid or perfected at any
time after the Closing Date (other than as a result of (i) the Agent's failure
to make any required filing to the extent the necessity of such filing was
disclosed to the Agent in an opinion of counsel to the Borrower or (ii) the
release of possession of any pledged Instrument delivered to the Agent or its
agent or representative pursuant to any of the Security Documents).
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SECTION 7.1.8. Employee Plans. Any of the following events
shall occur with respect to any Plan: (i) any Person shall engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA) not disclosed in
Item 8 (Benefit Plans) of the Disclosure Schedule, whether or not waived, shall
exist with respect to any Single Employer Plan, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) a notice of intent to terminate any Single Employer Plan for
purposes of Title IV of ERISA is issued by the plan administrator thereof
without the prior written consent of the Required Lenders, or the PBGC shall
commence proceedings to terminate any Single Employer Plan, (v) the Borrower or
any Commonly Controlled Entity or Subsidiary shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability in connection
with a withdrawal from, or the ERISA Insolvency, Plan Reorganization or
termination of, a Multiemployer Plan, (vi) the Borrower or any Commonly
Controlled Entity or Subsidiary shall fail to make any quarterly installment
payment to a Pension Plan required under Section 302(e) of ERISA or Section
412(m) of the Code, (vii) the Borrower or any Commonly Controlled Entity or
Subsidiary shall fail to make any contribution to a Multiemployer Plan which is
required under ERISA, the Code or applicable collective bargaining agreements,
or (viii) any other event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (viii) above, such event or
condition, together with all other such events or conditions, if any, could
subject the Borrower or any Subsidiary (directly or indirectly) to any tax,
penalty or other liabilities under Title I or Title IV of ERISA, Section 404 or
419 and Chapter 43 of the IRC or any other applicable law which in the
aggregate could result in a Material Adverse Change.
SECTION 7.1.9. Judgments. A final judgment which, with
other such outstanding final judgments against the Borrower and its
Subsidiaries (in each case to the extent not covered by insurance), exceeds an
aggregate of $500,000, shall be entered against the Borrower or any of its
Subsidiaries and, within 30 days after entry thereof, such judgment shall not
have been discharged or execution thereof stayed pending appeal, or, within 30
days after the expiration of any such stay, such judgment shall not have been
discharged or stayed.
SECTION 7.1.10. Cessation of Business; Dissolution. The
entry of any order of a court enjoining, restraining or otherwise preventing
the Borrower or any Subsidiary from conducting all or any material part of its
business affairs; or the cessation of business or dissolution of the Borrower.
SECTION 7.1.11. Subordinated Debt Documents. The Borrower
shall fail to perform, keep or observe any term or provision of, or a default
or other event shall occur or exist under, the Estate Subordinated Note or the
Junior Subordinated Note, or any other event shall have occurred or
circumstance shall exist, in any such case, the effect of which is to
accelerate, or to permit the holder thereof to accelerate, the maturity of the
Estate Subordinated Note or the Junior
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Subordinated Note or to permit the holder thereof to require the Borrower to
redeem the Estate Subordinated Note or the Junior Subordinated Note or any
portion thereof.
SECTION 7.2. Action if Bankruptcy. If any Event of
Default described in clause (d) of Section 7.1.4 shall occur, the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable and all Commitments
shall automatically be terminated, in either case without notice, demand or
presentment.
SECTION 7.3. Action if Other Event of Default. If any
Event of Default (other than any Event of Default described in clause (d) of
Section 7.1.4) shall occur for any reason, whether voluntary or involuntary,
and be continuing, the Agent may, and upon the direction of the Required
Lenders, shall upon notice or demand, declare all or any portion of the
outstanding principal amount of the Loans to be due and payable and any or all
other Obligations to be due and payable and all Commitments to be terminated,
whereupon the full unpaid amount of such Loans and any and all other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable and any and all Commitments which shall be so
declared terminated shall be and become immediately terminated, in each case
without further notice, demand, or presentment, and to the extent any
obligations are paid by the Borrower, they shall constitute a prepayment under
this Agreement.
ARTICLE 8.
THE AGENT
SECTION 8.1. Actions. Each Lender and the holder of each
Note authorize the Agent to act on behalf of such Lender or holder under this
Agreement and any other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by the Agent
(with respect to which the Agent agrees that it will, subject to the last two
sentences of this Section 8.1, comply, except as otherwise advised by counsel),
to exercise such powers hereunder and thereunder as are specifically delegated
to or required of the Agent by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender agrees (which
agreement shall survive any termination of this Agreement) to indemnify the
Agent, pro rata according to such Lender's Percentage, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may at any time be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of this Agreement, the Notes, or any other
Loan Document, including the reimbursement of the Agent for all out-of-pocket
expenses (including attorneys' fees) incurred by the Agent hereunder or in
connection herewith or in enforcing the Obligations of the Borrower under this
Agreement or any other Loan Document, in all cases as to which the Agent is not
reimbursed by the Borrower; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments,
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suits, costs, expenses or disbursements determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from the Agent's
gross negligence or wilful misconduct. The Agent shall not be required to take
any action hereunder or under any other Loan Document, or to prosecute or
defend any suit in respect of this Agreement or any other Loan Document, unless
it is indemnified to its satisfaction by the Lenders against loss, costs,
liability and expense. If any indemnity in favor of the Agent shall become
impaired, it may call for additional indemnity and cease to do the acts
indemnified against until such additional indemnity is given.
SECTION 8.2. Funding Reliance, etc. Unless the Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York City time, on the day prior to a Borrowing that such Lender
will not make available the amount which would constitute its Percentage of
such Borrowing on the date specified therefor, the Agent may assume that such
Lender has made such amount available to the Agent and, in reliance upon such
assumption, make available to the Borrower a corresponding amount; provided,
however, that the Agent shall have no obligation to do so. If such amount is
made available by such Lender to the Agent on a date after the date of such
Borrowing, such Lender shall pay to the Agent on demand interest on such amount
at the Federal Funds Rate for the number of days from and including the date of
such Borrowing to the date on which such amount becomes immediately available
to the Agent, together with such other compensatory amounts as may be required
to be paid by such Lender to the Agent pursuant to the Rules for Interbank
Compensation of the Council on International Banking or the Clearinghouse
Compensation Committee, as the case may be, as in effect from time to time. A
statement of the Agent submitted to any Lender with respect to any amounts
owing under this Section 8.2 shall be conclusive, in the absence of manifest
error. If such amount is not in fact made available to the Agent by such
Lender within three Business Days after the date of such Borrowing, the Agent
shall be entitled to recover such amount, with interest thereon at the rate per
annum then applicable to the Loans comprising such Borrowing, within five
Business Days after demand, from the Borrower. Nothing herein shall be
construed to release any Lender from its obligation to make Loans subject to
the terms and conditions set forth in this Agreement.
SECTION 8.3. Exculpation. Neither the Agent nor any of
its directors, officers, employees or agents shall be liable to any Lender for
any action taken or omitted to be taken by it under this Agreement, the Notes,
or any Loan Document, or in connection herewith or therewith, except for its
own wilful misconduct or gross negligence. The Agent shall not be responsible
to any Lender for any recitals, statements, representations or warranties
herein or in any certificate or other document delivered in connection herewith
or for the authorization, execution, effectiveness, genuineness, validity,
enforceability, perfection, collectability, or sufficiency of any of the Loan
Documents, the financial condition of the Borrower or any Subsidiary or the
condition or value of any of the Collateral, or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of any of the Loan Documents, the financial condition of the
Borrower or any Subsidiary or the existence or possible existence of any
Default. The Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which it believes to be genuine and to have been presented by a proper Person.
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SECTION 8.4. Successor. The Agent may resign as such at
any time upon at least thirty (30) days' prior notice to the Borrower and all
Lenders, such resignation not to be effective until a successor Agent is in
place. If the Agent at any time shall resign, the Required Lenders may appoint
another Lender as a successor Agent which shall thereupon become the Agent
hereunder. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving notice of resignation, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be one of the
Lenders or a financial institution reasonably acceptable to the Borrower
organized under the laws of the United States and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall be entitled to
receive from the retiring Agent such documents of transfer and assignment as
such successor Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges, and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents.
SECTION 8.5. Loans by the Agent. The Agent shall have the
same rights and powers with respect to (a) the Loans made by it or any of its
Affiliates and (b) the Notes held by it or any of its Affiliates, as any Lender
and may exercise the same as if it were not the Agent.
SECTION 8.6. Credit Decisions. Each Lender acknowledges
that it has, independently of the Agent and each other Lender, and based on
such financial information and such other documents, information and
investigations as it has deemed appropriate, made its own credit decision to
extend its Commitments, to make the Loans. Each Lender also acknowledges that
it will, independently of the Agent and each other Lender, and based on such
other documents, information and investigations as it shall deem appropriate at
any time, continue to make its own credit decisions as to exercising or not
exercising from time to time any rights and privileges available to it under
this Agreement or any other Loan Document.
SECTION 8.7. Copies, etc. The Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Agent by the Borrower pursuant to the terms of this Agreement.
The Agent will distribute to each Lender each Instrument received for its
account and copies of all other communications received by the Agent from the
Borrower for distribution to the Lenders by the Agent in accordance with the
terms of this Agreement. Notwithstanding anything herein contained to the
contrary, all notices to and communications with the Borrower under this
Agreement and the other Loan Documents shall be effected by the Lenders through
the Agent.
ARTICLE 9.
MISCELLANEOUS
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SECTION 9.1. Waivers, Amendments, etc. (a) The provisions
of this Agreement and of each Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing
and, (x) in the case of an amendment or modification, is consented to by the
Borrower and the Required Lenders and (y) in the case of a waiver of any
obligation of the Borrower or compliance with any prohibition contained in this
Agreement or any other Loan Document, is consented to by the Required Lenders;
provided, however, that no such amendment, modification or waiver:
(i) which would modify any requirement hereunder that any
particular action be taken by all the Lenders or by the Required
Lenders shall be effective unless consented to by each Lender;
(ii) which would modify this Section 9.1, change the
definition of "Required Lenders," increase the Revolving Loan
Commitment Amount or change any Percentage for any Lender, reduce any
fees payable to the Lenders described in Article 2 and Article 3,
extend the Revolving Loan Commitment Termination Date or subject any
Lender to any additional obligations shall be made without the consent
of each Lender;
(iii) which would extend the due date for, or reduce the
amount of, any payment or prepayment of principal of or interest on
any Loan (or reduce the principal amount of or rate of interest on
any Loan) shall be made without the consent of the holder of the Note
evidencing such Loan; or
(iv) which would affect adversely the interests, rights,
compensation or obligations of the Agent qua the Agent shall be made
without consent of the Agent.
(b) No failure or delay on the part of the Agent, any
Lender or the holder of any Note in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
No notice to or demand on the Borrower in any case shall entitle it to any
notice or demand in similar or other circumstances. No waiver or consent by
the Agent, any Lender, or the holder of any Note under this Agreement or any
other Loan Document shall, except as may be otherwise stated in such waiver or
consent, be applicable to subsequent transactions. No waiver or consent
hereunder shall require any similar or dissimilar waiver or consent thereafter
to be granted hereunder.
(c) Neither any Lender nor the Agent shall be under any
obligation to marshal any assets in favor of the Borrower or any other party or
against or in payment of any or all of the Obligations. Recourse for security
shall not be required at any time. To the extent that the Borrower makes a
payment or payments to the Agent or the Lenders, or the Agent or the Lenders
enforce their security interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently for any reason invalidated, set aside or required to
be repaid to a trustee, receiver or any other party under any bankruptcy law,
state or
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federal law, common law or equitable cause, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor, shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement
or setoff had not occurred.
SECTION 9.2. Notices. All notices hereunder shall be in
writing or by telecopy and shall be sufficiently given to the Agent, the
Lenders or the Borrower if addressed or delivered to them at the following
addresses:
If to the Agent: ING Capital
135 East 57th Street
New York, New York 10022
Attention: Chief Credit Officer
Telecopier No.: (212) 750-8935
with copies to: ING Capital
Atlanta Office
200 Galleria Parkway
Suite 950
Atlanta, Georgia 30339
Telecopier No.: (770) 951-1005
and a copy to: King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: Hector E. Llorens, Jr. Esq.
Telecopier No.: (404) 572-5100
If to any other Lender: At its address set forth beneath its name on
the signature pages hereof
If to the Borrower Brunswick Biomedical Corporation/
prior to the Merger 6 Thacher Lane
Consummation Date: Wareham, Massachusetts 02571
Attention: James H. Miller
Telecopier No.: (508) 460-7702
with a copy to: Palmer & Dodge
One Beacon Street
Boston, Massachusetts 02108
Attention: Stanley Keller, Esq.
Telecopier No: (617) 227-4420
If to the Borrower Survival Technology, Inc.
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on or after the Merger 2275 Research Boulevard, Suite 100
Consummation Date: Rockville, Maryland 20850
Attention: James H. Miller
Telecopier No: (301) 926-6423
with a copy to: Palmer & Dodge
One Beacon Street
Boston, Massachusetts 02108
Attention: Stanley Keller, Esq.
Telecopier No: (617) 227-4420
or at such other address as any party may designate to any other party by
written notice. All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; when
received, if deposited in the mail, postage prepaid; when transmission is
verified, if telecopied; and on the next Business Day, if timely delivered to
an air courier guaranteeing overnight delivery.
SECTION 9.3. Costs and Expenses. The Borrower agrees to
pay all reasonable out-of-pocket expenses of the Agent (including reasonable
fees and expenses of counsel to the Agent, or of any consultants or other
experts retained by the Agent) in connection with (i) the negotiation,
preparation, execution, and delivery of this Agreement and each other Loan
Document, including schedules and exhibits, and any amendments, waivers,
consents, supplements, terminations, releases or other modifications to this
Agreement or any other Loan Document as may from time to time hereafter be
required, whether or not the transactions contemplated hereby are consummated,
and (ii) the consideration of legal questions relevant to this Agreement of any
other Loan Document. The Borrower also agrees to pay and hold the Agent and
the Lenders harmless from any stamp, documentary, intangibles, transfer or
similar taxes or charges, and all recording or filing fees with respect to the
Loan Documents or any payments to be made thereunder and any title insurance
premiums, surveyors costs and valuation fees, and to reimburse the Agent and
each Lender upon demand for all reasonable out-of-pocket expenses (including
reasonable attorneys' fees and expenses) incurred by the Agent or such Lender
in enforcing the Obligations of the Borrower or any Subsidiary under this
Agreement or any other Loan Document or related Document or in connection with
any restructuring or "work-out" of any Obligations, provided that the Lenders
shall be entitled to reimbursement in respect of reasonably attorney's fees and
expenses payable to a single law firm (in addition to any law firm representing
the Agent) in connection with any such enforcement, restructuring or "work-out".
SECTION 9.4. Indemnification. In consideration of the
execution and delivery of this Agreement by the Agent and each Lender, the
making of the Bridge Loan and the Term Loan and the extension of the Revolving
Loan Commitment, the Borrower hereby indemnifies, exonerates and holds the
Agent and each Lender, each of their respective successors and assigns, each of
the respective officers, directors, employees, attorneys and agents of the
Agent and each Lender and each of their respective successors and assigns
(collectively, the "Lender Parties") free and harmless from
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and against any and all actions, causes of action, suits, losses, costs,
liabilities (including, but not limited to, Environmental Liabilities and
Costs), damages and expenses (irrespective of whether such Lender Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (the "Indemnified Liabilities"),
incurred by the Lender Parties or any of them or asserted or awarded against
the Lender Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of any Loan, including,
without limitation, the Acquisition and the Merger;
(b) the use of any of the proceeds of the Loans by the
Borrower for any other purpose;
(c) the making of any claim by any investment banking
firm, broker or third party that it is entitled to compensation from the Agent
or any Lender in connection with this Agreement (other than investment banking
firms and brokers retained by the Agent or any Lender);
(d) the entering into and performance of this Agreement
and any other Loan Document by any of the Lender Parties (other than the breach
by such Lender Party of this Agreement);
(e) the existence of any contaminant, in, under, on or
otherwise affecting any property owned, used, operated, or leased by Borrower
or any Subsidiary in the past, present, or future or any surrounding areas
affected by such property, regardless of whether the existence of the
contaminant is related to the past, present, or future operations of the
Borrower and its Subsidiaries, or their predecessors in interest or any other
Person; any Environmental Liabilities and Costs related to any property owned,
used, operated, or leased by Borrower or any Subsidiary in the past, present,
or future; any Environmental Liabilities and Costs related to the past,
present, or future operations of the Borrower or any Subsidiaries; any alleged
violations of any Environmental Law related to any property owned, used,
operated, or leased by Borrower or any Subsidiary in the past, present, or
future; any alleged violations of any Environmental Law related to the past,
present, or future operations of the Borrower or any Subsidiaries; the
performance of any remedial action that is related to any property owned, used,
operated, or leased by Borrower or any Subsidiaries in the past, present, or
future; the performance of any remedial action that is related to the past,
present, or future operations of the Borrower or any Subsidiaries; and the
imposition of any Lien on any property affected by this Agreement or any of the
other Loan Documents arising from any Environmental Liabilities or Costs;
(f) the breach in any material respect by Borrower of any
representation or warranty set forth in this Agreement or any Loan Document;
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(g) the failure of Borrower to comply in any material
respect with any term, condition, or covenant set forth in this Agreement or
any Loan Document; or
(h) any claim, litigation, investigation or proceeding
relating to (i) any of the Loan Documents, (ii) any proposed acquisition by the
Borrower of all or any portion of the stock or assets of any Person or (iii)
any of the other matters referenced in clauses (a) - (g) above, whether or not
the Agent or any Lender (or any of their respective officers, directors,
employees or agents) is a party thereto;
except for any such Indemnified Liabilities arising for the account of a
particular Lender Party by reason of the relevant Lender Party's material
breach of any of its obligations under this Agreement or any other Loan
Document or by reason of the relevant Lender Party's bad faith, gross
negligence or wilful misconduct, in each such case as determined by a final and
nonappealable decision of a court of competent jurisdiction. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The foregoing indemnity shall become effective immediately
upon the execution and delivery hereof and shall remain operative and in full
force and effect notwithstanding the consummation of the transactions
contemplated hereunder, the repayment of any of the Loans made hereunder, the
invalidity or unenforceability of any term or provision of this Agreement or
any other Loan Document, or any investigation made by or on behalf of any
Lender or the Agent.
SECTION 9.5. Survival. The obligations of the Borrower
under Sections 2.5, 3.5, 9.3 and 9.4, and the obligations of the Lenders under
Section 8.1, shall in each case survive any termination of this Agreement. The
representations and warranties made by the Borrower in this Agreement, the
Notes and in each other Loan Document (including those not required to be made
or repeated after the Merger Consummation Date) shall survive the execution and
delivery of this Agreement, the Notes and each such other Loan Document.
SECTION 9.6. Severability. Any provision of this
Agreement, the Notes or any other Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, the Notes or such
other Loan Document or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 9.7. Headings. The various headings of this
Agreement, the Notes and of each other Loan Document are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement, the Notes or such other Loan Document or any provisions hereof or
thereof.
SECTION 9.8. Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. This Agreement shall
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become effective when counterparts hereof executed on behalf of the Borrower
and each Lender (or notice thereof satisfactory to the Agent) shall have been
received by the Agent and notice thereof shall have been given by the Agent to
the Borrower and each Lender.
SECTION 9.9. Governing Law; Entire Agreement. (a) THIS
AGREEMENT AND THE NOTES SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement, the
Notes and the other Loan Documents constitute the entire understanding among
the parties hereto with respect to the subject matter hereof and supersede any
prior agreements, written or oral, with respect thereto including the
Commitment Letter.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR RELATED DOCUMENT, AND EACH HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT. THE BORROWER
AGREES THAT SUCH JURISDICTION SHALL BE EXCLUSIVE WITH RESPECT TO ANY SUCH
ACTION OR PROCEEDING BROUGHT BY IT AGAINST THE AGENT OR ANY LENDER. EACH PARTY
TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING.
(c) The Borrower hereby irrevocably designates, appoints
and empowers CT Corporation System, whose present address is 1633 Broadway, New
York, New York 10019, as its authorized agent to receive, for and on its behalf
and its property, service of process in the State of New York when and as such
legal actions or proceedings may be brought in the courts of the State of New
York or of the United States of America sitting in New York, and such service
of process shall be deemed complete upon the date of delivery thereof to such
agent whether or not such agent gives notice thereof to the Borrower, or upon
the earliest of any other date permitted by applicable law. The Borrower shall
furnish the consent of CT Corporation System so to act to the Agent on or prior
to the Closing Date. It is understood that a copy of said process served on
such agent will as soon as practicable be forwarded to the Borrower, at its
address set forth below, but its failure to receive such copy shall not affect
in any way the service of said process on said agent as the agent of the
Borrower. The Borrower irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by the
mailing of the copies thereof by certified mail, return receipt requested,
postage prepaid, to it at its address set forth herein, such service to become
effective upon the earlier of (i) the date 10 calendar days after such mailing
or (ii) any earlier date permitted by applicable law. The Borrower agrees that
it will at all times continuously maintain an agent to receive service of
process in the State of New York on behalf of itself and its properties and in
the event that, for any reason, the agent named above or its successor shall no
longer serve as its agent to receive service of process in the State of New
York on its behalf,
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it shall promptly appoint a successor so to serve and shall advise the Agent
and the Lenders thereof (and shall furnish to the Agent the consent of any
successor agent so to act). Nothing in this Section 9.9 shall affect the right
of the Agent or any Lender to bring proceedings against the Borrower in the
courts of any other jurisdiction or to serve process in any other manner
permitted by applicable law.
SECTION 9.10. Successors and Assigns. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that the Borrower may not
assign or transfer its rights or obligations hereunder without the prior
written consent of all Lenders; and the rights of sale, assignment and transfer
of the Lenders are subject to Section 9.11.
SECTION 9.11. Sale and Transfers, Participations, etc. (a)
Any Lender may at any time sell to one or more Participants participating
interests in any Loan owing to such Lender, any Note held by such Lender, the
Term Loan Commitment or the Revolving Loan Commitment of such Lender, or any
other interest of such Lender under this Agreement. In the event of any such
sale by a Lender of participating interests to a Participant, such Lender's
obligations under this Agreement shall remain unchanged and such Lender shall
remain solely responsible for the performance thereof, such Lender shall remain
the holder of any such Note for all purposes under this Agreement and the other
Loan Documents, and the Borrower and the Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. The Borrower
agrees that if amounts outstanding under this Agreement and the Notes are due
or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement and any Note to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under this
Agreement or any Note, provided that such right of setoff shall be subject to
the approval of the Required Lenders and to the obligations of such Participant
to share with the Lenders, and the Lenders agree to share with such
Participant, as provided in Section 3.8 as if the Participant were a Lender
hereunder and the Borrower shall have been notified of the name, address, date
and amount of such Participant's participating interest in the Loans and the
Commitments. The Borrower also agrees that each Participant shall be entitled
to the benefits of (i) Section 9.4 and (ii) Sections 2.5 and 3.6, with respect
to its participation in the Commitments and the Loans outstanding from time to
time; provided, that no Participant shall be entitled to receive any greater
amount pursuant to the Sections referred to in clause (ii) than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(b) With the consent of the Agent and the consent of the
Borrower (which consent shall not be unreasonably withheld or delayed), any
Lender may at any time sell to any Purchasing Lender all or any part in a
minimum amount of $2,500,000, of its rights and obligations under this
Agreement and the Notes pursuant to a Transfer Supplement, executed by such
Purchasing Lender, such transferor Lender, the Agent and the Borrower. Upon
(i) such execution of such Transfer Supplement, and (ii) delivery of a fully
executed copy thereof to the Borrower, such Purchasing
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Lender shall for all purpose be a Lender party to this Agreement and shall have
all the rights and obligations of a Lender under this Agreement, to the same
extent as if it were an original party hereto, with a Percentage of the Bridge
Loan, the Revolving Loan Commitment Amount and the Term Loan set forth in such
Transfer Supplement, and no further consent or action by the Borrower, the
Lenders or the Agent shall be required. Such Transfer Supplement shall be
deemed to amend this Agreement to the extent, and only to the extent, necessary
to reflect the addition of such Purchasing Lender and the resulting adjustment
of Percentages arising from the purchase by such Purchasing Lender of all or a
portion of the rights and obligations of such transferor Lender under this
Agreement and the Notes. Upon the consummation of any transfer to a Purchasing
Lender pursuant to this paragraph (b), the transferor Lender, the Agent and the
Borrower shall make appropriate arrangements so that, if required, replacement
Notes are issued to such transferor Lender and new Notes to the Purchasing
Lender in the amount equal to their respective Commitments and outstanding
Loans, as appropriately adjusted pursuant to such Transfer Supplement.
(c) The Agent shall maintain at its address referred to
herein a copy of each Transfer Supplement delivered to it and the Register for
the recordation of the names and addresses of the Lenders and the Commitments
of, and principal amount of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as the owner of the Loans recorded therein for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a Transfer Supplement executed by
a transferor Lender, the Agent and a Purchasing Lender together with payment by
such Purchasing Lender to the Agent, for the account of the Agent and not for
the account of the Lenders, of a registration and processing fee of $2,500, and
the Notes subject to such Transfer Supplement, the Agent shall (i) accept such
Transfer Supplement, (ii) record the information therein in the Register and
(iii) give prompt notice of such acceptance and recordation to the Lenders and
the Borrower.
(e) If, pursuant to this Section 9.11, any interest in
this Agreement or any Note is transferred to any Participant or Purchasing
Lender which is organized under the laws of any jurisdiction other than the
United States or any State thereof, the transferor Lender shall cause such
Participant or Purchasing Lender, concurrently with the effectiveness of such
transfer, (i) to represent to the transferor Lender (for the benefit of the
transferor Lender, the Agent and the Borrower) that under applicable law and
treaties no taxes will be required to be withheld by the Agent, the Borrower or
the transferor Lender with respect to any payments to be made to such
Participant or Purchasing Lender in respect of the Loans or Commitments, (ii)
to furnish to the transferor Lender, the Agent and the Borrower two properly
executed original Internal Revenue Service Forms 4224 or 1001 (or any successor
forms) and properly executed Internal Revenue Service Forms W-8 and W-9, as the
case may be, (wherein such Participant or Purchasing Lender claims entitlement
to complete exemption from the United States federal withholding tax on all
interest payments hereunder and all fees payable under Section 2.4) and (iii)
to agree (for the benefit of the transferor Lender, the Agent
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and the Borrower) to provide the transferor Lender, the Agent and the
Borrower new Internal Revenue Service Forms 4224 or 1001 upon the expiration or
obsolescence of any previously delivered form or after the occurrence of any
event requiring a change in the most recent forms delivered by it to the
Transferor Lender, the Agent and the Borrower, and comparable statements in
accordance with applicable United States laws and regulations and amendments
duly executed and completed by such Participant or Purchasing Lender, and to
comply from time to time with all applicable United States laws and regulations
with regard to such withholding tax exemption.
(f) Notwithstanding anything to the contrary set forth in
this Section 9.11, (i) any Lender may sell to any of its Affiliates all or any
part of its rights and obligations under this Agreement and the Notes (provided
that no such Affiliate shall be entitled to receive any greater amount pursuant
to Sections 2.5 or 3.6 than that which the transferor Lender would have been
entitled to receive in respect of the amount so assigned by such transferor
Lender to such Affiliate had no such transfer occurred) and, upon the
occurrence and during the continuance of an Event of Default, any Lender may
sell to any Purchasing Lender all or any part of its rights and obligations
under this Agreement and the Notes, in either case notwithstanding that the
Borrower has not consented or does not consent to such sale, provided such
Lender has obtained the consent of the Agent and otherwise meets the
requirements of this Section 9.11 and (ii) any Lender may create a security
interest in all or any portion of its rights under this Agreement (including
the Loans owing to it and the notes held by it) in favor of the Federal Reserve
Bank in accordance with Regulation A of the F.R.S. Board.
SECTION 9.12. Other Transactions. Nothing contained herein
shall preclude the Agent or any other Lender from engaging in any transaction,
in addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Affiliates in which the Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 9.13. Confidentiality. The Lenders and the Agent
shall hold all non-public, proprietary or confidential information (which has
been identified as such by the Borrower) obtained pursuant to the requirements
of this Agreement in accordance with their customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices; however, the Lenders and the Agent may make disclosure of
any such information to its examiners, Affiliates, outside auditors, counsel,
consultants, appraisers and other professional advisors in connection with this
Agreement or as required by any proposed syndicate member or any proposed
transferee or participant in connection with the contemplated transfer of any
Note or participation therein or as required or requested by any Governmental
Authority or representative thereof or in connection with the enforcement
hereof or of any Loan Document or related document or pursuant to legal
process; provided, however, that any such proposed syndicate member or proposed
transferee or participant shall have agreed in writing for the Borrower's
benefit to be bound by the terms of this Section 9.13. In no event shall any
Lender or the Agent be obligated or required to return any materials furnished
to it by the Borrower.
SECTION 9.14. Change in Accounting Principles. If
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(a) any changes in accounting principles from those used
in the preparation of the financial statements referred to in clause (a)(i) of
Section 5.4 hereafter occur as a result of the promulgation of rules,
regulations, pronouncements or opinions by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) result in a change in the method of
calculation of financial covenants, standards or terms found in this Agreement;
or
(b) there is any change in the Borrower's Fiscal Year
with the Required Lenders' prior written consent pursuant to Section 6.2.16
hereof;
the parties hereto agree to enter into negotiations in order to amend such
financial covenants, standards or terms so as to equitably reflect such changes
with the desired result that the evaluations of the Borrower's financial
condition shall be the same after such changes as if such changes had not been
made; provided, however, that, until the parties hereto have reached a
definitive agreement on such amendments the Borrower shall not change its
Fiscal Year (other than a change by Brunswick of its Fiscal Year end to July 31
as a result of or in contemplation of the Merger) and the Borrower's financial
condition and operations shall continue to be evaluated on the same principles
as those used in the preparation of the financial statements referred to in
clause (a)(i) of Section 5.4.
SECTION 9.15. Waiver of Jury Trial, Etc. THE AGENT, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, THE
NOTES OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE AGENT, SUCH LENDERS,
OR THE BORROWER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND
SUCH LENDERS ENTERING INTO THIS AGREEMENT.
SECTION 9.16. Limitation of Liability. Neither the Agent,
the Lenders nor any Affiliate thereof shall have any liability with respect to,
and THE BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON, ANY CLAIM
FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES
SUFFERED BY THE BORROWER IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY
RELATED TO THIS AGREEMENT, THE LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED
HEREIN, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH.
SECTION 9.17. Usury Savings Clause. Notwithstanding
anything to the contrary in this Agreement or any other Loan Document, if at
any time any rate of interest accruing on any Obligation, when aggregated with
all amounts payable by the Borrower or any other Loan Party under any of the
Loan Documents that are deemed or construed to be interest accrued or accruing
on such Obligation under applicable law, exceeds the highest rate of interest
permissible
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under any law which a court of competent jurisdiction shall, in a final
determination, deem applicable to such Lender with respect to such Obligation
(each a "Maximum Lawful Rate"), then in such event and so long as the Maximum
Lawful Rate would be so exceeded, such rate of interest shall be reduced to the
Maximum Lawful Rate; provided that if at any time thereafter such rate of
interest accruing on Obligations held by such Lender is less than the Maximum
Lawful Rate, the Borrower shall continue to pay interest to such Lender at the
Maximum Lawful Rate until such time as the total interest received by such
Lender in respect of the Obligations held by it is equal to the total interest
which such Lender would have received had interest on all Obligations held by
such Lender (but for the operation of this Section 9.17) accrued at the rate
otherwise applicable under this Agreement and the other Loan Documents.
Thereafter, interest payable to such Lender in respect of the Obligations held
by it shall accrue at the applicable rate set forth in this Agreement or other
Loan Documents unless and until such rate again exceeds the Maximum Lawful
Rate, in which event this Section 9.17 shall again apply. In no event, shall
the total interest received by any Lender pursuant to the terms hereof exceed
the amount which such Lender could lawfully have received had interest been
calculated for the full term of this Agreement at the Maximum Lawful Rate. In
the event that the Maximum Lawful Rate is calculated pursuant to this Section
9.17, (a) if required by applicable law, such interest shall be calculated at a
daily rate equal to the Maximum Lawful Rate divided by the number of days in
the year in which such calculation is made, and (b) if permitted by applicable
law, the Borrower and such Lender shall (i) characterize any non-principal
payment as an expense, fee or premium rather than as interest, (ii) exclude
voluntary prepayments and the effect thereof, and (iii) amortize, prorate,
allocate and spread in equal or unequal parts the total amount of interest
throughout the entire contemplated term of the Loans so that interest for the
entire term of the Loans shall not exceed the Maximum Lawful Rate. In the
event that a court of competent jurisdiction, notwithstanding the provisions of
this Section 9.17 shall make a final determination that any Lender has received
interest in excess of the Maximum Lawful Rate, such Lender shall, to the extent
permitted by applicable law, promptly apply such excess, first to any interest
due and outstanding under this Agreement and the other Loan Documents, second
to any principal due and payable under this Agreement and the Notes, third to
the remaining principal amount of the Notes and fourth to other unpaid
Obligations held by such Lender, and thereafter shall refund any excess to the
Borrower or as a court of competent jurisdiction may otherwise order.
SECTION 9.18. Effectiveness of Execution and Delivery by
STI. This Agreement and the other Loan Documents to which Borrower is a party
shall be deemed executed and delivered by STI upon the consummation of the
Merger, and the execution and delivery by STI of this Agreement shall not be a
condition to the execution, delivery and effectiveness of this Agreement as
among Brunswick, the Lenders and the Agent.
94
<PAGE> 102
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed under seal by their respective officers thereunto duly
authorized as of the day and year first above written.
BRUNSWICK BIOMEDICAL CORPORATION
By: /s/ James H. Miller
-------------------------------------
James H. Miller
President
Percentage
- ----------
100% - Bridge INTERNATIONALE NEDERLANDEN (U.S.)
100% - Revolving CAPITAL CORPORATION, AS AGENT AND AS
100% - Term LENDER
By: /s/ Darren Wells
-------------------------------------
Darren Wells
Managing Director
95
<PAGE> 103
EXHIBIT A
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (this "Agreement"), dated as of
_______________, between SURVIVAL TECHNOLOGY, INC., a Delaware corporation (the
"Company"), and INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, as agent
(the "Agent") for the Lenders (as defined below):
W I T N E S S E T H:
RECITALS.
A. Pursuant to a Credit Agreement, dated as of April 15, 1996 as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Brunswick Biomedical Corporation, a Massachusetts
corporation ("Brunswick"), the various lenders (the "Lenders") as are, or may
become, parties thereto and the Agent, the Lenders made the Bridge Loan to
Brunswick;
B. On the date hereof, Brunswick is being merged with and into
the Company, with the Company as the surviving corporation (the "Merger");
C. Under the terms of the Credit Agreement, upon consummation of
the Merger, the Company is required to execute and deliver this Agreement; and
D. The Company has duly authorized the execution, delivery, and
performance of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged by the Company, and in order to induce the Lenders
to make Loans to the Company pursuant to the Credit Agreement, the Company
agrees with the Agent for the benefit of all Lenders as follows:
Article 1.
DEFINITIONS
Section 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall have the following meanings (such meanings to be equally applicable to
the singular and plural forms thereof):
<PAGE> 104
"Agent" is defined in the preamble.
"Agreement" is defined in the preamble.
"Brunswick" is defined in Recital A.
"Company" is defined in the preamble.
"Credit Agreement" is defined in Recital A.
"Lenders" is defined in Recital A.
"Merger" is defined in Recital B.
Section 1.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms for which meanings are provided
in the Credit Agreement are used in this Agreement, and its preamble and
recitals, with such meanings.
Article 2.
ASSUMPTION
Section 2.1. Assumption. The Company hereby confirms, acknowledges,
represents, warrants, covenants and agrees, for the benefit of the Lenders and
the Agent, that immediately upon the effectiveness of the Merger, and without
any further action by any Person:
(a) The Company assumes (by operation of law and pursuant
to this Agreement) each and every covenant, agreement, term,
condition, obligation, appointment, duty and liability of Brunswick
and, by virtue of the foregoing, accepts and assumes all liability of
Brunswick related to any representation and warranty made by Brunswick
or the Company under or in connection with the Credit Agreement or any
such Loan Document and all such representations and warranties shall
be deemed to have been confirmed and restated as of the effective time
of the Merger; and
(b) The Company shall be the "Borrower" referred to in
the Credit Agreement and shall perform and observe all the covenants,
agreements, terms, conditions, obligations, appointments, duties and
liabilities of the "Borrower" under the Credit Agreement and each
other Loan Document executed by Brunswick, all as if the Company was
the direct, actual and original signatory thereto.
A-2
<PAGE> 105
Article 3.
MISCELLANEOUS
Section 3.1. Loan Document. This Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall be construed, administered
and applied in accordance with the terms and provisions of the Credit Agreement.
Section 3.2. Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of, and be enforceable by, the Agent and the Lenders and their respective
successors and assigns.
SECTION 3.3. GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR RELATED DOCUMENT, AND EACH HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT. THE COMPANY
AGREES THAT SUCH JURISDICTION SHALL BE EXCLUSIVE WITH RESPECT TO ANY SUCH
ACTION OR PROCEEDING BROUGHT BY IT AGAINST THE AGENT OR ANY LENDER. EACH PARTY
TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING.
(c) The Company hereby irrevocably designates, appoints
and empowers CT Corporation System, whose present address is 1633 Broadway, New
York, New York 10019, as its authorized agent to receive, for and on its behalf
and its property, service of process in the State of New York when and as such
legal actions or proceedings may be brought in the courts of the State of New
York or of the United States of America sitting in New York, and such service
of process shall be deemed complete upon the date of delivery thereof to such
agent whether or not such agent gives notice thereof to the Company, or upon
A-3
<PAGE> 106
the earliest of any other date permitted by applicable law. The Company shall
furnish the consent of CT Corporation System so to act to the Agent on or prior
to the Merger Consummation Date. It is understood that a copy of said process
served on such agent will as soon as practicable be forwarded to the Company,
at its address set forth below, but its failure to receive such copy shall not
affect in any way the service of said process on said agent as the agent of the
Company. The Company irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or proceeding by the mailing of
the copies thereof by certified mail, return receipt requested, postage
prepaid, to it at its address set forth below, such service to become effective
upon the earlier of (i) the date 10 calendar days after such mailing or (ii)
any earlier date permitted by applicable law. The Company agrees that it will
at all times continuously maintain an agent to receive service of process in
the State of New York on behalf of itself and its properties and in the event
that, for any reason, the agent named above or its successor shall no longer
serve as its agent to receive service of process in the State of New York on
its behalf, it shall promptly appoint a successor so to serve and shall advise
the Agent and the Lenders thereof (and shall furnish to the Agent the consent
of any successor agent so to act). Nothing in this Section 3.3 shall affect
the right of the Agent or any Lender to bring proceedings against the Company
in the courts of any other jurisdiction or to serve process in any other manner
permitted by applicable law.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered by its duly authorized officers on the day and year
first above written.
SURVIVAL TECHNOLOGY, INC.
By:
-------------------------------------
Name:
Title:
A-4
<PAGE> 107
ACKNOWLEDGED AND AGREED TO:
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION, as Agent
By:
---------------------------------
Name:
Title:
A-5
<PAGE> 108
EXHIBIT B
FORM OF
BORROWING REQUEST
_____________, ____
Internationale Nederlanden
(U.S.) Capital Corporation,
as Agent
200 Galleria Parkway, N.W.
Suite 950
Atlanta, Georgia 30339
Attention: Mr. Darren Wells
Ladies and Gentlemen:
This Borrowing Request is delivered to you, in your capacity
as Agent, under Section 3.1 of the Credit Agreement, dated as of April 15, 1996
as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among SURVIVAL TECHNOLOGY, INC., as successor by merger to
BRUNSWICK BIOMEDICAL CORPORATION, a Massachusetts corporation (the "Borrower"),
the various lenders (the "Lenders") as are, or may from time to time become,
parties thereto, and Internationale Nederlanden (U.S.) Capital Corporation, as
Agent for the Lenders (the "Agent"). Unless otherwise defined, terms used
herein have the meanings provided in the Credit Agreement.
The Borrower hereby requests that Revolving Loans be made in
the aggregate principal amount of $___________ on ___________, ____. The
Revolving Loans requested hereby shall be [Base Rate Loans.] [Eurodollar Loans
having an initial Interest Period of ____ month[s].]
The Borrower hereby acknowledges that, pursuant to Section
4.3.2 of the Credit Agreement, each of the delivery of this Borrowing Request
and the acceptance by the Borrower of the proceeds of the Loans requested
hereby, constitutes a representation and warranty that, on the date of the
making of such Loans, and before and after giving effect thereto, all
statements set forth in Section 4.3.1 of the Credit Agreement are true and
correct.
<PAGE> 109
The Borrower agrees that if, prior to the time of the making
of the Loans requested hereby, any matter certified to herein or in connection
herewith by it will not be true and correct at such time as if then made, it
will immediately so notify the Agent. Unless prior to the making of the Loans
requested hereby, the Agent shall receive written notice to the contrary from
the Borrower, each matter certified to herein or in connection herewith shall
be deemed once again to be certified as true and correct at the date of the
making of such Loans as if then made.
IN WITNESS WHEREOF, the Borrower has authorized this request
to be executed and delivered, and the certifications, representations and
warranties contained herein to be made, by its duly authorized officer as of
the day and year first above written.
SURVIVAL TECHNOLOGY, INC.
By:
-------------------------------------
Name:
Title:
B-2
<PAGE> 110
EXHIBIT C-1
FORM OF
BRIDGE NOTE
$______________ ________ __, ____
FOR VALUE RECEIVED, the undersigned, BRUNSWICK BIOMEDICAL CORPORATION,
a Massachusetts corporation (the "Borrower"), promises to pay to the order of
__________________________, a _________________ (the "Lender"), at the times
provided in the Credit Agreement referenced hereinafter, the principal sum of
_______________________ DOLLARS ($__________) or, if less, the outstanding
principal amount of the Bridge Loan made by the Lender pursuant to that certain
Credit Agreement, dated as of April 15, 1996 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement";
capitalized terms used herein and not defined herein shall have the meaning
ascribed to them in the Credit Agreement), among the Borrower, Internationale
Nederlanden (U.S.) Capital Corporation, as Agent, and the various lenders
(including the Lender) as are, or may from time to time become, parties
thereto. Notations indicating the Bridge Loan made by the Lender pursuant to
the Credit Agreement and all payments on account of the principal thereof may
be endorsed by the holder hereof on the grid Schedule attached to this Note, as
provided in the Credit Agreement.
The unpaid principal amount of this Note from time to time shall bear
interest as provided in Section 3.4 of the Credit Agreement. All payments of
principal of and interest on this Note shall be payable in lawful currency of
the United States of America to the account designated by the Agent (and as to
which the Agent has notified the Borrower) in immediately available funds in
accordance with Section 3.6 of the Credit Agreement.
This Note is a Bridge Note referenced in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of the terms and
conditions on which the Borrower is permitted and required to make prepayments
and repayments of principal of the Indebtedness evidenced by this Note and on
which such Indebtedness may be declared to be or may automatically become
immediately due and payable.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
<PAGE> 111
The Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and notice of any kind with respect to
this Note. All amounts owing hereunder are payable by the Borrower without
relief from any valuation or appraisal laws.
Executed under seal as of the day and year first above written.
BRUNSWICK BIOMEDICAL CORPORATION
By:
-------------------------------------
Name:
Title:
C-1-2
<PAGE> 112
Schedule of Bridge Loan and Repayments
<TABLE>
<CAPTION>
Person
Amount of Amount of Outstanding Making
Date Bridge Loan Repayment Balance Notation
- ---- ----------- --------- ----------- --------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 113
EXHIBIT C-2
FORM OF
REVOLVING NOTE
$______________ _______ __, ____
FOR VALUE RECEIVED, the undersigned, SURVIVAL TECHNOLOGY, INC., a
Delaware corporation (the "Borrower"), as successor by merger to BRUNSWICK
BIOMEDICAL CORPORATION, a Massachusetts corporation, promises to pay to the
order of __________________________, a _________________ (the "Lender"), at the
times provided in the Credit Agreement referenced hereinafter, the principal
sum of _______________________ DOLLARS ($__________) or, if less, the
outstanding principal amount of all Revolving Loans made by the Lender from
time to time pursuant to that certain Credit Agreement, dated as of April 15,
1996 (as amended, restated, supplemented, extended or otherwise modified from
time to time, the "Credit Agreement"; capitalized terms used herein and not
defined herein shall have the meaning ascribed to them in the Credit
Agreement), among the Borrower, Internationale Nederlanden (U.S.) Capital
Corporation, as Agent, and the various lenders (including the Lender) as are,
or may from time to time become, parties thereto. Notations indicating
Revolving Loans made by the Lender pursuant to the Credit Agreement and all
payments on account of the principal thereof may be endorsed by the holder
hereof on the grid Schedule attached to this Note, as provided in the Credit
Agreement.
The unpaid principal amount of this Note from time to time shall bear
interest as provided in Section 3.4 of the Credit Agreement. All payments of
principal of and interest on this Note shall be payable in lawful currency of
the United States of America to the account designated by the Agent (and as to
which the Agent has notified the Borrower) in immediately available funds in
accordance with Section 3.6 of the Credit Agreement.
This Note is a Revolving Note referenced in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Note and for a statement of the
terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be or may automatically
become immediately due and payable.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
<PAGE> 114
The Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and notice of any kind with respect to
this Note. All amounts owing hereunder are payable by the Borrower without
relief from any valuation or appraisal laws.
Executed under seal as of the day and year first above written.
SURVIVAL TECHNOLOGY, INC.
By:
-------------------------------------
Name:
Title:
C-2-2
<PAGE> 115
Schedule of Revolving Loans and Repayments
<TABLE>
<CAPTION>
Person
Amount of Amount of Outstanding Making
Date Bridge Loan Repayment Balance Notation
- ---- ----------- --------- ----------- --------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 116
EXHIBIT C-3
FORM OF
TERM NOTE
$______________ ________ __, ____
FOR VALUE RECEIVED, the undersigned, SURVIVAL TECHNOLOGY, INC., a
Delaware corporation (the "Borrower"), as successor by merger to BRUNSWICK
BIOMEDICAL CORPORATION, a Massachusetts corporation, promises to pay to the
order of __________________________, a _________________ (the "Lender"), at the
times provided in the Credit Agreement referenced hereinafter, the principal
sum of _______________________ DOLLARS ($__________) or, if less, the
outstanding principal amount of the Term Loan made by the Lender pursuant to
that certain Credit Agreement, dated as of April 15, 1996 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms used herein and not defined herein shall have the
meaning ascribed to them in the Credit Agreement), among the Borrower,
Internationale Nederlanden (U.S.) Capital Corporation, as Agent, and the
various lenders (including the Lender) as are, or may from time to time become,
parties thereto. Notations indicating the principal amount of the Term Loan
made by the Lender pursuant to the Credit Agreement and all payments on account
of the principal thereof may be endorsed by the holder hereof on the grid
Schedule attached to this Note, as provided in the Credit Agreement.
The unpaid principal amount of this Note from time to time shall bear
interest as provided in Section 3.4 of the Credit Agreement. All payments of
principal of and interest on this Note shall be payable in lawful currency of
the United States of America to the account designated by the Agent (and as to
which the Agent has notified the Borrower) in immediately available funds in
accordance with Section 3.6 of the Credit Agreement.
This Note is a Term Note referenced in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of the terms and
conditions on which the Borrower is permitted and required to make prepayments
and repayments of principal of the Indebtedness evidenced by this Note and on
which such Indebtedness may be declared to be or may automatically become
immediately due and payable. This Note evidences Indebtedness heretofore
evidenced by the Lender's Bridge Note, the outstanding principal amount of
which was converted into the Lender's portion of the Term Loan, and this Note
shall constitute an extension and renewal of the Lender's Bridge Note and not a
payment or novation thereof.
