<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Meridian Medical Technologies, Inc.
(formerly, Survival Technology, Inc.)
(Name of Issuer)
Common Stock, par value $0.10 per share
(Title of Class of Securities)
589658 10 3
(CUSIP Number)
James H. Miller
Meridian Medical Technologies, Inc.
2275 Research Boulevard, Suite #100
Rockville, Maryland 20850
301-926-1800
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
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 / /.
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 "Exchange Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
Page 1 of ___ Pages
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CUSIP No. 589658 10 3
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1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
EM Industries, Incorporated
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2 Check the Appropriate Box If a Member of a Group
a. / /
b. / /
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3 SEC Use Only
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4 Source of Funds
OO
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5 Check If Disclosure of Legal Proceedings Is Required Pursuant to Item
2(d) or 2(e) / /
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6 Citizenship or Place of Organization
New York
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7 Sole Voting Power
Number of
243,476(1)
Shares
-----------------------------------------------------
Beneficially
8 Shared Voting Power
Owned By
-----------------------------------------------------
Each
9 Sole Dispositive Power
Reporting
243,476(1)
Person
-----------------------------------------------------
With
10 Shared Dispositive Power
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11 Aggregate Amount Beneficially Owned by Each Reporting Person
243,476(1)
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12 Check Box If the Aggregate Amount in Row (11) / /
Excludes Certain Shares
- --------------------------------------------------------------------------------
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(1) Includes 29,038 shares of Common Stock of the issuer subject to
presently exercisable warrants. See Items 4 and 5 below.
Page 2 of ___ Pages
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13 Percent of Class Represented By Amount in Row (11)
8.3%
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14 Type of Reporting Person
CO
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Page 3 of ___ Pages
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Item 1. Security and Issuer.
This Statement on Schedule 13D (the "Schedule 13D") relates to the
Common Stock, par value $0.10 per share (the "Common Stock"), of
Meridian Medical Technologies, Inc., a Delaware corporation (the
"Company"). The address of the principal executive offices of the
Company is 2275 Research Boulevard, Suite #100, Rockville,
Maryland 20850.
Item 2. Identity and Background.
This Schedule 13D is filed on behalf of EM Industries, Incorporated, a
New York corporation ("EM"). EM is directly or indirectly owned and
controlled by Merck KGaA, a German limited liability company
("Kommanditgesellschaft auf Aktien") ("Merck").
EM's principal business is the importing, manufacture and distribution
of specialty chemicals and pharmaceuticals. The principal business
address and the principal office address of EM is 7 Skyline Drive,
Hawthorne, New York, 10532. Merck's principal business is the
manufacture and distribution of pharmaceutical drugs, specialty
chemicals and laboratory products. The principal business address and
the principal office address of Merck is Frankfurter Strasse 250,
6100 Darmstadt, Federal Republic of Germany.
The name, business address, citizenship and present principal occupation
of each director and executive officer of EM and Merck are set forth,
respectively, on Schedules I and II hereto.
None of EM, Merck or, to the best knowledge of EM or Merck, any of the
persons listed on Schedules I and II hereto has, during the last five
years, (i) been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) been 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 violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
As described in more detail in Item 4, below, 181,487 shares of Common
Stock beneficially owned by EM (the "Merger Common Shares") were
acquired by EM pursuant to an Agreement and Plan of Merger, dated as of
September 11, 1996 (the "Merger Agreement"), by and between Brunswick
Biomedical Corporation ("BBC") and Survival Technology, Inc. ("STI" or
the "Company"(2)), pursuant to which BBC was merged (the "Merger") with
and into STI, and all of the outstanding shares of common stock of BBC
were converted into shares of Common Stock and, with respect to the
preferred stock of BBC, shares of Common Stock and warrants to
purchase shares of Common Stock. As a holder of preferred stock of
BBC, EM received in the Merger 152,449 shares of Common Stock and
presently exercisable warrants to purchase 29,038 shares of Common
Stock.