<PAGE> 117
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
The Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and notice of any kind with respect to
this Note. All amounts owing hereunder are payable by the Borrower without
relief from any valuation or appraisal laws.
Executed under seal as of the day and year first above written.
SURVIVAL TECHNOLOGY, INC.
By:
-------------------------------------
Name:
Title:
C-3-2
<PAGE> 118
Schedule of Term Loan and Repayments
<TABLE>
<CAPTION>
Person
Amount of Amount of Outstanding Making
Date Bridge Loan Repayment Balance Notation
- ---- ----------- --------- ----------- --------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 119
EXHIBIT D
FORM OF
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to [clause a(iii)]
[clause (c)] of Section 6.1.1 of the Credit Agreement, dated as of April 15,
1996 (together with all amendments and modifications, if any, from time to time
made thereto, the "Credit Agreement"), among [SURVIVAL TECHNOLOGY, INC., a
Delaware corporation, as successor by merger to] BRUNSWICK BIOMEDICAL
CORPORATION, a Massachusetts corporation (the "Borrower"), the various lenders
(the "Lenders"), as are, or may from time to time become, parties thereto and
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, as Agent for the
Lenders. Unless otherwise defined, terms used herein (including the
attachments hereto) have the meanings provided in the Credit Agreement.
The undersigned, being the duly elected, qualified and acting chief
[executive/accounting/financial] officer of the Borrower, on behalf of the
Borrower and solely in his/her capacity as an officer of the Borrower, hereby
certifies and warrants that:
1. [He/she] is the chief [executive/accounting/financial] officer
of the Borrower and that, as such, [he/she] is authorized to execute
this Certificate on behalf of the Borrower.
2. As of ________ __, ____ (the "Computation Date"):
(a) except as previously disclosed to the Agent and the
Lenders in writing pursuant to Section 6.1.6 of the Credit Agreement,
(i) no Default or Event of Default, and
(ii) no event of any type described in such
Section 6.1.6,
occurred during the period as to which this Compliance Certificate
relates;
(b) the Senior Debt Leverage Ratio (as calculated
pursuant to clause (a) of Section 6.2.4 of the Credit Agreement) was
_______, as computed on Attachment 1 hereto;
(c) the Total Debt Leverage Ratio (as calculated pursuant
to clause (b) of Section 6.2.4 of the Credit Agreement) was _______,
as computed on Attachment 2 hereto;
(d) the Senior Debt Service Ratio (as calculated pursuant
to clause (c) of Section 6.2.4 of the Credit Agreement) was _______,
as computed on Attachment 3 hereto;
<PAGE> 120
(e) the Interest Coverage Ratio (as calculated pursuant
to clause (d) of Section 6.2.4, of the Credit Agreement) was
_________, as computed on Attachment 4 hereto;
(f) the Borrower's Net Worth (as determined in accordance
with GAAP) was ________________;
(g) EBITDA (as calculated pursuant to clause (f) of
Section 6.2.4 of the Credit Agreement) was _________, as computed on
Attachment 5 hereto;
(h) Consolidated Capital Expenditures (as calculated
pursuant to Section 6.2.5 of the Credit Agreement) for the 199___
Fiscal Year are $______________, as detailed on Attachment 6 hereto;
(h) the aggregate amount of payments due from the
Borrower and its Subsidiaries during the 199__ Fiscal Year (as
calculated pursuant to Section 6.2.6 of the Credit Agreement), in
respect of operating leases and agreements to lease having a term of
one year or more, is $________, as detailed on Attachment 7 hereto.
IN WITNESS WHEREOF, the undersigned has executed and delivered
this Certificate, this _____ day of __________, ____.
[BRUNSWICK BIOMEDICAL CORPORATION]
[SURVIVAL TECHNOLOGY, INC.]
By:
-------------------------------------
Name:
Title:
D-2
<PAGE> 121
Attachment 1
Period Ending ____________
(All figures consolidated)
Senior Debt Leverage Ratio
<TABLE>
<S> <C> <C>
1. Aggregate outstanding principal amount
of the Loans $
--------------
2. EBITDA (as calculated
on Attachment 5 hereto) $
--------------
</TABLE>
Ratio: Outstanding Loans (Item 1) to EBITDA (Item 2) is _________.
D-3
<PAGE> 122
Attachment 2
Period Ending ____________
(All figures consolidated)
Total Debt Leverage Ratio
<TABLE>
<S> <C> <C>
1. Aggregate outstanding principal amount
of all Indebtedness of Borrower and its
Subsidiaries $
--------------
2. EBITDA (as calculated
on Attachment 5 hereto) $
--------------
</TABLE>
Total Debt Leverage Ratio:
Outstanding Indebtedness (Item 1) to EBITDA (Item 2) is ____________.
D-4
<PAGE> 123
Attachment 3
Period Ending ____________
(All figures consolidated)
Senior Debt Service Ratio
<TABLE>
<S> <C> <C>
1. EBITDA (as calculated on Attachment 5) $
--------------
2. Senior Debt Service:
(a) Interest Expense with respect to the
Loans $
--------------
(b) Principal repayments, if any, of the
Loans required to be made pursuant to clause (c) of
Section 3.3.1 of the Credit Agreement $
--------------
(c) Total (sum of (a) and (b)) $
--------------
</TABLE>
Ratio: EBITDA (Item 1) to Senior Debt Service (Item 2(c)) is ___________.
D-5
<PAGE> 124
Attachment 4
Period Ending ____________
(All figures consolidated)
Interest Coverage Ratio
<TABLE>
<S> <C> <C>
1. EBITDA (as calculated on Attachment 5) $
--------------
2. Interest Expense (as listed on Attachment 5) $
--------------
</TABLE>
Ratio: EBITDA (Item 1) to Interest Expense (Item 2) is ___________.
D-6
<PAGE> 125
Attachment 5
Period Ending ____________
(All figures consolidated)
EBITDA
<TABLE>
<S> <C> <C>
1. Net Income $
--------------
2. Interest expense $
--------------
3. Provisions for Income Taxes
4. Depreciation, amortization of intangible assets $
--------------
5. Total $
==============
</TABLE>
D-7
<PAGE> 126
Attachment 6
Period Ending ____________
(All figures consolidated)
Consolidated Capital Expenditures
<TABLE>
<S> <C> <C>
1. Gross dollar amount of additions to property, plant, $
equipment and other fixed assets of the Borrower and --------------
its Subsidiaries, including those additions made in
the ordinary course of business (excluding routine
maintenance and repairs)
2. Capitalized Lease Liabilities incurred by the $
Borrower and its Subsidiaries (to the extent not --------------
included in Item 1)
Borrower's Consolidated Capital Expenditures:
Sum of Item 1 and Item 2 $
==============
</TABLE>
D-8
<PAGE> 127
Attachment 7
Period Ending ____________
(All figures consolidated)
Borrower's and Subsidiaries "Lease Obligations"
under Section 6.2.6 of the Credit Agreement
<TABLE>
<S> <C> <C>
1. Aggregate amount of payments due from the Borrower
and its Subsidiaries during the ______ Fiscal Year in
respect of operating leases and agreements described
in Section 6.2.6 of the Credit Agreement $
--------------
2. Borrower's Consolidated Capital Expenditures: $
--------------
Borrower's Consolidated Lease Obligations Sum of Item 1
and Item 2 $
--------------
</TABLE>
D-9
<PAGE> 128
EXHIBIT E
CONTINUATION/CONVERSION NOTICE
____________, ______
Internationale Nederlanden
(U.S.) Capital Corporation,
as Agent
200 Galleria Parkway, N.W.
Suite 950
Atlanta, Georgia 30339
Attention: Mr. Darren Wells
Ladies and Gentlemen:
This Continuation/Conversion Notice is delivered to you
pursuant to Section 3.4.2 of the Credit Agreement, dated as of April 15, 1996
as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among [SURVIVAL TECHNOLOGY, INC., as successor by merger to]
BRUNSWICK BIOMEDICAL CORPORATION, a Massachusetts corporation (collectively,
the "Borrower"), the various lenders (the "Lenders"), as are or may become
parties thereto and Internationale Nederlanden (U.S.) Capital Corporation, as
Agent for the Lenders. Unless otherwise defined herein, terms used herein have
the meanings provided in the Credit Agreement.
The Borrower hereby requests that on ____________, _____ [all]
[a portion] of the aggregate principal amount of [the Bridge Loan] [the
Revolving Loans] [the Term Loan] in an outstanding principal amount of
$__________ being presently maintained as [Base Rate Loans] [Eurodollar Loans
having an Interest Period of ______ month[s]], be [converted into] [continued
as] [Base Rate Loans] [Eurodollar Loans having an Interest Period of _____
month[s]].
The Borrower hereby:
(a) certifies and warrants that no Default has occurred
and is continuing or will (after giving effect to the continuation or
conversion requested hereby) occur and be continuing; and
(b) agrees that if prior to the time of such continuation
or conversion any matter certified to herein by it will not be true
and correct at such time as if then made, it will immediately upon
becoming aware of such matter, so notify the Agent.
<PAGE> 129
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Agent shall receive written notice to the
contrary from the Borrower, each matter certified to herein shall be deemed to
be certified at the date of such continuation or conversion as if then made.
IN WITNESS WHEREOF, the Borrower has authorized this
Continuation/Conversion Notice to be executed and delivered, and the
certifications and warranties contained herein to be made, by its Authorized
Officer as of the day and year first above written.
[BRUNSWICK BIOMEDICAL CORPORATION]
[SURVIVAL TECHNOLOGY, INC.]
By:
-------------------------------------
Name:
Title:
E-2
<PAGE> 130
EXHIBIT F
ACKNOWLEDGMENT OF INTEREST RATE CONTRACT COUNTERPARTY
THIS ACKNOWLEDGMENT OF INTEREST RATE CONTRACT COUNTERPARTY
("Acknowledgment"), dated as of ____________, ______, between
___________________ (the "Interest Rate Contract Counterparty") and
Internationale Nederlanden (U.S.) Capital Corporation, as Agent for the Lenders
under the Credit Agreement described below (in such capacity, the "Agent").
W I T N E S S E T H:
RECITALS.
A. This Acknowledgment is being executed and delivered
in accordance with the Credit Agreement dated as of April 15, 1996 among
[Survival Technology, Inc., a Delaware corporation, as successor by merger to]
Brunswick Biomedical Corporation, a Massachusetts corporation (the "Borrower"),
the Lenders party thereto, and the Agent (as from time to time amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
unless otherwise defined herein, terms defined in the Credit Agreement being
used herein as therein defined);
B. The Interest Rate Contract Counterparty has entered
into an [Describe the Interest Rate Contract] (the "Interest Rate Contract")
with the Borrower pursuant to the terms and conditions of Section 6.1.13 of the
Credit Agreement, and the Interest Rate Contract Counterparty desires to
execute this Acknowledgment in order to enjoy certain benefits and subject
itself to certain of the obligations of the Credit Agreement and so that the
obligations of the Borrower to the Interest Rate Contract Counterparty under
the Interest Rate Contract shall be included as Obligations under the Credit
Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. The Interest Rate Contract Counterparty hereby
acknowledges and agrees that (a) it assumes all obligations of a Lender under
the Credit Agreement with respect to the Interest Rate Contract, (b) the
Interest Rate Contract shall be subject to all terms in the Credit Agreement
and the other Loan Documents and (c) the obligations of the Borrower under the
Interest Rate Contract are "Obligations" under the Credit Agreement.
SECTION 2. Each of the parties to this Acknowledgment agrees
that at any time and from time to time upon written request of any other party,
it will execute and
<PAGE> 131
deliver such further documents and do such further acts and things as such
other party may reasonably request in order to effect the purposes of this
Acknowledgment.
SECTION 3. THIS ACKNOWLEDGMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Acknowledgment to be executed by their respective duly authorized officers as
of the date first above written.
INTEREST RATE CONTRACT COUNTERPARTY
By:
-------------------------------------
Name:
Title:
Address for Notices:
- ------------------------------------
- ------------------------------------
- ------------------------------------
- ------------------------------------
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION, as Agent
By:
-------------------------------------
Name:
Title:
F-2
<PAGE> 132
ACKNOWLEDGED AND AGREED TO:
[BRUNSWICK BIOMEDICAL CORPORATION]
[SURVIVAL TECHNOLOGY, INC.]
By:
---------------------------------
Name:
Title:
F-3
<PAGE> 133
EXHIBIT G
FORM OF
TRANSFER SUPPLEMENT
THIS TRANSFER SUPPLEMENT, dated as of the date set forth in
Item 1 of Schedule I hereto, among the Transferor Lender set forth in Item 2 of
Schedule I hereto (the "Transferor Lender"), each Purchasing Lender set forth
in Item 3 of Schedule I hereto (each, a "Purchasing Lender"), and
Internationale Nederlanden (U.S.) Capital Corporation, as Agent for the Lenders
under the Credit Agreement described below (in such capacity, the "Agent").
W I T N E S S E T H:
RECITALS.
A. This Transfer Supplement is being executed and
delivered in accordance with clause (b) of Section 9.11 of the Credit Agreement
dated as of April 15, 1996 among [Survival Technology, Inc, a Delaware
corporation, as successor by merger to] Brunswick Biomedical Corporation, a
Massachusetts corporation (the "Borrower"), the Transferor Lender and the other
Lenders party thereto, and the Agent (as from time to time amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
unless otherwise defined herein, terms defined in the Credit Agreement being
used herein as therein defined);
B. Each Purchasing Lender (if it is not already a Lender
party to the Credit Agreement) wishes to become a Lender party to the Credit
Agreement; and
C. The Transferor Lender is selling and assigning to
each Purchasing Lender, rights, obligations, a portion of the [the Bridge Loan
and the Commitments] [Term Loan and the Revolving Loan Commitment] under the
Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. From and after the Transfer Effective Date set
forth in Item 4 of Schedule I hereto (the "Transfer Effective Date"), each
Purchasing Lender shall be a Lender party to the Credit Agreement for all
purposes thereof.
Section 2. (a) On the Transfer Effective Date, each
Purchasing Lender shall pay to the Transferor Lender, in immediately available
funds, an amount equal to the purchase price, as agreed between the Transferor
Lender and such Purchasing Lender (the
G-1
<PAGE> 134
"Purchase Price"), for the percentage set forth in Item 5 of Schedule I hereto
(such Purchasing Lender's "Purchased Percentage") being purchased by such
Purchasing Lender of the Transferor Lender's portion of the [the Bridge Loan
and the Commitments] [Term Loan and the Revolving Loan Commitment], the
outstanding principal amount of the Loans and other amounts owing to the
Transferor Lender under the Credit Agreement and Notes.
(b) As of the Transfer Effective Date, the Transferor
Lender hereby irrevocably sells, assigns and transfers to each Purchasing
Lender, without recourse, representation or warranty, and each Purchasing
Lender hereby irrevocably purchases, takes and assumes from the Transferor
Lender, such Purchasing Lender's Purchased Percentage of the [Commitments]
[Revolving Loan Commitment] of the Transferor Lender, the Loans outstanding as
of the Transfer Effective Date held by the Transferor Lender and other amounts
owing as of the Transfer Effective Date to the Transferor Lender under the
Credit Agreement and the Notes, together with all instruments, documents and
collateral security pertaining thereto.
Section 3. From and after the Transfer Effective Date,
principal, interest, fees pursuant to Section 2.3 of the Credit Agreement, and
other amounts that would otherwise be payable to or for the account of the
Transferor Lender pursuant to the Credit Agreement and the Notes shall,
instead, be payable to or for the account of the Transferor Lender and the
Purchasing Lenders, as the case may be, in accordance with their respective
percentages as set forth on Schedule II of this Transfer Supplement, whether
such amounts have accrued prior to the Transfer Effective Date or accrue
subsequent to the Transfer Effective Date.
Section 4. The Notes of the Transferor Lender (the "Exchanged
Notes") are being delivered to the Agent concurrently with this Transfer
Supplement. On or prior to the Transfer Effective Date, the Borrower, at the
Borrower's expense, shall execute and deliver to the Agent, in exchange for
(but not in payment of) the Exchanged Notes, (a) a new [Bridge Note],
[Revolving Note and a new Term Note, in each case,] to the order of each
Purchasing Lender in an amount equal to its Percentage, as set forth on
Schedule II hereto, of the aggregate [Bridge Loans], [Revolving Loan Commitment
and Term Loan, respectively,] and (b) if the Transferor Lender has retained a
portion of the [Bridge Loan] [Revolving Loan Commitment and Term Loan,] a new
[Bridge Note] [Revolving Note and Term Note] to the order of the Transferor
Lender in an amount equal to its retained Percentage, as set forth on Schedule
II hereto, of the aggregate [Bridge Loan] [Revolving Loan Commitment Amount and
Term Loan]. Such new Notes shall be dated the Closing Date and shall otherwise
be in the Form of the respective Notes replaced thereby. The Exchanged Notes
shall be returned by the Agent to the Borrower marked "cancelled" upon issuance
of Notes in exchange therefor.
G-2
<PAGE> 135
Section 5. Concurrently with the execution and delivery
hereof, the Agent will, at the request of any Purchasing Lender but at the
expense of the Transferor Lender, provide to such Purchasing Lender (if it is
not already a Lender party to the Credit Agreement) photocopies or conformed
copies of all documents delivered to the Agent on the date of the initial Loans
under the Credit Agreement in satisfaction of the conditions precedent set
forth in the Credit Agreement.
Section 6. Each of the parties to this Transfer Supplement
agrees that at any time and from time to time upon written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Transfer Supplement.
Section 7. By executing and delivering this Transfer
Supplement, the Transferor Lender and each Purchasing Lender confirm to and
agree with each other and the Agent and the Lenders as follows: (i) other than
the representation and warranty that it is the legal and beneficial owner of
the interest being assigned hereby free and clear of any adverse claim, the
Transferor Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the Notes or any other Loan Document or any other instrument or
document furnished pursuant thereto; (ii) the Transferor Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any Subsidiary, the value or perfection
of any collateral securing the Obligations or the obligations of any Subsidiary
under the Subsidiary Guaranty, the performance or observance by the Borrower of
any of its obligations under the Credit Agreement, the Notes or any other Loan
Document or any other instrument or document furnished pursuant thereto, or the
performance or observance by any Subsidiary of its obligations under the
Subsidiary Guaranty or any other Loan Document; (iii) each Purchasing Lender
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements referred to in Section 5.4 of the Credit
Agreement and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Commitment
Transfer Supplement; (iv) each Purchasing Lender will, independently and
without reliance upon the Agent, the Transferor Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (v) each Purchasing Lender appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement and the other Loan Documents as are delegated
to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, all in accordance with Article 9 of the Credit Agreement;
and (vi) each Purchasing Lender agrees that it will perform in accordance with
their terms all of the obligations which by the terms
G-3
<PAGE> 136
of the Credit Agreement and the other Loan Documents are required to be
performed by it as a Lender.
Section 8. Each party hereto represents and warrants to and
agrees with the Agent that it is aware of and will comply with the provisions
of clause (e) of Section 9.11 of the Credit Agreement (if applicable).
Section 9. Schedule II hereto sets forth the revised
Percentages (as defined in the Credit Agreement) of the Transferor Lender and
each Purchasing Lender as well as administrative information with respect to
each Purchasing Lender.
Section 10. The Purchasing Lender agrees to pay the Agent a
registration and processing fee of $2,500 in connection with this Transfer
Supplement. Further, the Purchasing Lender acknowledges that this Commitment
Transfer Supplement will not be recorded by the Agent until such fee is paid.
Section 11. THIS TRANSFER SUPPLEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Section 12. Without limitation of anything else contained in
this Transfer Supplement, the Purchasing Lender acknowledges and agrees to be
bound by the terms and conditions of Section 9.11 of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Transfer Supplement to be executed under seal by their respective duly
authorized officers on Schedule I hereto as of the date set forth in Item 1 of
Schedule I hereto.
, as Transferor Lender
----------------------
By:
-----------------------------------------
Title:
, as a Purchasing Lender
--------------------
By:
-----------------------------------------
Title:
G-4
<PAGE> 137
CONSENTED TO:
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION, as Agent
By:
---------------------------------
Name:
Title:
[BRUNSWICK BIOMEDICAL CORPORATION]
[SURVIVAL TECHNOLOGY, INC.]
By:
---------------------------------
Name:
Title:
ACCEPTED FOR RECORDATION
IN REGISTER UPON PAYMENT
OF THE RECORDATION FEE
DESCRIBED IN SECTION 10 HEREOF:
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION, as Agent
By:
---------------------------------
Name:
Title:
G-5
<PAGE> 138
SCHEDULE I
TO
TRANSFER
SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Item 1 Date of Transfer [Insert date of Transfer Supplement]
Supplement:
Item 2 Transferor Lender: [Insert name of Transferor Lender]
Item 3 Purchasing Lender[s]: [Insert name[s] of Purchasing Lender[s]]
Item 4 Transfer Effective [Insert Transfer Effective Date] [To be a date
Date not less than five business days after date of
Transfer Supplement]
Item 5 Purchased Percentage [Insert percentage to be sold of (1)
Transferor Lender's Bridge Loan and
Commitments, if prior to Merger Consummation
Date, or (2) Transferor Lender's Term Loan
and Revolving Loan Commitment, if on or after
the Merger Consummation Date]
G-6
<PAGE> 139
SCHEDULE II
TO
TRANSFER
SUPPLEMENT
LIST OF ADDRESSES
FOR NOTICES AND PERCENTAGES
[Name of Transferor Lender]
Revised [Bridge, Revolving and Term] Percentage: _____%
[Name of Purchasing Lender]
New [Bridge, Revolving and Term] Percentage: _____%
Address for Notices:
- ------------------------------------
- ------------------------------------
- ------------------------------------
- ------------------------------------
Attn:
-------------------------------
Telecopy No.:
-----------------------
G-7
<PAGE> 140
EXHIBIT H
OPINION OF COUNSEL TO STI
(to be delivered on the Merger Consummation Date)
[MERGER CONSUMMATION DATE]
Internationale Nederlanden
(U.S.) Capital Corporation,
individually and as Agent
135 East 57th Street
New York, New York 10022
The Lenders from time to time
parties to the Credit Agreement
referenced herein
Ladies and Gentlemen:
We have acted as counsel to Brunswick Biomedical Corporation, a
Massachusetts corporation (" Brunswick"), Survival Technology, Inc., a Delaware
corporation ("STI"), and Brunswick Biomedical Technologies, Inc., a
Massachusetts corporation ("Technology"), (Brunswick, STI and Technology, each
an "Opinion Party" and, collectively, the "Opinion Parties") in connection with
the Credit Agreement, dated as of April 15, 1996 (the "Credit Agreement"), by
and among Brunswick, the various lenders as are or may from time to time become
parties thereto (the "Lenders") and Internationale Nederlanden (U.S.) Capital
Corporation ("ING"), as agent for the Lenders (the "Agent"), and in connection
with the other Loan Documents. All capitalized terms used herein and not
defined herein shall have the meanings ascribed to them in the Credit
Agreement.
In these capacities, we have examined fully executed originals of the
following documents (collectively, the "Opinion Documents"):
1. the Assumption Agreement;
2. the Term Note, dated as of even date herewith,
payable to the order of ING in the original principal
amount of $10,000,000;
<PAGE> 141
[MERGER CONSUMMATION DATE]
Page 2
3. the Revolving Note, dated as of even date herewith,
payable to the order of ING in the original principal
amount of $5,000,000;
4. the STI Subsidiary Guaranty;
5. the STI Security Agreement;
6. the STI Pledge Agreement;
7. the STI Patent Assignment;
8. the STI Trademark Assignment;
9. each of the UCC-1 Financing Statements listed on
Exhibit A attached hereto (collectively, the
"Original Financing Statements");
10. each of the UCC-3 amendments to the Original
Financing Statements naming Brunswick as debtor and
filed pursuant to clause (c) of Section 4.1.8 of the
Credit Agreement (the "UCC Amendments");
11. each of the UCC-1 Financing Statements listed on
Exhibit B attached hereto (collectively, the "New
Financing Statements");
12. each of the UCC-1 Financing Statements listed on
Exhibit C attached hereto (collectively, the "Fixture
Filings");
13. stock powers with respect to all shares of stock held
by STI in its Subsidiaries located in the United
States (other than the Inactive Subsidiaries), each
executed in blank;
14. the Assignment of Key-Man Life Insurance; and
15. the Mortgages described in clause (h) of Section
4.2.9 of the Credit Agreement.
In addition, we have examined the Articles of Organization of Brunswick and
Technology and all amendments thereto, the Certificate of Incorporation of STI
and all amendments thereto, the by-laws of each of the Opinion Parties as now
in effect, and the other documents delivered pursuant to Section 4.1 and 4.2 of
the Credit Agreement.
<PAGE> 142
[MERGER CONSUMMATION DATE]
Page 3
We also have reviewed original, photostatic or certified copies of all
corporate records, certificates of public officials of pertinent states,
certificates of corporate officers of the Opinion Parties and such other
instruments, documents and agreements as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth. As to various questions of
fact material to our opinion, we also have relied upon representations made in
or pursuant to the Opinion Documents and inquiries made of officers of
Brunswick, Technology and STI. We have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as
copies. For purposes of this opinion, we have assumed that each Opinion
Document to which the Agent or any Lender is a party constitutes its valid and
binding obligation.
[INSERT ASSUMPTIONS AND QUALIFICATIONS]
Based upon the foregoing, we are of the opinion that:
1. Immediately prior to the Merger, Brunswick was validly
existing as a corporation and in corporate good standing under the laws of the
Commonwealth of Massachusetts and duly qualified to do business and in good
standing as a foreign corporation in the State of Maryland. STI is validly
existing as a corporation and in good standing under the laws of the State of
Delaware and is duly qualified to do business as a foreign corporation in the
States of Maryland and Missouri [INSERT OTHER JURISDICTIONS]. Technology is
validly existing as a corporation and in corporate good standing under the laws
of the Commonwealth of Massachusetts and is duly qualified to do business and
in good standing as a foreign corporation in the State of Maryland. Each
Opinion Party has full power and authority to own and hold under lease its
property and to conduct its business as conducted prior to the Closing Date and
as contemplated to use conducted subsequent to the Closing Date and the Merger
Consummation Date.
2. Each Opinion Party has full power and authority to execute,
deliver and perform its obligations under each Opinion Document executed or to
be executed by it and to incur Indebtedness under the Credit Agreement, the
Assumption Agreement or the STI Subsidiary Guaranty, as the case may be.
3. The execution and delivery by each Opinion Party of each
Opinion Document executed or to be executed by it, and the incurrence and
performance by each Opinion Party of its obligations thereunder, (a) have been
duly authorized by all necessary corporate action, (b) do not require any
Regulatory Approval, (c) do not and will result in a violation of, or
constitute a default under, or give rise to a right of termination or
acceleration with respect to, any provision of any Organic Document, any
Contractual Obligation of such Opinion
<PAGE> 143
[MERGER CONSUMMATION DATE]
Page 4
Party listed on the Disclosure Schedule or, to our knowledge, any court decree
or order, (d) do not and will not violate any law or governmental regulation,
and (e) will not result in or require the creation or imposition of any Lien,
except for the Liens expressly granted pursuant to the Opinion Documents.
4. Each Opinion Document has been duly executed and delivered by
each Opinion Party that is a party thereto and constitutes the legal, valid and
binding obligation of such Opinion Party, enforceable in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency,
fraudulent transfer, moratorium or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether considered in
a proceeding in equity or at law).
5. A court of the State of Maryland or a federal court sitting in
the State of Maryland as the forum state and applying the conflict of law rules
thereof would give effect to the provisions of the Opinion Documents providing
that such Opinion Documents are to be governed by, and construed and enforced
in accordance with, the internal laws of the State of New York.
6. The authorized capital stock of Technology consists of 200,000
shares of common stock, $0.01 par value per share, 100,000 shares of which are
issued and outstanding. All issued and outstanding shares of Stock of
Technology are duly authorized, validly issued, fully paid and nonassessable
and are owned of record by the Persons listed on Exhibit D attached hereto. To
our knowledge, there are no existing options, warrants, calls or commitments of
any character whatsoever relating to any of such Stock of Technology granted by
any Opinion Party.
7. None of the Opinion Parties is engaged principally, or as one
of its important activities, in the business of extending credit for the
purposes of purchasing or carrying margin stock. The funding of the Term Loan
and the Revolving Loans to be made on the Merger Consummation Date, together
with the consummation of the other transactions occurring on the Merger
Consummation Date, will not violate or be inconsistent with Regulations G, T, U
or X of the Board of Governors of the Federal Reserve System.
8. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by, any
Governmental Authority, other than those which have been obtained or made, is
required in connection with, (i) the execution, delivery and performance of any
Opinion Document or (ii) the legality, validity, binding effect or
enforceability of any Opinion Document, except for the filing of the New
Financing Statements, the Financing Statement Amendments and the Fixture
Filings, and the recording of the Mortgages, the STI Patent Assignment and the
STI Trademark Assignment.
<PAGE> 144
[MERGER CONSUMMATION DATE]
Page 5
9. None of the Opinion Parties is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of
a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended, or subject to regulation under the Federal Power Act,
the Interstate Commerce Act or any other federal law or law of the Commonwealth
of Massachusetts or the State of Maryland limiting its ability to incur
Indebtedness or to execute, deliver or perform the Opinion Documents to which
it is a party.
10. The STI Pledge Agreement creates a valid security interest in
the Pledged Notes and the Pledged Shares and in any other "Collateral" to which
the UCC is applicable in favor of the Agent, for its benefit and the ratable
benefit of the Lenders, as security for the "Secured Obligations" (as such
terms are defined in the STI Pledge Agreement). The Agent's security interest
in the "Initial Pledged Notes" and the "Initial Pledged Shares" (as such terms
are defined in the Brunswick Pledge Agreement) will be duly perfected by the
delivery to the Agent of such Initial Pledged Notes and Initial Pledged Shares.
Assuming that the Agent has acquired its security interest in the Initial
Pledged Shares without notice on its part or on the part of the Lenders of any
adverse claim, no interest of any other creditor of the Borrower in such
Initial Pledged Shares is equal or prior to the security interest of the Agent
therein, to the extent the priority of the interest of such other creditor is
established by the Uniform Commercial Code ("UCC").
11. The Security Agreement creates a valid security interest in
favor of the Agent, for its benefit and the ratable benefit of the Lenders, as
security for the "Secured Obligations" in such of the "Collateral" (as such
terms are defined in the Security Agreement) to which the New York UCC is
applicable (the "UCC Collateral"). Upon the filing of the New Financing
Statements and the Financing Statement Amendments in the filing offices listed
on Exhibit E, and upon the recording of the STI Patent Assignment and the STI
Trademark Assignment in the United States Patent and Trademark Office, such
security interest (except with respect to fixtures) will be validly perfected
to the extent the UCC Collateral consists of the type of property in which a
security interest may be perfected by filing a financing statement under the
UCC, or, to the extent that, by virtue of Section 9-302 of the UCC, a security
interest in the UCC Collateral consisting of patents or trademarks must be
perfected by a recording in the United States Patent and Trademark Office,
under applicable United States federal law.
12. If by virtue of paragraph (a) of Section 9-104 of the UCC, the
UCC does not apply, upon the recording of the STI Patent Assignment in the
United States Patent and Trademark Office, such assignment will be effective as
to the right, title and interest of STI and each Subsidiary of STI party
thereto, in the registered United States Patents described
<PAGE> 145
[MERGER CONSUMMATION DATE]
Page 6
on Schedule 1 to the STI Patent Assignment as against any subsequent purchaser
or mortgagee for a valuable consideration, if such assignment is filed within
three (3) months of its date or prior to the date of any such subsequent
purchase or mortgage.
13. If by virtue of paragraph (a) of Section 9-104 of the UCC, the
UCC does not apply, upon the recording of the STI Trademark Assignment in the
United States Patent and Trademark Office, such assignment will be effective
regarding the right, title and interest of STI and each Subsidiary of STI party
thereto, in the registered United States Trademarks described on Schedule 1 to
the STI Trademark Assignment as against any subsequent purchaser for valuable
consideration, if such assignment in filed within three (3) months of its date
or prior to the date of any such subsequent purchase.
14. The Mortgages are in proper form for recordation in the
offices listed on Exhibit F hereto so as to (a) be accepted for recording and
(b) upon such recordation (and payment of related recording taxes and fees, if
any), convey to the Agent, for its benefit and the ratable benefit of the
Lenders, a valid and enforceable lien on the real property described therein.
15. The Mortgage conforms to all requirements of the laws of the
State of Missouri and the Mortgage contains substantially all of the remedial,
waiver and other provisions normally contained in deeds of trust and security
agreements used in connection with transactions of the type and value described
in the Credit Agreement.
16. The Mortgages create valid security interests in favor of the
Agent, for its benefit and the ratable benefit of the Lenders, as security for
the Obligations, in the personal property and fixtures described therein, to
which the UCC is applicable. Upon the filing of the Fixture Filings in the
real property records of the offices listed on Exhibit F, such security
interests will be validly perfected to the extent that the property covered by
such Fixture Filings may be perfected by filing a financing statement under the
UCC.
17. The offices and records described on Exhibit G are the only
offices and records of the Commonwealth of Massachusetts and the States of
Maryland and Missouri which must be searched to determine if there are any UCC
financing statements or judgment, environmental, tax or ERISA Liens of record
against any property of the Opinion Parties.
18. Enforcement of the remedies provided in the STI Security
Agreement, the STI Pledge Agreement, the STI Patent Assignment, the STI
Trademark Assignment and the Mortgages will not deprive the Agent or the
Lenders of their right to seek a deficiency judgment with respect to the
Obligations of the Borrower or to seek a judgment with respect to the
obligations of Technology under the Subsidiary Guaranty, nor will such
enforcement limit the Agent's and the Lenders' rights to foreclose on other
collateral securing the Obligations of the Borrower or the obligations of
Technology under the Subsidiary Guaranty.
19. Except for nominal filing or recording fees or as set forth on
Exhibit H, no taxes, including, but not limited to, transfer, excise,
intangible, documentary stamp or similar
<PAGE> 146
[MERGER CONSUMMATION DATE]
Page 7
taxes, shall be payable to the Commonwealth of Massachusetts or any
jurisdiction therein or the States of Maryland and Missouri or any jurisdiction
therein on account of the execution, delivery or filing of record of the
Opinion Documents, provided that we express no opinion with respect to income
or franchise taxes.
20. The consideration payable to the Agent and the Lenders in
respect of the Term Loan and the Revolving Loan does not violate any law of the
Commonwealth of Massachusetts relating to interest and usury and will not
violate any such law as a result of fluctuations in the ING Alternate Base Rate
or the Eurodollar Rate.
21. Except as set forth in Item 4 (Litigation) of the Disclosure
Schedule, to our knowledge, there is no pending or threatened litigation,
arbitration or governmental investigation, proceeding or inquiry against any
Opinion Party or to which any of the properties, assets or revenues of any
Opinion Party is subject which, if adversely determined, could result in a
Material Adverse Change or could impair its ability to perform its obligations
under the Opinion Documents to which it is a party. None of the proceedings
set forth in such Item 4 seeks to amend, modify or enjoin the transactions
contemplated by the Opinion Documents.
22. Each of STI and Brunswick has the requisite corporate power
and authority to enter into and perform its obligations under the Merger
Agreement. The execution and delivery by each of STI and Brunswick of the
Merger Agreement, and the performance by each of STI and Brunswick of its
obligations thereunder, (a) have been duly authorized by all necessary
corporate action, (b) do not require any Regulatory Approval (including,
without limitation, any filings pursuant to the Hart-Rodino Antitrust
Improvements Act of 1976), (c) do not result in a violation of, or constitute a
default under, or give rise to a right of termination or acceleration with
respect to, any provision of any Organic Document of STI or Brunswick, any law
or regulation, any Contractual Obligation of Brunswick or STI listed on the
Disclosure Schedule or, to our knowledge, any court decree or order binding on
STI or Brunswick, and (d) do not result in or require the creation or
imposition of any Lien on any of Brunswick's, STI's or any of their respective
Subsidiaries' properties. The Merger Agreement constitutes the legal, valid
and binding obligations of the parties thereto, enforceable in accordance with
its terms, subject to the effect of any applicable bankruptcy, insolvency,
moratorium or similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether considered in a proceeding in
equity or at law). The Certificate of Merger and the Articles of Merger have
been filed with the Secretary of State of Delaware and the Secretary of the
Commonwealth of Massachusetts, respectively, and they comply as to form with
the corporate laws of the State of Delaware and the Commonwealth of
Massachusetts. The Merger is effective and STI is the surviving corporation.
<PAGE> 147
[MERGER CONSUMMATION DATE]
Page 8
22. No shareholder of STI is entitled to assert dissenter's
appraisal rights on account of the Merger under the corporate laws of the State
of Delaware.
The opinions rendered herein are limited to the laws of the
Commonwealth of Massachusetts, the States of Maryland and Missouri, the
Delaware General Corporation Law and the federal laws of the United States.
With your permission, we render such opinions as if the Opinion Documents were
governed by the laws of the Commonwealth of Massachusetts, notwithstanding
their recitation that New York law governs. In addition, references to the
Uniform Commercial Code refer to the Uniform Commercial Code as in effect in
the Commonwealth of Massachusetts and the States of Maryland and Missouri, and
the opinions rendered herein are given as if such Uniform Commercial Codes
governed. With your permission, we have relied upon an opinion of _____________
(Maryland counsel) with respect to issues of Maryland law contained in the
opinions rendered in paragraphs 1, 3(b), 3(d), 5, 8, 11, 16, 17 and 18, and an
opinion of ______________ (Missouri counsel) with respect to issues of Missouri
law contained in the opinions rendered in paragraphs 1, 3(b), 3(d), 8, 11, 14,
15, 16, 17 and 18.
This opinion is furnished by us pursuant to Section 4.1.6 of the
Credit Agreement for the sole benefit of the addressees (including any Persons
who may subsequently become Lenders, Participants or successors of the Agent
and Lenders as provided in Section 9.11 of the Credit Agreement) and their
respective counsel, and may not be used or relied upon by any other Person or
in connection with any other transaction without our prior written consent.
Very truly yours,
<PAGE> 148
DISCLOSURE SCHEDULE
FOR CREDIT AGREEMENT
DATED AS OF APRIL 15, 1996
Item
1. (Section 3.9(a)). Transactions Costs. See Disclosure Schedule A.
2. (Section 3.9(a)). Sources. See Disclosure Schedule A.
3. (Section 3.9(c)). Indebtedness of STI to be Refinanced.
See description in Item 12.
Notes Payable (upon consummation of Merger)
Merrill Lynch $2,702,784
4. (Section 5.7). Litigation.
BRUNSWICK: None
STI: None
5. (Section 4.2.8(d)). Mortgaged Property.
BRUNSWICK: None
STI: Leasehold Deed of Trust and Security Agreement dated April 16,
1991, between STI and Syntex Laboratories, Inc.
6. (Section 5.1(iii)). Governmental Licenses.
BRUNSWICK: NONE.
STI: NONE.
7. Exceptions to GAAP.
BRUNSWICK: None
STI: None
<PAGE> 149
8. (Section 5.11(a)). Benefit Plans.
BRUNSWICK:
a. Health Plan
b. 401(k) Plan
STI:
a. 401(k) Plan
b. Profit Sharing Plan
c. Stock Option Plan
d. Stock Purchase Plan
e. Profit Sharing Thrift Plan for Employees
f. Cafeteria Plan for Employees
g. Group Life, AD&D and Disability Plan
h. Long Term Disability Plan
i. Medical and Dental Plan
j. Incentive Stock Option Plan
k. Non-Statutory Stock Option Plan
l. 1982 Stock Option Plan
(Section 5.11(b)). NONE.
9. Section 5.12). Labor Controversies.
BRUNSWICK: None
STI: None
10. (Section 5.14). Intellectual Property.
BRUNSWICK and STI: See schedule attached hereto as Disclosure Schedule
B.
11. (Section 5.16). Insurance.
BRUNSWICK:
a. $500,000 term life insurance policy issued 9/8/94 on the life
of James H. Miller.
b. Liability insurance:
(1) BBC general liability insurance policy #BI4339100 expiring
3/1/97 issued by CNA Insurance.
(2) BBC, BBT and BBL automobile liability insurance policy
#AMC0620823 expiring 8/20/96 issued by Continental
Insurance Company.
c. BBC property insurance policy #BI4339100 expiring 3/1/97 issued
by CNA Insurance.
- 2 -
<PAGE> 150
d. BBC and BBT Workers Comp Plan of MA Assigned Risk-Commercial
Union insurance policy #C B (97) H58 95 66 expiring 1/1/97.
e. BBC National Union/AIG insurance policy #GLA1210182 expiring
6/15/96.
f. BBC Continental International insurance policy #PC14667 expired
2/1/96 (Note: renewal is on order.)
g. BBC Continental International insurance policy #PP14666 expired
2/1/96 (Note: renewal is on order.)
h. BBC CNA Worldwide Fidelity & Casualty of New York insurance
policy #PST009633995 expiring 2/1/97.
STI:
a. Great Northern Insurance Company - Property insurance covers
all risk of physical loss including flood and earthquake -
Limit $34,294,909.
b. Electronic Data Processing Insurance - MD - $750,000; MO -
$300,000.
c. Commercial General Liability Insurance - $1,000,000 per
occurrence; $2,000,000 aggregate.
d. Machinery Breakdown Insurance - Blanket for all locations.
e. Inland Marine Transportation Floater - Limit $500,000
f. National Union Insurance - Products/Completed Operations -
Aggregate Limit $5,000,000
g. Security Insurance Company of Hartford - Workmen's
Compensation/Employer's Liability (Missouri) - $500,000
h. Federal Insurance Company - Workmen's Compensation/Employer's
Liability (Maryland) - $500,000
i. Federal Insurance Company - Automobile Liability and Physical
Damage Insurance - $1,000,000 per accident
j. Lloyds of London - International Employer's Liability Insurance
- 10,000,000 British pounds
k. Federal Insurance Company - Foreign Package including personal
liability, commercial liability, automobile liability, foreign
voluntary worker's compensation/employer's liability - $600,000
l. National Union Umbrella Policy - $10,000,000 per occurrence;
$10,000,000 aggregate
m. American International Specialty Lines Insurance Company -
Excess Liability (products/completed operations) primary is
$5,000,000 per occurrence; limit is $10,000,000 each
occurrence in excess of primary.
n. Hartford Insurance Company Group Travel Accident - $150,000
o. Omaha Property and Casualty Flood Insurance - $500,000 limit on
each of 755 Hanley, 2593 South Hanley and 2615 South Hanley
p. Fireman's Fund Insurance Company - Marine Open Cargo - $700,000
q. National Union Fire Insurance Company - Crime Guard Coverage -
$1,000,000 limit
r. Admiral Insurance Company - Miscellaneous professional -
$1,000,000 limit
s. National Union Fire Insurance Company - Directors and Officers
Liability - $5,000,000 limit
- 3 -
<PAGE> 151
t. American International Specialty Lines Insurance Company -
Fiduciary Liability - $4,000,000 limit
12. (Section 5.17). Existing Indebtedness.
BRUNSWICK:
a. Ulster Bank Limited overdraft facility of up to L.145,000
available to Brunswick Biomedical Ltd. until December 18, 1996.
STI:
b. $5,000,000 Working Capital Management Account Line of Credit
with Merrill Lynch Business Financial Services Inc. as set
forth in the WCMA Note, Loan and Security Agreement dated as
of November 4, 1993 between Merrill Lynch and STI as extended
by letter dated October 2, 1995.
c. $5,400,000 Loan Agreement dated as of April 16, 1991 between
Syntex Laboratories, Inc and STI with a Note dated of even
date for $5,375,000 secured by the Leasehold Deed of Trust
listed in Item 5 and a Security Agreement of even date.
d. Master Lease dated March 10, 1993 between Mitel Finance
Corporation and STI and the equipment schedules related thereto.
e. $3,000,000 Equipment Loan under letter agreement dated May 4,
1995 secured by equipment under Master Security Agreement
dated May 18, 1995, amount outstanding set forth below.
f. Master Agreement of Lease with St. Louis Leasing Corp. dated
December 6, 1994 assigned to The CIT Group/Equipment Financing,
Inc.
<TABLE>
<CAPTION>
Notes Payable/Lender Outstanding Obligation
-------------------- ----------------------
(as of 2/29/96)
<S> <C>
Merrill Lynch $2,702,784
Syntex Laboratories 988,371
Center Laboratories 375,000
----------
$4,066,155
Capital Leases/Lessor
CIT (loan and lease) $1,316,232
Mitel 158,616
United 40,911
----------
$1,515,759
----------
$5,581,914
----------
</TABLE>
13. (Section 5.18). Environmental Matters.
BRUNSWICK: None
- 4 -
<PAGE> 152
STI: None
14. (Section 5.20). Consents.
BRUNSWICK: shareholder votes approving merger
STI: shareholder votes approving merger
15. (Section 5.21). Contracts.
See also Items 5, 12, 16, 20, 21
BRUNSWICK:
a. Non-qualified Stock Option Agreement dated November 3,
1994 between James H. Miller and Brunswick.
b. Incentive Stock Option Agreement dated May 16, 1995
between Bruce Ward and Brunswick.
c. Consulting Agreement dated October 4, 1991 between John
Anderson and Brunswick.
d. Incentive Stock Option Agreement dated November 3, 1995 between
Herbert Reinhold and Brunswick.
e. Agreement dated March 4, 1989 between STI and Shahal Medical
Services Ltd., as amended by letter dated July 15, 1992 -
assigned to Brunswick.
f. Joint Venture Agreement dated July 15, 1992 between Emergency
Cardiac Services, Inc., Almy Group B.V., Dutch Company Globe
Insurance Brokers B.V. and STI - assigned to Brunswick.
g. Consulting Agreement dated October 4, 1991 between NIRAD
Limited (now known as Brunswick Biomedical Limited) and
John Anderson.
h. Agreement dated October 4, 1991 between NIRAD Limited (now
known as Brunswick Biomedical Limited) and Brunswick
Manufacturing Corporation.
i. Contract dated October 8, 1991 between Brunswick Manufacturing
Corporation and University of Ulster.
j. Counterpart License dated August 19, 1994 between University of
Ulster and Brunswick Biomedical Ltd.
k. Amended and Restated Shareholder Agreement dated as of November
12, 1993 among Brunswick and its shareholders, as supplemented
and amended by Supplement dated March 14, 1996 with respect to
Series D preferred stock, Supplement dated March 14, 1996 with
respect to Series E preferred stock and Supplement dated March
15, 1996 with respect to Series F preferred stock.
l. Asset Purchase Agreement dated as of July 31, 1994 between
Brunswick Biomedical Corporation and STI.
m. Asset Purchase Agreement dated July 3, 1990 among Brunswick
Manufacturing Co., Inc., Carl E. Hewson, Roy H. Hewson, Pamela
Tripoli and Brunswick Biomedical Technologies, Inc.
- 5 -
<PAGE> 153
n. Stock Pledge Agreement dated as of April 15, 1996 between
Brunswick and Robert Herzstein, as personal representative of
the Estate of Dr. Stanley J. Sarnoff.
o. Stock Purchase Agreement dated as of March 18, 1996 between
Brunswick and the Estate of Stanley J. Sarnoff.
p. $4,700,000 Subordinated Promissory Note dated April 15, 1996
payable to Robert Herzstein, as personal representative of the
Estate of Stanley J. Sarnoff.
q. Note Purchase Agreement dated as of April 15, 1996 between
Brunswick and E.M. Industries, Inc.
r. $1,000,000 Subordinated Promissory Note of Brunswick dated
April 15, 1996 payable to E.M. Industries, Inc.
s. Preferred Stock and Warrant Purchase Agreement dated as of
March 14, 1996 among Brunswick and the purchasers named therein
with respect to Series E 10% convertible preferred stock.
t. Preferred Stock Purchase Agreement dated March 15, 1996 between
Brunswick and the purchasers named therein with respect to
Series F 10% convertible preferred stock.
u. Incentive Stock Option Agreement dated November 26, 1993
between Mark F. Paradise and Brunswick.
v. Preferred Stock Purchase Agreement for Series A preferred stock
dated July 2, 1990.
w. Series B Convertible Preferred Stock Purchase Agreement for
Series B preferred stock dated December 30, 1991.
x. Purchase Agreement for Series C preferred stock dated April 22,
1993.
y. Stock Purchase Agreement for Series D preferred stock dated
March 14, 1996.
STI:
a. Contract with Defense Personnel Support Center dated October
27, 1995. Contract No. SP0200-96-D-0001.
b. Contract with Defense Personnel Support Center dated August 24,
1995. Contract No. DLA120-93-D-1021.
c. Contract with Defense Logistics Agency dated May 1, 1996.
Contract No. SP0200-95-R-1005.
d. Agreement dated as of January 1, 1987 regarding EpiPen between
STI and Center Laboratories, a division of EM Industries, Inc.,
as amended by Letter Agreements dated September 14, 1989 and
January 31, 1990.
e. Development, Manufacturing and Supply Agreement dated as of
August 31, 1993 between Mylan Laboratories, Inc. and STI, as
amended by an Amendment dated as of July 28, 1994.
f. Investment Agreement dated November 12, 1992 between Survival
Technology, Inc. and EM Industries, Inc.
g. Agreement dated June 23, 1981 between Survival Technology Inc.
and American Home Products Corporation.
h. License Agreement dated April 20, 1982 between Survival
Technology, Inc. and American Home Products Corporation.
16. (Section 5.22). Employment Contracts.
- 6 -
<PAGE> 154
BRUNSWICK:
a. Letter Agreement dated July 27, 1993 between James H. Miller
and Brunswick.
b. Letter Agreement dated March 10, 1995 between Bruce Ward and
Brunswick.
c. Employment Agreement dated as of July 2, 1990 between James G.
Nichols and Brunswick.
d. Employment Agreement dated October 4, 1991 between Andrew
O'Hara and Brunswick Biomedical Limited f/k/a NIRAD.
e. Employment Agreement dated August 1, 1994 between Herbert
Reinhold and Brunswick.
f. Employment Agreement dated July 28, 1994 between Brunswick
Biomedical Corporation and T.V. Rao.
g. Employment Agreement dated May 3, 1993 between Brunswick
Biomedical Corporation and Mark F. Paradise.
STI:
a. Employment Agreement dated as of March 2, 1993 between James H.
Miller and STI.
b. Employment Agreement dated as of January 28, 1994 between
Jeffrey W. Church and STI.
c. Employment Agreement dated as of January 28, 1994 between Glenn
F. Wickes, Jr. and STI.
d. Employment Agreement dated as of November 25, 1992 between John
Wilmot and STI with Letter Agreement dated as of November 20,
1992 and amendment dated May 24, 1993.
e. Agreement dated as of November 15, 1993 between O. Napoleon
Monroe, III and STI.
f. Agreement dated as of June 29, 1992 between Doris Lockey Geier
and STI.
g. Agreement dated as of March 1, 1994 between STI, Pharmaceutical
Division, and Teamsters Local Union No. 688, affiliated with the
International Brotherhood of Teamsters, Chauffeurs Warehousemen
and Helpers of America.
17.A. (Section 5.24). Subsidiaries.
BRUNSWICK:
a. Brunswick Biomedical Technologies, Inc.
b. Brunswick Biomedical Ltd.
c. Brunswick Biomedical Investment Corporation (inactive)
d. STI
STI:
a. STI International Limited
b. Pharmapak Corporation (inactive)
- 7 -
<PAGE> 155
18. Termination of Material Contracts.
BRUNSWICK: None
STI: None
19. (Section 6.2.3(b)). Permitted Liens.
BRUNSWICK and STI: See schedule attached hereto as Disclosure Schedule
C.
20. (Section 6.2.6). Leases.
BRUNSWICK:
a. Letter Agreement re Wareham premises
b. Annapolis lease
c. BBL Ireland Lease
d. Canon copier lease from Alco Capital Resource, Inc. expiring
12/22/96.
e. Maxipost Mailing System lease from Neopost Leasing expiring
3/16/97.
f. AT&T Partner 2 Phone System contract #BP-1-0366929 with AT&T
Credit Corporation expiring 4/6/97.
STI:
a. Ground Lease dated December 6, 1988 between Abraham Morrison
and STI (Corp. Headquarters)
b. Office Lease dated August 26, 1991 between Prubeta 2 and STI
(Rockville)
c. Lease dated as of October 1, 1994 among Robert Hutkin, David
Klearman, Mjem Enterprises, Margaret K. Stude and STI with
Memorandum of Office Lease (2555 Hermelin)
d. Office/Warehouse Lease dated October 1, 1994 among Robert
Hutkin, David Klearman, Edward J. Mannion, William C. Stude
and STI
e. First Amendment to Lease dated February 25, 1994 between Miran
Investment Co. and STI (2645 South Hanley)
f. First Amendment to Lease dated February 25, 1994 between Miran
Investment Co. and STI (2593 South Hanley)
g. First Amendment to Lease dated February 25, 1994 between Miran
Investment Co. and STI (2615 South Hanley)
h. First Amendment to Lease dated February 25, 1994 between Miran
Investment Co. and STI (2641 South Hanley)
i. First Amendment to Lease dated August 31, 1993 between Miran
Investment Co. and STI (8030 Litzsinger)
j. Commercial Lease dated December 18, 1992 between William J.
Postal and STI.
k. Memorandum of Lease dated August 1, 1994 among John Risberg,
Mary Risberg, Arthur D. Katz and STI.
- 8 -
<PAGE> 156
l. Transfer relating to Unit 34 Riverside The Medway City
Estate Chatham Kent dated April 14, 1993.
m. Lease Agreement dated March 1, 1996 between Roehm
Investment Group and STI.
21. (Section 6.2.7) Existing Investments.
BRUNSWICK:
$600,000.00 Note to BBC from BBT with respect to existing
intercompany loans.
STI:
$30,000 Promissory Note from John Wilmot dated June 4, 1993.
- 9 -
<PAGE> 157
DISCLOSURE SCHEDULE A
BRUNSWICK BIOMEDICAL CORPORATION
FINANCE SOURCES AND USES
<TABLE>
<CAPTION>
NON-
DEBT PREFSTK NOTE TOTAL CASH CASH
---- ------- ---- ----- ---- ----
<S> <C> <C> <C> <C> <C> <C>
CAPITAL PROVIDED AT CLOSING:
Estate $ - $ - $4.7 $ 4.7 $ - $4.7
Other stockholders $11.0 $7.7 $1.0 $19.7 $19.7 $ -
Total Capital Provided $11.0 $7.7 $5.7 $24.4 $19.7 $4.7
CAPITAL REQUIRED AT CLOSING:
Purchase 61% of STC equity ($20,769,386) $20.8 $16.1 $4.7
Closing Costs:
ING Escrow Requirement $ 1.0 $ 1.0
Vector fee ($500K) $ 0.5 $ 0.5
Lawyers ($170K - Estimated) $ 0.2 $ 0.2
ING ($100K Fee, plus $100K Expenses) $ 0.2 $ 0.2
Total Capital Required $22.7 $17.9 $4.7
CAPITAL PROVIDED IN EXCESS OF CLOSING COSTS $ 1.7
CASH PROVIDED IN EXCESS OF CLOSING COSTS $ 1.7
</TABLE>
<TABLE>
<CAPTION>
SERIES SERIES SERIES
SUMMARY OF PREFERRED STOCK ISSUED D E F
------ ------ ------
<S> <C> <C> <C>
State of Maryland $ 250,000
Dr. Payson $ 30,000
Dr. Augur 25,000
Ms. Doubleday 10,000
Mr. Foster 100,000
Mr. Gruber 100,000
Mr. Lirberg 55,100
Mr. Miller 50,000
Mr. Thibodeau 50,000
CBI - # III 50,000
CBI - # IV 100,000
CBI - # V $1,008,381 100,000
Mylan $2,999,975
E. Meack 1,999,992
Dilton Read 500,005
General Mills Pension Fund 249,989
Total $1,258,881 $670,100 $5,749,961
Combined $7,678,542
</TABLE>
<PAGE> 158
SCHEDULE D
REGISTERED U.S. PATENTS
(BRUNSWICK BIOMEDICAL CORPORATION)
<TABLE>
<CAPTION>
TITLE REGISTRATION NO. REGISTRATION DATE
- ----- ---------------- -----------------
<S> <C> <C>
Twelve-Lead Portable US 5465727 11/14/95
Heart Monitor
Specialized Peak Flow US 5373851 12/20/94
Ambulatory Monitoring US 4531527 07/30/85
System with Real Time
Analysis and Telephone
Transmission
Flow Meter
Heart and Lung Resuscitator 3307541
Variable Width Square Wave
Generator
Magnetic Valve
Method & Apparatus for
Defibrillating the Heart 3351052
Design for Heart & Lung
Resuscitator D203427
Heart & Lung Resuscitator RE26511
Heart & Lung Resuscitator 3509899
Heart & Lung Resuscitator 3511275
Pneumatic Instrument Valve
</TABLE>
<PAGE> 159
<TABLE>
<S> <C>
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration 3683908
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration ger1954942
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration gb1288033
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration jp748378
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration 3841319
Neck Assembly for Mannequin 3916535
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration &
Evacuating the stomach 3905361
Resuscitation and Pacing
Devices
Resuscitation Device gb2062477
Esophageal Airway Pacing
Esophageal Airway Wire
Pacing
Resuscitation Device
Esophageal Airway Pacing
</TABLE>
<PAGE> 160
<TABLE>
<S> <C>
Apparatus for Sealing the
Esophagus, Providing
Artificial Respiration &
Relieving Pressure on the
Distal
Heart Pacer ire55964
Heart Pacer is74427
Load Control Circuit with
Different Input Voltages 4608498
Passive Endotracheal Tube
Method & Apparatus for
Controlled Breathing
Equipment Internal &
External Electrodes
Heart Valve
Capsule Electrode
Esophageal Obturator Airway
Load Control Circuit
Resuscitation Mask
Method & Apparatus for
Defibrillating the Heart
Using Internal Esophageal
& External Chest Electrode
See H0050/7039
Method & Apparatus for
Controlled Breathing
Employing Internal &
External Electrodes
</TABLE>
<PAGE> 161
<TABLE>
<S> <C>
Heart Lung Resuscitator Litter 4060079
Unit
Method & Apparatus for
Defibrillating the Heart
Esophageal-Stomach
Displacement Electrode
Apparatus for Diagnosing a
Heart Condition -
Cardiobeeper
Apparatus & Method of
Measuring Heartbeat 3792700
Portable Heart Monitor 3938507
Dry Applied & Operably
Dry Electrode Device 3911906
Infant Long Term Monitoring
Electrode Assembly 440750
Electrode Assembly & Methods
of Using the Same in the
Respiratory and/or Cardiac
Monitoring of an 3888240
Method & Apparatus for
Self-Administering Pre-
Hospital Phase Treatment of
Coronary Prone Individual 3870035
Method of Treating Heart
Attack Patients Prior to the
Establishment of Qualified
Direct Contact Persona 3910260
Condition Monitoring Pacer 4055189
</TABLE>
<PAGE> 162
<TABLE>
<S> <C>
Automatic Detection &
Registration of Failure
Condition in a Cardiac
Pacer Monitoring System 4088139
Method & Apparatus for
Monitoring a Timed Failure
Condition Relationship in
a Cardiac Pacer 4096865
Rate Failure Indicator 4164227
Array Concept 5464727
Specialized Peak Flow Meter 5373851
Twelve-Lead Portable Heart
Monitor & Method 5339823
Device for Measuring Multiple
Channels of Heartbeat
Activity & Encoding into a
Form Suitable for Sim 4889134
Monitoring Device with Dual
Position Electrodes (Precordial
Mode Armpit Electrodes) 4862896
Ambulatory Monitoring System
with Real Time Analysis &
Telephone Transmission
(STATSCAN) 4531527
Method of Treating Heart
Attack Patients Prior to the
Establishment of Qualified
Direct Contact Person 4004577
</TABLE>
<PAGE> 163
<TABLE>
<S> <C>
Electrode Assembly & Methods
of using the Same in the
Respiratory and/or Cardiac
Monitoring of an I 3888240
Method & Apparatus of
Treating Heart Attack
Patients Prior to the
Establishment of Qualified
Direct C 3910260
Portable Heart Monitor
(Cardiobeeper) 3938507
ECS
Apparatus & Method of
Monitoring the Electrical
Activity of the Heart of a
Human with Armpit Located 3792700
Cardiac Pacer & Monitor
System 4144892
Emergency Stretcher
Arrangement
Ambulatory Monitoring
System with Real Time
Analysis & Telephone
Transmission 4531527
Electrocardiography Signal
Transmission-Reception
Method Including Method
of Measuring Pacemaker 3946744
Electrocardiography
Transmitter & Transmission
Method 3872251
</TABLE>
<PAGE> 164
<TABLE>
<S> <C>
Method & Apparatus for
Pacing the Heart Employing
Internal & External Electrodes 4574807
Heart Pacer ger7026
Heart Pacer 8504796
Heart Pacer 1895217
Method & Apparatus for
Controlled Breathing
Employing Internal &
External Electrodes 4683890
Method & Apparatus for
Defibrillating & Pacing
the Heart 4735206
Method & Apparatus for
Defibrillating the Heart
Using Intern. Esophageal
Electrode & Ext. Chest
Elec 5052390
Method & Apparatus for
Defibrillating the Heart ger7037
Method & Apparatus for
Defibrillating the Heart jp7037
Esophageal Electrode 4960133
Internal Esophageal Electrode ger7038
Internal Esophageal Electrode 2224935
Internal Esophageal Electrode jp7038
</TABLE>
<PAGE> 165
<TABLE>
<S> <C>
Method & Apparatus for
Controlling Breathing
Employing Internal &
External Electrodes #2 5036848
Method & Apparatus for
Controlling Breathing
Employing Internal &
External Electrodes #2 can7039
Method & Apparatus for
Controlling Breathing
Employing Internal &
External Electrodes eur7039
Method & Apparatus for
Controlling Breathing
Employing Internal &
External Electrodes isr7039
Method & Apparatus for
Controlling Breathing
Employing Internal &
External Electrodes #2 jp7039
Esophageal Displacement
Electrode 5170803
Esophageal-Stomach
Displacement Electrode 5197491
Esophageal-Stomach
Displacement Electrode can7043
Esophageal-Stomach
Displacement Electrode eur7043
Esophageal-Stomach
Displacement Electrode isr7043
</TABLE>
<PAGE> 166
<TABLE>
<S> <C>
Esophageal-Stomach
Displacement Electrode jp7043
Esophageal Obturator
Airway 4497318
Resuscitation Aid 4998530
Resuscitation Mask R1
Esotracheal Airway R2
Displacement Electrode PD1
Fail-Safe Endotracheal
Tube System R3
Electrocardiographic Harness M1
Interpolation of Missing
Information in Electro-
cariographic Body Surface
Maps M2
</TABLE>
<PAGE> 167
BRUNSWICK BIOMEDICAL CORPORATION
PATENT LICENSES
Patent Licenses with respect to which
the Borrower is a licensor:
<TABLE>
<CAPTION>
Patent Registration
Licensee License or Serial Number
- -------- ------- ----------------
<S> <C> <C>
Brunswick Biomedical Kiss of Life (KOL)
Corporation Barrier Mask
Brunswick Biomedical Profile Biosignal Electrode
Corporation
Brunswick Biomedical Improved Peak Flow Meter
Corporation
</TABLE>
<PAGE> 168
REGISTERED U.S. TRADEMARKS
(BRUNSWICK BIOMEDICAL CORPORATION)
<TABLE>
<CAPTION>
MARK REGISTRATION NO. REGISTRATION DATE
<S> <C> <C>
Cardio Beeper 1,214,758 11/02/82
Infantrode 1,201,906 07/20/82
Quiktrode 1,020,445 09/16/75
<CAPTION>
PENDING U.S. TRADEMARK APPLICATIONS
MARK SERIAL NO. FILING DATE
The Heart System 74-396,418 03/29/94
</TABLE>
<PAGE> 169
REGISTRED U.S. PATENTS
(BRUNSWICK BIOMEDICAL TECHNOLOGIES, INC.)
<TABLE>
<CAPTION>
TITLE REGISTRATION NO. REGISTRATION DATE
- ----- ---------------- -----------------
<S> <C> <C>
Esophageal-Stomach Displacement US 5197491 03/30/93
Electrode
Esophaageal Displacement US 5170803 12/15/92
Electrode
Resuscitation Aid US 5165396 11/24/92
Occlusive Chest Sealing US 5160322 11/03/92
Valve
Method Apparatus for Controlling US 5036848 08/06/91
Breathing Employing Internal
and External Electrodes
</TABLE>
<PAGE> 170
BRUNSWICK BIOMEDICAL TECHNOLOGIES, INC.
PATENT LICENSES
Patent Licenses with respect to which
the Borrower is a licensor:
<TABLE>
<CAPTION>
Patent Registration
Licensee License or Serial Number
- -------- ------- -------------------
<S> <C> <C>
Brunswick Biomedical Kiss of Life
Technologies, Inc. Barrier Mask
</TABLE>
<PAGE> 171
REGISTERED U.S. TRADEMARKS
(BRUNSWICK BIOMEDICAL TECHNOLOGIES, INC.)
<TABLE>
<CAPTION>
MARK REGISTRATION NO. REGISTRATION DATE
- ---- ---------------- -----------------
<S> <C> <C>
CPR Mani 1,715,797 09/15/92
Kiss of Life 1,798,600 10/12/93
EOA 1,083,346 01/24/78
EGTA 1,083,345 01/24/78
</TABLE>
<PAGE> 172
REGISTERED U.S. PATENTS - SURVIVAL TECHNOLOGIES, INC.
<TABLE>
<CAPTION>
REGISTRATION REGISTRATION
TITLE NO. DATE
- ----- -- ----
<S> <C> <C>
Reloadable Injector US 5425715 06/20/90
Subcutaneous Injector US 5391151 02/21/95
Rectal Administrator US 5364363 11/15/94
Injection Device Having Polyparaxylylene
Coated Container US 5354286 10/11/94
Twelve-Lead Portable Heart Monitor and
Method US 5339823 08/23/94
Automatic Injectors US 5295965 03/22/94
Cap for Automatic Injector US D332489 01/12/93
Auto-Injector for Liquid Medicate US D330079 10/06/92
Autoinjector Converted From Intramuscular
to Subcutaneous Mode of Injection US 5102393 04/07/92
Dispersion Multichamber Auto-Injector US 5092843 03/03/92
Conveniently Carried Frequent Use
Auto-Injector US 5085642 02/04/92
Conveniently Carried Frequent Use
Auto-Injector
Conveniently Carried Frequent Use Auto-
Injector with Improved Cap Structure US 5085641 02/04/92
Automatic Injector for Emergency Treatment US 5078680 01/07/92
Protein Absorption Enhancing Agents; Hydro-
xyamine, Alkylamine, Hydroxyalkylamine US 5002930 03/26/91
</TABLE>
<PAGE> 173
<TABLE>
<S> <C> <C>
Package US 4982769 01/08/91
Device for Measuring Multiple Channels of
Heartbeat activity and Encoding Into a Form
Suitable for Simultensoue Transmission Over US 4889134 12/26/89
Monitoring Device with Dual Position Electrodes US 4862896 09/05/89
Protein Absorption Enhancing Agents,
Administering Methylamine, Hydroxylamine or the
Non-toxic Hydrochlorides Intramuscularly US 4839170 06/13/89
Method of Reconstituting a Hazardous Material
in A Vial, Reliving Pressure Therein, and
Refilling a Dosage Syringe Therefrom US 4834149 05/30/89
Injection Method and Apparatus With Electrical
Blood Absorbing Stimulation US 4832682 05/23/89
Method of Enhancing the Effect of T-PA; Tissue-
type Plasminogen Activator US RE32919 05/09/89
Automatic Injector for Emergency Treatment US 4795433 01/03/89
Protein Thrombolytic Agent With Absorption
Enhancing Agent US 4772585 09/20/88
Hazardous Material Vial Apparatus Providing
Expansible Sealed and Filter Vented Chambers US 4768568 09/06/88
Automatic Medicament Ingredient Mixing and
Injecting Apparatus US 4755169 07/05/88
Disposable Hypodermic Syringe with Plastic
Snap-on Needle Hub and Heat Shrink Seal
Therefor US 4749839 05/31/88
Plural Dosage Automatic Injector with a By-pass
Fitment US 4723937 02/09/88
Cartridge with Universal Plastic Hub US 4713061 12/15/87
</TABLE>
- 2 -
<PAGE> 174
<TABLE>
<S> <C> <C>
Automatic Medicament Ingredient Mixing US 4689042 08/25/87
and Injecting Apparatus
Automatic Injector with Improved Glass
Container Protector US 4678461 07/07/87
T-PA Composition Capable of Being Absorbed
into the Blood Stream and Method of
Administration; Hydroxylamine, Hydroxylamine
Hydrochloride Disassociating Agent US 4661469 04/28/87
Method and Apparatus for Initiating Reperfusion
Treatment by an Unattended Individual Undergoing
Heart Attack Symptoms US 4658830 04/21/87
Absorption Enhancing Agents; Preventing Cytolysis US 4656034 04/07/87
Anti-Contamination Hazardous Material Package US 4645073 02/24/87
Audible Signal Autoinjector Training Device US 4640686 02/03/87
Split Hub Assembly for a Necked Down
Cartridge Tube US 4624393 11/25/86
Plural Dosage Automatic Injector With Improved
Safety US 4578064 03/25/86
Ambulatory Monitoring System with Real Time
Analysis and Telephone Transmission US 4531527 07/30/85
(**Assigned to: Brunswick Biomedical
Corporation)
Multiple Medicament Cartridge Clip and
Medicament Discharging Device Therefor US 4518384 05/21/85
Dual Mode Automatic Injector US 4484910 11/27/84
Plural Station Resuscitator US 4452241 06/05/84
Assembly for Administering Respiratory
Medicament Dosage Through a Gas
Mask US 4433684 02/28/84
</TABLE>
- 3 -
<PAGE> 175
<TABLE>
<S> <C> <C>
Emergency Electrode US 4408610 10/11/83
Automatic Injector with Cartridge Having
Separate Sequentially Injectable Medicaments US 4394863 07/26/83
Plural Injection Assembly US 4329988 05/18/82
Wed Dry Syringe Package US 4328802 05/11/82
Stable Agueous Solutions of Pralidoxime
Salts; Cholinesterase Inhibitor and
Antidote Against Lethal Alleyl Phosphate
Intoxication
---------- ---------
Plural Injecting Device US 4226235 10/07/80
Stabilized Benactyzine Hydrochloride;
Propylene Ceycol, Water US 4212886 07/15/80
</TABLE>
PENDING U.S. PATENT APPLICATIONS
TITLE FILING DATE
- 4 -
<PAGE> 176
REGISTERED U.S. TRADEMARKS - SURVIVAL TECHNOLOGIES, INC.
<TABLE>
<CAPTION>
REGISTRATION NO MARK DATE
- --------------- ---- ----
<S> <C> <C>
STI 1,839,313 06/14/94
STI 1,819,833 02/08/94
STI 1,703,058 07/28/92
STI 1,685,613 05/05/92
STI 1,760,636 03/23/93
Survival Technology, Inc. 1,701,601 07/21/92
Q-Pen 1,757,604 03/09/93
Ampsnapper 1,539,222 05/16/89
Thrombopen 1,445,020 06/30/87
Cyto Guard 1,481,501 03/22/88
Speedfit 1,288,834 08/07/94
Soluject 1,207,805 09/14/82
Surtech 1,038,155 04/20/76
Combo Pen 1,040,829 06/08/76
The Must for Rust 983,112 05/07/74
Lidojector 907,616 02/09/71
Lidopen Auto-Injector 914,015 06/08/71
</TABLE>
- 5 -
<PAGE> 177
<TABLE>
<S> <C> <C>
RR 784,890 02/09/65
Atro Pen 600,077 12/28/54
H.E.L.P. 91,808 02/20/90
Hazard & Emergency-
Life Provisions 91,807 02/20/90
</TABLE>
- 6 -
<PAGE> 178
SCHEDULE C
PERMITTED LIENS
<TABLE>
<CAPTION>
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
====================================================================================------------------------
<S> <C> <C> <C>
The CIT Group/Equipment Sec. of State., MD 53458677 Main Isolater and
Financing, Inc. 12/8/95 Transfer Isolater # 1
Liber 3769 & 2
Folio 1034
- ------------------------------------------------------------------------------------------------------------
The CIT Group/Equipment Sec. of State., MD 53408089 Main Isolater and
Financing, Inc. 12/5/95 Transfer Isolater # 1
Liber 3769 & 2
Folio 0918
- ------------------------------------------------------------------------------------------------------------
The CIT Group/Equipment Sec. of State., MD 51568833 Various Production
Financing, Inc. 6/5/95 Equipment
Liber 3317
Folio 2313
- ------------------------------------------------------------------------------------------------------------
The CIT Montgomery County, 027564 Various Production
Group/Equipment MD 11/2/95 Equipment
Financing, Inc. Liber 0614
Folio 042
- ------------------------------------------------------------------------------------------------------------
Mitel Financial Sec. of State., MD 51258183 For notification of
Services ------------ lease only
5/5/95
151257266
Liber 3711
Folio 1297
- ------------------------------------------------------------------------------------------------------------
Mitel Financial Sec. of State., MD 50588076 For notification of
Services ------------ lease only
2/27/95
150587927
Liber 3693
Folio 0427
- ------------------------------------------------------------------------------------------------------------
Mitel Financial Montgomery County, 027054 For notification of
Services MD 5/10/95 lease only
Liber 0611
Folio 015
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 179
<TABLE>
<CAPTION>
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
====================================================================================------------------------
<S> <C> <C> <C>
Mitel Financial Montgomery County, 025384 For notification of
Services MD 2/28/95 lease only
Liber 0600
Folio 110
- ------------------------------------------------------------------------------------------------------------
Mitel Finance Sec. of State., MD 41098030 For notification of
Corporation ------------ lease only
4/9/94
141097721
Liber 3600
Folio 2079
- ------------------------------------------------------------------------------------------------------------
Mitel Finance Sec. of State., MD 132108274 For notification of
Corporation 7/29/93 lease only
- ------------------------------------------------------------------------------------------------------------
Mitel Finance Montgomery County, 019082 For notification of
Corporation MD 6/6/94 lease only
Liber 0562
Folio 089
- ------------------------------------------------------------------------------------------------------------
Mitel Finance Montgomery County, 012315 For notification of
Corporation MD Liber 0524 lease only
Folio 403
8/20/93
- ------------------------------------------------------------------------------------------------------------
Sanwa Business Sec. of State., MD 132108275 For notification of
Credit Corporation 7/29/93 lease only
Liber 3592
Folio 1343
- ------------------------------------------------------------------------------------------------------------
Sanwa Business Sec. of State., MD 31938506 For notification of
Credit Corporation 7/12/93 lease only
Liber 3524
Folio 2073
- ------------------------------------------------------------------------------------------------------------
Sanwa Business Montgomery County, 012931 For notification of
Credit Corporation MD 9/17/93 lease only
Liber 0526
Folio 148
- ------------------------------------------------------------------------------------------------------------
Sanwa Business Montgomery County, 012928 For notification of
Credit Corporation MD 9/17/93 lease only
Liber 0526
Folio 136
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 180
<TABLE>
<CAPTION>
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
====================================================================================------------------------
<S> <C> <C> <C>
Sanwa Business Montgomery County, 011405 For notification of
Credit Corporation MD 9/17/93 lease only
Liber 0522
Folio 190
- ------------------------------------------------------------------------------------------------------------
Syntex Laboratories, Sec. of State., MD 11588481 All equipment,
Inc. 7/15/93 fixtures, general
Liber 3335 intangibles relating to
Folio 0964 Syringes
- ------------------------------------------------------------------------------------------------------------
Syntex Laboratories, Montgomery County, 07225 Equipment, fixtures,
Inc. MD 7/22/91 and general
Liber 0485 intangibles used in
Folio 525 the manufacture of
syringes
- ------------------------------------------------------------------------------------------------------------
ELLCO Leasing Sec. of State., MD 101577513 For notification of
Corporation 6/4/90 lease only
Liber 3245
Folio 0159
- ------------------------------------------------------------------------------------------------------------
ELLCO Leasing Montgomery County, 089653 For notification of
Corporation MD 7/2/90 lease only
Liber 469
Folio 233
- ------------------------------------------------------------------------------------------------------------
Leasetec Corporation Sec. of State., MD 31938504 For notification of
7/12/93 lease only
Liber 3524
Folio 2078
- ------------------------------------------------------------------------------------------------------------
Leasetec Corporation Sec. of State., MD 131538375 For notification of
6/1/93 lease only
- ------------------------------------------------------------------------------------------------------------
Leasetec Corporation Sec. of State., MD 31938506 For notification of
7/12/93 lease only
Liber 3524
Folio 2073
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 181
<TABLE>
<CAPTION>
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
====================================================================================------------------------
<S> <C> <C> <C>
Leasetec Corporation Montgomery County, 011534 For notification of
MD 7/21/93 lease only
Liber 0522
Folio 415
- ------------------------------------------------------------------------------------------------------------
Citicorp Industrial Sec. of State., MD 43078290 Anderson/Jacobson
Credit 11/2/84 Modem
- ------------------------------------------------------------------------------------------------------------
Citicorp Industrial Sec. of State., MD 42588089 Microdata Terminals
Credit 9/14/84 and Communications
Controller
- ------------------------------------------------------------------------------------------------------------
Citicorp Industrial Montgomery County, 41927 Anderson/Jacobson
Credit MD Liber 0373 Modem
Folio 319
10/31/94
- ------------------------------------------------------------------------------------------------------------
Citicorp Industrial Montgomery County, 42555 Microdata Terminals
Credit MD Liber 037 and Communications
Folio 462 Controller
12/4/94
- ------------------------------------------------------------------------------------------------------------
Merrill Lynch Sec. of State, MD 133167692 Blanket Lien
Business Financial 11/10/93
Services, Inc. Liber 3559
Folio 2625
- ------------------------------------------------------------------------------------------------------------
Merrill Lynch Montgomery County, 14132 Blanket Lien
Business Financial MD 11/10/93
Services, Inc. Liber 531
Folio 85
- ------------------------------------------------------------------------------------------------------------
First Pennsylvania Montgomery County, 4/11/89 Blanket Lien
Bank, N.A. MD Liber 8773
Folio 283
- ------------------------------------------------------------------------------------------------------------
First Pennsylvania Montgomery County, 84085 Blanket Lien
Bank, N.A. MD 5/24/77
Liber 0278
Folio 163
- ------------------------------------------------------------------------------------------------------------
Merrill Lynch Sec. of State, NJ 1539195 Blanket Lien
Business Financial 11/9/93
Services, Inc.
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 182
<TABLE>
<CAPTION>
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
====================================================================================------------------------
<S> <C> <C> <C>
Merrill Lynch Sec. of State., CT 1034917 Blanket Lien
Business Financial 11/9/93
Services, Inc.
- ------------------------------------------------------------------------------------------------------------
Merrill Lynch Sec. of State, VT 93-36492 Blanket Lien
Business Financial 11/9/93
Services, Inc.
- ------------------------------------------------------------------------------------------------------------
Merrill Lynch Bethel Town Clerk, VT 93-52 Blanket Lien
Business Financial 11/12/93
Services, Inc.
- ------------------------------------------------------------------------------------------------------------
Merrill Lynch Prothonotary of 93-1015 Blanket Lien
Business Financial Centre County, PA 11/9/93
Services, Inc.
- ------------------------------------------------------------------------------------------------------------
Merrill Lynch Prothonotary of ST93-2662 Blanket Lien
Business Financial Chester County, PA 11/9/93
Services, Inc.
- ------------------------------------------------------------------------------------------------------------
Merrill Lynch Prothonotary of Vol 79 Blanket Lien
Business Financial Berks County, PA Page 683
Services, Inc. 11/9/96
- ------------------------------------------------------------------------------------------------------------
Merrill Lynch Sec. of State, PA 22570546 Blanket Lien
Business Financial 11/9/93
Services, Inc.
- ------------------------------------------------------------------------------------------------------------
Merrill Lynch Prothonotary of 244337 Blanket Lien
Business Financial Montgomery County, 11/9/93
Services, Inc. PA
- ------------------------------------------------------------------------------------------------------------
ELLCO Leasing Sec. of State, MO 1876773 For notification of
Corporation 6/4/90 lease only
- ------------------------------------------------------------------------------------------------------------
Liquid Carbonic Corp. Sec. of State, MO 2029030 For notification of
8/5/91 lease only
- ------------------------------------------------------------------------------------------------------------
Sanwa Business Credit Sec. of State, MO 2252728 Leased Equipment
Corporation 4/19/93
- ------------------------------------------------------------------------------------------------------------
Sawna Business Credit Sec. of State, MO 2252732 Leased Equipment
Corporation 4/19/93
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 183
<TABLE>
<CAPTION>
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
====================================================================================------------------------
<S> <C> <C> <C>
Sawna Business Sec. of State, MO 2265186 Leased Equipment
Credit Corporation 5/17/93
- ------------------------------------------------------------------------------------------------------------
Mitel Finance Sec. of State, MO 2293314 Leased Equipment
Corporation 7/29/93
- ------------------------------------------------------------------------------------------------------------
Mitel Finance Sec. of State, MO 2393057 Leased Equipment
Corporation 4/18/94
- ------------------------------------------------------------------------------------------------------------
The CIT Group/Equipment Sec. of State, MO 2488198 Leased Equipment
Financing, Inc. 12/29/94
- ------------------------------------------------------------------------------------------------------------
The CIT Group/Equipment Sec. of State, MO 2545824 Leased Equipment
Financing, Inc. 5/30/95
- ------------------------------------------------------------------------------------------------------------
The CIT Group/Equipment Sec. of State, MO 2609055 Specific Equipment
Financing, Inc. 12/5/95
- ------------------------------------------------------------------------------------------------------------
First Untied Leasing Sec. of State, MO 2576721 Precautionary filing for
8/28/95 lease
- ------------------------------------------------------------------------------------------------------------
BioMerieux Vitex, Inc. Sec. of State, MO 2585525 Computer equipment
9/22/95
- ------------------------------------------------------------------------------------------------------------
Trinity Capital Sec. of State, MO 2609774 Precautionary filing for
Corporation 12/8/95 lease
- ------------------------------------------------------------------------------------------------------------
Merrill Lynch Business Sec. of State, MO 2330337 Blanket Lien
Financial Services, Inc. 11/9/93
============================================================================================================
</TABLE>
<PAGE> 184
<TABLE>
<CAPTION>
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
============================================================================================================
<S> <C> <C> <C>
Syntex Laboratories Sec. of State, MO 1995589 All equipment, fixtures
4/30/91 and general intangibles
relating to Syringes
- ------------------------------------------------------------------------------------------------------------
Xerox Corporation Sec. of State, MO 2217487 Xerox model 10/90
1/22/93
- ------------------------------------------------------------------------------------------------------------
Sanwa Business Credit St. Louis County, 004779 Mitel 46
Corp. Missouri 4/20/93 30QD0035/A6A
- ------------------------------------------------------------------------------------------------------------
Sanwa Business Credit St. Louis County, 004780 Mitel 54
Corp. Missouri 4/20/93 30QD0035/A1
- ------------------------------------------------------------------------------------------------------------
Sanwa Business Credit St. Louis County, 005767 Mitel 60
Corp. Missouri 5/14/93 30QD0035/A5A
- ------------------------------------------------------------------------------------------------------------
Merril Lynch Business St. Louis County, 13504 Blanket Lien
Financial Services Missouri 11/9/93
- ------------------------------------------------------------------------------------------------------------
Mitel Finance St. Louis County 004738 4/20/94 Mitel 175
Corporation 30QD0035/ AB
- ------------------------------------------------------------------------------------------------------------
Syntex Laboratories St. Louis County, 05246 All equipment fixtures
Missouri 4/29/91 and general intangibles
- ------------------------------------------------------------------------------------------------------------
Xerox Corporation St. Louis County, 14467 Xerox copier
Missouri 4/29/91
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 185
<TABLE>
<CAPTION>
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
============================================================================================================
<S> <C> <C> <C>
St. Louis Leasing St. Louis County, 015955 Precautionary Filing for
Missouri 12/29/94 Leased Equipment
- ------------------------------------------------------------------------------------------------------------
Mitel Financial Services St. Louis County, 007138 Precautionary Filing for
Missouri 6/2/95 Leased Equipment
- ------------------------------------------------------------------------------------------------------------
Mitel Financial St. Louis County, 007140 Leased Equipment
Services Missouri 6/2/95
- ------------------------------------------------------------------------------------------------------------
Trinity Capital St. Louis County, 015199 Leased Equipment
Corporation Missouri 12/7/95
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 186
<TABLE>
<CAPTION>
============================================================================================================
DEBTOR: BRUNSWICK BIOMEDICAL CORPORATION
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
============================================================================================================
<S> <C> <C> <C>
Survival Technology, Sec. of State, MA 309221 All receivables arising
Inc. 4/28/95 from "Net Sales" and all
MD Intellectual Property
- ------------------------------------------------------------------------------------------------------------
Survival Technology, Marlborough Office of 36421 All receivables arising
Inc. Town Clerk 4/28/95 from "Net Sales" and all
MD Intellectual Property
- ------------------------------------------------------------------------------------------------------------
Survival Technology, Sec. of State, PA 24230949 Housing molds and
Inc. 4/28/95 circuits board tool and
Hot stamping tool
- ------------------------------------------------------------------------------------------------------------
Survival Technology, Bucks County, PA 95-61369 No exhibits
Inc. 4/28/95
- ------------------------------------------------------------------------------------------------------------
Survival Technology, Sec. of State, IL 3394160 Label Plate
Inc. 4/28/95
- ------------------------------------------------------------------------------------------------------------
Survival Technology, Sec. of State, MI 55265B Various molds
Inc. 4/28/95
- ------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 1
EXHIBIT 2
- --------------------------------------------------------------------------------
WARRANT PURCHASE AGREEMENT
BETWEEN
BRUNSWICK BIOMEDICAL CORPORATION
AND
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
Dated as of April 15, 1996
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
RECITALS: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. Purchase and Sale of Warrants; Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3. Investment Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5. Warranties, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Credit Agreement Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) Power, Authority, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(c) Due Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(d) Validity, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(e) Capitalization and Ownership of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(f) Authorization and Issuance of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(g) Securities Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(h) No Integration of Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(a) Financial and Business Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(b) Public Company Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(c) Maintenance of Corporate Existences, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(d) Maintenance of Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(e) Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(f) Organic Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(g) Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(h) Issuance of Additional Rights, Options and Warrants . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7. Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 8. Execution of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9. Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
- i -
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 10. Registration of Transfers and Exchanges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 11. Exercise of Warrants; Conversion of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 12. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 13. Mutilated or Missing Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 14. Reservation of Warrant Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 15. Adjustment of Exercise Price and Number of Warrant Shares Issuable . . . . . . . . . . . . . . . . . . . 22
(a) Adjustment for Change in Capital Stock of the Company . . . . . . . . . . . . . . . . . . . . . . 22
(b) Adjustment for Stock Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(c) Adjustment for Convertible Securities Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(d) Adjustment for Right, Option and Warrant Issues . . . . . . . . . . . . . . . . . . . . . . . . . 25
(e) Consideration Received . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(f) Special Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(g) When No Adjustment Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(h) Determination of Fair Market Value per Share; Notice of Adjustment . . . . . . . . . . . . . . . . 28
(i) Reorganization of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(j) The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(k) When Issuance or Payment May Be Deferred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
(l) Adjustment in Number of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 16. Fractional Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 17. Notice to Warrant Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 18. Cash Distributions and Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 19. Put Rights; Tag-Along Rights and Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(a) Put by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
(b) Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(c) Restrictions on Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
(d) Tag-Along Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(e) Limitation on Put Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(f) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 20. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
</TABLE>
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<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 21. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 22. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 23. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 24. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 25. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 26. Benefits of this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 27. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 28. Amendments; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 29. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 30. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 31. Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 32. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 33. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Exhibit A Form of Series A Warrant Certificate
Exhibit B Form of Series B Warrant Certificate
Exhibit C Schedule of Exceptions
Exhibit D Holders of the Company's Stock
Exhibit E-1 Existing Warrants
Exhibit E-2 Shares Reserved under Stock Option Plan
Exhibit F Existing Registration Rights
Exhibit G Opinion of Counsel to STI
(to be delivered on the Merger Consummation Date)
</TABLE>
- iii -
<PAGE> 5
WARRANT PURCHASE AGREEMENT
THIS WARRANT PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of April 15, 1996 by and between BRUNSWICK BIOMEDICAL
CORPORATION, a Massachusetts corporation ("Brunswick"), and INTERNATIONALE
NEDERLANDEN (U.S.) CAPITAL CORPORATION, a Delaware corporation (the
"Purchaser").
W I T N E S S E T H:
RECITALS:
A. Simultaneously herewith, the Purchaser is entering
into a Credit Agreement, dated of even date herewith, by and among Brunswick,
the Purchaser and various other lenders that may become parties thereto (the
"Lenders") and the Purchaser in its capacity as Agent for the Lenders (the
"Agent");
B. It is a condition precedent to the extensions of
credit by the Purchaser to Brunswick contemplated by the Credit Agreement that
Brunswick agree to issue to the Purchaser (1) Series A Warrants initially
exercisable for 33,370 shares of Class A Common Stock, par value $0.01 per
share, of the Company ("Class A Common Stock") for an exercise price of $0.01
per share and (2) Series B Warrants initially exercisable for 36,298 shares of
Class A Common Stock for an exercise price of $27.55 per share;
C. Shares of Class A Common Stock are convertible, at
the option of each of the holders thereof, into shares of voting common stock,
par value $0.01 per share, of Brunswick (the "Voting Common Stock"); and
D. The Purchaser and Brunswick desire to set forth in
this Agreement the terms and provisions of the Series A Warrants and the Series
B Warrants (collectively, the "Warrants") and the conditions to the issuance
and sale of the Warrants to the Purchaser;
NOW, THEREFORE, in consideration of the premises and the
agreements herein set forth and to induce the Purchaser to proceed with the
transactions contemplated by the Credit Agreement, the parties hereto,
intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions.
(a) Defined Terms. Capitalized terms appearing herein
and not otherwise defined herein shall have the meanings ascribed thereto in
the Credit Agreement (irrespective of whether the Credit Agreement is in effect
or has been terminated). The following terms (whether or not underscored) when
used in this Agreement, including its preamble and recitals, shall, except
<PAGE> 6
where the context otherwise requires, have the following meanings (such
meanings to be equally applicable to the singular and plural forms thereof):
"Affiliate" of any Person means any other Person which,
directly or indirectly, controls or is controlled by or under common control
with such Person (excluding any trustee under, or any committee with
responsibility for administering, any Plan). A Person shall be deemed to be
"controlled by" any other Person if such other Person possesses, directly or
indirectly, power (a) to vote 5% or more of the securities having ordinary
voting power for the election of directors of such Person, or (b) to direct or
cause the direction of the management or policies of such Person whether by
contract or otherwise; provided that no Lender shall be deemed to constitute an
Affiliate of the Company solely by virtue of holding Warrants or Warrant
Shares.
"Agent" is defined in Recital A.
"Agreement" means this Warrant Purchase Agreement as in effect
on the date hereof and as hereafter amended, supplemented, restated or
otherwise modified.
"Authorized Officer" means, relative to the Company, those
officers of the Company whose signature, incumbency and authority shall have
been certified to the Agent and the Lenders pursuant to Section 4.1.1 or
Section 4.2.1 of the Credit Agreement.
"Brunswick" is defined in the preamble to this Agreement .
"Business Day" means any day which is neither a Saturday or
Sunday nor a legal holiday on which banks are authorized or required to be
closed in New York, New York.
"Capitalized Lease Liabilities" shall have the meaning set
forth in the Credit Agreement.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation issued or guaranteed by the
United States of America or any agency or instrumentality thereof and backed by
the full faith and credit of the United States of America, or issued by any
state or political subdivision or public instrumentality thereof, (i) which
has a remaining maturity at the time of purchase of not more than one (1) year
or which is subject to a repurchase agreement with any Lender or any Eligible
Lending Institution exercisable within one (1) year from the time of purchase
so long as such direct obligation remains in the possession of the Borrower or
in the possession of any Lender and (ii) which, in the case of obligations of
any state or political subdivision or public instrumentality thereof, is rated
AA or better by Moody's Investors Service, Inc.;
(b) certificates of deposit, time deposits, demand
deposits and bankers' acceptances, having a remaining maturity at the time of
purchase of not more than one (1) year, issued by any Lender or by any Eligible
Lending Institution;
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<PAGE> 7
(c) corporate obligations rated Prime-1 by Moody's
Investors Service, Inc. or A-1 by Standard & Poor's Corporation, having a
remaining maturity at the time of purchase of not more than one (1) year;
(d) shares of funds registered under the Investment
Company Act of 1940, as amended, having assets of at least $100,000,000 which
invest only in obligations described above and which shares are rated by
Moody's Investors Service, Inc. or Standard & Poor's Corporation in one of the
two highest rating categories assigned by such agencies for obligations of such
nature.
"Change of Control" means (a) at any time prior to the Merger
Consummation Date, (i) the sale, transfer or other disposition by EM
Industries, Inc. or Mylan Laboratories, Inc. of any shares of Stock held by
such Persons as of the Closing Date other than to an affiliate of such Person,
or (ii) the failure of James H. Miller (or a Person of comparable
qualifications and experience) to serve as chief executive officer of the
Company, and (b) from and after the Merger Consummation Date, (i) the
acquisition by any Person or group of Persons (other than an employee benefit
plan solely for employees of STI and its subsidiaries) of beneficial ownership
of more than 20% of the outstanding Stock of the Company (within the meaning of
Section 13(d) or 14(d) of the Securities and Exchange Act of 1934, as amended,
and the applicable rules and regulations thereunder) other than as a result of
the Merger; (ii) during any period of 12 consecutive months (whether commencing
before or after the Closing Date), the failure of individuals who on the first
day of such period were directors of the Company (together with any replacement
or additional directors who are nominated or elected by a majority of directors
then in office) to constitute a majority of the Board of Directors of the
Company; or (iii) the failure of James H. Miller (or a Person of comparable
qualifications and experience) to serve as chief executive officer of the
Company.
"Class A Common Stock" means (a) at any time prior to the
Merger Consummation Date, Class A Common Stock, par value $0.01 per share, of
Brunswick, convertible into Voting Common Stock of Brunswick at the option of
the Holder, and (b) at any time on and after the Merger Consummation Date,
non-voting Common Stock of STI, convertible into voting Common Stock of STI at
the option of the Holder.
"Closing" means the closing of the sale and purchase of the
Warrants as contemplated hereby.
"Closing Date" means April 15, 1996, the date of the Closing.
"Common Stock" means shares now or hereafter authorized of any
class of common stock of the Company and any other capital stock of the
Company, however designated, that has the right (subject to any prior rights of
any class or series of preferred stock) to participate in any distribution of
the assets upon voluntary or involuntary liquidation, dissolution or winding up
of the Company or in the earnings of the Company without limit as to per share
amount, and shall include, without limitation, the presently authorized
1,903,000 shares of Voting Common Stock and 72,000 shares of Class A Common
Stock . "Common Stock" shall not include preferred or special stock.
- 3 -
<PAGE> 8
"Company" means (a) at all times prior to the Merger
Consummation Date, Brunswick, and (b) at all times on and after the Merger
Consummation Date, STI.
"Contract Value per Share" means the value determined in
accordance with paragraphs (i), (ii) and, if the Company is not a Public
Company, (iii) below, and shall equal the highest number yielded by such
determination:
(i) If the Common Stock is traded on a national
securities exchange or quoted in a national inter- dealer quotation
system, the Contract Value per Share determined pursuant to this
paragraph (i) shall be an amount equal to the average of the Quoted
Prices for Common Stock for the thirty (30) consecutive trading days
commencing forty-five (45) trading days before the date of
determination.