- --------
(2) The name of STI has been changed to Meridian Medical Technologies,
Inc., the issuer of the securities which are the subject of this Schedule 13D.
Page 4 of ___ Pages
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Item 4. Purpose of Transaction.
The Merger Common Shares were acquired by EM pursuant to the terms of
the Merger Agreement pursuant to which BBC was merged with and into the
Company and all of the outstanding shares of common stock of BBC were
converted into shares of Common Stock and, with respect to the preferred
stock of BBC, shares of Common Stock and warrants to purchase shares
of Common Stock. The warrants to purchase shares of Common Stock are
presently exercisable at a purchase price per share of Common Stock of
$11.00 and expire on November 20, 2001 (the "Warrants").
In connection with the Merger, EM entered into a Security Holder
Questionnaire and Agreement, dated November 4, 1996, by and between EM
and the Company, a copy of which is attached hereto as Exhibit 1 and
incorporated herein by reference in its entirety (the "Stockholders
Agreement"). Pursuant to the Stockholders Agreement, among other things,
EM agreed with the Company that it would only sell the shares of Common
Stock acquired by EM in the Merger and the shares of Common Stock that
may be acquired by EM pursuant to the exercise of the Warrants pursuant
to an effective registration statement under the Securities Act of 1933,
as amended (the "Securities Act"), or pursuant to an exemption from the
registration requirements under the Securities Act. Pursuant to the
Stockholders Agreement, the Company agreed with EM to prepare and file a
registration statement with the Securities and Exchange Commission as
soon as practicable, but in no event later than 30 days after the
closing date of the Merger on a form available for the sale of the
Merger Common Shares from time to time in the open market or in
privately negotiated transactions.
EM acquired the Merger Common Shares for investment purposes. Depending
upon market conditions and other factors and subject to compliance with
applicable securities laws requirements and the Stockholders Agreement,
EM may determine to acquire additional shares of Common Stock and/or to
dispose of shares of Common Stock in the open market or in privately
negotiated transactions.
Except as specifically set forth in this Item 4, none of EM, Merck, or,
to the best knowledge of EM or Merck, any of the persons named in
Schedules I and II hereto have any plans or proposals which relate to or
would result in any of the actions or effects set forth in items (a)
through (j) of Item 4 of Schedule 13D, although such persons may develop
such plans or proposals in the future.
Item 5. Interest in Securities of the Issuer
(a) EM directly owns 214,438 shares of Common Stock and Warrants to
purchase 29,038 shares of Common Stock (together, the "EM Common
Shares"), which amounts include the shares of Common Stock and Warrants
acquired in the Merger plus 61,989 shares of Common Stock previously
acquired by EM from STI in November 1992 in a privately negotiated
transaction. Based in part upon information provided by the Company and
calculated in accordance with Rule 13d-3(d)(1) under the Exchange Act,
the EM Common Shares represent 8.3% of (i) the 2,918,439 shares of
Common Stock outstanding on the date hereof plus (ii) the 29,038 shares
of Common Stock issuable upon exercise of the Warrants.
Page 5 of ___ Pages
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(b) EM and Merck have the power to vote or direct the voting and the power
to dispose or direct the disposition of the EM Common Shares.
(c) Except as set forth in this Schedule 13D, none of EM, Merck or, to the
best knowledge of EM and Merck, any of the persons named on Schedule I
hereto, owns any shares of the capital stock of the Company or has
purchased or sold any shares of the capital stock of the Company during
the past 60 days.
(d) Except as set forth in this Schedule 13D, no person is known by EM or
Merck to have the right to receive, or the power to direct the receipt
of, dividends from, or the proceeds from the sale of, the EM Common
Shares.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
As noted in Item 4, above, EM and the Company entered into the
Stockholders Agreement. The Shareholders Agreement provides that, in
connection with the registration of the Merger Common Shares, the
Company will pay certain expenses of EM incurred in connection therewith
and provides for indemnification by the Company and EM under certain
circumstances. Reference is made to the Stockholders Agreement for a
more complete description of the terms of the Stockholders Agreement.