(ii) The Contract Value per Share determined pursuant to
this paragraph (ii) shall equal the quotient of (A) seven (7.0) times
EBITDA for the twelve-month period ending on the last day of the
fiscal month ending immediately prior to the date of determination (for
any twelve-month period ending prior to the first anniversary of the
Merger Consumation Date, determined on a pro forma basis as if the
Merger had occurred on the first day of such period), minus (1) the
outstanding principal amount of Funded Indebtedness as of the last day
of the fiscal month ending immediately prior to the date of
determination, plus (2) cash and Cash Equivalent Investments on the
balance sheet of the Company and its Subsidiaries as of the last day of
the fiscal month ending immediately prior to the date of determination,
all determined in accordance with GAAP, divided by (B) the number of
Fully Diluted Shares as of the date of determination.
(iii) If the Company is not a Public Company, the Contract
Value per Share determined pursuant to this paragraph (iii) shall be
equal to the Fair Market Value per Share.
"Conversion Factor" means the greater of (a) the actual number
of whole and fractional shares of Common Stock of STI issued to shareholders of
Brunswick in respect of one share of Common Stock of Brunswick as a result of
the Merger and (b) 2.5046.
"Conversion Right" is defined in Section 11(b).
"Convertible Securities" is defined in Section 15.
"Credit Agreement" means the Credit Agreement, dated of even
date herewith, by and among the Company, the Purchaser and various other
Lenders that may become parties thereto and the Purchaser as Agent for the
Lenders, as in effect on the date hereof and as hereafter amended,
supplemented, restated or otherwise modified.
"EBITDA" shall have the meaning specified for such term in the
Credit Agreement as in effect on the Closing Date.
- 4 -
<PAGE> 9
"Eligible Lending Institution" means a financial institution
having a branch or office in the United States and having capital and surplus
and undivided profits aggregating at least $100,000,000 and whose long-term
debt securities are rated Prime-1 or better by Moody's Investor Service, Inc.
or A-1 or better by Standard & Poor's Corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"Excluded Shares" means (i) shares of Common Stock to be
issued upon exercise or conversion of the Warrants, (ii) shares of Common Stock
issued upon exercise or conversion of any Option Securities granted prior to
the Closing Date and (iii) shares of Common Stock issued upon exercise or
conversion of any Option Securities granted pursuant to a stock incentive plan
approved in good faith by the Board of Directors of the Company after the
Merger Consummation Date.
"Exercise Price" means, with respect to the Series A Warrants,
the Series A Exercise Price and, with respect to the Series B Warrants, the
Series B Exercise Price.
"Fair Market Value per Share" means the fair market value of
a share of Common Stock of the Company, and shall be equal to the quotient of
(A) the fair market value of the Company and its Subsidiaries taken as a whole
on the date of determination, taking into account all the factors relevant
thereto, including, without limitation, the highest of the prices that could be
obtained from an arms'-length sale without time constraints of (1) all or
substantially all of the assets of the Company and the Subsidiaries subject to
or after satisfaction of all liabilities of the Company and the Subsidiaries or
(2) all of the Fully Diluted Shares, whether by stock sale, merger,
consolidation or otherwise, divided by (B) the number of Fully Diluted Shares
on the date of determination. In no event shall the Fair Market Value per
Share be reduced or discounted on the basis that any securities to be valued on
the basis of such Fair Market Value per Share may represent the right to
acquire a minority interest in the Company or may not be freely transferable
under federal or state securities laws, or for any other reason. The Fair
Market Value per Share shall be determined as provided in clause (a) or (b)
below, as applicable.
(a) In any circumstances in which the Fair Market Value
per Share is required to be determined, not later than ten (10) days following
the date as of which such determination is required to be made, the Board of
Directors of the Company shall determine in good faith the Fair Market Value
per Share, and the Company shall give to the Holders (or, if such determination
affects less than all of the Holders, to the Holders so affected) prompt
written notice of such determination. If within thirty (30) days after the
date such notice is given, the Company and the Required Holders agree upon the
Fair Value per Share, then the Fair Market Value per Share shall be as so
agreed. If within such 30-day period, the Company and the Required Holders do
not agree upon such Fair Market Value per Share, then the Fair Market Value per
Share shall be determined as provided in clause (b) of this definition.
- 5 -
<PAGE> 10
(b) If the Required Holders and the Company do not agree
upon such Fair Market Value per Share within the 30-day period specified in
clause (a) of this definition, then the Required Holders and the Company shall
appoint a recognized investment banking firm of national reputation, reasonably
acceptable to the Required Holders and the Company. If the Company and the
Required Holders cannot agree on the appointment of a mutually acceptable
investment banking firm, or if the firm so appointed declines or fails to
serve, then the Required Holders and the Company shall each choose one such
investment banking firm and the respective firms so chosen shall appoint
another recognized investment banking firm of national reputation. The
investment banking firm so selected shall appraise the value of the Company
(which shall be in the form of a written report signed by such investment
banking firm), and such appraised value of the Company determined as herein
provided shall be final and conclusive and binding on the Company and the
Holders. If the appraised value of the Company as determined by such
investment banking firm is equal to or less than that determined by the Board
of Directors of the Company in accordance with clause (a) of this definition,
then all fees and expenses of such investment banking firm shall be paid by the
Required Holders requesting such appraisal. If the appraised value of the
Company as determined by such investment banking firm is greater than that
determined by the Board of Directors in accordance with clause (a) of this
definition, then all fees and expenses of such investment banking firm shall be
paid by the Company.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means, (a) at any time prior to the Merger
Consummation Date, the accounting period of Brunswick commencing on the Closing
Date and ending June 30, 1996 or, if Brunswick shall have changed its Fiscal
Year end to July 31 in contemplation of the Merger, July 31, 1996 and each
twelve-month accounting period ending June 30 or July 31, as the case may be,
thereafter, and (b) from and after the Merger Consummation Date, the accounting
period of STI commencing on the Merger Consummation Date and ending on the
first July 31 to occur thereafter, and each twelve- month accounting period
ending on July 31 thereafter. References to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "1996 Fiscal Year") refer to the
Fiscal Year ending on a date in such calendar year.
"Fully Diluted Shares" means, as of any date of determination,
the number of shares of Common Stock of the Company equal to the sum of (i) the
number of shares of Common Stock outstanding on such date of determination,
plus (ii) the number of Warrant Shares receivable upon conversion of all
outstanding Warrants as of such date of determination pursuant to Section
11(b), plus (iii) the number of shares of Common Stock that would be issued in
respect of all Option Securities of the Company outstanding and immediately
exercisable as of such date of determination if such Option Securities were to
be converted into shares of Common Stock in accordance with the following
formula:
X = Y (A - B)
---------
A
where: X = the number of shares to be
issued to the holders of
- 6 -
<PAGE> 11
such Option Securities;
Y = the number of shares for
which such Option Securities
are exercisable;
A = the Fair Market Value per
Share as of the date of
determination; and
B = the exercise price for such
Option Securities;
provided, however, that the term "Fully Diluted Shares" as used in the
definition of Fair Market Value per Share shall mean the number of issued and
outstanding shares of Common Stock plus the number of Warrant Shares
purchasable and receivable upon exercise of the rights represented by the
Warrant Certificates pursuant to Section 11(a).
"Funded Indebtedness" means (i) the indebtedness under the
Credit Agreement, (ii) Capitalized Lease Liabilities, and (iii) all other
indebtedness of the Company and its Subsidiaries which matures more than one
year from the date of its creation or matures within one year from such date
but is renewable or extendable, at the option of the Company or any of its
Subsidiaries, to a date more than one year from such date or arises under an
agreement which obligates the lender or lenders to extend credit during a
period of more than one year from such date.
"GAAP" means generally accepted accounting principles in
effect from time to time in the United States.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Holders" means, collectively, Purchaser and any subsequent
registered holders, from time to time, of Warrant Securities.
"Indemnified Liabilities" is defined in Section 22.
"Indemnified Parties" is defined in Section 22.
"Legally Available Funds" means, with respect to any purchase
of Warrant Securities pursuant to Section 19(a), the amount of funds of the
Company legally available therefor under the corporate laws under which the
Company is organized and existing.
"Lenders" is defined in Recital A.
"Lien" means any mortgage, pledge, hypothecation, assignment,
charge, deposit arrangement, encumbrance, lien (statutory or other), adverse
claim or preference, priority or other
- 7 -
<PAGE> 12
security agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any
financing lease involving substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction).
"Loans" shall have the meaning set forth in the Credit
Agreement.
"Merger" means the merger of Brunswick with and into STI, with
STI being the surviving corporation.
"Merger Consummation Date" means the date on which the Merger
has been consummated and all conditions set forth in Section 4.2 of the Credit
Agreement have been satisfied or waived in writing by the Lenders and the
Agent.
"Minimum Price" is defined in Section 15.
"Obligations" means all obligations of the Company with
respect to the repayment or performance of any obligations (monetary or
otherwise) of the Company arising under or in connection with the Credit
Agreement, the "Notes" or the other "Loan Documents" (as such terms are defined
in the Credit Agreement) and the Warrant Documents.
"Option Securities" is defined in Section 15.
"Organic Document" means, relative to any Person, its articles
or certificate of incorporation or organization or certificate of limited
partnership, its by-laws, partnership or operating agreement or other
organizational documents, and all stockholders agreements, voting trusts and
similar arrangements applicable to any of its Stock or partnership interests or
other ownership interests, in each case, as amended.
"Person" means any natural person, corporation, partnership,
limited liability company, firm, association, government, governmental agency
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Preferred Stock" means shares now or hereafter authorized of
any class of capital stock of the Company other than Common Stock, and shall
include, without limitation, the presently authorized 1,400,000 shares of
Preferred Stock, $0.01 par value, of which (i) 65,000 shares have been
designated Series A Preferred Stock, 64,665 shares of which are outstanding,
(ii) 30,000 shares have been designated Series B Preferred Stock, 28,144 shares
of which are outstanding, (iii) 380,000 shares have been designated Series C
Preferred Stock, 374,462 shares of which are outstanding, (iv) 50,000 shares
have been designated Series D Preferred Stock, 45,695 shares of which are
outstanding, (v) 30,000 shares have been designated Series E Preferred Stock,
25,816 shares of which are outstanding, (vi) 210,000 shares have been
designated Series F Preferred Stock, 208,710 shares of which are outstanding,
and (vii) 635,000 shares are undesignated and unissued.
- 8 -
<PAGE> 13
"Prospective Purchaser" shall have the meaning set forth in
Section 19(d).
"Public Company" means a company (i) which is subject to the
reporting requirements of Section 15(d) of the Exchange Act, or (ii) any of
whose securities are registered pursuant to Section 12(b) or 12(g) of the
Exchange Act.
"Put Closing Date" is defined in Section 19(b).
"Put Event" means any of the following: (a) any
representation or warranty of the Company under any Warrant Document is or
shall be incorrect when made in any material respect; (b) the Company shall
default in the due performance and observance of any of its obligations under
any Warrant Document and, in the case of any such default other than a default
of the Company's obligations under Section 6(l), such default shall have
continued for a period of thirty (30) days after written notice thereof has
been given to the Company by the Required Holders; (c) an Event of Default
shall have occurred under the Credit Agreement; (d) a merger or consolidation
of the Company with or into any other Person (other than the Merger if
consummated in accordance with the provisions of Section 15(j)) or any
acquisition of the Company by means of a share exchange; and (e) a Change of
Control.
"Put Exercise Notice"_is defined in Section 19(a).
"Put Purchase Price" is the amount payable to each Holder for
such Holder's Warrant Securities, as calculated in accordance with Section
19(a).
"Put Notice" is the written notice to the Company specifying
the number and type of Warrant Securities with respect to which the Put Right
is being exercised.
"Put Right" is the right of each Holder to require that the
Company purchase all or any portion of the Warrant Securities then owned by
such Holder.
"Quoted Price" of Common Stock for each day means the last
reported sales price of Common Stock on such day as reported by NASDAQ or, if
Common Stock is listed on a national securities exchange, the last reported
sales price of Common Stock on such exchange (which shall be consolidated
trading if applicable to such exchange) on such day, or if not so reported or
listed, the average of the last reported bid and ask prices of Common Stock on
such day, in each case as appropriately adjusted for any stock splits or
reverse stock splits occurring after the Closing Date.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated of even date herewith, between the Company and the Purchaser,
as in effect on the date hereof and as hereafter amended, supplemented,
restated or otherwise modified.
"Regulatory Approval" means each and every approval, consent,
filing and registration by or with any federal, state or other regulatory
authority (domestic or foreign)
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<PAGE> 14
necessary to authorize or permit the execution, delivery or performance of this
Agreement or any other Warrant Document, for the validity or enforceability
hereof or thereof or for the consummation of the transactions contemplated
hereby or thereby.
"Required Holders" means Holders holding at least 66-2/3% of
the Warrant Securities outstanding (treating all Warrants as fully exercised
for the Warrant Shares to which Holders would be entitled upon exercise of such
Warrants) or, if any matter affects the interest of less than all of the
Holders, then Holders holding at least 66-2/3% of the Warrant Securities so
affected, as the context may require.
"Restriction on Purchase" exists if, at the time of a Put
Closing, (i) the purchase of such Warrant Securities would result in a default
under or a breach of any Restrictive Provision (assuming that the covenants
applicable to the Company at the end of the Fiscal Quarter in which such
purchase is to occur were applicable on the date of such purchase), or (ii) the
Company would not have sufficient Legally Available Funds to pay the Purchase
Price for the Warrant Securities.
"Restrictive Provision" means any of the financial covenants
contained in Section 6.2.4 or the negative covenants contained in Section 6.2.8
of the Credit Agreement, in each case as the same may be amended from time to
time; provided, however, that to the extent noncompliance with any such
covenant as a result of the purchase by the Company of Warrant Securities is
waived in accordance with Section 9.1 of the Credit Agreement, such covenant
shall not constitute a Restrictive Provision.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Securities Legend" is defined in Section 10.
"Selling Holder" is defined in Section 19(c).
"Selling Holder Notice" is defined in Section 19(d).
"Selling Holder Offer" is defined in Section 19(d).
"Series A Exercise Price" means (a) at any time prior to the
Merger Consummation Date, $.0.01 per Warrant Share and (b) at any time on or
after the Merger Consummation Date, an amount per share equal to $0.01 divided
by the Conversion Factor, in each case as adjusted as herein provided.
"Series A Warrant Certificates" means the certificates
evidencing the Series A Warrants in the form of Exhibit A.
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<PAGE> 15
"Series A Warrants" means the warrants referred to in clause
(1) of Recital B as evidenced by the Series A Warrant Certificates.
"Series B Exercise Price" means (a) at any time prior to the
Merger Consummation Date, $27.55 per Warrant Share and (b) at any time on or
after the Merger Consummation Date, an amount per Warrant Share equal to $27.55
divided by the Conversion Factor, in each case as adjusted as herein provided.
"Series B Warrant Certificates" means the certificates
evidencing the Series B Warrants in the form of Exhibit B.
"Series B Warrants" means the warrants referred to in clause
(2) of Recital B as evidenced by the Series B Warrant Certificates.
"Stock" means any capital stock of the Company.
"Subsidiary" of any corporation means any other corporation
greater than 50% of the outstanding shares of Stock of which having ordinary
voting power for the election of directors is owned directly or indirectly by
such corporation, and, except as otherwise indicated herein, references to
Subsidiaries shall refer to Subsidiaries of the Company.
"Substitute Securities" is defined in Section 15.
"Transfer Agent" is defined in Section 14.
"Voting Common Stock" means (a) at any time prior to the
Merger Consummation Date, voting Common Stock, par value $0.01 per share, of
Brunswick, and (b) at any time on and after the Merger Consummation Date,
voting Common Stock of STI.
"Warrant Certificates" means, collectively, the Series A
Warrant Certificates and the Series B Warrant Certificates.
"Warrant Documents" means, collectively, this Agreement, the
Warrants, the Registration Rights Agreement and any other document, instrument
or agreement executed or delivered in connection with any of the foregoing to
which the Company is a party, but excluding the Credit Agreement and the other
Loan Documents (as defined in the Credit Agreement).
"Warrant Securities" means, collectively, the Warrants and
Warrant Shares.
"Warrant Shares" means the securities which a Holder may
acquire upon exercise or conversion of a Warrant, together with any other
securities which such Holder may acquire on account of any such securities,
including, without limitation, as the result of the shares of Class A Common
Stock being converted into shares of Voting Common Stock and/or any dividend or
other distribution on Common Stock, any split-up of such Common Stock, or in
accordance with a
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<PAGE> 16
recapitalization, merger, consolidation, share exchange, reorganization or
other transaction or series of related transactions in which shares of Common
Stock are changed into or exchanged for securities of another corporation
(including the Merger), or the exercise of any preemptive right (or the
exercise or conversion of any security which such Holder may acquire in
connection with the exercise of any preemptive right) with respect to any such
Common Stock.
"Warrants" means the Series A Warrants and Series B Warrants,
together with any warrants issued in substitution or replacement therefor.
(b) Cross-References. Unless otherwise specified,
references in this Agreement to any Article or Section are references to such
Article or Section of this Agreement, and unless otherwise specified,
references in any Article, Section, or definition to any clause are references
to such clause of such Section, Article or definition.
SECTION 2. Purchase and Sale of Warrants; Closing.
(a) Subject to the funding of the Bridge Loan under the
Credit Agreement, Brunswick hereby agrees to sell to the Purchaser and, subject
to the provisions of Section 4, the Purchaser hereby agrees to purchase from
Brunswick, for a purchase price of $1.00 and other good and valuable
consideration, all of which shall be deemed to have been received by the
Company upon the funding of the Bridge Loan under the Credit Agreement, (1)
Series A Warrants to purchase 33,370 shares of Class A Common Stock of
Brunswick for an initial exercise price of $0.01 per share and (2) Series B
Warrants to purchase 36,298 shares of Class A Common Stock of Brunswick for an
initial exercise price of $27.55 per share.
(b) The sale and purchase of the Warrants shall take
place at the Closing at the offices of King & Spalding, 191 Peachtree Street,
Atlanta, Georgia 30303, at 10:00 a.m. on April 15, 1996, or such other place
and time as may be agreed upon by the Purchaser and the Company. At the
Closing, the Company will deliver to the Purchaser, upon payment therefor, (1)
Series A Warrant Certificates in the form of Exhibit A evidencing the Series A
Warrants to be purchased by the Purchaser and (2) Series B Warrant Certificates
in the form of Exhibit B evidencing the Series B Warrants to be purchased by
the Purchaser, in each case in such denomination or denominations as the
Purchaser may request and registered in its name or the name of its nominee and
dated the Closing Date.
SECTION 3. Investment Representations. Purchaser represents
and warrants that it is purchasing the Warrants and any Warrant Shares issuable
upon exercise or conversion of the Warrants for its own account, for investment
purposes and not with a view to the distribution thereof; provided, however,
that the foregoing representation shall not be construed as imposing any
limitation on the Purchaser's right to transfer any of the Warrants or Warrant
Shares that is not otherwise expressly set forth in the Warrant Documents or
required under applicable law. Each Holder agrees that it will not, directly
or indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any of the Warrant Securities (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of the Warrant Securities),
except in compliance with the
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<PAGE> 17
Securities Act. Each Holder agrees that it will not transfer, sell, assign,
pledge, hypothecate or otherwise dispose of any of the Warrant Securities if
any such disposition would cause the Company to be required to register any
Warrant Securities pursuant to Section 12(g) of the Exchange Act.
SECTION 4. Conditions Precedent. The obligation of the
Purchaser to purchase the Series A Warrants and the Series B Warrants on the
Closing Date pursuant to Section 2 hereof shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 4, except as the Purchaser shall otherwise consent:
(a) the accuracy of the representations set forth in this
Agreement and in the other Warrant Documents in all material respects;
(b) the compliance by the Company in all material
respects with all covenants and agreements required to be performed by it on or
prior to the Closing;
(c) the satisfaction of all of the conditions precedent
set forth in Sections 4.1 and 4.3 of the Credit Agreement;
(d) Purchaser's receipt of Warrant Certificates
registered in Purchaser's name (or in the name of a nominee of Purchaser)
evidencing the Warrants;
(e) Purchaser's receipt of the Registration Rights
Agreement with respect to the Warrants, in form and substance reasonably
satisfactory to Purchaser, duly executed and delivered by the Company and dated
the Closing Date;
(f) Purchaser's receipt of a copy of the Company's
articles of organization including provisions reasonably satisfactory to the
Purchaser relating to the Company's capital structure, certified as of a recent
date by the Secretary of the Commonwealth of Massachusetts;
(g) Purchaser's receipt of a certificate of the clerk or
an assistant clerk of the Company, together with true and correct copies of the
resolutions of the Board of Directors and, to the extent necessary, the
stockholders of the Company authorizing or ratifying the execution, delivery
and performance of this Agreement and the other Warrant Documents, authorizing
the amendment to the Company's articles of organization so that it contains the
provisions referred to in Section 4(g) and authorizing the creation and
issuance of the Warrants and the Warrant Shares; and setting forth the names of
the Authorized Officers of the Company executing this Agreement and the other
Warrant Documents, together with a sample of the true signature of each such
Authorized Officer;
(h) Purchaser's receipt of certified copies of all
documents evidencing any other necessary corporate action, consents and
governmental approvals or filings (if any) with respect to this Agreement and
the other Warrant Documents;
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<PAGE> 18
(i) Purchaser's receipt of an opinion, dated the Closing
Date, from Palmer & Dodge, counsel to the Brunswick, in form and substance
reasonably satisfactory to Purchaser and its counsel, and covering such matters
as the Purchaser may reasonably request;
(j) All proceedings taken in connection with the
transactions contemplated by this Agreement and the other Warrant Documents
shall be reasonably satisfactory in form and substance to Purchaser and its
counsel, and Purchaser and its counsel shall have received copies (executed or
certified as may be appropriate) of all documents, instruments and agreements
which Purchaser or its counsel may reasonably request in connection with the
consummation of such transactions.
SECTION 5. Warranties, etc. In order to induce Purchaser to
enter into this Agreement, to engage in the transactions contemplated herein
and in the other Warrant Documents and to purchase the Warrants hereunder, the
Company represents and warrants unto Purchaser as set forth in this Section 5,
except as provided in the Schedule of Exceptions attached as Exhibit C, each
and all of which representations and warranties are made as of the Closing Date
and shall survive the execution and delivery of this Agreement and the Closing
hereunder:
(a) Credit Agreement Warranties. Each of the
representations and warranties of the Company set forth in the Credit Agreement
is true and correct.
(b) Power, Authority, etc. The Company has full power
and authority to enter into and perform its obligations under this Agreement
and each of the other Warrant Documents.
(c) Due Authorization. The execution and delivery by the
Company of this Agreement and each of the other Warrant Documents, the
performance by the Company of its obligations hereunder and thereunder and the
issuance of the Warrants hereunder by the Company have been duly authorized by
all necessary corporate action, do not require any Regulatory Approval (except
those Regulatory Approvals already obtained), do not and will not conflict
with, result in any violation of, or constitute any default under, any
provision of any Organic Document of the Company or any Subsidiary, any
agreement or instrument to which the Company or any of it's Subsidiaries is a
party or by which it or any of its property is bound, or any law or
governmental regulation or court decree or order and will not result in or
require the creation or imposition of any Lien on any of the Company's or any
Subsidiary's properties pursuant to the provisions of any such agreement or
instrument. No vote (including any vote under the rules of any securities
exchange or trading system or market on which any of the Company's securities
are listed or traded) on the part of the stockholders of the Company, other
than those which have been obtained, is required to approve or authorize the
amendment to the articles of organization provided for in Section 4(g), any of
the transactions contemplated by this Agreement, any of the other Warrant
Documents or any of the Loan Documents or the authorization of the issuance of
Class A Common Stock or the Warrant Securities or any shares of capital stock
to be issued pursuant to the Loan Documents. None of the transactions
contemplated by this Agreement, any of the other Warrant Documents or any of
the Loan Documents (including the issuance of Class A Common Stock, the Warrant
Securities or any shares of capital stock to be issued pursuant to the Loan
Documents) will give rise
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<PAGE> 19
to any payment or the acceleration of any obligation (whether with or without
the passage of time or upon the occurrence of any event) to any director,
officer or employee of the Company or any Subsidiary.
(d) Validity, etc. This Agreement and each of the other
Warrant Documents constitutes the legal, valid and binding obligations of the
Company enforceable in accordance with their respective terms, subject to (i)
the effect of any applicable bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally; and (ii) the effect of general
principles of equity (regardless of whether considered in a proceeding in
equity or at law).
(e) Capitalization and Ownership of the Company. The
authorized capital stock of the Company consists of (1) 1,903,000 shares of
Voting Common Stock, 66,780 of which will be outstanding on the Closing Date;
(2) 72,000 shares of Class A Common Stock, no shares of which will be
outstanding on the Closing Date; and (3) 1,400,000 shares of Preferred Stock,
$.01 par value, of which (i) 65,000 shares have been designated Series A
Preferred Stock, 64,665 shares of which are outstanding, (ii) 30,000 shares
have been designated Series B Preferred Stock, 28,144 shares of which are
outstanding, (iii) 380,000 shares have been designated Series C Preferred
Stock, 374,462 shares of which are outstanding, (iv) 50,000 shares have been
designated Series D Preferred Stock, 45,695 shares of which are outstanding,
(v) 30,000 shares have been designated Series E Preferred Stock, 25,816 shares
of which are outstanding, (vi) 210,000 shares have been designated Series F
Preferred Stock, 208,710 shares of which are outstanding, and (vii) 635,000
shares are undesignated and unissued. The record and, to the best knowledge of
the Company, beneficial ownership of the outstanding capital stock of the
Company as of the Closing Date is set forth in Exhibit D. All such outstanding
shares are duly authorized, validly issued, fully paid and nonassessable, and
are not, and will not have been, issued in violation of any preemptive rights.
Except as set forth in Exhibit C, Exhibits E-1 and E-2, and the Organic
Documents, no issued, no authorized but unissued and no treasury shares of
capital stock of the Company are subject to any preemptive right, option,
warrant, right of conversion or purchase or any similar right issued or granted
by the Company or, to the best knowledge of the Company, by any of its
shareholders. Except as set forth in the Organic Documents of the Company or
in Section 19, there are no agreements or understandings with respect to the
voting, sale or transfer of any shares of capital stock of the Company to which
the Company or, to the best knowledge of the Company, any of its Affiliates is
a party.
(f) Authorization and Issuance of Warrants. The issuance
of the Warrants has been duly authorized and, upon delivery to Purchaser of the
Warrant Certificates therefor in accordance with the terms hereof, the Warrants
will have been validly issued and fully paid and nonassessable, free and clear
of all Liens and the issuance thereof will not give rise to any preemptive
rights. The issuance of the shares of Class A Common Stock subject to the
Warrants has been duly authorized and, when issued upon exercise of the
Warrants in accordance with the terms thereof, such shares will have been
validly issued and will be fully paid and nonassessable. The issuance of the
shares of Voting Common Stock issuable upon conversion of the Class A Common
Stock has been duly authorized and, when issued upon conversion of the Class A
Common Stock in accordance with the terms thereof, such shares will have been
validly issued and
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<PAGE> 20
will be fully paid and nonassessable and the issuance thereof will not give
rise to any preemptive rights. 69,668 shares of Class A Common Stock have been
duly reserved for issuance upon the exercise of the Warrants. Except as set
forth in the Registration Rights Agreement and on Exhibit D, no Person has the
right to demand or any other right to cause the Company to file any
registration statement under the Securities Act relating to any securities of
the Company or any right to participate in the any such registration.
(g) Securities Laws. In reliance on the investment
representations contained in Section 3, the offer, issuance, sale and delivery
of the Warrants to the Purchaser as provided in this Agreement, the issuance
and delivery of Class A Common Stock upon the exercise of the Warrants by the
Purchaser, and the conversion of the Class A Common Stock into Voting Common
Stock, are and will be exempt from the registration requirements of the
Securities Act and all applicable state securities laws, as such laws are
currently in effect.
(h) No Integration of Issue. Neither the Company nor any
Person authorized or employed by the Company as agent, broker or otherwise in
connection with the offering of the Warrants has offered the Warrants for sale
to, or solicited any offers to buy the Warrants from, or otherwise approached
or negotiated or communicated in respect thereof with, anyone other than
Purchaser. Neither the Company nor any Person acting on behalf of the Company
will sell or offer any class of securities to, or solicit any offers to buy any
class of securities from, or otherwise approach, negotiate or communicate in
respect thereof with, any Person so as to require the registration of the
Warrants under the Securities Act or any applicable state securities laws.
SECTION 5. Covenants. The Company agrees with each Holder
that, until the termination of this Agreement pursuant to Section 24 hereof,
the Company will perform the obligations set forth in this Section 6:
(a) Financial and Business Information. For so long as
the Company is not a Public Company, the Company will furnish, or will cause to
be furnished, to each Holder copies of the following financial statements,
reports and information:
(i) promptly when available and in any event
within ninety (90) days after the close of each Fiscal Year, a
consolidated and consolidating balance sheet at the close of
such Fiscal Year, and related consolidated and consolidating
statements of operations, retained earnings, and cash flows
for such Fiscal Year, of the Company and its Subsidiaries
(with comparable information at the close of and for the prior
Fiscal Year), certified (in the case of consolidated
statements) without qualification by Price Waterhouse LLP or
other independent public accountants reasonably satisfactory
to the Required Holders, together with a report containing
management's discussion and analysis of financial condition
and results of operation of the Company and its Subsidiaries
generally similar in scope to that which would be required in
an annual report on Form 10-K filed under the Exchange Act for
such Fiscal Year (delivery to the Holders of such annual
report in respect of any Fiscal
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<PAGE> 21
Year shall satisfy the requirements of this clause (a)(i) with
respect to such Fiscal Year);
(ii) promptly when available and in any event
within forty-five (45) days after the close of each Fiscal
Quarter, consolidated and consolidating balance sheets at the
close of such Fiscal Quarter, and consolidated and
consolidating statements of operations, retained earnings, and
cash flows for such Fiscal Quarter and for the period
commencing at the close of the previous Fiscal Year and ending
with the close of such Fiscal Quarter, of the Company and its
Subsidiaries (with comparable information at the close of and
for the corresponding Fiscal Quarter of the prior Fiscal Year
and for the corresponding portion of such prior Fiscal Year),
certified by the chief financial or executive officer of the
Company, together with a brief report containing management's
discussion and analysis of the financial condition and results
of operations of the Company and its Subsidiaries (including a
discussion and analysis of any changes compared to prior
results) generally similar in scope to that which would be
required in a quarterly report on Form 10-Q filed under the
Exchange Act (delivery to the Holders of such a quarterly
report on Form 10-Q with respect to any Fiscal Quarter will
satisfy the requirements of this clause (a)(ii) with respect
to such Fiscal Quarter;
(iii) promptly when available and in any event
within thirty (30) days after the close of each calendar month
of each Fiscal Year (other than a calendar month that is the
last month of a Fiscal Quarter), consolidated and
consolidating balance sheets at the close of such month, and
consolidated and consolidating statements of operations,
retained earnings and cash flows for such month and for the
period commencing at the close of the previous Fiscal Year and
ending with the close of such month, of the Company and its
Subsidiaries (with comparable information at the close of and
for the corresponding month of the prior Fiscal Year and for
the corresponding portion of such prior Fiscal Year),
certified by the chief executive or financial officer of the
Company, together with a brief report containing management's
discussion and analysis of the financial condition and results
of operations of the Company and its Subsidiaries (including a
discussion and analysis of any changes compared to prior
results); and
(iv) promptly upon the sending or filing thereof,
copies of all reports that the Company sends to its security
holders generally, and copies of all reports and registration
statements that the Company or any of its Subsidiaries files
with the SEC or any national securities exchange.
(b) Public Company Information. From and after such time
as the Company shall become a Public Company:
(i) Filings. The Company will file with the SEC
on or before the required date all regular or periodic reports
required pursuant to the Exchange Act
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<PAGE> 22
and deliver to each Holder, promptly upon its becoming
available, one copy of each report, notice or proxy statement
sent by the Company to its stockholders generally, and of each
regular or periodic report filed pursuant to the Exchange Act
and any registration statement, prospectus or written
communication (other than transmittal letters) pursuant to the
Securities Act filed by the Company with (i) the SEC or (ii)
any national securities exchange; and
(ii) Rule 144. The Company will use its best
efforts to make publicly available information concerning the
Company sufficient to allow any Holder to dispose of all or a
portion of the Warrant Securities pursuant to Rule 144 (or any
successor provision) promulgated by the SEC under the
Securities Act.
(c) Maintenance of Corporate Existences, etc. Except as
permitted pursuant to Section 6.2.10 of the Credit Agreement, the Company will
cause to be done at all times all things necessary to maintain and preserve the
corporate existences of the Company and its Subsidiaries.
(d) Maintenance of Books and Records. The Company will,
and will cause each Subsidiary to, keep books and records reflecting all of its
business affairs and transactions in accordance with GAAP.
(e) Inconsistent Agreements. The Company will not, and
will not permit any Subsidiary to, enter into any agreement containing any
provision which would be violated or breached by the issuance of the Warrants
or the Warrant Shares or by the performance by the Company or any Subsidiary of
its obligations under this Agreement or under any other Warrant Documents.
(f) Organic Documents. So long as any Warrant Securities
are outstanding, the Company's charter shall contain the provisions regarding
the Class A Common Stock set forth in its Organic Documents as constituted on
the date hereof, except that in connection with the Merger, non-substantive
modifications may be made to such provisions to reflect the Merger. The
Company shall not permit to occur any amendment, alteration or modification to
its Organic Documents, as constituted on the date hereof, the effect of which,
in Purchaser's or the Required Holders' judgment, would be to alter, impair or
adversely affect either the rights and benefits of Purchaser or the Holders or
the duties and obligations of the Company under this Agreement and the other
Warrant Documents.
(g) Transactions with Affiliates. The Company will not,
and will not permit any Subsidiary to, enter into, or cause, suffer or permit
to exist:
(i) any arrangement or contract with any of its
Affiliates of a nature customarily entered into by Persons which are
Affiliates of each other (including management or similar contracts or
arrangements relating to the allocation of revenues, expenses or
otherwise) requiring any payments to be made by the Company or any of
its Subsidiaries to any
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<PAGE> 23
Affiliate, other than (i) any arrangement solely among the Company and
its wholly-owned Subsidiaries, and (ii) the Merger; and
(ii) any other transaction, arrangement or contract with
any of its Affiliates which is on terms which are less favorable than
are obtainable in a transaction from any Person which is not one of
its Affiliates.
(h) Issuance of Additional Rights, Options and Warrants.
At any time prior to the Merger Consummation Date, the Company will not issue
any rights, options or warrants to subscribe for or purchase or otherwise
acquire Common Stock or Convertible Securities, whether or not the right to
exercise such rights, options or warrants or to convert or exchange such
Convertible Securities is immediately exercisable or is conditioned upon the
passage of time, an occurrence or non-occurrence of some other event, or both.
(i) Antitakeover Statutes. The Company shall take all
action necessary to avoid the application of any "fair price," "moratorium,"
"control share acquisition," "business combination," "shareholder protection"
or similar antitakeover statute to the transactions contemplated by this
Agreement or any other Warrant Document (including the issuance of the Warrant
Securities).
(j) Governmental Approvals. The Company will, and will
cooperate with the Holders to, secure all necessary consents, approvals,
authorizations and exemptions from all governmental authorities in connection
with the exercise of the Warrants, the issuance of shares of Class A Common
Stock upon exercise of the Warrants and the issuance of shares of Voting Common
Stock upon the conversion of such shares of Class A Common Stock.
(k) Issuances of Shares. The Company will not issue any
shares of Class A Common Stock other than pursuant to the exercise of the
Warrants.
(l) Registration Rights Priorities. On or prior to the
Merger Consummation Date, Brunswick shall cause the holders of its Preferred
Stock and all other holders of securities of the Company that are officers and
directors of the Company and have registration rights to agree, or otherwise
become subject to contractual provisions to the effect, that
(i) in the event of any registration of securities of the
Company where the intended method of distribution of such securities
is by means of an underwriting, (A) all Warrant Shares requested by
the Holders to be included in such registration and underwriting
pursuant to the rights of the Holders under the Registration Rights
Agreement shall first be included before any shares of Preferred Stock
(or other securities of the Company issued in connection with the
issuance of such Preferred Stock) or other securities of the Company
held by such officers and directors shall be included in such
registration and underwriting, (B) such priority of registration
rights shall be effective notwithstanding that any other holder of
securities of the Company has not agreed that Warrant Shares may first
be included in such registration and underwriting, and (C) in order to
effect such
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<PAGE> 24
registration and underwriting of Warrant Shares, such other holders of
securities of the Company that have not so agreed that Warrant Shares
shall first be included in such registration and underwriting may have
a larger percentage of their shares included therein than otherwise
would be included absent such registration and underwriting of Warrant
Shares; and
(ii) if requested by the Company and an underwriter of
Common Stock (or other securities) of the Company, not to sell or
otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by it during a period of not less than
90 days following the effective date of a registration statement of
the Company filed under the Securities Act, provided that such
agreement may apply only to the first such registration statement of
the Company after the Merger Consummation Date that includes
securities to be sold on its behalf to the public in an underwritten
offering.
The form of such agreements and provisions shall be reasonably satisfactory to
the Required Holders and, in the case of clause (i) above, shall be solely for
the benefit of the Holders of Warrant Securities and not for any other Person.
SECTION 7. Warrant Certificates. The Warrant Certificates to
be delivered pursuant to this Agreement shall be in registered form only as
provided in Section 9 and, (a) in the case of the Series A Warrants, in the
form set forth as Exhibit A and, (b) in the case of the Series B Warrants, in
the form of Exhibit B.
SECTION 8. Execution of Warrant Certificates. Warrant
Certificates shall be signed on behalf of the Company by the duly authorized
officers of the Company under its corporate seal. Each such signature upon the
Warrant Certificates may be in the form of a facsimile signature of the duly
authorized officers of the Company and may be printed or otherwise reproduced
on the Warrant Certificates and for that purpose the Company may adopt and use
the facsimile signature of any person who shall have been a duly authorized
officer of the Company, notwithstanding the fact that at the time the Warrant
Certificates shall be delivered or disposed of such person shall have ceased to
hold such office. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Warrant Certificates. In case any officer of the Company who shall have signed
any of the Warrant Certificates shall cease to be such officer before the
Warrant Certificates so signed shall have been disposed of by the Company, such
Warrant Certificates nevertheless may be delivered or disposed of as though
such person had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Warrant Certificate, shall be a proper
officer of the Company to sign such Warrant Certificate although at the date of
the execution of this Agreement such person was not such officer.
SECTION 9. Registration. The Company shall number and
register the Warrant Certificates in a register as they are issued. The
Company may deem and treat the registered holder(s) of the Warrant Certificates
as the absolute owner(s) thereof (notwithstanding any notation
- 20 -
<PAGE> 25
of ownership or other writing thereon made by anyone) for all purposes and
shall not be affected by any notice to the contrary.
SECTION 10. Registration of Transfers and Exchanges. (a) The
Company shall from time to time register the transfer of any outstanding
Warrant Certificates in a Warrant register to be maintained by the Company upon
surrender of such Warrant Certificates accompanied by a written instrument or
instruments of transfer in form reasonably satisfactory to the Company, duly
executed by the registered Holder or Holders thereof or by the duly appointed
legal representative thereof or by a duly authorized attorney; provided,
however, that prior to effecting such transfer, the transferee shall agree (in
a form reasonably satisfactory to the Company) to be bound by the terms of this
Agreement, including, without limitation, Section 19. Upon any such
registration of transfer, a new Warrant Certificate shall be issued to the
transferee(s) and the surrendered Warrant Certificate shall be canceled and
disposed of by the Company. Until the Warrant Certificate is transferred on
the Warrant register of the Company, the Company may treat the Holder as shown
in the Warrant register as the absolute owner of the Warrant Certificate for
all purposes, and notwithstanding any notice to the contrary. The Company
agrees that it will make the Warrant register available for inspection by the
Holders during normal business hours at its office and that the Holders may
rely on the Warrant register for purposes of complying with the preceding
sentence.
(b) The Warrants shall be transferable in whole or in
part and, in the event that a Warrant Certificate is transferred in respect of
fewer than all the Warrants evidenced by the Warrant Certificate, a new Warrant
Certificate evidencing the remaining Warrant or Warrants will be issued and
delivered pursuant to the provisions of this Section 10 and of Section 8.
(c) If any transfer of Warrants or Warrant Shares is not
made pursuant to an effective registration statement under the Securities Act,
the Holder will, if reasonably requested by the Company, deliver to the Company
an opinion of counsel, which may be counsel to the Holder but which must be
reasonably satisfactory to the Company, reasonably satisfactory in form, scope
and substance to the Company, that such Warrants or Warrant Shares may be sold
without registration under the Securities Act, as well as:
(1) an investment covenant reasonably
satisfactory to the Company signed by the proposed transferee (except
that no such covenant will be required in connection with a transfer
effected in accordance with Rule 144A under the Securities Act);
(2) an agreement by such transferee to the
impression of the restrictive legends set forth below on the Warrant
Certificate or on the certificate evidencing such Warrant Shares.
The Holders agree that each Warrant Certificate and each certificate
representing Warrant Shares will bear the following legend (the "Securities
Legend"):
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<PAGE> 26
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS. SAID
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION, OR AN
OPINION OF COUNSEL (WHICH MAY BE COUNSEL TO THE
HOLDER) AS TO AN EXEMPTION, FROM THE REGISTRATION
PROVISIONS OF SAID ACT OR LAWS."
Notwithstanding the foregoing provisions of this Section 10, the restrictions
upon the transferability of the Warrant Securities and the Securities Legend
requirement set forth above in this Section 10 shall terminate as to any of the
Warrant Securities (i) when and so long as such Warrant Security shall have
been effectively registered under the Securities Act and disposed of pursuant
thereto or (ii) when the Company shall have received an opinion of counsel
reasonably satisfactory to it that such Securities Legend is not required in
order to ensure compliance with the Securities Act. Whenever the restrictions
imposed by this Section 10 shall terminate as to any Warrant Security, as
hereinabove provided, the Holder thereof shall be entitled to receive from the
Company, at the expense of the Company, a new Warrant Certificate or
certificate for Warrant Shares bearing the following legend in place of the
Securities Legend set forth above:
"THE RESTRICTIONS ON TRANSFERABILITY OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE TERMINATED
ON ______________, 19__, AND ARE OF NO FURTHER FORCE
AND EFFECT."
The Holders further agree that each Warrant Certificate and each certificate
representing Warrant Shares will bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS OF A WARRANT PURCHASE AGREEMENT,
DATED AS OF APRIL 15, 1996, BETWEEN BRUNSWICK
BIOMEDICAL CORPORATION (THE "COMPANY") AND
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION
(THE "PURCHASER"),
- 22 -
<PAGE> 27
AND A REGISTRATION RIGHTS AGREEMENT, DATED AS OF
APRIL 15, 1996, AMONG THE COMPANY AND THE PURCHASER,
COPIES OF EACH OF WHICH ARE ON FILE AT THE MAIN
OFFICE OF THE COMPANY. ANY SALE OR TRANSFER OF THE
SECURITIES EVIDENCED BY THIS CERTIFICATE IS SUBJECT
TO THE TERMS OF THOSE AGREEMENTS AND ANY SALE OR
TRANSFER OF SUCH SECURITIES IN VIOLATION OF SAID
AGREEMENTS SHALL BE INVALID."
Warrant Certificates may be exchanged at the option of the Holder(s) thereof
when surrendered to the Company at its office for another Warrant Certificate
or other Warrant Certificates of like tenor and representing in the aggregate a
like number of Warrants, including, without limitation, upon an adjustment in
the Exercise Price or in the number of Warrant Shares purchasable upon exercise
of the Warrants. Warrant Certificates surrendered for exchange shall be
canceled and disposed of by the Company.
SECTION 11. Exercise of Warrants; Conversion of Warrants.
(a) Subject to the terms of this Agreement, each Holder shall have the right,
which may be exercised at any time or from time to time prior to April 15,
2006, to receive from the Company the number of fully paid and nonassessable
Warrant Shares which such Holder may at the time be entitled to receive on
exercise of all or any part of the Warrants and payment of the appropriate
Exercise Price then in effect for such Warrant Shares. A Warrant may be
exercised upon surrender to the Company at its office designated for such
purpose (the address of which is set forth in Section 20) of the certificate or
certificates evidencing the Warrants to be exercised with the form of election
to purchase attached thereto properly completed and signed, upon payment to the
Company of the appropriate Exercise Price for the number of Warrant Shares in
respect of which such Warrants are then exercised. Payment of the aggregate
Exercise Price shall be made in cash or by check payable to the order of the
Company. Upon such surrender of Warrant Certificates and payment of the
appropriate Exercise Price, the Company shall issue and cause to be delivered
with all reasonable dispatch (and in any event within ten (10) Business Days of
such surrender and payment) to or upon the written order of the Holder, and in
the name of the Holder or the Holder's nominee, a certificate or certificates
for the number of full Warrant Shares issuable upon the exercise of such
Warrants together with such other property (including cash) and securities as
may then be deliverable upon such exercise, including cash for fractional
Warrant Shares as provided in Section 16. Such certificate or certificates
shall be deemed to have been issued and the Person so named therein shall be
deemed to have become a holder of record of such Warrant Shares as of the date
of the surrender of such Warrant Certificates and payment of the Exercise
Price.
- 23 -
<PAGE> 28
(b) Subject to the terms of this Agreement, each Holder
shall have the right (the "Conversion Right"), which may be exercised at any
time or from time to time prior to April 15, 2006, to convert the Warrants, in
whole or in part, into the number of fully paid and nonassessable Warrant
Shares calculated pursuant to the following formula:
X = Y (A-B)
-------
A
where: X = the number of Warrant Shares to be
issued to the Holders;
Y = the number of Warrant Shares for
which the Conversion Right is being
exercised;
A = the Fair Market Value per Share as
of the date of exercise of such
Conversion Right; and
B = the Exercise Price with respect to
such Warrants.
A Warrant may be converted upon surrender to the Company at its office
designated for such purpose (the address of which is set forth in Section 20)
of the certificate or certificates evidencing the Warrants to be converted with
the form of election to convert attached thereto properly completed and signed.
Upon such surrender of Warrant Certificates, the Company shall issue and cause
to be delivered with all reasonable dispatch (and in any event within ten (10)
Business Days of such surrender) to or upon the written order of the Holder,
and in the name of the Holder or the Holder's nominee, a certificate or
certificates for the number of full Warrant Shares issuable upon the conversion
of such Warrants together with such other property (including cash) and
securities as may then be deliverable upon such conversion, including cash for
fractional Warrant Shares as provided in Section 16. Such certificate or
certificates shall be deemed to have been issued and the Person so named
therein shall be deemed to have become a holder of record of such Warrant
Shares as of the date of the surrender of such Warrant Certificates.
(c) The Warrants shall be exercisable and convertible, at the
election of the Holders thereof, either in full or from time to time in part,
and in the event that a Warrant Certificate is exercised or converted in
respect of fewer than all of the Warrant Shares issuable pursuant to such
Warrant Certificate at any time prior to the date of expiration of the
Warrants, a new Warrant Certificate evidencing the remaining Warrant or
Warrants will be issued and delivered pursuant to the provisions of this
Section 11 and of Section 8. All Warrant Certificates surrendered upon
exercise or conversion of Warrants shall be canceled and disposed of by the
Company. The Company shall keep copies of this Agreement and any notices
received hereunder available for inspection during normal business hours at its
office. The Company will furnish, at its expense, copies of this Agreement and
all such notices, upon request, to any Holder of any Warrant Certificates.
- 24 -
<PAGE> 29
SECTION 12. Payment of Taxes. The Company will pay all stamp
and transfer taxes in connection with the issuance, sale and delivery of the
Warrants hereunder, as well as all such taxes attributable to the initial
issuance of Warrant Shares upon the exercise of Warrants and payment of the
appropriate Exercise Price or upon conversion of the Warrants. The Company
will not, however, be required to pay any tax or other similar charges imposed
in connection with any transfer of any Warrant Securities. Nothing herein
shall be construed as requiring the Company to pay any taxes imposed in respect
of income realized by any Holder upon the purchase, transfer or exercise of
Warrants.
SECTION 13. Mutilated or Missing Warrant Certificates. Upon
receipt by the Company of evidence reasonably satisfactory to the Company
(which shall include an affidavit of the Holder) that any Warrant Certificate
shall have been mutilated, lost, stolen or destroyed and, in the case of loss,
theft or destruction, a customary indemnity agreement from the Holder of such
Warrant Certificate, the Company shall issue, in exchange and substitution for
and upon cancellation of the mutilated Warrant Certificate, or in lieu of and
substitution for the Warrant Certificate lost, stolen or destroyed, a new
Warrant Certificate of like tenor and representing an equivalent number of
Warrants.
SECTION 14. Reservation of Warrant Shares. The Company will
at all times that any Warrant is exercisable reserve and keep available, free
from preemptive or similar rights, out of the aggregate of its authorized but
unissued capital stock or its authorized and issued capital stock held in its
treasury, for the purpose of enabling it to satisfy any obligation to issue
Warrant Shares upon exercise of Warrants, (i) the maximum number of shares of
each class of capital stock constituting a part of the Warrant Shares which may
then be deliverable upon the exercise of all outstanding Warrants and (ii) the
maximum number of shares of each class of capital stock of the Company which
may then be delivered upon the conversion of all issued Warrant Shares into
Voting Common Stock of the Company. The Company shall cause all shares of
Voting Common Stock into which shares of Class A Common Stock issuable upon
exercise of the Warrants are convertible to be (x) listed (or to be listed
subject to notice of issuance) on each securities exchange on which shares of
Voting Common Stock are listed, or (y) admitted for trading in any inter-dealer
quotation system on which shares of Voting Common Stock are traded. The
Company or, if appointed, the transfer agent for shares of each class of
capital stock of the Company (the "Transfer Agent") and every subsequent
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of the Warrants will be irrevocably authorized and directed at all
times to reserve such number of authorized shares as shall be required for such
purpose. The Company will keep a copy of this Agreement on file with the
Transfer Agent and with every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants or of the rights of conversion of the Warrant
Shares. The Company will furnish such Transfer Agent a copy of all notices of
adjustments, and certificates related thereto, transmitted to each Holder
pursuant to Section 17. Before taking any action which would cause an
adjustment pursuant to Section 15 to the maximum number of Warrant Shares
deliverable upon the exercise of all outstanding Warrants above the then
authorized number of shares of Class A Common Stock, the Company shall cause to
be authorized additional shares of Class A Common Stock such that such maximum
number of shares of Class A Common Stock deliverable upon
- 25 -
<PAGE> 30
exercise of all outstanding Warrants does not exceed the number of shares of
Class A Common Stock authorized pursuant to the Organic Documents of the
Company. Before taking any action which would cause an adjustment pursuant to
Section 15 to reduce the Exercise Price below the then par value (if any) of
the Warrant Shares, the Company will take any corporate action which may, in
the opinion of its counsel (which may be counsel employed by the Company), be
necessary in order that the Company may validly and legally issue fully paid
and nonassessable Warrant Shares at the Exercise Price as so adjusted.
SECTION 15. Adjustment of Exercise Price and Number of
Warrant Shares Issuable. The Exercise Price and the number of Warrant Shares
issuable upon the exercise of each Warrant are subject to adjustment from time
to time upon the occurrence of any of the events enumerated in this Section 15.
(a) Adjustment for Change in Capital Stock of the
Company. If the Company (i) pays a dividend or makes a distribution on any
class of its Common Stock in shares of any class of its Stock, (ii) subdivides
its outstanding shares of any class of Common Stock into a greater number of
shares, (iii) combines its outstanding shares of any class of Common stock
into a smaller number of shares, (iv) makes a distribution on any class of its
Common Stock in shares of its Stock other than Common Stock, or (v) issues by
reclassification of any class of its Common Stock any shares of its Stock, then
the Exercise Price in effect immediately prior to such action shall be
proportionately adjusted so that the Holder of any Warrant thereafter exercised
may receive the aggregate number and kind of shares of capital stock of the
Company which it would have owned immediately following such action if such
Warrant had been exercised immediately prior to such action and the shares of
Class A Common Stock issuable upon exercise of such Warrants had been converted
into shares of Voting Common Stock. Such adjustment shall be made successively
whenever any event listed above shall occur, and shall become effective
immediately after the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a subdivision, combination
or reclassification. If after an adjustment a Holder of a Warrant upon exercise
of such Warrant may receive shares of two or more classes of capital stock of
the Company, the Board of Directors of the Company shall determine in the good
faith exercise of its reasonable business judgment the allocation of the
adjusted Exercise Price between the classes of capital stock. After such
allocation, the exercise privilege and the Exercise Price of each class of
capital stock shall thereafter be subject to adjustment on terms comparable to
those in this Section 15.
(b) Adjustment for Common Stock Issues. If the Company
issues shares of Common Stock for a consideration per share less than the Fair
Market Value per Share on the date the Company fixes the offering price of such
additional shares, the Exercise Price shall be adjusted in accordance with the
following formula:
P
-
E' = E x (O + M)
-----
A
- 26 -
<PAGE> 31
where: E' = the adjusted Exercise Price;
E = the then current Exercise Price;
O = the number of shares of Common Stock
outstanding immediately prior to the issuance
of such additional shares;
P = the aggregate consideration received for the
issuance of such additional shares;
M = the Fair Market Value per Share on the date
the Company fixes the offering price of such
additional shares; and
A = the number of shares of Common Stock
outstanding immediately after the issuance of
such additional shares.
The adjustment shall be made successively whenever any such issuance is made,
and shall become effective immediately after such issuance. The provisions of
this subsection (b) do not apply (i) to of the transactions described in
subsection (a) of this Section 15 or (ii) any transaction for which an
adjustment has been made pursuant to the provisions of subsections (c) or (d)
of this Section 15, or (iii) the issuance of any Excluded Shares.
(c) Adjustment for Convertible Securities Issues. If the
Company issues any evidences of indebtedness, shares of stock or other
securities which are convertible into or exchangeable, with or without payment
of additional consideration in cash or property, for shares of Stock, either
immediately or upon the occurrence of a specified date or a specified event
("Convertible Securities"), other than shares of Class A Common Stock issued
pursuant to the Warrants and Convertible Securities for which an adjustment has
been made pursuant to the provisions of subsection (d) of this Section 15,
whether or not the right to convert or exchange thereunder is immediately
exercisable or is conditioned upon the passage of time, the occurrence or
non-occurrence of some other event, or both, for a consideration per share of
Stock initially deliverable upon conversion or exchange of such Convertible
Securities less than the Fair Market Value per Share on the date of issuance of
such Convertible Securities, the Exercise Price shall be adjusted in accordance
with this formula:
P
-
E' = E x O + M
-----
O + D
where: E' = the adjusted Exercise Price;
E = the then current Exercise Price;
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<PAGE> 32
O = the number of shares of Common Stock
outstanding immediately prior to the issuance
of such Convertible Securities;
P = the aggregate consideration received for the
issuance of such Convertible Securities; and
M = the Fair Market Value per Share on the date
of issuance of such Convertible Securities;
and
D = the maximum number of shares of Common Stock
deliverable upon exercise, conversion or in
exchange of such Convertible Securities at
the Minimum Price.
In this subsection (c), the term "Minimum Price" means the lowest price at
which the Convertible Securities can be converted into or exchanged for Common
Stock, regardless of whether that is the initial rate or is conditioned upon
the passage of time, the occurrence or non-occurrence of some other event, or
both. The adjustment shall be made successively whenever any such issuance
is made, and shall become effective immediately after such issuance. If all of
the Stock deliverable upon conversion or exchange of such Convertible
Securities has not been issued when such Convertible Securities are no longer
outstanding, then the Exercise Price shall promptly be readjusted to the
Exercise Price which would then be in effect had the adjustment upon the
issuance of such Convertible Securities been made on the basis of the actual
number of shares of Stock issued upon conversion or exchange of such
Convertible Securities.
(d) Adjustment for Right, Option and Warrant Issues. If the
Company issues any rights, options or warrants to subscribe for or purchase or
otherwise acquire Stock, whether or not the right to exercise such rights,
options or warrants is immediately exercisable or is conditioned upon the
passage of time, the occurrence or non-occurrence of some other event, or both
(the "Option Securities"), for a consideration per share of Stock initially
deliverable upon exercise of such Option Securities less than the Fair Market
Value per Share on the date of issuance of such Option Securities, the Exercise
Price shall be adjusted in accordance with this formula:
P
-
E' = E x O + M
-----
O + D
where: E' = the adjusted Exercise Price;
E = the then current Exercise Price;
O = the number of shares of Common Stock outstanding
immediately prior to the issuance of such Option
Securities;
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<PAGE> 33
P = the aggregate consideration received for the issuance
of such Option Securities;
M = the Fair Market Value per Share on the date of
issuance of such Option Securities; and
D = the maximum number of shares of Common Stock
deliverable upon exercise, conversion or in exchange
of such Option Securities at the Minimum Price.
As used in this subsection (d), the term "Minimum Price" means the lowest price
at which the Option Securities may be exercised to purchase or otherwise
acquire Common Stock, regardless of whether that is the initial price or is
conditioned upon the passage of time, the occurrence or non-occurrence of some
other event, or both. The adjustment shall be made successively whenever any
such issuance is made, and shall become effective immediately after such
issuance. If all of the Common Stock deliverable upon exercise of such Option
Securities has not been issued when such Option Securities are no longer
outstanding, then the Exercise Price shall promptly be readjusted to the
Exercise Price which would then be in effect had the adjustment upon the
issuance of such Option Securities been made on the basis of the actual number
of shares of Common Stock issued upon such exercise of such Option Securities.
(e) Consideration Received. For purposes of any
computation respecting consideration received pursuant to any subsection of
this Section 15, the following shall apply:
(i) in the case of the issuance of shares of Common Stock
for cash, the consideration received shall be the amount of cash
received by the Company therefor, without deduction therefrom of any
reasonable expenses incurred by the Company in connection therewith or
any reasonable underwriters' discounts, fees and commissions paid or
allowed by the Company in connection therewith.
(ii) in the case of the issuance of shares of Common Stock
for a consideration consisting in whole or in part of other than cash,
the consideration other than cash shall be deemed to be the fair
market value thereof as determined by the Board of Directors of the
Company in the good faith exercise of its business judgment, without
deduction therefrom of any reasonable expenses incurred by the
Company in connection therewith. In any circumstances in which the
fair market value of any such consideration is to be determined
pursuant to this paragraph (ii), the Company shall give to the Holders
(or, if such determination affects less than all of the Holders, to
the Holders so affected) written notice of the proposed fair market
value, as determined in good faith by the Board of Directors of the
Company. If, within thirty (30) days after the date such notice is
given, the Company and such Holders agree upon the fair market value
then the fair market value for purposes of this paragraph (ii) shall
be as so agreed. If such Holders and the Company do not agree upon
such fair market value within such 30-day period, then the Required
Holders and the Company shall appoint a recognized investment banking
firm of national reputation,
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<PAGE> 34
reasonably acceptable to the Required Holders and the Company. If the
Company and the Required Holders cannot agree on the appointment of a
mutually acceptable investment banking firm, or if the firm so
appointed declines or fails to serve, then the Required Holders and
the Company shall each choose one such investment banking firm and the
respective firms so chosen shall appoint another recognized investment
banking firm of national reputation. The investment banking firm so
selected shall appraise the fair market value for the purposes of this
paragraph (ii), and such investment banking firm shall make such
appraisal (which shall be in the form of a written report signed by
such investment banking firm) and, for the purposes of determining the
fair market value pursuant to this paragraph (ii), such appraised fair
market value determined as herein provided shall be final and
conclusive on the Company and the Holders. If the appraised value of
the Company as determined by such investment banking firm is equal to
or less than that determined by the Board of Directors of the Company
in accordance with this paragraph (ii), then all fees and expenses of
such investment banking firm shall be paid by the Required Holders
requesting such appraisal. If the appraised value of the Company as
determined by such investment banking firm is greater than that
determined by the Board of Directors in accordance with this paragraph
(ii), then all fees and expenses of such investment banking firm shall
be paid by the Company.
(iii) in the case of the issuance of Convertible Securities
or securities issuable upon the exercise of Option Securities, the
aggregate consideration received therefor shall be deemed to be the
consideration received by the Company for the issuance of such
Convertible Securities, plus the consideration, if any, received by
the Company for the issuance of such Option Securities, plus the
additional minimum consideration, if any, to be received by the
Company upon the conversion, exchange or exercise thereof (the
consideration in each case to be determined in the same manner as
provided in clauses (i) and (ii) of this subsection (e)).
(f) Special Adjustments. If the purchase price provided
for in any Option Securities, the additional consideration, if any, payable
upon the conversion or exchange of any Convertible Securities or the rate at
which any Convertible Securities are convertible into or exchangeable for Stock
shall change, the Exercise Price or number of Warrant Shares purchasable upon
the exercise of the Warrants in effect at the time of such event shall
forthwith be readjusted. The Exercise Price or number of Warrant Shares
purchasable upon the exercise of the Warrants shall be adjusted to those
amounts which would have been in effect at such time had such Option Securities
or Convertible Securities outstanding at such time initially been granted,
issued or sold and the Exercise Price or number of Warrant Shares purchasable
upon the exercise of the Warrants initially adjusted as provided in the
applicable subsection of this Section 15, whichever was applicable, except that
the minimum amount of additional consideration payable and the total maximum
number of shares issuable shall be determined after giving effect to such event
(and any prior event or events).
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<PAGE> 35
(g) When No Adjustment Required. No adjustment need be
made for a change in the par value or absence of par value of any Common Stock.
No adjustment in the Exercise Price need be made unless adjustment would
require an increase or decrease of at least 1% of the Exercise Price. Any
adjustments that are not made but deferred pursuant to this subsection shall be
carried forward and taken into account in any subsequent adjustment.
(h) Determination of Fair Market Value per Share; Notice
of Adjustment. Prior to issuing any shares of Common Stock, any Convertible
Securities or any Option Securities, the Company shall cause the Board of
Directors of the Company to determine in good faith the Fair Market Value per
Share, as of the date on which the Company fixes the offering price of such
shares or as of the date of issuance of such Convertible Securities or Option
Securities, as the case may be. Within five (5) days of such determination by
the Board of Directors of the Company, but in no event later than thirty (30)
days prior to issuance of such Common Stock, Convertible Securities or Option
Securities, the Company shall give the Holders written notice of the proposed
Fair Market Value per Share. If within such thirty (30) day period, the
Company and such Holders agree upon the Fair Market Value per Share, then the
Fair Market Value per Share shall be as so agreed. If, within such 30-day
period, the Company and the Required Holders do not agree upon such Fair Market
Value per Share, then the Fair Market Value per Share shall be determined as
provided in clause (b) of the definition thereof.
(i) Reorganization of the Company. In the event of any
capital reorganization, recapitalization or reclassification of the capital
stock of the Company, or consolidation, merger or amalgamation of the Company
with another entity, any acquisition of capital stock of the Company by means
of a share exchange, or the sale, lease, transfer, conveyance or other
disposition of all or substantially all of its assets to another entity, then,
as a condition of such reorganization, recapitalization, reclassification,
consolidation, merger, amalgamation, share exchange or sale, lease, transfer,
conveyance or other disposition, lawful and adequate provision shall be made
whereby the Holders of the Warrant Certificates shall thereafter have the right
to purchase and receive, on the basis and upon the terms and conditions
specified in this Agreement and in lieu of the Warrant Shares immediately
theretofore purchasable and receivable upon the exercise of the rights
represented by the Warrants, such shares of stock, securities, cash or property
as may be issued or payable with respect to or in exchange for the number of
Warrant Shares immediately theretofore purchasable and receivable upon the
exercise of the rights represented by the Warrant Certificates had such
reorganization, recapitalization, reclassification, consolidation, merger,
amalgamation, share exchange or sale, lease, transfer, conveyance or other
disposition not taken place. If such consolidation, merger, amalgamation,
share exchange, sale, lease, transfer, conveyance or other disposition is with
any Person or group of Persons (within the meaning of Section 13(d) or 14(d) of
the Exchange Act) who shall have made a purchase, tender or exchange offer
which was accepted by the holders of not less than twenty percent (20%) of the
outstanding shares of Common Stock of the Company, the Holders of the Warrants
shall have been given a reasonable opportunity (and, in no event, less than 30
days) to elect to receive, either (x) the stock, securities, cash or property
it would have received pursuant to the immediately preceding sentence or (y)
the stock, securities, cash or property issued or paid (or to be issued or
paid) to holders of the Common Stock in accordance with such offer. In any
such case appropriate provision shall be
- 31 -
<PAGE> 36
made with respect to the rights and interests of the Holders of the Warrants to
the end that the provisions of this Agreement (including, without limitation,
provisions for adjustment of the Exercise Price and of the number and type of
securities purchasable upon the exercise of the Warrants) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock,
securities, cash or property thereafter deliverable upon the exercise of the
Warrants. The Company shall not effect any such consolidation, merger,
amalgamation, share exchange or sale, lease, transfer, conveyance or other
disposition unless prior to or simultaneously with the consummation thereof
the successor entity (if other than the Company) resulting from such
consolidation, merger or amalgamation, share exchange or the entity purchasing
or otherwise acquiring such assets or shares (i) shall assume by a supplemental
Warrant Agreement, satisfactory in form, scope and substance to the Required
Holders (which shall be mailed or delivered to the registered Holders of the
Warrants at the last address of such Holders appearing on the books of the
Company) the obligation to deliver to such Holders such shares of stock,
securities, cash or property as, in accordance with the foregoing provisions,
such Holders may be entitled to purchase (the "Substitute Securities") and (ii)
shall assume all of the obligations of the Company set forth in this Agreement
and the Registration Rights Agreement. Following such assumption such
obligations shall apply to the Substitute Securities rather than to the
Warrant Shares. If the issuer of securities deliverable upon exercise of
Warrants under the supplemental Warrant Agreement is an Affiliate of the
formed, surviving, transferee or lessee entity, such issuer shall join the
supplemental Warrant Agreement. The foregoing provisions of this paragraph
shall similarly apply to successive reorganizations, recapitalizations,
reclassifications, consolidations, mergers, amalgamations, share exchanges,
sales, leases, transfers, conveyances or other dispositions. The provisions of
this subsection (i) of Section 15 shall not apply to the Merger to the extent
the Merger complies with subsection (j) of Section 15.
(j) The Merger. Upon consummation of the Merger, (1) the
Warrant Documents and all obligations of Brunswick under the Warrant Documents
shall automatically become the legal, valid and binding obligations of STI,
enforceable against STI in accordance with their terms, as if STI had been the
signatory thereto, (2) each Series A Warrant shall be exercisable for a number
of shares of Class A Common Stock of STI equal to (i) the number of shares of
Class A Common Stock of Brunswick for which such Series A Warrant is
exercisable as of the Merger Consummation Date, multiplied by (ii) the
Conversion Factor, for an Exercise Price equal to $.10 per share multiplied by
the Conversion Factor, and (3) each Series B Warrant shall be exercisable for a
number of shares Class A Common Stock of STI equal to (i) the number of shares
of Class A Common Stock of Brunswick for which such Series B Warrant is
exercisable as of the Merger Consummation Date, multiplied by (ii) the
Conversion Factor, for an Exercise Price equal to the Exercise Price
immediately prior to consummation of the Merger divided by the Conversion
Factor. Brunswick acknowledges and agrees that it is a condition to the Merger
that STI execute and deliver to the Purchaser, prior to or concurrently with
the consummation of the Merger, (1) an assumption agreement, in form and
substance reasonably satisfactory to the Required Holders, pursuant to which
STI shall expressly assume and reaffirm its obligations under the Warrant
Documents, (2) substitute Series A Warrant Certificates and Series B Warrant
Certificates evidencing warrants for the number of shares of Class A Common
Stock of STI set forth in the preceding sentence and reflecting the Exercise
Prices for the Series A Warrants and Series B
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<PAGE> 37
Warrants effective upon and after the Merger Consummation Date, and (3) an
opinion of counsel to STI in the form of Exhibit F.
(k) When Issuance or Payment May Be Deferred. In any
case in which this Section 15 shall require that an adjustment in the Exercise
Price be made effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event (i) issuing to the Holder
of any Warrant exercised after such record date the Warrant Shares issuable
upon such exercise over and above the Warrant Shares issuable upon such
exercise on the basis of the Exercise Price prior to such adjustment and (ii)
paying to such Holder any amount in cash in lieu of a fractional share pursuant
to Section 16; provided, however, that the Company shall deliver to such Holder
a bill or other appropriate instrument evidencing such Holder's right to
receive such additional Warrant Shares and cash upon the occurrence of the
event requiring such adjustment.
(l) Adjustment in Number of Shares. Upon each adjustment
of the Exercise Price pursuant to this Section 15, each Warrant outstanding
prior to the making of the adjustment in the Exercise Price shall thereafter
evidence the right to receive upon payment of the adjusted Exercise Price that
number of Warrant Shares (calculated to the nearest hundredth) obtained from
the following formula:
N'= N x E
-
E'
where: N' = the adjusted number of Warrant Shares
issuable upon exercise of a Warrant by
payment of the adjusted Exercise Price;
N = the number or Warrant Shares previously
issuable upon exercise of a Warrant by
payment of the Exercise Price prior to
adjustment;
E' = the adjusted Exercise Price; and
E = the Exercise Price prior to adjustment.
Anything in this subsection (l) or elsewhere in this Agreement to the contrary
notwithstanding, if because of any limitations set forth in subsection (g) of
this Section 15, no adjustment in the Exercise Price is made, the provisions of
this subsection (l) shall nevertheless be given effect so as to increase or
decrease the adjusted number of Warrant Shares as though E' in the above
formula had actually been adjusted.
SECTION 16. Fractional Interests. The Company shall not be
required to issue fractional Warrant Shares on the exercise of Warrants. If
more than one Warrant shall be presented for exercise in full at the same time
by the same Holder, the number of full Warrant Shares which shall be issuable
upon exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of the
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<PAGE> 38
Warrant Shares would, except for the provisions of this Section 16, be issuable
on the exercise of any Warrants (or specified portion thereof), the Company
shall pay an amount in cash equal to the Fair Market Value per Share on the day
immediately preceding the date the Warrant is presented for exercise,
multiplied by such fraction.
SECTION 17. Notice to Warrant Holders. Upon any adjustment
of the Exercise Price or number or type of securities purchasable upon exercise
of the Warrants pursuant to Section 15, and as otherwise required by Section
15, the Company shall promptly thereafter (i) upon the request of the Required
Holders, cause to be filed with the Company a certificate of the chief
financial officer of the Company setting forth the Exercise Price and the
number and type of securities or other property constituting Warrant Shares
after such adjustment and setting forth in reasonable detail the method of
calculation and the facts upon which such calculations are based and, in the
case of an adjustment pursuant to Section 15(i) or (j), setting forth the
number and type of securities or other property constituting Warrant Shares (or
portion thereof) issuable, after such adjustment in the Exercise Price or
number of Warrant Shares purchasable upon exercise of the Warrants, upon
exercise of a Warrant and payment of the adjusted Exercise Price, and (ii)
cause to be given to each of the Holders of the Warrant Certificates written
notice of such adjustments, together with a copy of such certificate. Where
appropriate, such notice may be given in advance and included as a part of the
notice required to be given under the other provisions of this Section 17. In
the event:
(a) the Company shall authorize the issuance to holders
(although not necessarily to all such holders) of shares of Stock or rights,
options or warrants to subscribe for or purchase or otherwise acquire shares of
Stock or of any other securities or property (including securities of any other
issuer) or of any other subscription rights, options or warrants; or
(b) the Company shall authorize the payment of any
dividend or distribution to holders of shares of Stock of cash, Stock or other
securities or property (including securities of any other issuer) of the
Company; or
(c) of any capital reorganization, reclassification or
recapitalization of the capital stock of the Company, or any amalgamation,
consolidation or merger to which the Company is a party, or any acquisition of
capital stock of the Company through a share exchange, or of the sale, lease,
conveyance, transfer or other disposition of the properties and assets of the
Company substantially as an entirety, or a purchase, tender or exchange offer
for shares of Common Stock or other securities constituting part of the Warrant
Shares (whether by the Company or some other party); or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(e) the Company proposes to take any action which would
require an adjustment of the Exercise Price or number of Warrant Shares
purchasable upon exercise of the Warrants pursuant to Section 15;
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<PAGE> 39
then the Company shall cause to be given to each of the Holders, at least 20
days prior to the applicable record date hereinafter specified (or promptly in
the case of events for which there is no record date), a written notice stating
(as applicable) (i) the date as of which the holders of record of shares of
Stock entitled to receive any such rights, options, warrants or dividends or
distribution are to be determined, (ii) the date on which any such
reclassification, recapitalization or reorganization, consolidation, merger,
amalgamation, share exchange, sale, lease, conveyance, transfer, disposition,
dissolution, liquidation or winding up is expected to become effective or be
consummated, or (iii) the initial expiration date set forth in any purchase,
tender or exchange offer for shares of Stock, and the date as of which it is
expected that holders of record of shares of Stock or other securities
constituting a part of the Warrant Shares (or securities into which the Warrant
Shares may be converted) shall be entitled to exchange such shares or
securities for securities or other property, if any, deliverable upon such
reclassification, recapitalization, reorganization, consolidation, merger,
amalgamation, share exchange, sale, lease, conveyance, transfer, disposition,
dissolution, liquidation or winding up. The failure to give the notice
required by this Section 17 or any defect therein shall not affect the legality
or validity of any distribution, right, option, warrant, reorganization,
recapitalization, reclassification, consolidation, merger, amalgamation, share
exchange, sale, lease, conveyance, transfer, disposition, dissolution,
liquidation or winding up, or the vote upon any action. Nothing contained in
this Agreement or in any of the Warrant Certificates shall be construed as
conferring upon the Holders the right to vote or to consent as stockholders in
respect of the meetings of stockholders or the election of members of the Board
of Directors of the Company or any other matter, or any rights whatsoever as
stockholders of the Company.
SECTION 18. Cash Distributions and Dividends. If the Company
pays a dividend or makes a distribution to the holders of its Stock of any
securities (other than Stock) or property (including cash and securities of
other companies) of the Company, or any rights, options or warrants to purchase
securities (other than Stock) or property (including securities of other
companies) of the Company, then, simultaneously with the payment of such
dividend or the making of such distribution, and as a condition precedent to
its right to do so, it will pay or distribute to the Holders of Series A
Warrant Certificates an amount of property (including without limitation cash)
and/or securities (including without limitation securities of other companies)
of the Company as would have been received by such Holders had they exercised
all of the Series A Warrants represented by the Series A Warrant Certificates
immediately prior to the record date (or other applicable date) used for
determining stockholders of the Company entitled to receive such dividend or
distribution. Anything in subsection (d) of Section 15 to the contrary
notwithstanding, no adjustment to the Exercise Price shall be made for any
distribution of Convertible Securities of the Company to the Holders pursuant
to the provisions of this Section 18.
SECTION 19. Put Rights; Tag-Along Rights and Registration
Rights.
(a) Put by Holders. Unless the Required Holders have otherwise
agreed in writing, at any time and from time to time on or after the occurrence
of a Put Event, the Put Right shall be exercisable by each of the Holders.
After receipt of a Put Notice from any Holder, the Company will promptly (and
in any event within ten (10) days) give written notice (the "Put Exercise
Notice")
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<PAGE> 40
to each of the other Holders of Warrant Securities that a Put Right has been
exercised. Each Holder will have the right to participate in the Put Right and
require the Company to repurchase all or any portion of such Holder's Warrant
Securities by delivering written notice to the Company within ten (10) days
following receipt of the Put Exercise Notice. All such notices delivered by
such other Holders will be deemed to have been delivered as of the date of the
initial Put Notice and taken together will be deemed to be one exercise of the
Put Right. Upon the exercise by a Holder of the Put Right, the purchase price
payable to such Holder (the "Put Purchase Price") by the Company for such
Holder's Warrant Securities shall be as follows:
(i) in the case of Warrants, an amount determined by
subtracting (A) the aggregate Exercise Price for Series B Warrants
then in effect under the Warrant Agreement from (B) the product of (1)
the Contract Value per Share, multiplied by (2) the number of shares
of Voting Common Stock that may be acquired upon the conversion by
such Holder of the shares of Class A Common Stock that would be
received upon exercise of such Holder's Warrants with respect to which
the Put Right is being exercised;
(ii) in the case of Class A Common Stock, an amount equal
to the product of (A) the Contract Value per Share, multiplied by (B)
the number of shares of Voting Common Stock that may be acquired upon
the conversion by such Holder of the shares of Class A Common Stock
with respect to which the Put Right is being exercised; and
(iii) in the case of Voting Common Stock, an amount equal
to the product of (A) the Contract Value per Share, multiplied by (B)
the number of shares of Voting Common Stock with respect to which the
Put Right is being exercised.
Promptly upon the receipt of a Put Notice pursuant to Section 19(a) the Company
shall cause the Contract Value per Share to be determined, and shall give
written notice of the determination thereof to each Holder, promptly upon the
determination thereof and in any event within thirty (30) days following the
Company's receipt of the Put Notice. The provisions of this Section 19(a)
shall apply until the termination of this Agreement pursuant to Section 24 to
any Person who acquires in any manner any Warrant Securities from any Holder.
(b) Closing. Each closing of the purchase and sale of any Warrant
Securities pursuant to Section 19(a) shall take place on a date (a "Put Closing
Date") which is the later of (i) thirty (30) days after the giving of the Put
Notice, and (ii) ten (10) days after determination of the Contract Value per
share, provided that if such day is not a Business Day such closing shall be on
the next succeeding Business Day. Payment of the Put Purchase Price shall be
due and payable in full on the Put Closing Date. The closing of such purchase
and sale of Warrant Securities shall take place at 10:00 a.m. on the Put Closing
Date at such location in Atlanta, Georgia, or New York, New York, as the
Required Holders may reasonably determine and notify the Company or at such
other location as may be agreed to by the Company and the Required Holders. The
Put Purchase Price shall be paid in full at each such closing, by wire transfer
of immediately available federal funds, and the Warrant Securities to be
repurchased at such closing shall be duly endorsed for transfer. Such Warrant
Securities shall be free and clear of all liens and encumbrances of any kind,
nature and
- 36 -
<PAGE> 41
description, other than applicable restrictions under federal and state
securities laws, and each Holder shall represent and warrant to the Company to
such effect with respect to such Holder's Warrant Securities. The Company will
pay all stamp and transfer taxes in connection with the repurchase of the
Warrant Securities hereunder.
(c) Restrictions on Purchase. The Company covenants and agrees
that, other than the Restrictive Provisions, it shall not, and shall not permit
any of its Subsidiaries to, without the prior written consent of the Required
Holders, enter into or agree to become subject to any term, condition,
provision or agreement that would conflict with or restrict in any way the
performance of the Company's obligations under this Agreement or that would by
its terms restrict the availability of Legally Available Funds with which to
perform such obligations. Anything in this Agreement to the contrary
notwithstanding, the Company shall not be required to purchase Warrant
Securities under Section 19(a) if at the time of closing of the purchase and
sale of any Warrant Securities pursuant to Section 19(a) there exists any
Restrictions on Purchase. Upon receipt of a Put Notice, if the Company's
obligations under Section 19(a) at the time of performance would be subject to
Restrictions on Purchase, then the Company (i) shall promptly use all
reasonable efforts (excluding the payment of waiver, consent or similar
transactional fees, but including reasonable documentation costs and other
similar expenses) to cause the Required Lenders to waive compliance with any
such Restrictive Provisions and/or to amend the Restrictive Provisions so as to
permit the purchase of the Warrant Securities pursuant to this Agreement, (ii)
shall not repay, redeem, purchase or otherwise retire any indebtedness for
borrowed money of, or any debt securities issued by, the Company in an amount
or for a price or other consideration in excess of the principal amount
thereof, and (iii) shall not declare or pay any dividend or distribution on any
shares of Stock (other than dividends that accrue and cumulate on Preferred
Stock in accordance with the terms of such Preferred Stock as is in effect on
the date such Put Notice is received by the Company). If, notwithstanding the
Company's reasonable efforts required under this Section 19(c), the Company is
unable to fulfill its obligations under Section 19(a) because of the existence
of one or more Restrictions on Purchase, the Company shall give prompt written
notice thereof to each Holder exercising Put Rights, specifying in reasonable
detail the nature thereof and the extent, if any, to which the Company would be
able to fulfill its obligation to pay the Purchase Price within the
Restrictions on Purchase. If any Restrictions on Purchase exist on the
proposed Put Closing Date, then at the sole and independent election of each
such Holder, and pursuant to written notice given by any such Holder to the
Company: (i) such Holder's Put Right shall remain exercised and the closing of
the purchase and sale of Warrant Securities pursuant to such Holder's Put Right
shall be deferred until not more than five Business Days after all such
Restrictions on Purchase cease to exist; provided, however, that, as and to the
extent that such Restrictions on Purchase cease to exist, the Company shall
promptly make partial payments of the Purchase Price to such Holder, in which
case there shall be a series of such closings, each of which shall take place
not more than five Business Days after such Restrictions on Purchase have
ceased to exist to an extent that would permit such partial payments of the
Purchase Price in increments of not less than $100,000 ("Partially Available
Funds"); or (ii) the exercise of such Holder's Put Right shall be rescinded and
such Holder shall reserve its right to exercise the Put Right at any subsequent
time. In the event that any Holders make the election provided in clause (i)
of the immediately preceding sentence, the Company shall purchase from such
selling Holders that number of Warrant Securities as may
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<PAGE> 42
be purchased at the Purchase Price using that portion of Partially Available
Funds for such purchase as equals the product of (a) all Partially Available
Funds, and (b) the ratio of (i) the Warrant Securities originally proposed to
be sold by such Holders electing to sell and not electing to rescind pursuant
to clause (ii) of the immediately preceding sentence, to (ii) the Warrant
Securities originally proposed to be sold by all Holders (treating all Warrants
as fully exercised for the Warrant Shares to which the Holders would be
entitled upon exercise of such Warrants). Such purchase shall be made from
each selling Holder pro rata based on the ratio of (i) the number of Warrant
Securities originally proposed to be sold by such Holder to (ii) the Warrant
Securities originally proposed to be sold by all Holders. None of the
provisions of this Section 19(c) shall be construed to limit any other right or
remedy under applicable law which any Holder may have as a result of the
failure by the Company to purchase Warrant Securities as herein provided.
(d) Tag-Along Rights. Without limitation to the right of any
Holder to exercise its Put Right pursuant to Section 19(a), if at any time the
Company shall determine to enter into any transaction or series of transactions
that would result in a Change of Control (a "Change of Control Transaction")
(any third party proposing to enter into such transaction or transactions being
hereinafter referred to in this Section 19(d) as a "Prospective Purchaser"),
the Company and any Prospective Purchaser shall first give written notice (the
"Offer Notice") to all of the Holders, specifying the name and address of the
Prospective Purchaser and the number of shares, if any, of Stock proposed to be
issued, sold, transferred or otherwise disposed of and setting forth in
reasonable detail the price, structure and other terms and conditions of the
Change of Control Transaction. The Offer Notice shall represent the offer (the
"Offer") from the Prospective Purchaser to each of the Holders of the right to
sell to the Prospective Purchaser as a condition to the consummation of the
proposed transaction described in the Offer Notice, all Warrant Securities then
owned by each Holder to the Prospective Purchaser and, at the option of the
Holders, on the same terms and conditions (including price and form of
consideration) as are being offered by the Prospective Purchaser to the Company
or at the Fair Market Value per Share, determined as of the date of the Offer
Notice, minus the Exercise Price (if any). Each Holder shall have thirty (30)
days from the date of receipt of the Offer Notice to give written notice of its
intention to accept or reject the Offer. Failure to respond within such
thirty-day period shall be deemed notice of rejection. In the event that any
Holder gives written notice to the Company and the Prospective Purchaser of its
intention to accept such Offer, then such written notice, taken in conjunction
with the Offer Notice, shall constitute a valid and legally binding agreement,
and each of the Holders so giving such written notice shall be entitled to sell
to the Prospective Purchaser, contemporaneously with the consummation of the
Change of Control Transaction, all of the Warrant Securities at the price
specified therefor by such Holder in accordance with this Section 19(d). In
the event that all of the Holders reject or are deemed to have rejected the
offer represented by the Offer Notice, the Company shall be free to proceed to
consummate such Change of Control Transaction on the terms and conditions set
forth in the Offer Notice, provided that such sale is not otherwise prohibited
by any agreement between the Company and the Purchaser. In the event the
Company fails to complete the proposed sale, transfer or other disposition
within ninety (90) days after the Holder or Holders rejected or were deemed to
have rejected the Offer, such transaction or transactions shall again be
subject to the provisions of this Section 19(d). The provisions of this
Section 19(d)
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<PAGE> 43
shall apply until the termination of this Agreement pursuant to Section 24 to
any Person who acquires in any manner any Warrant Securities from any Holder.
(e) Limitation on Put Rights of Others. The Company covenants and
agrees that, neither the Company nor any of its Subsidiaries shall, directly
or indirectly, grant to any Person or agree to or otherwise become obligated in
respect of any rights to require the Company or any of its Subsidiaries to
purchase securities of the Company upon the demand of any Person. The Company
represents and warrants that neither it nor any of its Subsidiaries has
previously entered into any agreement granting any such rights to any Person,
except for such rights as are granted pursuant to the Preferred Stock Purchase
Agreement between Brunswick and the State of Maryland relating to the Series D
Preferred Stock of Brunswick.
(f) Severability. If any provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the conflict
of any provision with any constitution, statute, rule or public policy, or for
any other reason, such circumstances shall not have the effect of rendering the
provision or provisions in question, invalid, inoperative or unenforceable in
any other jurisdiction or in any other case or circumstance or of rendering any
other provision or provisions herein contained invalid, inoperative or
unenforceable to the extent that such other provisions are not themselves
actually in conflict with such constitution, statute, rule or public policy,
but this Agreement shall be reformed and construed in any such jurisdiction or
case as if such invalid, inoperative or unenforceable provision had never been
contained herein and such provision reformed so that it would be valid,
operative and enforceable to the maximum extent permitted in such jurisdiction
or in such case.
SECTION 20. Notices. All notices, consents, approvals,
agreements and other communications provided hereunder shall be in writing or
by telecopy and shall be sufficiently given to the Purchaser, the Holders and
the Company if addressed or delivered to them at the following addresses:
If to the Purchaser: ING Capital
135 East 57th Street
New York, New York 10022
Attention: Chief Credit Officer
Telecopier No.: (212) 750-8935
with copies to: ING Capital
Atlanta Office
200 Galleria Parkway
Suite 950
Atlanta, Georgia 30339
Telecopier No.: (770) 951-1005
and a copy to: King & Spalding
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<PAGE> 44
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: Hector E. Llorens, Jr.,
Esq.
Telecopier No.: (404) 572-5100
If to any other At its last known address appearing
Holder: on the books of the Company
maintained for such purpose
If to the Company Brunswick Biomedical Corporation
prior to the Merger 6 Thatcher Lane
Consummation Wareham, Massachusetts 01752
Date: Attention: James H. Miller
Telecopier No.: (508) 460-7702
with a copy to: Palmer & Dodge
One Beacon Street
Boston, Massachusetts 02108
Attention: Stanley Keller, Esq.
Telecopier No.: (617) 227-4420
If to the Company Survival Technology, Inc.
on or after the 2275 Research Boulevard, Suite 100
Merger Consumma- Rockville, Maryland 20830
tion Date: Attention: James H. Miller
Telecopier No.: (301) 926-6423
with a copy to: Palmer & Dodge
One Beacon Street
Boston, Massachusetts 02108
Attention: Stanley Keller, Esq.
Telecopier No.: (617) 227-6420
or at such other address as any party may designate to any other party by
written notice. All such notices and communications shall be deemed to have
been duly given: (i) at the time delivered by hand, if personally delivered,
(ii) when received, if deposited in the mail, postage prepaid, (iii) when
transmission is verified, if telecopied, and (iv) on the next Business Day, if
timely delivered to an air courier guaranteeing overnight delivery.
SECTION 20. Costs and Expenses. The Company agrees to pay
all reasonable out-of-pocket expenses of the Purchaser (including reasonable
fees and expenses of counsel retained by the Purchaser from time to time) in
connection with (i) the negotiation, preparation, execution, and delivery of
this Agreement and each other Warrant Document, whether or not the transactions
contemplated hereby are consummated, and (ii) the consideration of legal
questions relevant hereto and thereto. The Company also agrees to reimburse
the Purchaser and each Holder upon demand
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<PAGE> 45
for all reasonable out-of-pocket expenses (including reasonable attorneys' fees
and expenses) incurred by the Purchaser or such Holder in enforcing the
obligations of the Company under this Agreement or any other Warrant Document
or in connection with any amendment, waiver, consent, supplement or other
modification to this Agreement or any Warrant Document.
SECTION 22. Indemnification. (a) In consideration of the
transactions contemplated by this Agreement and the other Warrant Documents,
the Company hereby agrees to indemnify, exonerate and hold the Purchaser and
each Holder, each of their respective successors and assigns, each of the
respective officers, directors, employees, attorneys and agents of the
Purchaser and each Holder and each of their respective successors and assigns
(collectively, the "Indemnified Parties") free and harmless from and against
any and all actions, causes of action, suits, losses, costs, liabilities,
damages and expenses (irrespective of whether such Indemnified Party is a party
to the action for which indemnification hereunder is sought), including
attorneys' fees and disbursements (the "Indemnified Liabilities"), incurred by
the Indemnified Parties or any of them or asserted or awarded against the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to:
(i) any transaction contemplated by this Agreement or any other
Warrant Document;
(ii) the making of any claim by any investment banking firm, broker
or third party that it is entitled to compensation from any
Indemnified Party in connection with this Agreement;
(iii) any claim, investigation, litigation, or proceeding made or
commenced by a third party related to this Agreement or any
other Warrant Documents, whether or not the Indemnified Party
or any other Indemnified Party is party thereto;
(iv) the breach by the Company of any representation or warranty
set forth in this Agreement or in any other Warrant Document;
or
(v) the failure of the Company to comply with all terms,
conditions, and covenants set forth in this Agreement or in
any other Warrant Document;
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or wilful misconduct as determined by a final and
nonappealable decision of a court of competent jurisdiction. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, the
Company hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The foregoing indemnity shall become effective immediately
upon the execution and delivery hereof and shall remain operative and in full
force and effect notwithstanding the consummation of the transactions
contemplated hereunder, the issuance or exercise of the Warrants hereunder, the
termination of this Agreement pursuant to Section 24, the invalidity or
unenforceability of any term or provision of this Agreement or any other
Warrant Document, or any investigation made by or on behalf of any Holder or
the Purchaser.
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<PAGE> 46
(b) Promptly after receipt by an Indemnified Party of
notice of the commencement of any action (including any governmental
investigation or inquiry), such Indemnified Party will, if such Indemnified
Party intends to make a claim in respect thereof against the Company, give
written notice to the Company of the commencement thereof, but the omission so
to notify the Company shall not relieve the Company from any of its obligations
hereunder. In case any such action is brought against any Indemnified Party
and it notifies the Company of the commencement thereof, the Company shall be
entitled to participate in and to the extent that it may wish, to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnified
Party, and after notice from the Company to such Indemnified Party, the Company
shall not be responsible for any legal or other expenses subsequently incurred
by such Indemnified Party in connection with the defense thereof. The Company
will not consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation.
SECTION 23. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Holders shall bind
and inure to the benefit of their respective successors and assigns, including
those by operation of law, merger, consolidation or as otherwise provided in
subsection (i) or (j) of Section 15.
SECTION 24. Termination. Except as otherwise provided
herein, this Agreement shall terminate when (a) all Warrants have expired
unexercised in accordance with their terms or all Warrant Securities have been
purchased pursuant to Section 19 hereof, and (b) all obligations of the Company
and the Borrower (or any successor to either of them) shall have been satisfied
in full and all contingencies in respect thereof shall no longer exist,
including, without limitation, the obligations set forth in subsection (i) or
(j) of Section 15.
SECTION 25. Governing Law. THIS AGREEMENT AND THE WARRANTS
SHALL BE GOVERNED BY THOSE PROVISIONS OF THE CORPORATE CODE OF THE JURISDICTION
IN WHICH THE COMPANY IS INCORPORATED AND ARTICLE 8 OF THE UNIFORM COMMERCIAL
CODE OF THE JURISDICTION IN WHICH THE COMPANY IS INCORPORATED WHICH ARE
NECESSARILY APPLICABLE TO SECURITIES ISSUED BY A CORPORATION INCORPORATED IN
SUCH JURISDICTION AND OTHERWISE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF SAID STATE.
SECTION 26. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the Company and
the Holders any legal or equitable right, remedy or claim under this Agreement;
but this Agreement shall be for the sole and exclusive benefit of the Company
and the Holders.
SECTION 27. Counterparts. This Agreement may be executed in
any number of counterparts and each such counterpart shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
one and the same instrument.
- 42 -
<PAGE> 47
SECTION 28. Amendments; Waiver. No provision of this
Agreement may be amended or waived except by an instrument in writing signed by
the party sought to be bound; provided, however, that any amendment requested
or waiver sought from the Holders of any provision of this Agreement which
affects Holders generally may be given by the Required Holders and any waiver
so given shall be binding on all Holders; provided further, that the provisions
of Section 11 with respect to the type of securities for which the Warrants are
exercisable may not be changed without the consent of each Holder affected
thereby. No failure or delay by any party in exercising any right or remedy
hereunder shall operate as a waiver thereof, nor shall a waiver of a particular
right or remedy on one occasion be deemed a waiver of any other right or remedy
or a waiver of the same right or remedy on any subsequent occasion.
SECTION 29. Waiver of Jury Trial. THE PURCHASER, EACH HOLDER
AND THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, ON THE WARRANTS OR ON ANY OF THE OTHER WARRANT DOCUMENTS, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT, THE WARRANTS OR ANY OF THE
OTHER WARRANT DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE PURCHASER, ANY HOLDER OR
THE COMPANY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PURCHASER'S
ENTERING INTO THIS AGREEMENT.
SECTION 30. Jurisdiction. The Company hereby agrees that any
legal action or proceeding against it with respect to this Agreement, the
Warrants or any of the other Warrant Documents may be brought in the courts of
the State of New York or of the United States of America for the Southern
District of New York as any Holder may elect, and, by execution and delivery
hereof, it accepts and consents for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts and
agrees that such jurisdiction shall be exclusive, unless waived by the Required
Holders in writing, with respect to any action or proceeding brought by it
against such Holders. The Company hereby irrevocably designates, appoints and
empowers CT Corporation System whose present address is 1633 Broadway, New
York, New York 10019, as its authorized agent to receive, for and on its behalf
and its property, service of process in the State of New York when and as legal
actions or proceedings may be brought in the courts of the State of New York or
of the United States of America sitting in New York, and such service of
process shall be deemed complete upon the date of delivery thereof to such
agent, or upon the earliest of any other date permitted by applicable law. It
is understood that a copy of said process served on such agent will be
forwarded to the Company as soon as practicable, at its address set forth
herein, but its failure to receive such copy shall not affect in any way the
service of said process on said agent as the agent of the Company. The Company
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of the copies thereof by
certified mail, return receipt requested, postage prepaid, to it at its address
set forth herein, such service to become effective upon the earlier of (I) the
date 10 calendar days after such mailing and (ii) any earlier date permitted by
applicable law. The Company agrees that it will at all times continuously
maintain an agent to
- 43 -
<PAGE> 48
receive service of process in the State of New York on behalf of itself and its
properties and in the event that, for any reason, the agent named above or its
successor shall no longer serve as its agent to receive service of process in
the State of New York on its behalf, it shall promptly appoint a successor so
to serve and shall advise the Holders thereof. The Company agrees that
Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New
York shall apply to this Agreement and each of the other Warrant Documents and
waives any right to stay or to dismiss any action or proceeding brought before
said courts on the basis of forum non conveniens. Nothing herein shall affect
the right of any Holder to bring proceedings against the Company in the courts
of any other jurisdiction or to serve process in any other manner permitted by
applicable law.