Except as set forth in this Schedule 13D, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) among
the persons referred to in Item 2 of this Schedule 13D or between such
persons and any other person with respect to any of the securities of
the Company, including, but not limited to, any relating to the
transfer or voting of any of such securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of
profits, division of profits or loss or the giving or withholding of
proxies.
Item 7. Materials to Be Filed as Exhibits.
1. Security Holder Questionnaire and Agreement, dated November 4, 1996,
by and between EM and the Company.
Page 6 of ___ Pages
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: November 27, 1996
EM INDUSTRIES, INC.
By: /s/ Richard K. Hackett
----------------------
Name: Richard K. Hackett
Title: Corporate Vice President, Finance
Page 7 of ___ Pages
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SCHEDULE I
EXECUTIVE OFFICERS AND DIRECTORS OF EM INDUSTRIES, INCORPORATED
Name: Harald J. Schroder
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation: Director, Merck KGaA
Citizenship: Germany
Name: Walter W. Zywottek
Address: EM Industries, Incorporated
7 Skyline Drive
Hawthorne, New York 10532
Occupation: President & Chief Executive Officer
Citizenship: Germany
Name: Stephen J. Kunst
Address: EM Industries, Incorporated
7 Skyline Drive
Hawthorne, New York 10532
Occupation: General Counsel
Citizenship: U.S.A.
Name: Charles Rice
Address: Dey Laboratories, L.P.
2751 Napa Valley Corporate Drive
Napa, California 94558
Occupation: President and Chief Executive Officer
Citizenship: U.S.A.
Name: Alan Pernick
Address: EM Industries, Incorporated, Center Laboratories Division
35 Channel Dr.
Port Washington, New York 11050
Occupation: President, Center Laboratories Division
Citizenship: U.S.A.
Name: Dieter Janssen
Address: EM Industries, Incorporated
7 Skyline Drive
Hawthorne, New York 10532
Occupation: Chief Financial Officer
Citizenship: Germany
Page 8 of ___ Pages
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Name: Stephen Feiman
Address: EM Industries, Incorporated
7 Skyline Drive
Hawthorne, New York 10532
Occupation: Group Vice President, Chemicals and Pigments Division
Citizenship: U.S.A.
Name: Thomas Colclough
Address: EM Industries, Incorporated
480 Democrat Road
Gibbstown, New Jersey 08047
Occupation: Group Vice President, EM Science Division
Citizenship: Canada
Name: Stephen Burgess
Address: EM Industries, Incorporated
7 Skyline Drive
Hawthorne, New York 10532
Occupation: Group Vice President, Health and Human Nutrition Division
Citizenship: Great Britain
Name: Clifford Pettinelli
Address: EM Industries, Incorporated
7 Skyline Drive
Hawthorne, New York 10532
Occupation: Director of Human Resources
Citizenship: U.S.A.
Name: Richard Hackett
Address: EM Industries, Incorporated
7 Skyline Drive
Hawthorne, New York 10532
Occupation: Vice President, Corporate Accounting
Citizenship: U.S.A.