SECTION 31. Specific Performance. The Company recognizes
that the rights of the Holders under this Agreement and the other Warrant
Documents are unique and, accordingly, the Holders shall, in addition to such
other remedies as may be available to any of them at law or in equity, have the
right to enforce their rights hereunder and thereunder by actions for
injunctive relief and specific performance to the extent permitted by law. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
or any of the other Warrant Documents and hereby agrees to waive in any action
for specific performance the defense that a remedy at law would be adequate.
This Agreement is not intended to limit or abridge any rights of the Holders
which may exist apart from this Agreement.
SECTION 32. Confidentiality. The Holders shall hold all
non-public, proprietary or confidential information (which has been identified
as such by the Company) obtained pursuant to the requirements of this Agreement
in accordance with their customary procedures for handling confidential
information of this nature; provided, however, that each Holder may make
disclosure of any such information to its examiners, Affiliates, outside
auditors, counsel, consultants, appraisers and other professional advisors in
connection with this Agreement or as reasonably required by any proposed
transferee in connection with the contemplated transfer of any Warrant
Securities (but only if the proposed transferee agrees to be bound by the terms
of this Section 32) or as required or requested by an Governmental Authority or
representative thereof or in connection with the enforcement hereof or of any
other Warrant Document or pursuant to legal process. In no event shall any
Holder be obligated or required to return any materials furnished to it by the
Company.
SECTION 33. Entire Agreement. The parties hereto agree that
this Agreement, the Registration Rights Agreement and the Loan Documents
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings between
them as to such subject matter; and there are no restrictions, agreements,
arrangements, oral or written, between any or all of the parties relating to
the subject matter hereof which are not fully expressed or referred to herein
or therein.
- 45 -
<PAGE> 49
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
BRUNSWICK BIOMEDICAL
CORPORATION
By: /s/ James H. Miller
----------------------------------
Name: James H. Miller
Title: President
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By: /s/ Darren S. Wells
-----------------------------------
Name: Darren S. Wells
Title: Managing Director
- 45 -
<PAGE> 50
EXHIBIT A
FORM OF SERIES A WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SAID
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION, OR AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL TO THE HOLDER)
AS TO AN EXEMPTION, FROM THE REGISTRATION PROVISIONS OF SAID ACT OR LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A
WARRANT PURCHASE AGREEMENT, DATED AS OF APRIL 15, 1996, BETWEEN BRUNSWICK
BIOMEDICAL CORPORATION (THE "COMPANY") AND INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION ("ING") AND A REGISTRATION RIGHTS AGREEMENT, DATED AS OF
APRIL 15, 1996, AMONG THE COMPANY AND THE PURCHASERS IDENTIFIED IN EXHIBIT A
ATTACHED THERETO, COPIES OF EACH OF WHICH ARE ON FILE AT THE MAIN OFFICE OF THE
COMPANY. ANY SALE OR TRANSFER OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE
IS SUBJECT TO THE TERMS OF THOSE AGREEMENTS AND ANY SALE OR TRANSFER OF SUCH
SECURITIES IN VIOLATION OF SAID AGREEMENTS SHALL BE INVALID.
Certificate No.__ _______ Warrants
Warrant Certificate
BRUNSWICK BIOMEDICAL CORPORATION
This Warrant Certificate certifies that INTERNATIONALE
NEDERLANDEN (U.S.) CAPITAL CORPORATION ("ING"), or registered assigns, is the
registered holder of the number of Warrants (the "Warrants") set forth above to
purchase shares of non-voting common stock, par value $0.01 per share (the
"Class A Common Stock"), of BRUNSWICK BIOMEDICAL CORPORATION, a Massachusetts
corporation (the "Company"). Each Warrant entitles the holder upon exercise to
receive from the Company one fully paid and nonassessable share of Class A
Common Stock (a "Warrant Share") at the initial exercise price (the "Exercise
Price") of $0.01, payable in lawful money of the United States of America, upon
surrender of this Warrant Certificate and payment of the Exercise Price, if
applicable, at the office of the Company designated for such purpose, subject
to the conditions set forth herein and in the Warrant Agreement referenced
below. The Exercise Price and number and type of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events, as set forth in the Warrant Agreement. Each Warrant also
entitles the holder to convert such Warrant into the number of Warrant Shares
determined in accordance with Section 11(b) of the Warrant Agreement.
<PAGE> 51
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Series A Warrants, and are issued or to be issued
pursuant to a Warrant Purchase Agreement dated as of April 15, 1996 (the
"Warrant Agreement"), duly executed and delivered by the Company and ING, which
Warrant Agreement is hereby incorporated by reference in and made a part of
this instrument and is hereby referred to for a description of the rights,
obligations and duties hereunder of the Company and the holders of the Warrants
(the words "holders" or "holder" meaning the registered holders or registered
holder). A copy of the Warrant Agreement may be obtained by the holder hereof
upon written request to the Company.
The holder of Warrants evidenced by this Warrant Certificate
may exercise such Warrants under and pursuant to the terms and conditions of
the Warrant Agreement by surrendering this Warrant Certificate, with the form
of election to purchase attached hereto (and by this reference made a part
hereof) properly completed and executed, together with payment of the Exercise
Price in cash at the office of the Company designated for such purpose. In the
event that any exercise of Warrants evidenced hereby shall be for less than the
total number of Warrants evidenced hereby, there shall be issued by the Company
to the holder hereof or his or its registered assignee a new Warrant
Certificate evidencing the number of Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of
certain events the Exercise Price set forth on the face hereof may, subject to
certain conditions, be adjusted. If the Exercise Price is adjusted, the
Warrant Agreement provides that the number of shares of Warrant Shares issuable
upon the exercise of each Warrant shall be adjusted. No fractional shares of
Warrant Shares will be issued upon the exercise of any Warrant, but the Company
will pay the cash value thereof determined as provided in the Warrant
Agreement.
The Holders of the Warrants are entitled to certain
registration rights as set forth in a Registration Rights Agreement dated as of
April 15, 1996, among the Company and the purchasers identified in Exhibit A
attached thereto (the "Registration Rights Agreement"). By acceptance of this
Warrant Certificate, the Holder hereof agrees that upon exercise of any or all
of the Warrants evidenced hereby, such Holder will be bound by the Registration
Rights Agreement. A copy of the Registration Rights Agreement may be obtained
by the holder hereof upon written request to the Company.
Warrant Certificates, when surrendered at the office of the
Company by the registered holder thereof in person or by legal representative
or attorney duly authorized in writing, may be exchanged, in the manner and
subject to the limitations provided in the Warrant Agreement, for another
Warrant Certificate or Warrant Certificates of like tenor evidencing in the
aggregate a like number of Warrants.
The Company may deem and treat the registered holder(s)
thereof as the absolute owner(s) of this Warrant Certificate (notwithstanding
any notation of ownership or other writing made hereon) for the purpose of any
exercise hereof, of any distribution to the holder(s) hereof and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any holder hereof to
any rights of a stockholder
A-2
<PAGE> 52
of the Company (other than the right to receive dividends and distributions as
set forth in Section 18 of the Warrant Agreement).
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be signed by its duly authorized officer and has caused its
corporate seal to be affixed hereunto or imprinted hereon.
Dated: April __, 1996
BRUNSWICK BIOMEDICAL CORPORATION
By: ____________________________________
Name:
Title:
A-3
<PAGE> 53
FORM OF ELECTION TO PURCHASE
[To Be Executed Upon Exercise of Warrant]
The undersigned holder hereby represents that he or it is the registered holder
of this Warrant Certificate, and hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to receive ____________ shares
of Class A Common Stock, par value $.01 per share (the "Class A Common Stock"),
of BRUNSWICK BIOMEDICAL CORPORATION (the "Company") and herewith tenders
payment for such shares to the order of the Company in the amount of
$___________ in accordance with the terms hereof. The undersigned requests
that a certificate for such shares be registered in the name of the undersigned
or his/its nominee hereinafter set forth, and further that such certificate be
delivered to the undersigned at the address hereinafter set forth or to such
other person or entity as is hereinafter set forth. If said number of shares
is less than all of the shares of Class A Common Stock purchasable hereunder,
the undersigned requests that a new Warrant Certificate representing the
remaining balance of such shares be registered in the name of the undersigned
or his/its nominee hereinafter set forth, and further that such Warrant
Certificate be delivered to the undersigned at the address hereinafter set
forth or to such other person or entity as is hereinafter set forth.
Certificate to be registered as follows:
Name: Internationale Nederlanden (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Certificate to be delivered as follows:
Name: Internationale Nederlanden (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Date:____________________
_______________________________________
(Signature must conform in all respects
to the name of the holder as specified
on the fact of the Warrant Certificate,
unless Form of Assignment has been
executed)
A-4
<PAGE> 54
FORM OF ELECTION TO CONVERT
[To be Executed Upon Conversion of Warrant]
The undersigned holder hereby represents that he or it is the registered holder
of this Warrant Certificate, and hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to convert the Warrants
evidenced by this Warrant Certificate into ____________ shares of Class A
Common Stock, par value $.01 per share (the "Class A Common Stock"), of
BRUNSWICK BIOMEDICAL CORPORATION (the "Company"). The undersigned requests
that a certificate for such shares be registered in the name of the undersigned
or his/its nominee hereinafter set forth, and further that such certificate be
delivered to the undersigned at the address hereinafter set forth or to such
other person or entity as is hereinafter set forth. If said number of shares
is less than all of the shares of Class A Common Stock convertible hereunder,
the undersigned requests that a new Warrant Certificate representing the
remaining balance of such shares be registered in the name of the undersigned
or his/its nominee hereinafter set forth, and further that such Warrant
Certificate be delivered to the undersigned at the address hereinafter set
forth or to such other person or entity as is hereinafter set forth.
Certificate to be registered as follows:
Name: Internationale Nederlanden (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Certificate to be delivered as follows:
Name: Internationale Nederlanden (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Date:____________________
_______________________________________
(Signature must conform in all respects
to the name of the holder as specified
on the fact of the Warrant Certificate,
unless Form of Assignment has been
executed)
A-5
<PAGE> 55
FORM OF ASSIGNMENT
[To be executed upon Transfer of Warrant]
FOR VALUE RECEIVED, the undersigned registered holder of the enclosed
Warrant Certificate hereby sells, assigns and transfers unto
________________________________________ the right represented by such Warrant
Certificate to purchase _____________ shares of Class A Common Stock of
BRUNSWICK BIOMEDICAL CORPORATION to which such Warrant Certificate relates, and
appoints __________________ _______________________________ Attorney to make
such transfer on the books of BRUNSWICK BIOMEDICAL CORPORATION maintained for
such purpose, with full power of substitution in the premises.
Date:___________________
_______________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
_____________________________________
(Street Address)
_____________________________________
(City) (State) (Zip Code)
A-6
<PAGE> 56
EXHIBIT B
FORM OF SERIES B WARRANT CERTIFICATE
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SAID
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION, OR AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL TO THE HOLDER)
AS TO AN EXEMPTION, FROM THE REGISTRATION PROVISIONS OF SAID ACT OR LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A
WARRANT PURCHASE AGREEMENT, DATED AS OF APRIL 15, 1996, BETWEEN BRUNSWICK
BIOMEDICAL CORPORATION (THE "COMPANY") AND INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION ("ING") AND A REGISTRATION RIGHTS AGREEMENT, DATED AS OF
APRIL 15, 1996, AMONG THE COMPANY AND THE PURCHASERS IDENTIFIED IN EXHIBIT A
ATTACHED THERETO, COPIES OF EACH OF WHICH ARE ON FILE AT THE MAIN OFFICE OF THE
COMPANY. ANY SALE OR TRANSFER OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE
IS SUBJECT TO THE TERMS OF THOSE AGREEMENTS AND ANY SALE OR TRANSFER OF SUCH
SECURITIES IN VIOLATION OF SAID AGREEMENTS SHALL BE INVALID.
Certificate No. ___ _______ Warrants
Warrant Certificate
BRUNSWICK BIOMEDICAL CORPORATION
This Warrant Certificate certifies that INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION ("ING"), or registered assigns, is the registered
holder of the number of Warrants (the "Warrants") set forth above to purchase
shares of Class A Common Stock, par value $0.01 per share (the "Class A Common
Stock"), of BRUNSWICK BIOMEDICAL CORPORATION, a Massachusetts corporation (the
"Company"). Each Warrant entitles the holder upon exercise to receive from the
Company one fully paid and nonassessable share of Common Stock (a "Warrant
Share") at the initial exercise price (the "Exercise Price") of $27.55, payable
in lawful money of the United States, upon surrender of this Warrant
Certificate and payment of the Exercise Price, if applicable, at the office of
the Company designated for such purpose, subject to the conditions set forth
herein and in the Warrant Agreement referenced below. The Exercise Price and
number and type of Warrant Shares issuable upon exercise of the Warrants are
subject to adjustment upon the occurrence of certain events, as set forth in
the Warrant Agreement. Each Warrant also entitles the holder to convert such
Warrant into the number of Warrant Shares determined in accordance with Section
11(b) of the Warrant Agreement.
<PAGE> 57
The Warrants evidenced by this Warrant Certificate are part of
a duly authorized issue of Series B Warrants, and are issued or to be issued
pursuant to a Warrant Purchase Agreement dated as of April 15, 1996 (the
"Warrant Agreement"), duly executed and delivered by the Company and ING, which
Warrant Agreement is hereby incorporated by reference in and made a part of
this instrument and is hereby referred to for a description of the rights,
obligations and duties hereunder of the Company and the holders of the Warrants
(the words "holders" or "holder" meaning the registered holders or registered
holder). A copy of the Warrant Agreement may be obtained by the holder hereof
upon written request to the Company.
The holder of Warrants evidenced by this Warrant Certificate
may exercise such Warrants under and pursuant to the terms and conditions of
the Warrant Agreement by surrendering this Warrant Certificate, with the form
of election to purchase attached hereto (and by this reference made a part
hereof) properly completed and executed, together with payment of the Exercise
Price in cash at the office of the Company designated for such purpose. In the
event that any exercise of Warrants evidenced hereby shall be for less than the
total number of Warrants evidenced hereby, there shall be issued by the Company
to the holder hereof or his or its registered assignee a new Warrant
Certificate evidencing the number of Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of
certain events the Exercise Price set forth on the face hereof may, subject to
certain conditions, be adjusted. If the Exercise Price is adjusted, the
Warrant Agreement provides that the number of shares of Warrant Shares issuable
upon the exercise of each Warrant shall be adjusted. No fractional shares of
Warrant Shares will be issued upon the exercise of any Warrant, but the Company
will pay the cash value thereof determined as provided in the Warrant Agreement.
The Holders of the Warrants are entitled to certain
registration rights as set forth in a Registration Rights Agreement dated as of
April 15, 1996, among the Company and the purchasers identified in Exhibit A
attached thereto (the "Registration Rights Agreement"). By acceptance of this
Warrant Certificate, the Holder hereof agrees that upon exercise of any or all
of the Warrants evidenced hereby, such Holder will be bound by the Registration
Rights Agreement. A copy of the Registration Rights Agreement may be obtained
by the holder hereof upon written request to the Company.
Warrant Certificates, when surrendered at the office of the
Company by the registered holder thereof in person or by legal representative
or attorney duly authorized in writing, may be exchanged, in the manner and
subject to the limitations provided in the Warrant Agreement, for another
Warrant Certificate or Warrant Certificates of like tenor evidencing in the
aggregate a like number of Warrants.
The Company may deem and treat the registered holder(s)
thereof as the absolute owner(s) of this Warrant Certificate (notwithstanding
any notation of ownership or other writing made hereon) for the purpose of any
exercise hereof, of any distribution to the holder(s) hereof and for all other
purposes, and the Company shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any holder hereof to
any rights of a stockholder
B-2
<PAGE> 58
of the Company (other than the right to receive dividends and distributions as
set forth in Section 18 of the Warrant Agreement).
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be signed by its duly authorized officer and has caused its
corporate seal to be affixed hereunto or imprinted hereon.
Dated: April __, 1996
BRUNSWICK BIOMEDICAL CORPORATION
By:
-------------------------------------
Name:
Title:
B-3
<PAGE> 59
FORM OF ELECTION TO PURCHASE
[To Be Executed Upon Exercise of Warrant]
The undersigned holder hereby represents that he or it is the registered holder
of this Warrant Certificate, and hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to receive ____________ shares
of Class A Common Stock, par value $.01 per share (the "Class A Common Stock"),
of BRUNSWICK BIOMEDICAL CORPORATION (the "Company") and herewith tenders
payment for such shares to the order of the Company in the amount of
$___________ in accordance with the terms hereof. The undersigned requests
that a certificate for such shares be registered in the name of the undersigned
or his/its nominee hereinafter set forth, and further that such certificate be
delivered to the undersigned at the address hereinafter set forth or to such
other person or entity as is hereinafter set forth. If said number of shares
is less than all of the shares of Class A Common Stock purchasable hereunder,
the undersigned requests that a new Warrant Certificate representing the
remaining balance of such shares be registered in the name of the undersigned
or his/its nominee hereinafter set forth, and further that such Warrant
Certificate be delivered to the undersigned at the address hereinafter set
forth or to such other person or entity as is hereinafter set forth.
Certificate to be registered as follows:
Name: Internationale Nederlanden (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Certificate to be delivered as follows:
Name: Internationale Nederlanden (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Date:
---------------------------
----------------------------------------
(Signature must conform in all respects
to the name of the holder as specified
on the fact of the Warrant Certificate,
unless Form of Assignment has been
executed)
B-4
<PAGE> 60
FORM OF ELECTION TO CONVERT
[To Be Executed Upon Conversion of Warrant]
The undersigned holder hereby represents that he or it is the registered holder
of this Warrant Certificate, and hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to convert the Warrants
evidenced by this Warrant Certificate into____________ shares of Class A Common
Stock, par value $.01 per share (the "Class A Common Stock"), of BRUNSWICK
BIOMEDICAL CORPORATION (the "Company") and herewith tenders payment for such
shares to the order of the Company in the amount of $___________ in accordance
with the terms hereof. The undersigned requests that a certificate for such
shares be registered in the name of the undersigned or his/its nominee
hereinafter set forth, and further that such certificate be delivered to the
undersigned at the address hereinafter set forth or to such other person or
entity as is hereinafter set forth. If said number of shares is less than all
of the shares of Class A Common Stock convertible hereunder, the undersigned
requests that a new Warrant Certificate representing the remaining balance of
such shares be registered in the name of the undersigned or his/its nominee
hereinafter set forth, and further that such Warrant Certificate be delivered
to the undersigned at the address hereinafter set forth or to such other person
or entity as is hereinafter set forth.
Certificate to be registered as follows:
Name: Internationale Nederlanden (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Certificate to be delivered as follows:
Name: Internationale Nederlanden (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Date:
---------------------------
----------------------------------------
(Signature must conform in all respects
to the name of the holder as specified
on the fact of the Warrant Certificate,
unless Form of Assignment has been
executed)
B-5
<PAGE> 61
FORM OF ASSIGNMENT
[To be executed upon Transfer of Warrant]
FOR VALUE RECEIVED, the undersigned registered holder of the
enclosed Warrant Certificate hereby sells, assigns and transfers unto
________________________________________ the right represented by such Warrant
Certificate to purchase _____________ shares of Class A Common Stock of
BRUNSWICK BIOMEDICAL CORPORATION to which such Warrant Certificate relates, and
appoints _________________________________________________ Attorney to make
such transfer on the books of BRUNSWICK BIOMEDICAL CORPORATION maintained for
such purpose, with full power of substitution in the premises.
Date:
---------------------------
----------------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
----------------------------------------
(Street Address)
----------------------------------------
(City) (State) (Zip Code)
<PAGE> 62
EXHIBIT C
Schedule of Exceptions
Section 5(e)
The State of Maryland has the right to require the Company to
repurchase the shares of Preferred Stock of the Company it holds if the Company
leaves the State of Maryland within a certain period of time.
<PAGE> 63
EXHIBIT D
Stockholder List
<PAGE> 64
BRUNSWICK BIOMEDICAL CORPORATION
Common Stock Register
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATES
CERTIFICATES ISSUED FROM WHOM SHARES SURRENDERED DATE OF
DATE ---------------------- WERE TRANSFERRED ---------------- TRANSFER
BECAME CERT. NO. (If original issue CERT. NO. TO WHOM OF
NAME OF STOCKHOLDER OWNER NOS. SHARES enter as such) NOS. SHARES SHARES ARE TRANSFERRED SHARES
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
James G. Nichols 7/1/90 1 16,167 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Donald R. Gorsuch 7/1/90 2 16,167 Original Issue 2 16,167 Brunswick Biomedical
Corporation - Treasury
1,857 shares; Donald R.
Gorsuch - Certificate
No. 9 14,310 shares
- -----------------------------------------------------------------------------------------------------------------------------------
Robert G. Foster 7/1/90 3 2,000 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Gloria W. Doubleday 7/1/90 4 1,000 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
John Anderson 10/4/91 5 6,743 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Andrew O'Hara 10/4/91 6 6,743 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
John Anderson 3/1/93 7 3,371 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Andrew O'Hara 3/1/93 8 3,371 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Donald R. Gorsuch 10/28/93 9 14,310 Donald R. Gorsuch -
Certificate No. 2
- -----------------------------------------------------------------------------------------------------------------------------------
John Anderson 2/24/94 10 3,971 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Andrew O'Hara 2/24/94 11 3,971 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
James G. Nichols 2/24/94 12 2,807 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Donald R. Gorsuch 2/24/94 13 2,105 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Health Advances, Inc. 2/28/95 14 221 Treasury
===================================================================================================================================
</TABLE>
<PAGE> 65
BRUNSWICK BIOMEDICAL CORPORATION
Series A Preferred Stock Register
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATES
CERTIFICATES ISSUED FROM WHOM SHARES SURRENDERED DATE OF
DATE --------------------- WERE TRANSFERRED ---------------- TRANSFER
BECAME CERT. NO. (If original issue CERT. NO. TO WHOM OF
NAME OF STOCKHOLDER OWNER NOS. SHARES enter as such) NOS. SHARES SHARES ARE TRANSFERRED SHARES
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Commonwealth BioVentures 7/2/90 P-1 21,555 Original Issue P-1 21,555 Commonwealth BioVentures 9/8/93
I Limited Partnership V Limited Partnership -
Certificate No. P-4
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 7/2/90 P-2 21,555 Original Issue P-2 21,555 Commonwealth BioVentures 9/8/93
II Limited Partnership V Limited Partnership -
Certificate No. P-5
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 7/2/90 P-3 21,555 Original Issue
III Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 9/8/93 P-4 21,555 Commonwealth Bio
V Limited Partnership Ventures I Limited
Partnership -
Certificate No. P-1
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 9/8/93 P-5 21,555 Commonwealth Bio
V Limited Partnership Ventures II Limited
Partnership -
Certificate No. P-2
===================================================================================================================================
</TABLE>
<PAGE> 66
BRUNSWICK BIOMEDICAL CORPORATION
Series B Preferred Stock Register
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATES
CERTIFICATES ISSUED FROM WHOM SHARES SURRENDERED DATE OF
DATE ---------------------- WERE TRANSFERRED ---------------- TRANSFER
BECAME CERT. NO. (If original issue CERT. NO. TO WHOM OF
NAME OF STOCKHOLDER OWNER NOS. SHARES enter as such) NOS. SHARES SHARES ARE TRANSFERRED SHARES
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Commonwealth BioVentures 12/30/91 PB-1 7,428 Original Issue PB-1 7,428 Commonwealth BioVentures 9/8/93
II Limited Partnership V Limited Partnership -
Certificate No. PB-4
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 12/30/91 PB-2 9,145 Original Issue
III Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 12/30/91 PB-3 12,571 Original Issue
IV Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 9/8/93 PB-4 7,428 Commonwealth Bio
V Limited Partnership Ventures II
Limited Partnership -
Certificate No. PB-1
===================================================================================================================================
</TABLE>
<PAGE> 67
BRUNSWICK BIOMEDICAL CORPORATION
Series C Preferred Stock Register
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATES
CERTIFICATES ISSUED FROM WHOM SHARES SURRENDERED DATE OF
DATE --------------------- WERE TRANSFERRED ---------------- TRANSFER
BECAME CERT. NO. (If original issue CERT. NO. TO WHOM OF
NAME OF STOCKHOLDER OWNER NOS. SHARES enter as such) NOS. SHARES SHARES ARE TRANSFERRED SHARES
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
BancBoston Ventures, Inc. 11/12/93 PC-1 30,103 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 11/12/93 PC-2 6,020 Original Issue
III Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 11/12/93 PC-3 35,010 Original Issue
IV Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 11/12/93 PC-4 9,048 Original Issue
V Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Lennart Lindberg, Trustee, 11/12/93 PC-5 7,549 Original Issue
U/D/T dated 8/17/35 by
Winfield S. Smyth f/b/o
Joan S. Smyth and others
(Carper)
- -----------------------------------------------------------------------------------------------------------------------------------
Lennart Lindberg, Trustee, 11/12/93 PC-6 7,549 Original Issue
U/D/T dated 8/17/35 by
Winfield S. Smyth f/b/o
Joan S. Smyth and others
(Gamble)
- -----------------------------------------------------------------------------------------------------------------------------------
BancBoston Ventures, Inc. 11/12/93 PC-7 28,571 Original Issue
- ----------------------------------------------------------------------------------------------------------------------------------
Concord Partners II, L.P. 11/12/93 PC-8 57,142 Original Issue
c/o Dillon, Read Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Kummell Investments Limited 11/12/93 PC-9 57,142 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Alpetta Finance Corporation 11/12/93 PC-10 5,700 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Clariden Bank c/o Swiss 11/12/93 PC-11 62,942 Original Issue PC-11 62,942 Clariden Bank-Certificate 1/16/95
American Securities No. PC-30 4,200 shares,
PC-31 5,800 shares,
PC-32 52,942 shares
- -----------------------------------------------------------------------------------------------------------------------------------
Cudd & Co. (Nominee: 11/12/93 PC-12 14,000 Original Issue PC-12 14,000 Bear Stearns & Co. - 3/30/95
Clariden Asset Mgmt.) Certificate No. PC-33
c/o Chase Manhattan Bank
- -----------------------------------------------------------------------------------------------------------------------------------
Abraham W. Haddad and Linda 11/12/93 PC-13 1,428 Original Issue
F. Haddad, JTWROS
- -----------------------------------------------------------------------------------------------------------------------------------
Lennart Lindberg 11/12/93 PC-14 2,857 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Lennart Lindberg, Trustee, 11/12/93 PC-15 1,428 Original Issue
U/D/T dated 8/17/35 by
Winfield S. Smyth f/b/o
Joan S. Smyth and others
(Carper Share)
- -----------------------------------------------------------------------------------------------------------------------------------
Lennart Lindberg, Trustee, 11/12/93 PC-16 1,428 Original Issue
U/D/T dated 8/17/35 by
Winfield S. Smyth f/b/o
Joan S. Smyth and others
(Gamble Share)
- -----------------------------------------------------------------------------------------------------------------------------------
James J. Esper and Karen 11/12/93 PC-17 2,857 Original Issue
L. Esper, JTWROS
===================================================================================================================================
</TABLE>
<PAGE> 68
BRUNSWICK BIOMEDICAL CORPORATION
Series C Preferred Stock Register
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATES
CERTIFICATES ISSUED FROM WHOM SHARES SURRENDERED DATE OF
DATE ------------------- WERE TRANSFERRED ------------- TRANSFER
BECAME CERT. NO. (If original issue CERT. NO. TO WHOM OF
NAME OF STOCKHOLDER OWNER NOS. SHARES enter as such) NOS. SHARES SHARES ARE TRANSFERRED SHARES
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Robert G. Foster 11/12/93 PC-18 857 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Nathan H. Cook and 11/12/93 PC-19 571 Original Issue
Alice C. Cook, JTWROS
- -----------------------------------------------------------------------------------------------------------------------------------
Laurence H. Wilkerson and 11/12/93 PC-20 590 Original Issue
Susan F. Wilkerson, JTWROS
- -----------------------------------------------------------------------------------------------------------------------------------
Charles E. Bullock and 11/12/93 PC-21 457 Original Issue
Sara M. Bullock, JTWROS
- -----------------------------------------------------------------------------------------------------------------------------------
MODL Ventures 11/12/93 PC-22 2,857 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Harold L. Grogan and 11/12/93 PC-23 1,000 Original Issue
Crawford S. Grogan, JTWROS
- -----------------------------------------------------------------------------------------------------------------------------------
Bears Stearns & Co. 11/12/93 PC-24 28,942 Original Issue
(Nominee: Clariden Asset
Mgmt Inc.)
- -----------------------------------------------------------------------------------------------------------------------------------
Delaware Charter 11/12/93 PC-25 1,000 Original Issue
Guarantee & Trust Co.
TTEE FBO Mai N.
Pogue R-IRA
- -----------------------------------------------------------------------------------------------------------------------------------
Delaware Charter 11/12/93 PC-26 1,700 Original Issue
Guarantee & Trust Co.
TTEE FBO Gerald Pogue
R-IRA
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 11/12/93 PC-27 2,000 Original Issue
Profit Sharing Plan U/A/D
7/8/92 F/B/O
Robert G. Foster
- -----------------------------------------------------------------------------------------------------------------------------------
Robert S. Whitehead 11/12/93 PC-28 2,000 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Rand N. Stowell 12/7/93 PC-29 1,714 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Clariden Bank 1/16/95 PC-30 4,200 Clariden Bank c/o PC-30 4,200 Cudd & Co. (Nominee for: 8/7/95
Swiss American Clariden Bank)-
Securities - Certificate Certificate No. PC-34
No. PC-11 1,000 shares, PC-35 1,000
shares, PC-36 1,000
shares, PC-37 1,000
shares, PC-38 100
shares & PC-39 100 shares
- -----------------------------------------------------------------------------------------------------------------------------------
Clariden Bank 1/16/95 PC-31 5,800 Clariden Bank c/o PC-31 5,800 Clariden Bank-Certificate 11/10/95
Swiss American No. PC-40 2,900 shares,
Securities - Certificate PC-41 2,300 shares & PC
No. PC-11 42 600 shares
- -----------------------------------------------------------------------------------------------------------------------------------
Clariden Bank 1/16/95 PC-32 52,942 Clariden Bank c/o
Swiss American
Securities - Certificate
No. PC-11
===================================================================================================================================
</TABLE>
<PAGE> 69
BRUNSWICK BIOMEDICAL CORPORATION
Series C Preferred Stock Register
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATES
CERTIFICATES ISSUED FROM WHOM SHARES SURRENDERED DATE OF
DATE -------------------- WERE TRANSFERRED ------------- TRANSFER
BECAME CERT. NO. (If original issue CERT. NO. TO WHOM OF
NAME OF STOCKHOLDER OWNER NOS. SHARES enter as such) NOS. SHARES SHARES ARE TRANSFERRED SHARES
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Bear Stearns & Co. 3/30/95 PC-33 14,000 Clariden Bank- PC-33 14,000 Bear Stearns & Co. 3/30/95
(Nominee for: Clariden Certificate No.PC-30 (Nominee for: Clariden
Asset Mgmt. Co., Inc. Asset Mgmt. Co., Inc.) -
Certificate No. PC-43
12,000 shares, PC-44 179
shares, PC-45 150 shares,
PC-46 384 shares, PC-47 740
shares, PC-48 547 shares
- -----------------------------------------------------------------------------------------------------------------------------------
Cudd & Co. (Nominee for 8/7/95 PC-34 1,000 Clariden Bank -
Clariden Bank) Certificate No. PC-30
- -----------------------------------------------------------------------------------------------------------------------------------
Cudd & Co. (Nominee for 8/7/95 PC-35 1,000 Clariden Bank -
Clariden Bank) Certificate No. PC-30
- -----------------------------------------------------------------------------------------------------------------------------------
Cudd & Co. (Nominee for 8/7/95 PC-36 1,000 Clariden Bank -
Clariden Bank) Certificate No. PC-30
- -----------------------------------------------------------------------------------------------------------------------------------
Cudd & Co. (Nominee for 8/7/95 PC-37 1,000 Clariden Bank -
Clariden Bank) Certificate No. PC-30
- -----------------------------------------------------------------------------------------------------------------------------------
Cudd & Co. (Nominee for 8/7/95 PC-38 100 Clariden Bank -
Clariden Bank) Certificate No. PC-30
- -----------------------------------------------------------------------------------------------------------------------------------
Cudd & Co. (Nominee for 8/7/95 PC-39 100 Clariden Bank -
Clariden Bank) Certificate No. PC-30
- -----------------------------------------------------------------------------------------------------------------------------------
Clariden Bank 11/10/95 PC-40 2,900 Clariden Bank -
Certificate No. PC-31
- -----------------------------------------------------------------------------------------------------------------------------------
Clariden Bank 11/10/95 PC-41 2,300 Clariden Bank -
Certificate No. PC-31
- -----------------------------------------------------------------------------------------------------------------------------------
Clariden Bank 11/10/95 PC-42 600 Clariden Bank -
Certificate No. PC-31
- -----------------------------------------------------------------------------------------------------------------------------------
Bear Stearns & Co. 3/30/96 PC-43 12,000 Bear Stearns & Co.
(Nominee for: Clariden (Nominee for: Clariden
Asset Mgmt. Co., Inc.) Asset Mgmt. Co., Inc.) -
Certificate No. PC-33
- -----------------------------------------------------------------------------------------------------------------------------------
Bear Stearns & Co. 3/30/96 PC-44 179 Bear Stearns & Co.
(Nominee for: Clariden (Nominee for: Clariden
Asset Mgmt. Co., Inc.) Asset Mgmt. Co., Inc.) -
Certificate No. PC-33
- -----------------------------------------------------------------------------------------------------------------------------------
Bear Stearns & Co. 3/30/96 PC-45 150 Bear Stearns & Co.
(Nominee for: Clariden (Nominee for: Clariden
Asset Mgmt. Co., Inc.) Asset Mgmt. Co., Inc.) -
Certificate No. PC-33
- -----------------------------------------------------------------------------------------------------------------------------------
Bear Stearns & Co. 3/30/96 PC-46 384 Bear Stearns & Co.
(Nominee for: Clariden (Nominee for: Clariden
Asset Mgmt. Co., Inc.) Asset Mgmt. Co., Inc.) -
Certificate No. PC-33
- -----------------------------------------------------------------------------------------------------------------------------------
Bear Stearns & Co. 3/30/96 PC-47 740 Bear Stearns & Co.
(Nominee for: Clariden (Nominee for: Clariden
Asset Mgmt. Co., Inc.) Asset Mgmt. Co., Inc.) -
Certificate No. PC-33
- -----------------------------------------------------------------------------------------------------------------------------------
Bear Stearns & Co. 3/30/96 PC-48 547 Bear Stearns & Co.
(Nominee for: Clariden (Nominee for: Clariden
Asset Mgmt. Co., Inc.) Asset Mgmt. Co., Inc.) -
Certificate No. PC-33
===================================================================================================================================
</TABLE>
<PAGE> 70
BRUNSWICK BIOMEDICAL CORPORATION
Series D Preferred Stock Register
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATES
CERTIFICATES ISSUED FROM WHOM SHARES SURRENDERED DATE OF
DATE --------------------- WERE TRANSFERRED ---------------- TRANSFER
BECAME CERT. NO. (If original issue CERT. NO. TO WHOM OF
NAME OF STOCKHOLDER OWNER NOS. SHARES enter as such) NOS. SHARES SHARES ARE TRANSFERRED SHARES
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Commonwealth BioVentures 3/14/96 PD-1 36,620 Original Issue
V Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Maryland Department of 3/14/96 PD-2 9,075 Original Issue
Business and Economic
Development
===================================================================================================================================
</TABLE>
<PAGE> 71
BRUNSWICK BIOMEDICAL CORPORATION
Series E Preferred Stock Register
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATES
CERTIFICATES ISSUED FROM WHOM SHARES SURRENDERED DATE OF
DATE --------------------- WERE TRANSFERRED ---------------- TRANSFER
BECAME CERT. NO. (If original issue CERT. NO. TO WHOM OF
NAME OF STOCKHOLDER OWNER NOS. SHARES enter as such) NOS. SHARES SHARES ARE TRANSFERRED SHARES
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Dr. Payson Adams 3/14/96 PE-1 1,089 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Dr. Newell Augur 3/14/96 PE-2 907 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Robert G. Foster and 3/14/96 PE-3 3,629 Original Issue
Betty B. Foster, joint
tenants with right of
survivorship
- -----------------------------------------------------------------------------------------------------------------------------------
Lennart Lindberg 3/14/96 PE-5 2,000 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
James Miller 3/14/96 PE-6 1,815 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Gloria Doubleday 3/14/96 PE-7 363 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Lee Thibodeau and Elizabeth 3/14/96 PE-8 1,815 Original Issue
H. Thibodeau, joint tenants
with right of survivorship
- -----------------------------------------------------------------------------------------------------------------------------------
David Gruber 3/14/96 PE-9 3,629 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 3/14/96 PE-10 3,629 Original Issue
V Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 3/14/96 PE-11 3,629 Original Issue
IV Limited Partnership
- -----------------------------------------------------------------------------------------------------------------------------------
Commonwealth BioVentures 3/14/96 PE-12 1,814 Original Issue
III Limited Partnership
===================================================================================================================================
</TABLE>
<PAGE> 72
BRUNSWICK BIOMEDICAL CORPORATION
Series F Preferred Stock Register
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATES
CERTIFICATES ISSUED FROM WHOM SHARES SURRENDERED DATE OF
DATE --------------------- WERE TRANSFERRED ---------------- TRANSFER
BECAME CERT. NO. (If original issue CERT. NO. TO WHOM OF
NAME OF STOCKHOLDER OWNER NOS. SHARES enter as such) NOS. SHARES SHARES ARE TRANSFERRED SHARES
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Mylan Laboratories, Inc. 4/15/96 PF-1 108,892 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
EM Industries, Inc. 4/15/96 PF-2 72,595 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Concord Partners II, L.P. 4/15/96 PF-3 13,103 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Lexington Partners IV, L.P. 4/15/96 PF-4 436 Original Issue
- -----------------------------------------------------------------------------------------------------------------------------------
Dillon, Read & Co. Inc., 4/15/96 PF-5 4,610 Original Issue
as agent
- -----------------------------------------------------------------------------------------------------------------------------------
GMI/DRI Investment Trust 4/15/96 PF-6 9,074 Original Issue
===================================================================================================================================
</TABLE>
<PAGE> 73
EXHIBIT E-1
WARRANT REGISTER
<TABLE>
<CAPTION>
Warrant # Holder Face Vested % Vested # Expiration Current Common Reserved
<S> <C> <C> <C> <C> <C> <C> <C>
C-1 CBI IV 984 100% 984 6-12-95 0 984
C-2 CBI IV 656 100% 656 8-10-95 0 656
C-3 BancBoston 2,857 60% 1,714 4-22-00 1,714 1,714
C-4 CBI I 286 60% 172 4-22-00 0
C-5 CBI II 571 60% 343 4-22-00 0
C-6 CBI III 571 60% 343 4-22-00 343 343
C-7 CBI IV 286 60% 172 4-22-00 172 172
C-8 Lindberg
(Casper) 714 60% 428 4-22-00 428 428
C-9 Lindberg
(Gamble) 714 60% 428 4-22-00 428 428
C-10 Flagship Bk 400 100% 400 8-24-03 400 400
C-11 CBI V 286 60% 172 4-22-00 172 172
C-12 CBI V 571 60% 343 4-22-00 343 343
C-13 Foster 2,000 100% 2,000 4-22-00 2,000 2,000
C-14 Doubleday 2,000 100% 2,000 4-22-00 2,000 2,000
C-15 CBI V 36,620 100% 36,620 3-14-01 36,620 36,620
C-16 MDBED 9,075 100% 9,075 3-14-01 9,075 9,075
C-17 Payson Adams 1,714 100% 1,714 3-14-01 1,714 1,714
C-18 Newell Augur 1,428 100% 1,428 3-14-01 1,428 1,428
C-19 R. and B. Foster 5,713 100% 5,713 3-14-01 5,713 5,713
C-20 NOT ISSUED
C-21 Lennart Lindberg 3,149 100% 3,149 3-14-01 3,149 3,149
C-22 James Miller 2,857 100% 2,857 3-14-01 2,857 2,857
C-23 G. Doubleday 572 100% 572 3-14-01 572 572
C-24 Thibodeau 2,857 100% 2,857 3-14-01 2,857 2,857
C-25 D. Gruber 5,713 100% 5,713 3-14-01 5,713 5,713
C-26 CBI V 5,713 100% 5,713 3-14-01 5,713 5,713
C-27 CBI IV 5,713 100% 5,713 3-14-01 5,713 5,713
C-28 CBI III 2,856 100% 2,856 3-14-01 2,856 2,856
</TABLE>
<PAGE> 74
WARRANT REGISTER (Continued)
<TABLE>
<CAPTION>
Warrant # Holder Face Vested % Vested # Expiration Current Common Reserved
<S> <C> <C> <C> <C> <C> <C> <C>
C-29 Sarnoff Estate 50,000 100% 50,000 4-15-01 50,000 50,000
</TABLE>
NOTE:
Warrants C-1 and C-2 expired on their terms
Warrants C-4 and C-5 were transferred in exchange for Warrants C-7 and C-6,
respectively, when the CBII and II partnerships would up and transferred their
interest to the CBI III and IV partnerships.
<PAGE> 75
EXHIBIT E-2
123,220 shares of Common Stock are reserved for issuance upon the exercise of
stock options which have been granted pursuant to the Company's 1993 Stock
Option Plan.
<PAGE> 76
EXHIBIT F
Existing Registration Rights
1. Preferred Stock Purchase Agreement dated as of July 2, 1990
among Brunswick Manufacturing Corporation and the purchasers
named therein with respect to Series A 8% Convertible
Preferred Stock.
2. Series B Convertible Preferred Stock Purchase Agreement dated
December 30, 1991 among Brunswick Manufacturing Corporation and
the purchasers named therein with respect to Series B 8%
Convertible Preferred Stock.
3. Purchase Agreement dated as of April 22, 1993 among Brunswick
BioMedical Corporation and the purchasers named therein with
respect to Series C Convertible Preferred Stock.
4. Preferred Stock and Warrant Purchase Agreement dated March 14,
1996 among Brunswick Biomedical Corporation and the purchasers
named therein with respect to Series D Convertible Preferred
Stock.
5. Preferred Stock and Warrant Purchase Agreement dated as of March
14, 1996 among Brunswick Biomedical Corporation and the
purchasers named therein with respect to Series E Convertible
Preferred Stock.
6. Preferred Stock Purchase Agreement dated April 15, 1996 between
Brunswick Biomedical Corporation and the purchasers named
therein with respect to Series F Convertible Preferred Stock.
7. Each of the warrants to purchase Common Stock of the Company
listed on Exhibit E-1 attached hereto.
<PAGE> 77
EXHIBIT G
OPINION OF COUNSEL TO STI
(to be delivered on the Merger Consummation Date)
[MERGER CONSUMMATION DATE]
Internationale Nederlanden
(U.S.) Capital Corporation
135 East 57th Street
New York, New York 10022
Attention: Chief Credit Officer
Ladies and Gentlemen:
We have acted as counsel to Brunswick Biomedical Corporation, a
Massachusetts corporation ("Brunswick") and Survival Technology, Inc., a
Delaware corporation ("STI") in connection with the Warrant Purchase Agreement,
dated as of April 15, 1996 (the "Warrant Agreement"), between Brunswick and
Internationale Nederlanden (U.S.) Capital Corporation ("ING") and in connection
with the other Warrant Documents. All capitalized terms used herein and not
defined herein shall have the meanings ascribed to them in the Warrant
Agreement or the "Credit Agreement" (as such term is defined in the Warrant
Agreement).
In these capacities, we have examined fully executed originals of the
following documents (collectively, the "Opinion Documents"):
1. the Assumption Agreement;
2. the replacement Series A Warrant Certificate; and
3. the replacement Series B Warrant Certificate.
In addition, we have examined the Articles of Organization of Brunswick and all
amendments thereto, the Articles of Incorporation of STI and all amendments
thereto, including, without limitation, the Articles of Merger adopted by
Brunswick and STI on __________, 1996 (the "Articles of Merger"), and the
by-laws of Brunswick and STI as now in effect. We also have examined the
Warrant Agreement, the Registration Rights
<PAGE> 78
Agreement and the Merger Agreement, dated as of even date herewith, between STI
and Brunswick (the "Merger Agreement").
We also have reviewed original, photostatic or certified copies of all
corporate records, certificates of public officials of pertinent states,
certificates of corporate officers of Brunswick and STI and such other
instruments, documents and agreements as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth.
[INSERT ASSUMPTIONS AND QUALIFICATIONS
TO BE REASONABLY ACCEPTABLE TO THE PURCHASER]
Based upon the foregoing, we are of the opinion that:
1. Immediately prior to the Merger, Brunswick was validly existing as a
corporation and in corporate good standing under the laws of the Commonwealth
of Massachusetts and was duly qualified to do business and in good standing as
a foreign corporation in the State of Maryland. STI is validly existing as a
corporation and is in corporate good standing under the laws of the State of
Delaware and is duly qualified to do business and in good standing as a foreign
corporation in the State of Maryland, the State of Missouri [INSERT OTHER
JURISDICTIONS]. STI has full power and authority to own and hold under lease
its property and to conduct its business as currently conducted by it and as
contemplated to be conducted by it.
2. STI has full power and authority to execute, deliver and perform its
obligations under each of the Opinion Documents.
3. The execution and delivery by STI of each Opinion Document, and the
performance by STI of its obligations thereunder, (a) have been duly authorized
by all necessary corporate action, (b) do not require any Regulatory Approval
(except those Regulatory Approvals already obtained), (c) do not and will not
result in a violation of, or constitute a default under, or give rise to a
right of termination or acceleration under, any provision of any Organic
Document of STI or any Subsidiary, any Contractual Obligation of STI or any of
its Subsidiaries listed in the Disclosure Schedule or, to our knowledge, any
court decree or order, (d) do not and will not result in a violation of any law
or governmental regulation, and (e) will not result in or require the creation
or imposition of any Lien.
4. Each Opinion Document has been duly executed and delivered by STI and
constitutes the legal, valid and binding obligation of STI, enforceable in
accordance with its terms, subject to the effect of any applicable bankruptcy,
insolvency, moratorium or similar laws affecting creditors' rights generally
and general principles of equity (regardless of whether considered in a
proceeding in equity or at law).
<PAGE> 79
5. A Massachusetts court or a federal court sitting in the Commonwealth
of Massachusetts as the forum state and applying the conflict of law rules of
the Commonwealth of Massachusetts would give effect to the provisions of the
Opinion Documents providing that such Opinion Documents are to be governed by,
and construed and enforced in accordance with, the internal laws of the State
of New York.
6. A Maryland court or a Federal Court sitting in the State of Maryland
as the forum state and applying the conflict of law rules of the State of
Maryland would give effect to the provisions of the Opinion Documents providing
that such Opinion Documents are to be governed by, and construed and enforced
in accordance with, the internal laws of the State of New York.
7. Upon consummation of the Merger, the authorized Stock of STI consists
of (a) __________ shares of Common Stock, par value $____ per share; (b)
_______ shares of non-voting Common Stock, par value $___ per share; (c) and
_________ shares of Preferred Stock of which [INSERT DESIGNATIONS]. The issued
and outstanding shares of Stock of STI are listed on Exhibit A attached hereto,
and all of such shares are duly authorized, validly issued, fully paid and
nonassessable. None of such issued and outstanding shares of Stock of STI have
been issued in violation of any preemptive rights or other restrictions
contained in the Organic Documents of STI or otherwise known to us. Except as
set forth in the Warrant Agreement, no issued, no authorized but unissued and
no treasury shares of Stock of STI are subject to any preemptive rights
contained in the Organic Documents of STI or, to our knowledge, are subject to
any options, warrants, rights of conversion or purchase or any similar rights.
Except as set forth in the Organic Documents or disclosed in the Warrant
Agreement, there are no agreements or understandings with respect to the
voting, sale or transfer of any shares of Stock of STI to which STI or, to the
best of our knowledge, any of its Affiliates is a party.
8. The issuance of the replacement Warrant Certificates has been duly
authorized by all necessary corporate action, the Warrants have been validly
issued by STI and the issuance thereof will not give rise to any preemptive
rights. The issuance of shares of non-voting Common Stock upon exercise or
conversion of the Warrants has been duly authorized by STI and, when issued by
STI upon exercise or conversion of the Warrants on the terms and conditions
contained in the Warrant Agreement, will be validly issued and fully paid and
nonassessable and the issuance thereof will not give rise to any preemptive
rights. The issuance of shares of Common Stock upon conversion of the
non-voting Common Stock has been duly authorized by STI and, when issued by STI
upon such conversion in accordance with the terms and conditions of the
non-voting Common Stock set forth in the Certificate of Merger, will be validly
issued and fully paid and nonassessable, and the issuance thereof will not give
rise to any preemptive rights. No vote or approval by the shareholders of STI
or Brunswick is required under Massachusetts or Delaware law, the Organic
Documents of
<PAGE> 80
STI or Brunswick or any Contractual Obligation of STI or Brunswick listed on
the Disclosure Schedule as a condition to the issuance of the replacement
Warrant Certificates, the issuance by STI of shares of non-voting Common Stock
upon exercise or conversion of the Warrants or the issuance by STI of Common
Stock upon conversion of the non-voting Common Stock.
9. Based upon the investment representations contained in Section 3 of
the Warrant Agreement, the offer, issuance, sale and delivery of the replacement
Warrant Certificates to ING, the issuance and delivery by STI to ING of
non-voting Common Stock upon the exercise or conversion of the Warrants, and
the issuance by STI to ING of Common Stock upon conversion of the non-voting
Common Stock are exempt from the registration requirements of the Securities
Act.
10. No order, consent, approval, license, authorization or validation of,
or filing, recording or registration with, or exemption by, any Governmental
Authority is required to authorize, or is required in connection with, the
execution, delivery and performance of any Opinion Document, other than those
which have been obtained or made.
11. No taxes, including, but not limited to, transfer, excise, intangible,
documentary stamp or similar taxes, shall be payable to the Commonwealth of
Massachusetts, or any jurisdiction therein, on account of the execution and
delivery of the Opinion Documents, the issuance by STI of the replacement
Warrant Certificates, the issuance by STI of non-voting Common Stock upon
exercise or conversion of the Warrants or the issuance by STI of Common Stock
upon conversion of the non-voting Common Stock, provided that we express no
opinion with respect to income, excise or franchise taxes.
The opinions rendered herein are limited to the laws of the Commonwealth
of Massachusetts, the State of Maryland, the Delaware General Corporation Law
and the federal laws of the United States. With your permission, we render such
opinions as if the Opinion Documents were governed by the laws of the
Commonwealth of Massachusetts, notwithstanding their recitation that New York
law governs. With your permission, we have relied upon an opinion of
_____________ (Maryland counsel) with respect to issues of Maryland law
contained the opinions rendered in paragraphs 1, 3(b), 3(d), and (6).
<PAGE> 81
This opinion is furnished by us pursuant to Section 4(i) of the Warrant
Agreement for the sole benefit of ING and its counsel, and may not be used or
relied upon by any other Person or in connection with any other transaction
without our prior written consent.
Very truly yours,
<PAGE> 1
EXHIBIT 3
- --------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
BETWEEN
BRUNSWICK BIOMEDICAL CORPORATION
AND
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
DATED AS OF APRIL 15, 1996
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) Cross-References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 2. Registration of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(a) Registration by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(b) Registration at Holder's Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Registration Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4. Conditions to Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) Indemnification by Holders of Warrant Securities . . . . . . . . . . . . . . . . . . . . . . . 14
(c) Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(d) Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6. Exchange Act Registration; Rule 144 Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 7. Limitation on Registration Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 8. Mergers, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 9. Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 11. Waivers and Further Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 12. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
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<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Section 13. Assignment; Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 14. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 15. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 16. Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 17. Gender; Usage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 18. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 19. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 20. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 21. Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
- ii -
<PAGE> 4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of April 15, 1996, by and between BRUNSWICK BIOMEDICAL
CORPORATION, a Massachusetts corporation ("Brunswick"), and INTERNATIONALE
NEDERLANDEN (U.S.) CAPITAL CORPORATION, a Delaware corporation (the
"Purchaser").
W I T N E S S E T H:
RECITALS:
A. Simultaneously herewith, the Purchaser is entering into a
Credit Agreement, dated of even date herewith, among Brunswick, the Purchaser
and various other lenders that may become parties thereto (the "Lenders") and
the Purchaser in its capacity as Agent for the Lenders (the "Agent");
B. It is a condition precedent to the extensions of credit by the
Purchaser to Brunswick contemplated by the Credit Agreement that Brunswick
agree to issue to the Purchaser (1) Series A Warrants initially exercisable for
33,370 shares of Class A Common Stock, par value $.01 per share, of the Company
(the "Class A Common Stock") for an exercise price of $0.01 per share and (2)
Series B Warrants initially exercisable for 36,298 shares of Class A Common
Stock for an exercise price of $27.55 per share; and
C. The Purchaser is unwilling to extend credit to Brunswick
pursuant to the Credit Agreement or to purchase the Warrants pursuant to the
Warrant Agreement unless it receives the assurances set forth in this
Agreement; and
D. Brunswick and the Purchaser desire to set forth certain
understandings with respect to the Warrants;
NOW, THEREFORE, in consideration of the premises and the agreements
herein set forth and to induce the Purchaser to proceed with the transactions
contemplated by the Warrant Agreement and the Credit Agreement, the parties
hereto, intending to be legally bound, hereby agree as follows:
Section 1. Definitions
(a) Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
<PAGE> 5
"Agreement" means this Registration Rights Agreement as in effect on
the date hereof and as hereafter amended, supplemented, restated or otherwise
modified.
"Available Securities" is defined in Section 2(a).
"Brunswick" is defined in the Preamble.
"Business Day" is defined in the Warrant Agreement.
"Class A Common Stock" is defined in Recital B.
"Common Stock" is defined in the Warrant Agreement.
"Company" means (a) at all times prior to the Merger Consummation
Date, Brunswick, and (b) at all times on and after the Merger Consummation
Date, STI.
"Credit Agreement" is defined in the Warrant Agreement.
"Estate Warrant" means the Warrant to Purchase Shares of Common Stock
of Brunswick Biomedical Corporation issued by Brunswick to the Estate of Dr.
Stanley Sarnoff in partial payment of the Purchase Price.
"Exchange Act" is defined in the Warrant Agreement.
"Holder" is defined in the Warrant Agreement; provided, however, that
any reference to a Holder of Warrant Shares shall include any Holder of
Warrants exercisable for or convertible into such Warrant Shares.
"Indemnified Person" is defined in Section 5(a).
"Indemnifying Person" is defined in Section 5(c).
"Initial Request" is defined in Section 2(b).
"Lenders" is defined in Recital A.
"Merger" is defined in the Warrant Agreement.
"Merger Consummation Date" is defined in the Warrant Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
"Person" is defined in the Warrant Agreement.
- 2 -
<PAGE> 6
"Prospectus" means each prospectus included as part of any Registration
Statement, as amended or supplemented, including each preliminary prospectus and
all material incorporated by reference in such prospectus.
"Purchaser" is defined in the Preamble.
"Registration Expenses" is defined in Section 3(c).
"Registration Request" is defined in Section 2(a)(ii).
"Registration Statement" means any registration statement of the
Company which covers Warrant Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments, including post-effective
amendments, and supplements to such registration statement and Prospectus and
all exhibits and all material incorporated by reference in such registration
statement.
"Required Holders" is defined in the Warrant Agreement.
"Secondary Requests" is defined in Section 2(b).
"Securities Act" is defined in the Warrant Agreement.
"SEC" is defined in the Warrant Agreement.
"Specified Registrable Securities" is defined in Section 2(a)(ii).
"STI" means Survival Technology, Inc., a Delaware corporation.
"Stock" is defined in the Warrant Agreement.
"Warrant Agreement" means the Warrant Purchase Agreement, dated of even
date herewith, by and between the Purchaser and Brunswick, as in effect on the
date hereof and as hereafter amended, supplemented, restated or otherwise
modified.
"Warrant Securities" is defined in the Warrant Agreement.
"Warrant Shares" is defined in the Warrant Agreement.
"Warrants" is defined in the Warrant Agreement.
(b) Cross-References. Unless otherwise specified,
references in this Agreement to any Article, Section, Recital or Preamble are
references to such Article, Section, Recital or Preamble of this Agreement, and
unless otherwise specified, references in any Article, Section, or definition
to any clause are references to such clause of such Section, Article or
definition.
- 3 -
<PAGE> 7
Section 2. Registration of Securities.
(a) Registration by the Company. If at any time or from
time to time the Company shall propose to file on its behalf or on behalf of
any of its security holders a registration statement under the Securities Act
on Form S-1, S-2 or S-3 (or on any other Form for the general registration of
securities) with respect to any class of equity securities (or any class of
securities convertible into or exchangeable or exercisable for such equity
securities), other than a registration relating solely to a Rule 145
transaction, a registration of shares to be issued pursuant to an employee
benefit plan or a registration on Form S-3 relating solely to a dividend
reinvestment plan, the Company shall in each case:
(i) promptly give written notice to each Holder at least
thirty (30) days before the anticipated filing date, indicating the
proposed offering price and describing the plan of distribution;
(ii) include in such registration (and any related
qualification under blue sky or other state securities laws or other
compliance) for the sale by the Holders and, at the request of any
Holder, in any underwriting involved therein, all the Warrant Shares
specified by any Holder or Holders (the "Specified Registrable
Securities") in a written request (the "Registration Request") made
within twenty (20) days after receipt of such written notice from the
Company, specifying the number or amount of Specified Registrable
Securities; and
(iii) use its best efforts to cause the managing
underwriter(s) of such proposed underwritten offering to permit the
Specified Registrable Securities to be included in the Registration
Statement for such offering on the same terms and conditions as any
similar securities of the Company included therein.
If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders. In such event, the right of any Holder to include Specified
Registrable Securities in such registration pursuant to this Section 2(a) shall
be conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Specified Registrable Securities in the underwriting
to the extent provided herein. All Holders proposing to distribute their
securities through such underwriting shall enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting. If the managing underwriter(s) of such offering advise(s) the
Holders of Specified Registrable Securities in writing that marketing
considerations require a limitation on the securities to be included in any
Registration Statement filed under this Section 2(a) to a certain number of
shares (the "Available Securities"), then (i) if such registration is the first
registered offering of the Company's securities to the public (including the
first such registration of STI following the Merger Consummation Date), the
Company shall in such case be obligated to such Holders only with respect to
such number of Available Securities, and (ii) if such registration is other
than such first registered offering, Specified Registrable Securities, together
with securities of all other selling shareholders to be included in such
registration, shall be not less than fifty percent (50%) of the
- 4 -
<PAGE> 8
securities included in such registration (based on aggregate market values);
provided, however, that in either case the number of Specified Registrable
Securities shall not be reduced unless all other holders of securities of the
Company (other than securities being registered pursuant to rights granted
under the Estate Warrant) are first entirely excluded from such registration
and underwriting. The limitation on the number of Specified Registrable
Securities will be imposed pro rata (based upon the ratio of the number of
shares of Specified Registrable Securities which the managing underwriter(s)
propose to include at the anticipated offering price to the number of Specified
Registrable Securities owned by each Holder) among all Holders of Specified
Registrable Securities.
Notwithstanding any other provision of this Agreement to the contrary,
neither the delivery of the notice by the Company nor of the Registration
Request by any Holder shall in any way obligate the Company to file a
Registration Statement and, notwithstanding such filing, the Company may, at
any time prior to the effective date thereof, in its sole discretion, determine
not to offer the securities to which the Registration Statement relates without
liability to any of the Holders, other than to pay Registration Expenses in
connection with such Registration Statement. No registration of Warrant Shares
effected under this Section 2(a) shall relieve the Company of its obligation to
effect registration of Warrant Shares upon the request of one or more Holders
pursuant to Section 2(b).
(b) Registration at Holder's Request. Upon the written
request (an "Initial Request") of one or more Holders of Warrant Securities
constituting 40% or more of all outstanding Warrant Securities made at any time
after the earlier of (i) ninety (90) days after the Merger Consummation Date,
or (ii) January 15, 1998, requesting that the Company effect the registration
under the Securities Act of all or part of the Warrant Shares held by or
subject to Warrants held by such Holders and specifying the intended method or
methods of disposition of such Warrant Shares, the Company will give prompt
(and in any case within ten (10) days) written notice of such requested
registration to all Holders of Warrant Securities and thereupon will
expeditiously prepare and file a Registration Statement with respect to, and
use its best efforts to effect the registration under the Securities Act, of:
(i) the Warrant Shares which the Company has been so
requested to register by such Holders, for disposition in accordance
with the intended method of disposition stated in such request, and
(ii) all other Warrant Shares which the Company has been
requested to register by the Holders of Warrant Securities by written
request (a "Secondary Requests") delivered to the Company within
twenty (20) days after the giving of such notice by the Company;
provided, however, that the Company may delay the filing of a Registration
Statement with respect to such Warrant Shares for a reasonable period (not in
excess of ninety (90) days if in its reasonable judgment such filing would
require the disclosure of material information that the Company has a bona fide
business purpose for preserving as confidential or such filing in the reasonable
judgment of the Company, would interfere with any pending financing, acquisition
or corporate
- 5 -
<PAGE> 9
reorganization is not then otherwise required to be disclosed. reorganization,
and such information, financing, acquisition or corporate
In any case where the requesting Holders specify that the intended
method of disposition is to be an underwritten offering, the underwriter(s) for
such offering shall be selected, after consultation with the Company, by such
Holders, and shall be reasonably acceptable to the Company, such acceptance not
to be unreasonably withheld, delayed or conditioned.
Each registration requested pursuant to this Section 2(b) shall be
effected by the filing of a Registration Statement on Form S-1, S-2 or S-3 (or
on any other Form for the general registration of securities) unless the use of
a different form has been agreed upon in writing by the Company and the
requesting Holders; provided, however, that if the intended method of
disposition by the requesting Holders is to be an underwritten offering, the
Company shall use such Form of Registration Statement as is reasonably
acceptable to the underwriter(s). The Company need not cause a Registration
Statement filed pursuant to the provisions of this Section 2(b) to become
effective under the Securities Act on more than two (2) occasions; provided,
however, that the Company shall not be deemed to have caused a Registration
Statement to be filed and to become effective under the Securities Act under
this Section 2(b) unless a Registration Statement covering all Warrant Shares
requested by one or more Holders to be registered for sale in accordance with
the method of disposition specified by the requesting Holders shall have become
effective and, if such method of disposition is a firm commitment underwritten
public offering, all such Warrant Shares shall have been sold pursuant thereto.
Whenever a registration requested by one or more Holders pursuant to
this Section 2(b) is for an underwritten offering, only Warrant Shares which
are to be distributed by the underwriters designated by such Holders may be
included in such registration, without the written consent of the Required
Holders. Notwithstanding the foregoing, unless the underwriter(s) of an
underwritten offering object(s), the Company may include securities for
offering by the Company or any other security holders in such Registration
Statement, it being understood that the Company's right and such other security
holders' right to inclusion shall be subordinate to, and not pari passu with,
the rights of the Holders under this Section 2(b), provided, however, that the
right of the Estate of Dr. Stanley Sarnoff to include its securities in such
offering shall be as set forth in Section 9(e) of the Estate Warrant as in
effect on the Closing Date. From the date of receipt of a notice from
requesting Holders pursuant to this Section 2(b) indicating that such Holders
intend to sell securities in an underwritten offering until the completion of
the period of distribution of the registration contemplated thereby (but in no
event later than 60 days following effectiveness of such registration), except
as provided in this paragraph, the Company will not effect any other
registration of its Stock (whether for its account or that of any other
security holder), other than a registration relating solely to a Rule 145
transaction, a registration of shares to be issued pursuant to an employee
benefit plan or a registration on Form S-3 relating solely to a dividend
reinvestment plan. The immediately preceding sentence shall apply solely to the
first notice from requesting Holders pursuant to this Section 2(b) pursuant to
which (i) a Registration Statement is filed and becomes effective under the
Securities Act, (ii) all Warrant Shares covered thereby are registered for sale
in accordance with the method of dispositions specified therein and (iii) if
such method of
- 6 -
<PAGE> 10
disposition is a firm commitment underwritten public offering, all such Warrant
Shares are sold pursuant thereto. All Holders of Warrant Securities proposing
to sell Warrant Shares in such underwritten offering shall share pro rata in
the number of shares of Warrant Shares to be included in such underwritten
offering, such sharing to be based on the respective numbers of Warrant
Securities owned by such Holders.
(c) Registration Generally. If and when the Company shall
be required by the provisions of this Section 2 to effect the registration of
Warrant Shares under the Securities Act, the Company will use its best efforts
to effect such registration to permit the sale of such Warrant Shares in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto it will, as expeditiously as possible:
(i) before filing a Registration Statement or Prospectus
or any amendments or supplements thereto, furnish to the Holders of the
Warrant Shares covered by such Registration Statement and the
underwriter(s), if any, copies of all such documents proposed to be
filed, which documents will be made available, on a timely basis, for
review by such Holders and underwriters; and, with respect to any
Registration Statement filed pursuant to the provisions of Section
2(b), the Company will not file any Registration Statement or amendment
thereto or any Prospectus or any supplement thereto to which the
Required Holders of the Warrant Shares covered by such Registration
Statement or the managing underwriter(s), if any, shall reasonably
object;
(ii) prepare and file with the SEC such amendments and
post-effective amendments to any Registration Statement, and such
supplements to the Prospectus, as may be reasonably requested by any
Holder of Warrant Shares covered by such Registration Statement or the
managing underwriter(s), if any, or as may be required by the
Securities Act, the Exchange Act or by the rules, regulations or
instructions applicable to the registration Form utilized by the
Company or as may otherwise be necessary to keep such Registration
Statement effective for the applicable period; and cause the Prospectus
as so supplemented to be filed pursuant to Rule 424 (or any successor
rule) under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement or Prospectus;
(iii) promptly notify the selling Holders of Warrant Shares
and the managing underwriter(s), if any, and if requested by any such
Person, confirm such advice in writing,
(a) of the filing of the Prospectus, any
Prospectus supplement and of the effectiveness of the
Registration Statement and/or any post-effective amendment,
(b) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or
for additional information,
- 7 -
<PAGE> 11
(c) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose,
(d) of the Company's becoming aware at any time
that the representations and warranties of the Company
contemplated by paragraph (xiv)(a) below have ceased to be
true and correct,
(e) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Warrant Shares for sale in any
jurisdiction or the initiation or threat of any proceeding for
such purpose, and
(f) of the existence of any fact which, to the
knowledge of the Company, results in the Registration
Statement, the Prospectus or any document incorporated therein
by reference containing an untrue statement of material fact
or omitting to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading;
(iv) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the Registration
Statement or any qualification referred to in paragraph (iii)(e) at
the earliest possible moment;
(v) if reasonably requested by the managing underwriter(s)
or the Required Holders of Warrant Shares being sold in connection with
an underwritten offering, promptly incorporate in a Prospectus
supplement or post-effective amendment to the Registration Statement
such information as the managing underwriter(s) or the Required Holders
of the Warrant Shares being sold reasonably request to have included
therein relating to the plan of distribution with respect to such
Warrant Shares, including, without limitation, information with respect
to the amount of Warrant Shares being sold to such underwriters, the
purchase price being paid therefor by such underwriters and any other
terms of the underwritten (or best-efforts underwritten) offering of
the Warrant Shares to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment to
the Registration Statement as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment
to the Registration Statement;
(vi) at the request of any selling Holder of Warrant
Shares, furnish to such selling Holder of Warrant Shares and each
managing underwriter, if any, without charge, at least one signed copy
of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
incorporated by reference);
(vii) deliver to each selling Holder of Warrant Shares and
the managing underwriter(s), if any, without charge, as many copies of
the Registration Statement, each
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<PAGE> 12
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto (in each case including all exhibits), as such
Persons may reasonably request, together with all documents
incorporated by reference in such Registration Statement or Prospectus,
and such other documents as such selling Holder may reasonably request
in order to facilitate the disposition of its Warrant Shares covered by
such Registration Statement; the Company consents to the use of each
Prospectus and any supplement thereto by each of the selling Holders of
Warrant Shares and the managing underwriter(s), if any, in connection
with the offering and sale of the Warrant Shares covered by each
Prospectus or any supplement thereto;
(viii) prior to any public offering of Warrant Shares, use
its best efforts to register or qualify or reasonably cooperate with
the selling Holders of Warrant Shares, the managing underwriter(s), if
any, and their respective counsel in connection with the registration
or qualification of such Warrant Shares for offer and sale under the
securities or blue sky laws of such jurisdictions as any selling Holder
or managing underwriter(s) reasonably request(s) and do any and all
other acts or things reasonably necessary to enable the disposition in
such jurisdictions of the Warrant Shares covered by the Registration
Statement, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service or process in any such
states or jurisdictions, unless the Company is already subject to
service in such jurisdiction and except as may be required by the Act;
(ix) cooperate with the selling Holders of Warrant Shares
and the managing underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Warrant Shares
to be sold and not bearing any legends restricting the transfer
thereof; and enable such Warrant Shares to be in such denominations
and registered in such names as the managing underwriters may request
at least two Business Days prior to any sale of Warrant Securities to
the underwriters;
(x) use its best efforts to cause the Warrant Shares
covered by the applicable Registration Statement to be registered with
or approved by such United States, state and local governmental
agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the
disposition of such Warrant Shares;
(xi) if any fact contemplated by paragraph (iii)(f) above
shall exist, promptly notify each Holder on whose behalf Warrant
Shares have been registered and prepare and furnish to such Holders a
supplement or post-effective amendment to the Registration Statement
or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Warrant Shares, neither the
Registration Statement nor the Prospectus will contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading;
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<PAGE> 13
(xii) if requested by the Required Holders of the Warrant
Shares covered by the Registration Statement or by the managing
underwriter(s), if any, use its best efforts to cause all Warrant
Shares covered by the Registration Statement to be (A) listed on each
securities exchange on which securities of the same class are then
listed or (B) admitted for trading in any inter-dealer quotation
system on which securities of the same class are then traded;
(xiii) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Warrant Shares
covered by the Registration Statement and provide the applicable
transfer agent with printed certificates for such Warrant Shares which
are in a form eligible for deposit with Depository Trust Company;
(xiv) enter into agreements (including underwriting
agreements) and take all other reasonable actions in order to expedite
or facilitate the disposition of such Warrant Shares and in such
connection, except as otherwise provided, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(a) make such representations and warranties to
the Holders selling such Warrant Shares and, in connection
with any underwritten offering, to the underwriters, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings;
(b) use its best efforts to obtain opinions of
counsel to the Company and updates thereof addressed to each
selling Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in similar
underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters, which
counsel and opinions shall be reasonably satisfactory (in
form, scope and substance) to the managing underwriters, if
any, and the Required Holders of such Warrant Shares;
(c) in connection with any underwritten offering,
use its best efforts to obtain so-called "cold comfort"
letters and updates thereof from the Company's independent
certified public accountants addressed to the selling Holders
of Warrant Shares and the underwriters, if any, such letters
to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters
in connection with similar underwritten offerings;
(d) if an underwriting agreement is entered into,
cause the same to set forth in full the indemnification and
contribution provisions and procedures of Section 5 (or such
other substantially similar provisions and procedures as the
underwriters shall reasonably request) with respect to all
parties to be indemnified pursuant to said Section 5; and
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<PAGE> 14
(e) deliver such documents and certificates as
may reasonably be requested by the Required Holders of the
Warrant Shares being sold, or the managing underwriter(s), if
any, to evidence compliance with this paragraph (xiv) and with
any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company;
the foregoing to be done upon each closing under any underwriting or
similar agreement as and to the extent required thereunder and from
time to time as may reasonably be requested by any selling Holder of
Warrant Shares in connection with the disposition of Warrant Shares
pursuant to such Registration Statement, all in a manner consistent
with customary industry practice;
(xv) upon execution and delivery of such confidentiality
agreements as the Company may reasonably request, make available to
the Holders of the Warrant Shares being sold, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by such Holders or
underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such Holder, underwriter, attorney or accountant in
connection with the registration for purposes of satisfying any
diligence obligations such Persons may have, at such time or times as
the Person requesting such information shall reasonably determine;
(xvi) otherwise use its best efforts to comply with the
Securities Act, the Exchange Act, all applicable rules and regulations
of the SEC and all applicable state blue sky and other securities
laws, rules and regulations, and make generally available to its
security holders an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act, as soon as practicable, but in no
event later than ninety (90) days after the end of the 12 calendar
month period commencing after the effective date of the Registration
Statement;
(xvii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter" that is required to be retained in accordance with the
rules and regulations of the NASD); and
(xviii) prior to the filing of any document which is being
prepared for incorporation by reference into the Registration
Statement or the Prospectus, upon receipt of such confidentiality
agreements as the Company may reasonably request, provide copies of
such document to counsel to the selling Holders of Warrant Shares, and
to the managing underwriter(s), if any, and make the Company's
representatives available for discussion of such document.
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<PAGE> 15
Each Holder agrees, if requested by the Company and an underwriter of Warrant
Shares (or other securities) of the Company, not to sell or otherwise transfer
or dispose of any Warrant Shares (or other securities) of the Company held by
it during the 180-day period following the effective date of a registration
statement of the Company filed under the Act, provided that (a) such agreement
only applies to the first such registration statement of the Company including
securities to be sold on its behalf to the public in an underwritten offering
(which shall include the first such registration statement of STI following the
Merger Consummation Date) and (b) all holders of Preferred Stock of Brunswick
(or of shares of STI issued in exchange for such Preferred Stock pursuant to
the Merger), and officers and directors of the Company enter into or are
otherwise subject to similar agreements (except that if any such agreement
provides for a shorter non-sale period, the non-sale period applicable to the
Holders under this sentence shall be the shortest of such periods).
Such agreement shall be in writing in a form satisfactory to the Company and
such underwriter. The Company may impose stop-transfer instructions with
respect to the shares (or securities) subject to the foregoing restriction
until the end of the 90-day period.
SECTION 3. Registration Expenses.
(a) All expenses incident to the Company's performance of
or compliance with its obligations under this Agreement (excluding underwriting
discounts, selling commissions and brokerage fees) will be paid by the Company,
regardless of whether Warrant Shares are sold pursuant to any Registration
Statement, including, without limitation:
(i) all registration, filing and listing fees;
(ii) fees and expenses of compliance with securities or
blue sky laws to the extent the Company is obligated to act under
Section 2(c)(viii) (including, without limitation, the reasonable fees
and disbursements of counsel for the underwriters, if any, or selling
Holders in connection with blue sky and state securities qualifications
of Warrant Shares and determination of their eligibility for investment
under the laws of such jurisdictions as the managing underwriter(s), if
any, or the Required Holders of the Warrant Shares covered by such
Registration Statement may reasonably designate);
(iii) printing (including, without limitation, expenses of
printing or engraving certificates for the Warrant Shares in a form
eligible for deposit with Depository Trust Company and of printing
prospectuses), messenger, telephone and delivery expenses;
(iv) fees and disbursements of counsel for the Company
and, subject to Section 3(b), counsel for the selling Holders of the
Warrant Shares;
(v) fees and disbursements of all independent certified
public accountants of the Company (including, without limitation, the
expenses of any special audit and, in connection with any underwritten
offering, "cold comfort" letters required by or incident to such
performance);
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<PAGE> 16
(vi) Securities Act liability insurance if the Company so
desires;
(vii) fees and expenses of other Persons (including special
experts) retained by the Company; and
(viii) fees and expenses associated with any NASD filing
required to be made in connection with the Registration Statement,
including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be
retained in accordance with the rules and regulations of the NASD.
The Company will, in any event, pay its internal expenses, the expense of any
annual audit, the fees and expenses incurred in connection with the listing of
the securities to be registered on each securities exchange on which securities
of the same class are then listed or the qualification for trading of the
securities to be registered in each inter-dealer quotation system in which
securities of the same class are then traded, and rating agency fees.
(b) In connection with each Registration Statement
required hereunder, the Company will reimburse the Holders of Warrant Shares
being registered pursuant to such Registration Statement for the reasonable
fees and disbursements of not more than one counsel chosen by the Required
Holders of the Warrant Shares being sold; the expense of any additional counsel
for the Holders shall be paid by the Holders.
(c) The term "Registration Expenses" shall mean the
expenses payable by the Company pursuant to the provisions of this Section 3.
(d) Notwithstanding the foregoing, if a registration
request under Section 2 is subsequently withdrawn at the request of the Holders
of Warrant Shares requesting registration and if the requesting Holders elect
not to have such registration counted as a registration requested under Section
2, the requesting Holders shall pay the expenses of such registration pro rata
in accordance with the number of their Warrant Shares included in such
registration.
Section 4. Conditions to Registration.
Each Holder's right to have Warrant Shares included in any
Registration Statement filed by the Company in accordance with the provisions
of Section 2 shall be subject to the following conditions:
(a) The Holders on whose behalf such Warrant Shares are to
be included shall be required to furnish the Company in a timely manner with all
information required by the applicable rules and regulations of the SEC
concerning the proposed method of sale or other disposition of such securities,
the identity of and compensation to be paid to any proposed underwriters to be
employed in connection therewith, and such other information as may be
reasonably required by the Company properly to prepare and file such
Registration Statement in accordance with applicable provisions of the
Securities Act;
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<PAGE> 17
(b) If any such Holder desires to sell and distribute
Warrant Shares over a period of time, or from time to time, at then prevailing
market prices, then any such Holder shall execute and deliver to the Company
such written undertakings as the Company and its counsel may reasonably require
in order to assure full compliance with relevant provisions of the Securities
Act and the Exchange Act;
(c) In the case of any registration requested pursuant to
the provisions of Section 2(a), the offering price for any Warrant Shares to be
so registered shall be no less than for any shares of the same class then to be
registered for sale for the account of the Company or other security holders
and the offering price for shares of Class A Common Stock shall be no less than
for Voting Common Stock, unless such Warrant Shares are to be offered from time
to time based on the prevailing market price;
(d) Upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraph (xi) of Section 2(c),
such Holder will forthwith discontinue disposition of Warrant Shares until such
Holder's receipt of the copies of the supplemented Prospectus contemplated by
such paragraph, or until it is advised in writing by the Company that the use
of the Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus,
and, if so directed by the Company, such Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Warrant Shares
current at the time of receipt of such notice; and
(e) In the case of any underwritten offering on behalf of
the Holders of Warrant Shares, such Holders will enter into such agreements
(including underwriting agreements and lock-up agreements) as the managing
underwriter(s) shall reasonably request and as are customary in similar
circumstances.
Section 5. Indemnification.
(a) Indemnification by the Company. In the event of the
registration of any Warrant Shares under the Securities Act pursuant to the
provisions hereof, the Company will indemnify and hold harmless each and every
seller of Warrant Shares, its directors, officers, employees and agents, each
underwriter, broker and dealer, if any, who participates in the offering or
sale of such Shares, and each other Person, if any, who controls such seller or
any such underwriter, broker or dealer within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act (each such Person being
hereinafter sometimes referred to as an "Indemnified Person" provided that for
clauses (b), (c) and (d) of this Section 5 "Indemnified Person" shall include
the Company, its directors, officers, employees and agents, and each other
Person, if any who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act) from and against any
losses, claims, damages, liabilities or expenses, joint or several, to which
such indemnified Person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or
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<PAGE> 18
alleged untrue statement of any material fact contained or incorporated by
reference in any Registration Statement or Prospectus or any amendment or
supplement thereto, or any document incorporated by reference therein, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each such Indemnified Person for any
legal or other expenses reasonably incurred by such Indemnified Person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made or incorporated by reference in the
Registration Statement or Prospectus or any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by such Indemnified Person stated to be specifically for use in
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Person
and shall survive the transfer of such Warrant Shares by such seller.
(b) Indemnification by Holders of Warrant Shares. In the
event of the registration of any Warrant Shares under the Securities Act
pursuant to the provisions hereof, each Holder on whose behalf such Warrant
Shares shall have been registered will indemnify and hold harmless each and
every Indemnified Person, against any losses, claims, damages or liabilities,
joint or several, to which such Indemnified Person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained or incorporated by reference in any Registration
Statement or Prospectus or any amendment or supplement thereto or any document
incorporated by reference therein, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
which untrue statement or alleged untrue statement or omission or alleged
omission has been made or incorporated therein in reliance upon and in
conformity with written information furnished to the Company by such Holder
specifically stating that it is for use in preparation thereof, and will
reimburse each such Indemnified Person for any legal and other expenses
reasonably incurred by such Indemnified Person in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the liability of each Holder hereunder shall be limited to the
proceeds received by such Holder from the sale of Warrant Shares covered by
such Registration Statement.
(c) Procedure. Promptly after receipt by an Indemnified
Person of notice of the commencement of any action (including any governmental
investigation or inquiry), such Indemnified Person will, if such Indemnified
Person intends to make a claim in respect thereof against the party agreeing to
indemnify such Indemnified Person pursuant to paragraphs (a) or (b) hereof (any
such Party being hereinafter referred to as an "Indemnifying Person"), give
written notice to such Indemnifying Person of the commencement thereof, but the
omission so to notify the Indemnifying Person shall not relieve the Indemnifying
Person from any of its obligations pursuant to the provisions of this Section 5
except to the extent that the Indemnifying Person is actually
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<PAGE> 19
prejudiced by such failure to give notice. In case any such action is brought
against any Indemnified Person and it notifies an Indemnifying Person of the
commencement thereof, the Indemnifying Person shall be entitled to participate
in, and to the extent that it may wish, jointly with any other Indemnifying
Person similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Person, and after notice from the
Indemnifying Person to such Indemnified Person, the Indemnifying Person shall
not, except as hereinafter provided, be responsible for any legal or other
expenses subsequently incurred by such Indemnified Person in connection with the
defense thereof. No Indemnifying Person will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Person of a
release from all liability in respect of such claim or litigation.
Such Indemnified Person shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be the expense of such Indemnified
Person unless (a) the Indemnifying Person has agreed to pay such fees and
expenses or (b) the Indemnifying Person shall have failed to assume the defense
of such action or proceeding or has failed to employ counsel reasonably
satisfactory to such Indemnified Person in any such action or proceeding or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both such Indemnified Person and the Indemnifying Person and
such Indemnified Person shall have been advised by counsel that representation
of both parties by the same counsel would be inappropriate due to actual or
potential material differing interests between them (in which case, if such
Indemnified Person notifies the Indemnifying Person in writing that it elects to
employ separate counsel at the expense of the Indemnifying Person, the
Indemnifying Person shall not have the right to assume the defense of such
action or proceeding on behalf of such Indemnified Person). The Indemnifying
Person shall not be liable for any settlement of any such action or proceeding
effected without its written consent, which consent shall not unreasonably be
withheld, delayed or conditioned, but if settled with its written consent, or if
there is a final judgment for the plaintiff in any such action or proceeding,
the Company agrees to indemnify and hold harmless such Indemnified Persons from
and against any loss or liability by reason of such settlement or judgment.
(d) Contribution. If the indemnification provided for in
this Section 5 is unavailable to a party that would have been an Indemnified
Person under this Section 5 in respect of any losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to herein,
then each party that would have been an Indemnifying Person thereunder shall,
in lieu of indemnifying such Indemnified Person, contribute to the amount paid
or payable by such Indemnified Person as a result of such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Person on the one hand and the Indemnified Person on the other in connection
with the statement or omission which resulted in such losses, claims, damages,
liabilities or expenses (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission of a material
fact relates to information supplied by the Indemnifying Person or the
Indemnified Person and the parties' relative
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<PAGE> 20
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in Section
5(c), any legal or other fees or expenses reasonably incurred by such party in
connection with the investigation or defense of any action or claim. The
Company and each Holder of Warrant Shares agrees that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 5.
Notwithstanding the provisions of this Section 5(d), no Holder of Warrant
Shares shall be required to contribute any amount in excess of the amount by
which the total price at which the Warrant Shares sold by it exceeds the amount
of any damages which such Holder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
Indemnification or, if appropriate, contribution, similar to
that specified in the preceding provisions of this Section 5 (with appropriate
modifications) shall be given by the Company and each seller of Warrant Shares
with respect to any required registration or other qualification of such Shares
under any federal or state law or Regulation or governmental authority other
than the Securities Act.
In the event of any underwritten offering of Warrant Shares
under the Securities Act pursuant to the provisions of Section 2, the Company
and each Holder on whose behalf such Warrant Shares shall have been registered
agree to enter into an underwriting agreement, in standard form, with the
underwriters, which underwriting agreement may contain additional provisions
with respect to indemnification and contribution in lieu thereof.
Section 6. Exchange Act Registration; Rule 144 Reporting.
The Company covenants and agrees that until such time as the Holders
no longer hold any Warrant Shares it will:
(a) if required by law, maintain an effective
registration statement (containing such information and documents as the SEC
shall specify) with respect to the Common Stock of the Company under Section
12(g) of the Exchange Act;
(b) use its best efforts to make and keep public
information available, as those terms are understood and defined in Rule 144
under the Securities Act, at all times after the effective date that the
Company becomes subject to the reporting requirements of the Securities Act or
the Exchange Act (even if the Company subsequently ceases to be subject to such
reporting requirements);
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<PAGE> 21
(c) use its best efforts to file with the SEC in a timely
manner all reports and documents required of the Company under the Securities
Act and the Exchange Act (at any time after it has become subject to such
reporting requirements); and
(d) furnish to any Holder promptly upon request (i) a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144 (at any time after ninety (90) days after the
effective date of the first registration statement filed by the Company for an
offering of its Shares to the general public), and of the Securities Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of the
Company (beginning after the Company becomes subject to such reporting
requirements), and (iii) such other reports and documents of the Company and
other information in the possession of or reasonably attainable by the Company
as such Holder may reasonably request in availing itself of any Rule or
Regulation of the SEC allowing such Holder to sell any such Shares without
registration.
The Company represents and warrants that such registration
statement or any information, document or report filed with the SEC in
connection therewith or any information so made public shall not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements contained
therein not misleading. The Company agrees to indemnify and hold harmless (or
to the extent the same is not enforceable, make contribution to) the Holders,
their partners, officers, directors, employees and agents, each broker, dealer
or underwriter (within the meaning of the Securities Act) acting for any Holder
in connection with any offering or sale by such Holder of Warrant Shares or any
Person controlling (within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act) such Holder and any such broker, dealer
or underwriter from and against any and all losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arising out of or
resulting from any breach of the foregoing representation or warranty, all on
terms and conditions comparable to those set forth in Section 5.
Section 7. Limitation on Registration Rights of Others.
The Company represents and warrants that, except as set forth on
Exhibit E of the Warrant Agreement, it has not granted to any Person the right
to request or require the Company to register any Shares issued by the Company.
The Company covenants and agrees that, so long as any Holder holds any Warrant
Shares in respect of which any registration rights provided for in Section 2
remain in effect, the Company will not, directly or indirectly, grant to any
Person or agree to or otherwise become obligated in respect of (a) any
registration rights of securities of the Company upon the demand of any Person
without the prior written consent of the Required Holders; or (b) rights of
registration in the nature or substantially in the nature of those set forth in
Section 2(a), unless in each such case such rights are expressly subject and
subordinated to the rights of registration of the Holders pursuant to Section
2(a) and 2(b) hereof on terms reasonably satisfactory to the Required Holders,
which shall include, without limitation, priority of registration over any
Person exercising any such demand (whether upon exercise of rights of
registration of the Holders pursuant to Section 2(a) or Section 2(b)).
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<PAGE> 22
Section 8. Mergers, etc.
In addition to any other restrictions on mergers, consolidations and
reorganizations contained in the Warrant Agreement or in the articles of
incorporation or organization, by-laws or agreements of the Company, the
Company covenants and agrees that it shall not, directly or indirectly, enter
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation and in which the Holders shall not have had the
option to receive cash for all their Warrant Shares, unless the surviving
corporation shall, prior to such merger, consolidation or reorganization, agree
in a writing satisfactory in form, scope and substance to the Required Holders
to assume the obligations of the Company under this Agreement, and for such
purpose references hereunder to "Warrant Shares" shall be deemed to include the
Shares which such Holders would be entitled to receive in exchange for Warrant
Shares pursuant to any such merger, consolidation or reorganization.
If, and as often as, there are any changes in the Warrant Shares by
way of stock split, stock dividend, combination or classification, or through
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustments shall be made in the provisions hereof as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Warrant Shares as so changed.
Upon consummation of the Merger, this Agreement and all obligations of
Brunswick hereunder shall become the legal, valid and binding obligations of
STI, enforceable against STI in accordance with their terms, as if STI had been
the signatory hereto.
Section 9. Notices, etc.
All notices, consents, approvals, agreements and other communications
provided hereunder shall be in writing or by telex or telecopy and shall be
sufficiently given to the Purchaser, the Holders and the Company if addressed
or delivered to them in accordance with Section 20 of the Warrant Agreement:
Section 10. Entire Agreement.
The parties hereto agree that this Agreement and the agreements
specifically referred to in Section 33 of the Warrant Agreement constitute the
entire agreement among the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings between them as to such
subject matter; and there are no restrictions, agreements, arrangements, oral
or written, between any or all of the parties relating to the subject matter
hereof which are not fully expressed or referred to herein or therein.
Section 11. Waivers and Further Agreements.
Any waiver of any terms or conditions of this Agreement shall not
operate as a waiver of any other breach of such terms or conditions or any
other term or condition, nor shall any failure
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<PAGE> 23
to enforce any provision hereof operate as a waiver of such provision or of any
other provision hereof; provided, however, that no such written waiver unless
it by its own terms explicitly provides to the contrary, shall be construed to
effect a continuing waiver of the provision being waived and no such waiver in
any instance shall constitute a waiver in any other instance or for any other
purpose or impair the right of the party against whom such waiver is claimed in
all other instances or for all other purposes to require full compliance with
such provision. Each of the parties hereto agrees to execute all such further
instruments and documents and to take all such further action as the other
parties may reasonably require in order to effectuate the terms and purposes of
this Agreement.
Section 12. Amendments.
This Agreement may not be amended nor shall any waiver, change,
modification, consent or discharge be effected except by an instrument in
writing executed by or on behalf of the party or parties against whom
enforcement of any amendment, waiver, change, modification, consent or
discharge is sought; provided, however, that any amendment requested or waiver
sought from the Holders of any provision of this Agreement which affects the
Holders generally, and any action required to be taken by the Holders as a
group pursuant to this Agreement, shall be given or taken by the Required
Holders, and any such waiver or action so given or taken shall be binding on
all Holders. No failure or delay by any party in exercising any right or remedy
hereunder shall operate as a waiver thereof, and a waiver of a particular right
or remedy on one occasion shall not be deemed a waiver of any other right or
remedy or a waiver of the same right or remedy on any subsequent occasion.
Section 13. Assignment; Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, executors, legal representatives,
successors and permitted assigns, including, without limitation, any Holders,
from time to time of the Warrant Securities. Nothing herein shall be construed
as requiring the Holders of Warrants to exercise their warrants for, or convert
their Warrants into, Warrant Shares prior to exercising the rights conferred
upon such Holders under this Agreement. Anything in this Agreement to the
contrary notwithstanding, the term "Holders" as used in this Agreement shall be
deemed to include the registered Holders from time to time of the Warrant
Securities.
Section 14. Severability.
If any provision of this Agreement shall be held or deemed to be, or
shall in fact be, invalid, inoperative or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all jurisdictions
or in all cases, because any provision conflicts with any constitution,
statute, Rule or public policy, or for any other reason, such circumstance
shall not have the effect of rendering the provision or provisions in question,
invalid, inoperative or unenforceable in any other jurisdiction or in any other
case or circumstance or of rendering any other provision or provisions herein
contained invalid, inoperative or unenforceable to the extent that such other
provisions are
- 20 -
<PAGE> 24
not themselves actually in conflict with such constitution, statute, Rule or
public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative or unenforceable provision
had never been contained herein and such provision reformed so that it would be
valid, operative and enforceable to the maximum extent permitted in such
jurisdiction or in such case.
Section 15. Counterparts.
This Agreement may be executed in two or more counterparts (each of
which need not be executed by each of the parties), each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument, and in pleading or proving any provision of this Agreement, it
shall not be necessary to produce more than one such counterpart.
Section 16. Section Headings.
The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
Section 17. Gender; Usage.
Whenever used herein the singular number shall include the plural, the
plural shall include the singular, and the use of any gender shall include all
genders. The words "hereof," "herein" and "hereunder," and words of similar
import, when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement.
Section 18. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK OTHER THAN THE CONFLICTS OF
LAWS PRINCIPLES THEREOF.
Section 19. Termination.
This Agreement shall terminate when all Warrants have expired
unexercised in accordance with their terms or when all Warrant Shares have been
purchased pursuant to Sections 19 of the Warrant Agreement. In addition, the
rights of any Holder under Sections 2(a) and 2(b) of this Agreement shall
terminate as to any Warrant Shares when such Warrant Shares have been
effectively registered under the Securities Act and sold pursuant to a
Registration Statement covering such Warrant Shares. The indemnification and
contribution provisions of Sections 5 and 6 shall survive any termination of
this Agreement.
- 21 -
<PAGE> 25
Section 20. Expenses.
The Company shall be obligated to pay to the Holders, on demand, all
reasonable costs and expenses (including, without limitation, court costs and
attorneys' fees and expenses and interest to the extent permitted by applicable
law on overdue amounts) paid or incurred in collecting any sums due from, or
enforcing any other obligations of, the Company.
Section 21. Specific Performance.
The Company recognizes that the rights of the Holders under this
Agreement are unique and, accordingly, the Holders shall, in addition to such
other remedies as may be available to any of them at law or in equity, have the
right to enforce their rights hereunder by actions for injunctive relief and
specific performance to the extent permitted by law. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at
law would be adequate. This Agreement is not intended to limit or abridge any
rights of the Holders which may exist apart from this Agreement.
- 22 -
<PAGE> 26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
BRUNSWICK BIOMEDICAL CORPORATION
By: /s/ Mames H. Miller
----------------------------------
James H. Miller
President
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By: /s/ Darren Wells
--------------------------------
Darren Wells
Managing Director
- 23 -
<PAGE> 1
EXHIBIT 4
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
October 25, 1996, among BRUNSWICK BIOMEDICAL CORPORATION, a Massachusetts
corporation (the "Borrower"), and INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL
CORPORATION, a Delaware corporation ("ING"), constituting the sole Lender under
the Credit Agreement referenced below (together with its successors and
assigns, the "Lenders"), and ING in its capacity as Agent for the Lenders.
W I T N E S S E T H:
RECITALS:
A. The Borrower, the Lenders and the Agent have entered into a certain
Credit Agreement, dated as of April 15, 1996 (the "Credit Agreement");
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Credit Agreement.
B. The Borrower has requested an amendment to the Credit Agreement to
reflect changes in the financial covenants, and the Lenders have agreed to so
amend the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment to Section 1.1. Section 1.1 of the Credit
Agreement is hereby amended by replacing the definition of EBITDA in its
entirety with the following:
"EBITDA" means, for any period, an amount equal to Net Income plus
(to the extent deducted in determining Net Income) interest expense,
provisions for income taxes, depreciation, amortization of intangible
assets and the write-off of in-process research and development expense,
in each case for the Borrower and its Subsidiaries on a consolidated
basis; provided, however, that for any period ending prior to the
consummation of the Merger, EBITDA shall mean the EBITDA of STI and its
Subsidiaries on a consolidated basis.
SECTION 2. Amendment to Section 6.2.4. Section 6.2.4 of the Credit
Agreement is hereby amended by replacing said Section in its entirety with the
following:
<PAGE> 2
SECTION 6.2.4 Financial Condition. From and after the Merger Consummation
Date, the Borrower hereby covenants and agrees as set forth below:
(a) Senior Debt Leverage Ratio. The Borrower will not permit its
Senior Debt Leverage Ratio with respect to the twelve-month period
ending on the last day of any Fiscal Quarter to be greater than the ratio
set forth opposite such Fiscal Quarter (for each Fiscal Quarter ending
prior to the first anniversary of the Merger Consummation Date, such
ratio to be calculated as provided in clause (h) of this Section 6.2.4):
<TABLE>
<CAPTION>
Fiscal Quarter Ending: Ratio
--------------------- -----
<S> <C>
October 31, 1996 3.5:1.0
January 31, 1997 3.5:1.0
April 30, 1997 3.5:1.0
July 31, 1997 3.5:1.0
October 31, 1997 1.8:1.0
January 31, 1998 1.5:1.0
April 30, 1998 1.3:1.0
July 31, 1998 1.1:1.0
October 31, 1998 1.0:1.0
January 31, 1999 0.9:1.0
April 30, 1999 0.8:1.0
July 31, 1999 and thereafter 0.7:1.0
</TABLE>
(b) Total Debt Leverage Ratio. The Borrower will not permit its
Total Debt Leverage Ratio with respect to the twelve-month period ending
on the last day of any Fiscal Quarter to be greater than the ratio set
forth opposite such Fiscal Quarter (for each Fiscal Quarter ending prior
to the first anniversary of the Merger Consummation Date, to be
calculated as provided in clause (h) of this Section 6.2.4):
<TABLE>
<CAPTION>
Fiscal Quarter Ending: Ratio
--------------------- -----
<S> <C>
October 31, 1997 2.7:1.0
January 31, 1998 2.3:1.0
April 30, 1998 2.0:1.0
July 31, 1998 1.7:1.0
October 31, 1998 1.6:1.0
January 31, 1999 1.4:1.0
April 30, 1999 1.3:1.0
July 31, 1999 and thereafter 1.2:1.0
</TABLE>
-2-
<PAGE> 3
(c) Senior Debt Service Ratio. The Borrower will not permit its
Senior Debt Service Ratio with respect to the twelve-month period ending
on the last day of any Fiscal Quarter to be less than the ratio set forth
below opposite such Fiscal Quarter (for each Fiscal Quarter ending prior
to the first anniversary of the Merger Consummation Date, such ratio to
be calculated as provided in clause (h) of this Section 6.2.4):
<TABLE>
<CAPTION>
Fiscal Quarter Ending: Ratio
--------------------- -----
<S> <C>
October 31, 1996 2.0:1.0
January 31, 1997 2.0:1.0
April 30, 1997 2.0:1.0
July 31, 1997 2.0:1.0
October 31, 1997 3.4:1.0
January 31, 1998 3.1:1.0
April 30, 1998 3.2:1.0
July 31, 1998 3.5:1.0
October 31, 1998 3.7:1.0
January 31, 1999 4.1:1.0
April 30, 1999 4.4:1.0
July 31, 1999 and thereafter 4.8:1.0
</TABLE>
(d) Interest Coverage Ratio. The Borrower will not permit its
Interest Coverage Ratio with respect to the twelve-month period ending on
the last day of any Fiscal Quarter to be less than the ratio set forth
below opposite such Fiscal Quarter (for each Fiscal Quarter ending prior
to the first anniversary of the Merger Consummation Date, such ratio to
be calculated as provided in clause (h) of this Section 6.2.4):
<TABLE>
<Caption:
Fiscal Quarter Ending: Ratio
--------------------- -----
<S> <C>
October 31, 1997 5.8:1.0
January 31, 1998 6.3:1.0
April 30, 1998 7.3:1.0
July 31, 1998 7.5:1.0
October 31, 1998 7.0:1.0
January 31, 1999 6.9:1.0
April 30, 1999 6.8:1.0
July 31, 1999 and thereafter 7.5:1.0
</TABLE>
-3-
<PAGE> 4
(e) Net Worth. The Borrower will not permit its net worth
determined in accordance with GAAP as of the last day of any Fiscal
Quarter, (1) commencing with the Fiscal Quarter ending on July 31, 1996
and continuing thereafter through and including July 31, 1997 to be less
than $11,000,000 and (2) commencing with the Fiscal Quarter ending on
October 31, 1997 and continuing thereafter, to be less than (A)
$12,000,000 plus (B) 75% of Net Income (but not loss) for each Fiscal
Quarter ending after July 31, 1996 through and including the last day of
the Fiscal Quarter in which this covenant is being tested.
(f) EBITDA. The Borrower will not permit EBITDA for the
twelve-month period ending on the last day of any Fiscal Quarter to be
less than the amount set forth opposite such Fiscal Quarter (for each
Fiscal Quarter ending prior to the first anniversary of the Merger
Consummation Date, such amount to be calculated as provided in clause (h)
of this Section 6.2.4):
<TABLE>
<CAPTION>
Fiscal Quarter Ending: Amount
--------------------- ------
<S> <C>
October 31, 1996 $5,000,000
January 31, 1997 $5,000,000
April 30, 1997 $5,000,000
July 31, 1997 $5,000,000
October 31, 1997 $8,500,000
January 31, 1998 $9,000,000
April 30, 1998 $10,000,000
July 31, 1998 $11,500,000
October 31, 1998 $12,000,000
January 31, 1999 $13,000,000
April 30, 1999 $14,000,000
July 31, 1999 and thereafter $15,000,000
</TABLE>
(g) Brunswick EBITDA. For each of the Borrower's Fiscal Quarters
ending on January 31, 1997, April 30, 1997 or July 31, 1997, EBITDA
attributable to the operations and assets of Brunswick as it existed prior
to the Merger (the "Brunswick EBITDA") for the period commencing on the
Merger Consummation Date and ending on the last day of such Fiscal Quarter
shall not be less than $1; provided, however, that if the above covenant
is not met as of the last day of the Borrower's Fiscal Quarter ending on
January 31, 1997 or on April 30, 1997, then no Default shall arise under
this Section 6.2.4(g) unless Brunswick EBITDA for
-4-
<PAGE> 5
the period commencing on the Merger Consummation Date and ending on the
last day of the immediately following Fiscal Quarter is less than $1.
(h) Calculations for Stub Periods. Notwithstanding anything
contained herein to the contrary, calculation of all items relating to
income or expense (including, without limitation, EBITDA and Interest
Expense) for any period ending prior to the first anniversary of the
Merger Consummation Date shall be made by annualizing all items relating
to income or expense for the period consisting of the full Fiscal
Quarter(s) elapsed from the Merger Consummation Date to the end of such
period and by using the actual scheduled repayments of Indebtedness
occurring during such period.
SECTION 3. Continuing Effectiveness of Credit Agreement. The Credit
Agreement and each of the other Loan Documents shall remain in full force and
effect in accordance with their respective terms, except as expressly amended
or modified by this Amendment.
SECTION 4. Cost and Expenses. The Borrower agrees to pay all
out-of-pocket expenses of the Agent for the negotiation, preparation, execution
and delivery of this Amendment (including fees and expenses of counsel to the
Agent).
SECTION 5. Effectiveness. This Amendment shall become effective upon
receipt by the Agent of a copy of this Amendment, duly executed by each of the
Borrower and the Agent, and duly acknowledged and consented to by Brunswick
Biomedical Technologies, Inc. in the form attached to this Amendment.
SECTION 6. Headings. The various headings of this Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
Amendment or any provision hereof.
SECTION 7. Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
This Amendment shall become effective when counterparts hereof executed on
behalf of the Borrower and each Lender (or notice thereof satisfactory to the
Agent) shall have been received by the Agent and notice thereof shall have been
given by the Agent to the Borrower and each Lender.
SECTION 8. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
-5-
<PAGE> 6
SECTION 9. Successors and Assigns. This Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that the Borrower may not assign or
transfer its rights or obligations hereunder or under the Credit Agreement
except in accordance with the terms of the Credit Agreement.
-6-
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BRUNSWICK BIOMEDICAL CORPORATION
By: /s/ James H. Miller
-------------------------------
James H. Miller
President
[CORPORATE SEAL]
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION, in its
capacity as Agent and Lender
By: /s/ Darren J. Wells
-------------------------------
Darren J. Wells
Director
[SIGNATURE PAGE TO FIRST AMENDMENT]
<PAGE> 8
ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the foregoing
Amendment, consents to the terms and provisions set forth therein, and agrees
that the Subsidiary Guaranty dated as of April 15, 1996 as amended and
supplemented to the date hereof (the "Subsidiary Guaranty") made by the
undersigned, in favor of Internationale Nederlanden (U.S.) Capital Corporation
("ING") and such other Lenders as are, or may from time to time become, parties
to the Credit Agreement, and ING as Agent for such Lenders, will continue in
full force and effect without diminution or impairment notwithstanding the
execution and delivery of the amendment. The undersigned further acknowledges
and agrees that, upon effectiveness of the amendment and from and after the
date thereof, each reference to the Credit Agreement in the Subsidiary Guaranty
and each other Loan Document (as such term is defined in the Credit Agreement)
to which any of the undersigned is a party shall mean and be a reference to the
Credit Agreement as amended by the foregoing amendment.
BRUNSWICK BIOMEDICAL TECHNOLOGIES, INC.
By: /s/ James H. Miller
-----------------------------------
James H. Miller
President
[SIGNATURE PAGE TO FIRST AMENDMENT]
<PAGE> 1
EXHIBIT 5
FIRST AMENDMENT TO WARRANT PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO WARRANT PURCHASE AGREEMENT (the "Amendment"),
dated as of October 25, 1996, among BRUNSWICK BIOMEDICAL CORPORATION, a
Massachusetts corporation (the "Company"), and INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION, a Delaware corporation ("ING").
W I T N E S S E T H:
RECITALS:
A. The Company and ING have entered into a certain Warrant Purchase
Agreement, dated as of April 15, 1996 (the "Warrant Purchase Agreement");
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Warrant Purchase Agreement.
B. The Company and ING wish to enter into this Amendment to amend certain
clerical errors contained in the Warrant Purchase Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment to Section 1.1. Section 1.1 of the Warrant
Purchase Agreement is hereby amended by replacing the definition of "Series A
Exercise Price" in its entirety with the following:
"Series A Exercise Price" means (a) at any time prior to the Merger
Consummation Date, $.0.01 per Warrant Share and (b) at any time on or
after the Merger Consummation Date, $0.10 per Warrant Share, in each case
as adjusted as herein provided.
SECTION 2. Amendment to Section 15(j). Section 15(j) of the Warrant
Purchase Agreement is hereby amended by replacing said Section in its entirety
with the following:
(j) Upon consummation of the Merger, (1) the Warrant Documents and
all obligations of Brunswick under the Warrant Documents shall
automatically become the legal, valid and binding obligations of STI,
enforceable against STI in accordance with their terms, as if STI had been
the signatory thereto, (2) each Series A Warrant shall be exercisable for
a number of shares of Class A Common Stock of STI equal to (i) the number
of shares of Class A Common Stock of Brunswick for which such Series A
Warrant is exercisable as of
<PAGE> 2
the Merger Consummation Date, multiplied by (ii) the Conversion Factor,
for an Exercise Price equal to $.10 per share, and (3) each Series B
Warrant shall be exercisable for a number of shares Class A Common Stock
of STI equal to (i) the number of shares of Class A Common Stock of
Brunswick for which such Series B Warrant is exercisable as of the Merger
Consummation Date, multiplied by (ii) the Conversion Factor, for an
Exercise Price equal to the Exercise Price immediately prior to
consummation of the Merger divided by the Conversion Factor. Brunswick
acknowledges and agrees that it is a condition to the Merger that STI
execute and deliver to the Purchaser, prior to or concurrently with the
consummation of the Merger, (1) an assumption agreement, in form and
substance reasonably satisfactory to the Required Holders, pursuant to
which STI shall expressly assume and reaffirm its obligations under the
Warrant Documents, (2) substitute Series A Warrant Certificates and Series
B Warrant Certificates evidencing warrants for the number of shares of
Class A Common Stock of STI set forth in the preceding sentence and
reflecting the Exercise Prices for the Series A Warrants and Series B
Warrants effective upon and after the Merger Consummation Date, and (3) an
opinion of counsel to STI in the form of Exhibit F.
SECTION 3. Continuing Effectiveness of Warrant Purchase Agreement. The
Warrant Purchase Agreement and each of the other Warrant Documents shall remain
in full force and effect in accordance with their respective terms, except as
expressly amended or modified by this Amendment.
SECTION 4. Cost and Expenses. The Company agrees to pay all
out-of-pocket expenses of ING for the negotiation, preparation, execution and
delivery of this Amendment (including fees and expenses of counsel to ING).
SECTION 5. Effectiveness. This Amendment shall become effective upon
receipt by ING of a copy of this Amendment, duly executed by each of the
Company and ING.
SECTION 6. Headings. The various headings of this Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
Amendment or any provision hereof.
SECTION 7. Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be executed by the Company
and ING and shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
-2-
<PAGE> 3
SECTION 8. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 9. Successors and Assigns. This Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that the Company may not assign or
transfer its rights or obligations hereunder or under the Warrant Purchase
Agreement except in accordance with the terms of the Warrant Purchase
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BRUNSWICK BIOMEDICAL CORPORATION
By:
-------------------------------
James H. Miller
President
[CORPORATE SEAL]
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By:
-------------------------------
Darren J. Wells
Director
-3-
<PAGE> 1
EXHIBIT 6
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (this "Agreement"), dated as of November 20,
1996, between MERIDIAN MEDICAL TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), and ING (U.S.) CAPITAL CORPORATION, a Delaware corporation,
previously known as INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, as
agent (the "Agent") for the Lenders (as defined below):
W I T N E S S E T H:
RECITALS.
A. Pursuant to a Credit Agreement, dated as of April 15, 1996, as amended
by that certain First Amendment to Credit Agreement, dated as of October 25,
1996, (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Brunswick Biomedical Corporation, a
Massachusetts corporation ("Brunswick"), the various lenders (the "Lenders") as
are, or may become, parties thereto and the Agent, the Lenders made the Bridge
Loan to Brunswick;
B. On the date hereof, Brunswick is being merged with and into the Company,
with the Company as the surviving corporation (the "Merger");
C. Under the terms of the Credit Agreement, upon consummation of the
Merger, the Company is required to execute and deliver this Agreement; and
D. The Company has duly authorized the execution, delivery, and performance
of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged by the Company, and in order to induce the Lenders to
make Loans to the Company pursuant to the Credit Agreement, the Company agrees
with the Agent for the benefit of all Lenders as follows:
Article 1.
DEFINITIONS
Section 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall have the following meanings (such meanings to be equally applicable to the
singular and plural forms thereof):
<PAGE> 2
"Agent" is defined in the preamble.
"Agreement" is defined in the preamble.
"Brunswick" is defined in Recital A.
"Company" is defined in the preamble.
"Credit Agreement" is defined in Recital A.
"Lenders" is defined in Recital A.
"Merger" is defined in Recital B.
Section 1.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms for which meanings are provided
in the Credit Agreement are used in this Agreement, and its preamble and
recitals, with such meanings.
Article 2.
ASSUMPTION
Section 2.1. Assumption. The Company hereby confirms, acknowledges,
represents, warrants, covenants and agrees, for the benefit of the Lenders and
the Agent, that immediately upon the effectiveness of the Merger, and without
any further action by any Person:
(a) The Company assumes (by operation of law and pursuant to this
Agreement) each and every covenant, agreement, term, condition,
obligation, appointment, duty and liability of Brunswick and, by virtue of
the foregoing, accepts and assumes all liability of Brunswick related to
any representation and warranty made by Brunswick or the Company under or
in connection with the Credit Agreement or any such Loan Document and all
such representations and warranties shall be deemed to have been confirmed
and restated as of the effective time of the Merger; and
(b) The Company shall be the "Borrower" referred to in the Credit
Agreement and shall perform and observe all the covenants, agreements,
terms, conditions, obligations, appointments, duties and liabilities of
the "Borrower" under the Credit Agreement and each other Loan Document
executed by Brunswick, all as if the Company was the direct, actual and
original signatory thereto.
2
<PAGE> 3
Article 3.
MISCELLANEOUS
Section 3.1. Amendments.
(a) Section 5.4(a)(iv) is amended by replacing the reference to
"October 31, 1996" to "October 31, 1995".
(b) Item 3 of the Disclosure Schedule is amended by replacing "Merrill
Lynch $2,702,784" with "Merrill Lynch up to $5,000,000".
(c) Item 17 of the Disclosure Schedule is replaced with Schedule A
attached hereto.
Section 3.2. Loan Document. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall be construed, administered and
applied in accordance with the terms and provisions of the Credit Agreement.
Section 3.3. Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of, and be enforceable by, the Agent and the Lenders and their respective
successors and assigns.
SECTION 3.4. GOVERNING LAW.
(A) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(B) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR RELATED DOCUMENT, AND EACH HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURT. THE COMPANY AGREES THAT SUCH JURISDICTION
SHALL BE EXCLUSIVE WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING BROUGHT BY IT
AGAINST THE AGENT OR ANY LENDER. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY
3
<PAGE> 4
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF ANY
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
(C) The Company hereby irrevocably designates, appoints and empowers CT
Corporation System, whose present address is 1633 Broadway, New York, New York
10019, as its authorized agent to receive, for and on its behalf and its
property, service of process in the State of New York when and as such legal
actions or proceedings may be brought in the courts of the State of New York or
of the United States of America sitting in New York, and such service of
process shall be deemed complete upon the date of delivery thereof to such
agent whether or not such agent gives notice thereof to the Company, or upon
the earliest of any other date permitted by applicable law. The Company shall
furnish the consent of CT Corporation System so to act to the Agent on or prior
to the Merger Consummation Date. It is understood that a copy of said process
served on such agent will as soon as practicable be forwarded to the Company,
at its address set forth below, but its failure to receive such copy shall not
affect in any way the service of said process on said agent as the agent of the
Company. The Company irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or proceeding by the mailing of
the copies thereof by certified mail, return receipt requested, postage
prepaid, to it at its address set forth below, such service to become effective
upon the earlier of (i) the date 10 calendar days after such mailing or (ii)
any earlier date permitted by applicable law. The Company agrees that it will
at all times continuously maintain an agent to receive service of process in
the State of New York on behalf of itself and its properties and in the event
that, for any reason, the agent named above or its successor shall no longer
serve as its agent to receive service of process in the State of New York on
its behalf, it shall promptly appoint a successor so to serve and shall advise
the Agent and the Lenders thereof (and shall furnish to the Agent the consent
of any successor agent so to act). Nothing in this Section 3.4 shall affect
the right of the Agent or any Lender to bring proceedings against the Company
in the courts of any other jurisdiction or to serve process in any other manner
permitted by applicable law.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered by its duly authorized officers on the day and year
first above written.
MERIDIAN MEDICAL TECHNOLOGIES, INC.
By: /s/ James H. Miller
-------------------------------------
James H. Miller
President
4
<PAGE> 5
ACKNOWLEDGED AND AGREED TO:
ING (U.S.) CAPITAL CORPORATION, as Agent
By: /s/ Darren J. Wells
---------------------------------
Darren J. Wells
Managing Director
<PAGE> 1
EXHIBIT 7
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (this "Agreement"), dated as of November 20,
1996, between MERIDIAN MEDICAL TECHNOLOGIES, INC., a Delaware corporation (the
"Company"), and ING (U.S.) CAPITAL CORPORATION, a Delaware corporation,
previously known as INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, as
agent (the "Agent") for the Lenders (as defined below):
W I T N E S S E T H:
RECITALS.
A. Pursuant to a Credit Agreement, dated as of April 15, 1996, as amended
by that certain First Amendment to Credit Agreement, dated as of October 25,
1996, (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Brunswick Biomedical Corporation, a
Massachusetts corporation ("Brunswick"), the various lenders (the "Lenders") as
are, or may become, parties thereto and the Agent, the Lenders made the Bridge
Loan to Brunswick;
B. On the date hereof, Brunswick is being merged with and into the Company,
with the Company as the surviving corporation (the "Merger");
C. Under the terms of the Credit Agreement, upon consummation of the
Merger, the Company is required to execute and deliver this Agreement; and
D. The Company has duly authorized the execution, delivery, and performance
of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged by the Company, and in order to induce the Lenders to
make Loans to the Company pursuant to the Credit Agreement, the Company agrees
with the Agent for the benefit of all Lenders as follows:
Article 1.
DEFINITIONS
Section 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall have the following meanings (such meanings to be equally applicable to the
singular and plural forms thereof):
"Agreement" is defined in the preamble.
<PAGE> 2
"Brunswick" is defined in Recital A.
"Company" is defined in the preamble.
"Merger" is defined in Recital B.
"Purchaser" is defined in the preamble.
"Warrant Purchase Agreement" is defined in Recital A.
Section 1.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms for which meanings are provided
in the Credit Agreement are used in this Agreement, and its preamble and
recitals, with such meanings.
Article 2.
ASSUMPTION
Section 2.1. Assumption. The Company hereby confirms, acknowledges,
represents, warrants, covenants and agrees, for the benefit of the Lenders and
the Agent, that immediately upon the effectiveness of the Merger, and without
any further action by any Person:
(a) The Company assumes (by operation of law and pursuant to this
Agreement) each and every covenant, agreement, term, condition,
obligation, appointment, duty and liability of Brunswick and, by virtue of
the foregoing, accepts and assumes all liability of Brunswick related to
any representation and warranty made by Brunswick or the Company under or
in connection with the Credit Agreement or any such Loan Document and all
such representations and warranties shall be deemed to have been confirmed
and restated as of the effective time of the Merger; and
(b) The Company shall be the "Borrower" referred to in the Credit
Agreement and shall perform and observe all the covenants, agreements,
terms, conditions, obligations, appointments, duties and liabilities of
the "Borrower" under the Credit Agreement and each other Loan Document
executed by Brunswick, all as if the Company was the direct, actual and
original signatory thereto.
<PAGE> 3
Article 3.
MISCELLANEOUS
Section 3.1. Warrant Document. This Agreement is a Warrant Document
executed pursuant to the Warrant Purchase Agreement and shall be construed,
administered and applied in accordance with the terms and provisions of the
Warrant Purchase Agreement.
Section 3.2. Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns and shall inure to the benefit of,
and be enforceable by, the Purchaser and its successors and assigns.
Section 3.3 GOVERNING LAW.
(1) THIS AGREEMENT SHALL BE GOVERNED BY THOSE PROVISIONS OF THE
CORPORATE CODE OF THE JURISDICTION IN WHICH THE COMPANY IS INCORPORATED
AND ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE OF THE JURISDICTION IN WHICH
THE COMPANY IS INCORPORATED WHICH ARE NECESSARILY APPLICABLE TO SECURITIES
ISSUED BY A CORPORATION INCORPORATED IN SUCH JURISDICTION AND OTHERWISE
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW
YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF SAID STATE.
(2) THE COMPANY HEREBY AGREES THAT ANY LEGAL ACTION OR PROCEEDING
AGAINST IT WITH RESPECT TO THIS AGREEMENT, THE WARRANTS OR ANY OF THE
OTHER WARRANT DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK AS ANY HOLDER MAY ELECT, AND, BY EXECUTION AND DELIVERY HEREOF, IT
ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS AND AGREES
THAT SUCH JURISDICTION SHALL BE EXCLUSIVE, UNLESS WAIVED BY THE REQUIRED
HOLDERS IN WRITING, WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT BY IT
AGAINST SUCH HOLDERS. THE COMPANY AGREES THAT SECTIONS 5-1401 AND 5-1402
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK SHALL APPLY TO THIS
AGREEMENT AND EACH OF THE OTHER WARRANT DOCUMENTS
<PAGE> 4
AND WAIVES ANY RIGHT TO STAY OR TO DISMISS ANY ACTION OR PROCEEDING BROUGHT
BEFORE SAID COURTS ON THE BASIS OF FORUM NON CONVENIENS.
(3) The Company hereby irrevocably designates, appoints and empowers CT
Corporation System whose present address is 1633 Broadway, New York, New York
10019, as its authorized agent to receive, for and on its behalf and its
property, service of process in the state of New York when and as legal actions
or proceedings may be brought in the courts of the State of New York or of the
United States of America sitting in New York, and such service of process shall
be deemed complete upon the date of delivery thereof to such agent, or upon the
earliest of any other date permitted by applicable law. The Company shall agrees
to furnish the consent of CT Corporation System so to act to the Purchaser on or
prior to the Merger Consummation Date. It is understood that a copy of said
process served on such agent will be forwarded to the Company as soon as
practicable, at its address set forth herein, but its failure to receive such
copy shall not affect in any way the service of said process on said agent as
the agent of the Company. The Company irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or proceeding
by the mailing of the copies thereof by certified mail, return receipt
requested, postage prepaid, to it at its address set forth herein, such service
to become effective upon the earlier of (i) the date 10 calendar days after such
mailing and (ii) any earlier date permitted by applicable law. The Company
agrees that it will at all times continuously maintain an agent to receive
service of process in the state of New York on behalf of itself and its
properties and in the event that, for any reason, the agent named above or its
successor shall no longer serve as its agent to receive service of process in
the State of New York on its behalf, it shall promptly appoint a successor so to
serve and shall advise the Purchaser thereof (and shall furnish to the Purchaser
the consent of any successor agent so to act). Nothing in this Section 3.3 shall
affect the right of the Purchaser to bring proceedings against the Company in
the courts of any other jurisdiction or to serve process in any other manner
permitted by applicable law.
<PAGE> 5
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly
executed and delivered by its duly authorized officers on the day and year
first above written.
MERIDIAN MEDICAL TECHNOLOGIES,
INC.
By: /s/ James H. Miller
-------------------------------
James H. Miller
President
ACKNOWLEDGED AND AGREED TO:
ING (U.S.) CAPTIAL CORPORATION, as Purchaser
By: /s/ Darren J. Wells
--------------------------------
Darren J. Wells
Managing Partner
<PAGE> 1
EXHIBIT 8
TERM NOTE
$10,000,000.00 November 20, 1996
FOR VALUE RECEIVED, the undersigned, MERIDIAN MEDICAL TECHNOLOGIES, INC.,
a Delaware corporation (the "Borrower"), as successor by merger to BRUNSWICK
BIOMEDICAL CORPORATION, a Massachusetts corporation, promises to pay to the
order of ING (U.S.) CAPITAL CORPORATION, a Delaware corporation, previously
known as INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION (the "Lender"),
at the times provided in the Credit Agreement referenced hereinafter, the
principal sum of TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) or, if less,
the outstanding principal amount of the Term Loan made by the Lender pursuant
to that certain Credit Agreement, dated as of April 15, 1996, as amended by
that certain First Amendment to Credit Agreement, dated as of October 25, 1996,
and that certain Assumption Agreement, dated as of the date hereof (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms used herein and not defined herein shall have the
meaning ascribed to them in the Credit Agreement), among the Borrower, ING
(U.S.) Capital Corporation, as Agent, and the various lenders (including the
Lender) as are, or may from time to time become, parties thereto. Notations
indicating the principal amount of the Term Loan made by the Lender pursuant to
the Credit Agreement and all payments on account of the principal thereof may
be endorsed by the holder hereof on the grid Schedule attached to this Note, as
provided in the Credit Agreement.
The unpaid principal amount of this Note from time to time shall bear
interest as provided in Section 3.4 of the Credit Agreement. All payments of
principal of and interest on this Note shall be payable in lawful currency of
the United States of America to the account designated by the Agent (and as to
which the Agent has notified the Borrower) in immediately available funds in
accordance with Section 3.6 of the Credit Agreement.
This Note is a Term Note referenced in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of the terms and
conditions on which the Borrower is permitted and required to make prepayments
and repayments of principal of the Indebtedness evidenced by this Note and on
which such Indebtedness may be declared to be or may automatically become
immediately due and payable. This Note evidences Indebtedness heretofore
evidenced by the Lender's Bridge Note, the outstanding principal amount of which
was converted into the Lender's portion of the Term Loan, and this Note
<PAGE> 2
shall constitute an extension and renewal of the Lender's Bridge Note and not a
payment or novation thereof.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
The Borrower hereby waives all requirements as to diligence, presentment,
demand of payment, protest and notice of any kind with respect to this Note.
All amounts owing hereunder are payable by the Borrower without relief from any
valuation or appraisal laws.
Executed under seal as of the day and year first above written.
MERIDIAN MEDICAL TECHNOLOGIES,
INC.
By: /s/ James H. Miller
------------------------------
James H. Miller
President
2
<PAGE> 3
Schedule of Term Loan and Repayments
<TABLE>
<CAPTION>
Person
Amount of Amount of Outstanding Making
Date Term Loan Repayment Balance Notation
---- ---------- --------- ----------- --------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 1
EXHIBIT 9
REVOLVING NOTE
$15,000,000.00 November 20, 1996
FOR VALUE RECEIVED, the undersigned, MERIDIAN MEDICAL TECHNOLOGIES, INC., a
Delaware corporation (the "Borrower"), as successor by merger to BRUNSWICK
BIOMEDICAL CORPORATION, a Massachusetts corporation, promises to pay to the
order of ING (U.S.) CAPITAL CORPORATION, a Delaware corporation, previously
known as INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION (the "Lender"),
at the times provided in the Credit Agreement referenced hereinafter, the
principal sum of FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00) or, if less,
the outstanding principal amount of all Revolving Loans made by the Lender from
time to time pursuant to that certain Credit Agreement, dated as of April 15,
1996, as amended by that certain First Amendment to Credit Agreement, dated as
of October 25, 1996, and that certain Assumption Agreement, dated as of the date
hereof (as amended, restated, supplemented, extended or otherwise modified from
time to time, the "Credit Agreement"; capitalized terms used herein and not
defined herein shall have the meaning ascribed to them in the Credit Agreement),
among the Borrower, ING (U.S.) Capital Corporation, as Agent, and the various
lenders (including the Lender) as are, or may from time to time become, parties
thereto. Notations indicating Revolving Loans made by the Lender pursuant to
the Credit Agreement and all payments on account of the principal thereof may be
endorsed by the holder hereof on the grid Schedule attached to this Note, as
provided in the Credit Agreement.
The unpaid principal amount of this Note from time to time shall bear
interest as provided in Section 3.4 of the Credit Agreement. All payments of
principal of and interest on this Note shall be payable in lawful currency of
the United States of America to the account designated by the Agent (and as to
which the Agent has notified the Borrower) in immediately available funds in
accordance with Section 3.6 of the Credit Agreement.
This Note is a Revolving Note referenced in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of the terms and
conditions on which the Borrower is permitted and required to make prepayments
and repayments of principal of the Indebtedness evidenced by this Note and on
which such Indebtedness may be declared to be or may automatically become
immediately due and payable.
<PAGE> 2
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
The Borrower hereby waives all requirements as to diligence, presentment,
demand of payment, protest and notice of any kind with respect to this Note.
All amounts owing hereunder are payable by the Borrower without relief from any
valuation or appraisal laws.
Executed under seal as of the day and year first above written.
MERIDIAN MEDICAL TECHNOLOGIES,
INC.
By: /s/ James H. Miller
-----------------------------
James H. Miller
President
2
<PAGE> 3
Schedule of Revolving Loans and Repayments
<TABLE>
<CAPTION>
Person
Amount of Amount of Outstanding Making
Date Revolving Loan Repayment Balance Notation
---- --------------- --------- ----------- --------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 1
EXHIBIT 10
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SAID
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION, OR AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL TO THE HOLDER)
AS TO AN EXEMPTION, FROM THE REGISTRATION PROVISIONS OF SAID ACT OR LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A
WARRANT PURCHASE AGREEMENT, DATED AS OF APRIL 15, 1996, BETWEEN MERIDIAN
MEDICAL TECHNOLOGIES, INC., AS SUCCESSOR BY MERGER TO BRUNSWICK BIOMEDICAL
CORPORATION (THE "COMPANY"), AND ING (U.S.) CAPITAL CORPORATION, FORMERLY KNOWN
AS INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION (ING"), AS AMENDED,
AND A REGISTRATION RIGHTS AGREEMENT, DATED AS OF APRIL 15, 1996, AMONG THE
COMPANY AND THE PURCHASERS IDENTIFIED IN EXHIBIT A ATTACHED THERETO, AS
AMENDED, COPIES OF EACH OF WHICH ARE ON FILE AT THE MAIN OFFICE OF THE COMPANY.
ANY SALE OR TRANSFER OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE IS
SUBJECT TO THE TERMS OF THOSE AGREEMENTS AND ANY SALE OR TRANSFER OF SUCH
SECURITIES IN VIOLATION OF SAID AGREEMENTS SHALL BE INVALID.
Certificate No. - 1 90,912 Warrants
Warrant Certificate
MERIDIAN MEDICAL TECHNOLOGIES, INC.
This Warrant Certificate certifies that ING (U.S.) CAPITAL CORPORATION, or
registered assigns, is the registered holder of the number of Warrants (the
"Warrants") set forth above to purchase shares of Class A Common Stock, par
value $0.10 per share (the "Class A Common Stock"), of MERIDIAN MEDICAL
TECHNOLOGIES, INC., a Delaware corporation and successor by merger to Brunswick
Biomedical Corporation (the "Company"). Each Warrant entitles the holder upon
exercise to receive from the Company one fully paid and nonassessable share of
Common Stock (a "Warrant Share") at the initial exercise price (the "Exercise
Price") of $11.00, payable in lawful money of the United States, upon surrender
of this Warrant Certificate and payment of the Exercise Price, if applicable,
at the office of the Company designated for such purpose, subject to the
conditions set forth herein and in the Warrant Agreement referenced below. The
Exercise Price and number and type of Warrant Shares issuable upon exercise of
the Warrants are subject to adjustment upon the occurrence of certain events,
as set forth in the Warrant Agreement. Each Warrant also entitles the holder
to convert such Warrant into the number of Warrant Shares determined in
accordance with Section 11(b) of the Warrant Agreement.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Series B Warrants, and are issued or to be issued pursuant
to a Warrant Purchase
<PAGE> 2
Agreement dated as of April 15, 1996, as amended by that certain First
Amendment to Warrant Purchase Agreement, dated as of October 25, 1996 (as
amended or modified, the "Warrant Agreement"), duly executed and delivered by
the Company and ING, which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, obligations and duties hereunder of the Company and
the holders of the Warrants (the words "holders" or "holder" meaning the
registered holders or registered holder). A copy of the Warrant Agreement may
be obtained by the holder hereof upon written request to the Company.
The holder of Warrants evidenced by this Warrant Certificate may exercise
such Warrants under and pursuant to the terms and conditions of the Warrant
Agreement by surrendering this Warrant Certificate, with the form of election
to purchase attached hereto (and by this reference made a part hereof) properly
completed and executed, together with payment of the Exercise Price in cash at
the office of the Company designated for such purpose. In the event that any
exercise of Warrants evidenced hereby shall be for less than the total number
of Warrants evidenced hereby, there shall be issued by the Company to the
holder hereof or his or its registered assignee a new Warrant Certificate
evidencing the number of Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Warrant Shares issuable upon
the exercise of each Warrant shall be adjusted. No fractional shares of
Warrant Shares will be issued upon the exercise of any Warrant, but the Company
will pay the cash value thereof determined as provided in the Warrant
Agreement.
The Holders of the Warrants are entitled to certain registration rights as
set forth in a Registration Rights Agreement dated as of April 15, 1996, among
the Company and the purchasers identified in Exhibit A attached thereto (as
amended or modified, the "Registration Rights Agreement"). By acceptance of
this Warrant Certificate, the Holder hereof agrees that upon exercise of any
or all of the Warrants evidenced hereby, such Holder will be bound by the
Registration Rights Agreement. A copy of the Registration Rights Agreement may
be obtained by the holder hereof upon written request to the Company.
Warrant Certificates, when surrendered at the office of the Company by the
registered holder thereof in person or by legal representative or attorney duly
authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, for another Warrant Certificate
or Warrant Certificates of like tenor evidencing in the aggregate a like number
of Warrants.
The Company may deem and treat the registered holder(s) thereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing made hereon) for the purpose of any exercise hereof,
of any distribution to the holder(s) hereof and for all other purposes, and the
Company shall not be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a
<PAGE> 3
stockholder of the Company (other than the right to receive dividends and
distributions as set forth in Section 18 of the Warrant Agreement).
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
signed by its duly authorized officer and has caused its corporate seal to be
affixed hereunto or imprinted hereon.
Dated: November 20, 1996
MERIDIAN MEDICAL TECHNOLOGIES, INC.
By: /s/ James H. Miller
------------------------------------
James H. Miller
President
<PAGE> 4
FORM OF ELECTION TO PURCHASE
[To Be Executed Upon Exercise of Warrant]
The undersigned holder hereby represents that he or it is the registered holder
of this Warrant Certificate, and hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to receive ____________ shares
of Class A Common Stock, par value $.10 per share (the "Class A Common Stock"),
of MERIDIAN MEDICAL TECHNOLOGIES, INC. (the "Company") and herewith tenders
payment for such shares to the order of the Company in the amount of
$___________ in accordance with the terms hereof. The undersigned requests
that a certificate for such shares be registered in the name of the undersigned
or his/its nominee hereinafter set forth, and further that such certificate be
delivered to the undersigned at the address hereinafter set forth or to such
other person or entity as is hereinafter set forth. If said number of shares
is less than all of the shares of Class A Common Stock purchasable hereunder,
the undersigned requests that a new Warrant Certificate representing the
remaining balance of such shares be registered in the name of the undersigned
or his/its nominee hereinafter set forth, and further that such Warrant
Certificate be delivered to the undersigned at the address hereinafter set
forth or to such other person or entity as is hereinafter set forth.
Certificate to be registered as follows:
Name: ING (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Certificate to be delivered as follows:
Name: ING (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Date:
-----------------------
----------------------------------------
(Signature must conform in all respects
to the name of the holder as specified
on the fact of the Warrant Certificate,
unless Form of Assignment has been
executed)
<PAGE> 5
FORM OF ELECTION TO CONVERT
[To Be Executed Upon Conversion of Warrant]
The undersigned holder hereby represents that he or it is the registered holder
of this Warrant Certificate, and hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to convert the Warrants
evidenced by this Warrant Certificate into____________ shares of Class A Common
Stock, par value $.10 per share (the "Class A Common Stock"), of MERIDIAN
MEDICAL TECHNOLOGIES, INC. (the "Company") and herewith tenders payment for
such shares to the order of the Company in the amount of $___________ in
accordance with the terms hereof. The undersigned requests that a certificate
for such shares be registered in the name of the undersigned or his/its nominee
hereinafter set forth, and further that such certificate be delivered to the
undersigned at the address hereinafter set forth or to such other person or
entity as is hereinafter set forth. If said number of shares is less than all
of the shares of Class A Common Stock convertible hereunder, the undersigned
requests that a new Warrant Certificate representing the remaining balance of
such shares be registered in the name of the undersigned or his/its nominee
hereinafter set forth, and further that such Warrant Certificate be delivered
to the undersigned at the address hereinafter set forth or to such other person
or entity as is hereinafter set forth.
Certificate to be registered as follows:
Name: ING (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Certificate to be delivered as follows:
Name: ING (U.S.) Capital Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Date:
--------------------
----------------------------------------
(Signature must conform in all respects
to the name of the holder as specified
on the fact of the Warrant Certificate,
unless Form of Assignment has been
executed)
<PAGE> 6
FORM OF ASSIGNMENT
[To be executed upon Transfer of Warrant]
FOR VALUE RECEIVED, the undersigned registered holder of the enclosed
Warrant Certificate hereby sells, assigns and transfers unto
________________________________________ the right represented by such Warrant
Certificate to purchase _____________ shares of Class A Common Stock of
MERIDIAN MEDICAL TECHNOLOGIES, INC. to which such Warrant Certificate relates,
and appoints __________________ _______________________________ Attorney to
make such transfer on the books of MERIDIAN MEDICAL TECHNOLOGIES, INC.
maintained for such purpose, with full power of substitution in the premises.
Date:
-------------------
----------------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
----------------------------------------
(Street Address)
----------------------------------------
(City) (State) (Zip Code)
<PAGE> 1
EXHIBIT 11
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. SAID
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION, OR AN OPINION OF COUNSEL (WHICH MAY BE COUNSEL TO THE HOLDER)
AS TO AN EXEMPTION, FROM THE REGISTRATION PROVISIONS OF SAID ACT OR LAWS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A
WARRANT PURCHASE AGREEMENT, DATED AS OF APRIL 15, 1996, BETWEEN MERIDIAN
MEDICAL TECHNOLOGIES, INC., AS SUCCESSOR BY MERGER TO BRUNSWICK BIOMEDICAL
CORPORATION (THE "COMPANY"), AND ING (U.S.) CAPITAL CORPORATION, FORMERLY KNOWN
AS INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION (ING"), AS AMENDED,
AND A REGISTRATION RIGHTS AGREEMENT, DATED AS OF APRIL 15, 1996, AMONG THE
COMPANY AND THE PURCHASERS IDENTIFIED IN EXHIBIT A ATTACHED THERETO, AS
AMENDED, COPIES OF EACH OF WHICH ARE ON FILE AT THE MAIN OFFICE OF THE COMPANY.
ANY SALE OR TRANSFER OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE IS
SUBJECT TO THE TERMS OF THOSE AGREEMENTS AND ANY SALE OR TRANSFER OF SUCH
SECURITIES IN VIOLATION OF SAID AGREEMENTS SHALL BE INVALID.
Certificate No. 1 83,579 Warrants
Warrant Certificate
MERIDIAN MEDICAL TECHNOLOGIES, INC.
This Warrant Certificate certifies that ING (U.S.) INVESTMENT CORPORATION
("ING"), or registered assigns, is the registered holder of the number of
Warrants (the "Warrants") set forth above to purchase shares of non-voting
common stock, par value $0.10 per share (the "Class A Common Stock"), of
MERIDIAN MEDICAL TECHNOLOGIES, INC., a Delaware corporation and successor by
merger to Brunswick Biomedical Corporation (the "Company"). Each Warrant
entitles the holder upon exercise to receive from the Company one fully paid
and nonassessable share of Class A Common Stock (a "Warrant Share") at the
initial exercise price (the "Exercise Price") of $0.10, payable in lawful money
of the United States of America, upon surrender of this Warrant Certificate and
payment of the Exercise Price, if applicable, at the office of the Company
designated for such purpose, subject to the conditions set forth herein and in
the Warrant Agreement referenced below. The Exercise Price and number and type
of Warrant Shares issuable upon exercise of the Warrants are subject to
adjustment upon the occurrence of certain events, as set forth in the Warrant
Agreement. Each Warrant also entitles the holder to convert such Warrant into
the number of Warrant Shares determined in accordance with Section 11(b) of the
Warrant Agreement.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Series A Warrants, and are issued or to be issued pursuant
to a Warrant Purchase
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Agreement dated as of April 15, 1996, as amended by that certain First
Amendment to Warrant Purchase Agreement, dated as of October 25, 1996 (as
amended or modified, the "Warrant Agreement"), duly executed and delivered by
the Company and ING, which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to for a
description of the rights, obligations and duties hereunder of the Company and
the holders of the Warrants (the words "holders" or "holder" meaning the
registered holders or registered holder). A copy of the Warrant Agreement may
be obtained by the holder hereof upon written request to the Company.
The holder of Warrants evidenced by this Warrant Certificate may exercise
such Warrants under and pursuant to the terms and conditions of the Warrant
Agreement by surrendering this Warrant Certificate, with the form of election
to purchase attached hereto (and by this reference made a part hereof) properly
completed and executed, together with payment of the Exercise Price in cash at
the office of the Company designated for such purpose. In the event that any
exercise of Warrants evidenced hereby shall be for less than the total number
of Warrants evidenced hereby, there shall be issued by the Company to the
holder hereof or his or its registered assignee a new Warrant Certificate
evidencing the number of Warrants not exercised.
The Warrant Agreement provides that upon the occurrence of certain events
the Exercise Price set forth on the face hereof may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Warrant Shares issuable upon
the exercise of each Warrant shall be adjusted. No fractional shares of
Warrant Shares will be issued upon the exercise of any Warrant, but the Company
will pay the cash value thereof determined as provided in the Warrant
Agreement.
The Holders of the Warrants are entitled to certain registration rights as
set forth in a Registration Rights Agreement dated as of April 15, 1996, among
the Company and the purchasers identified in Exhibit A attached thereto (as
amended or modified, the "Registration Rights Agreement"). By acceptance of
this Warrant Certificate, the Holder hereof agrees that upon exercise of any
or all of the Warrants evidenced hereby, such Holder will be bound by the
Registration Rights Agreement. A copy of the Registration Rights Agreement may
be obtained by the holder hereof upon written request to the Company.
Warrant Certificates, when surrendered at the office of the Company by the
registered holder thereof in person or by legal representative or attorney duly
authorized in writing, may be exchanged, in the manner and subject to the
limitations provided in the Warrant Agreement, for another Warrant Certificate
or Warrant Certificates of like tenor evidencing in the aggregate a like number
of Warrants.
The Company may deem and treat the registered holder(s) thereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of
ownership or other writing made hereon) for the purpose of any exercise hereof,
of any distribution to the holder(s) hereof and for all other purposes, and the
Company shall not be affected by any notice to the contrary. Neither the
Warrants nor this Warrant Certificate entitles any holder hereof to any rights
of a
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stockholder of the Company (other than the right to receive dividends and
distributions as set forth in Section 18 of the Warrant Agreement).
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be
signed by its duly authorized officer and has caused its corporate seal to be
affixed hereunto or imprinted hereon.
Dated: November 20, 1996
MERIDIAN MEDICAL TECHNOLOGIES, INC.
By: /s/ James H. Miller
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James H. Miller
President
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FORM OF ELECTION TO PURCHASE
[To Be Executed Upon Exercise of Warrant]
The undersigned holder hereby represents that he or it is the registered holder
of this Warrant Certificate, and hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to receive ____________ shares
of Class A Common Stock, par value $.10 per share (the "Class A Common Stock"),
of MERIDIAN MEDICAL TECHNOLOGIES, INC. (the "Company") and herewith tenders
payment for such shares to the order of the Company in the amount of
$___________ in accordance with the terms hereof. The undersigned requests
that a certificate for such shares be registered in the name of the undersigned
or his/its nominee hereinafter set forth, and further that such certificate be
delivered to the undersigned at the address hereinafter set forth or to such
other person or entity as is hereinafter set forth. If said number of shares
is less than all of the shares of Class A Common Stock purchasable hereunder,
the undersigned requests that a new Warrant Certificate representing the
remaining balance of such shares be registered in the name of the undersigned
or his/its nominee hereinafter set forth, and further that such Warrant
Certificate be delivered to the undersigned at the address hereinafter set
forth or to such other person or entity as is hereinafter set forth.
Certificate to be registered as follows:
Name: ING (U.S.) Investment Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Certificate to be delivered as follows:
Name: ING (U.S.) Investment Corporation
Address: 135 East 57th Street
New York, New York 10022
Attn: Chief Credit Officer
Date:
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(Signature must conform in all respects
to the name of the holder as specified
on the fact of the Warrant Certificate,
unless Form of Assignment has been
executed)
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FORM OF ASSIGNMENT
[To be executed upon Transfer of Warrant]
FOR VALUE RECEIVED, the undersigned registered holder of the enclosed
Warrant Certificate hereby sells, assigns and transfers unto
________________________________________ the right represented by such Warrant
Certificate to purchase _____________ shares of Class A Common Stock of
MERIDIAN MEDICAL TECHNOLOGIES, INC. to which such Warrant Certificate relates,
and appoints __________________ _______________________________ Attorney to
make such transfer on the books of MERIDIAN MEDICAL TECHNOLOGIES, INC.
maintained for such purpose, with full power of substitution in the premises.
Date:
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(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate)
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(Street Address)
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(City) (State) (Zip Code)