Page 9 of ___ Pages
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SCHEDULE II
EXECUTIVE OFFICERS AND DIRECTORS MERCK KGaA
Name: Hans-Joachim Langmann
Address: Merckstrasse 40
64342 Seeheim-Jugenheim
Federal Republic of Germany
Occupation: Physicist
Citizenship: Germany
Name: Klaus Gruber
Address: Rosengartenstrasse 26
64665 Alsbach-Hahnlein
Federal Republic of Germany
Occupation: Merchant
Citizenship: Germany
Name: Wolfgank Honn
Address: Am Dahrsberg 9
64342 Seeheim-Jugenheim
Federal Republic of Germany
Occupation: Merchant
Citizenship: Germany
Name: Edward H. Roberts
Address: Margeritenstrasse 11
63322 Rodermark
Federal Republic of Germany
Occupation: Pharmacist
Citizenship: United Kingdom
Name: Michael Romer
Address: Niederwiesenring 129a
63110 Rodgau
Federal Republic of Germany
Occupation: Chemist
Citizenship: Germany
Name: Thomas Schreckenbach
Address: Prinzenbergweg 1
63467 Muhltal
Federal Republic of Germany
Occupation: Chemist
Citizenship: Germany
Page 10 of ___ Pages
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Name: Harold J. Schroder
Address: Merck KGaA
Frankfurter Strasse 250
6100 Darmstadt
Federal Republic of Germany
Occupation: Director, Merck KGaA
Citizenship: Germany
Page 11 of ___ Pages
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EXHIBIT INDEX
Page
Exhibit Number
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1. Security Holder Questionnaire and Agreement, dated November
4, 1996, by and between EM Industries, Incorporated and
Survival Technology, Inc.
Page 12 of ___ Pages
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EXHIBIT 1
Page 13 of ___ Pages
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MERGER OF BRUNSWICK BIOMEDICAL CORPORATION AND SURVIVAL TECHNOLOGY, INC.
SECURITY HOLDER QUESTIONNAIRE AND AGREEMENT
FOR PARTNERSHIPS, CORPORATIONS, AND OTHER ENTITIES
In connection with the merger (the "Merger") of Brunswick Biomedical
Corporation ("BBC") with and into Survival Technology, Inc. ("STI"),
stockholders of BBC will be entitled to receive shares of common stock of STI
("Shares") and, in some cases, warrants for Shares ("Merger Warrants") in
exchange for the securities of BBC that they currently hold. In addition, in
connection with the Merger, STI will assume the obligations of BBC under certain
warrant agreements and stock options and, upon exercise of such warrants or
options in accordance with their terms as adjusted to reflect the Merger, will
issue Shares to the holders thereof. STI intends to offer Shares and Merger
Warrants in connection with the Merger and upon exercise of the warrants,
options and Merger Warrants without registration under the Securities Act of
1933, as amended ("Securities Act"), in reliance on certain provisions of the
Securities Act and Regulation D promulgated thereunder that provide an exemption
from registration. Accordingly, the Shares and Shares issued upon exercise of
warrants, options, and Merger Warrants issued will be restricted as to resale
and may only be resold pursuant to registration under the Securities Act or an
exemption from registration, and the certificates for the Shares will bear a
legend evidencing this restriction.
The purpose of this questionnaire is to permit STI to determine whether you
meet the "accredited investor" standards imposed by Regulation D and to enable
STI to collect information necessary for preparation of the resale registration
statement referred to in the next paragraph. STI's reliance upon the exemption
provided by Regulation D will be based in part on the information herein
supplied.
STI intends to file a registration statement under the Securities Act that
will enable the security holders of BBC ("Stockholders") to resell the Shares
they receive in connection with the Merger or upon exercise of the warrants,
options or Merger Warrants as soon as practicable after they receive such
Shares. STI's agreement with respect to such registration is contained in
Section IV hereof. The agreement set forth in Section IV hereof shall constitute
STI's sole obligation to register the Shares notwithstanding the terms of any
other agreements or understandings that you may have with BBC. By signing this
questionnaire and agreement you also will ratify all actions taken by BBC's
board of directors prior to the Merger and waive any and all claims against STI
arising under the provisions of any security of BBC, any agreement or
understanding related thereto, or otherwise, including without limitation any
claim for any accrued and unpaid dividends or rights to redemption arising prior
to or as a result of the Merger, any stockholders agreements, and any preferred
stock agreements. In addition, by signing this agreement you will agree that
upon consummation of the Merger, all BBC stockholder agreements and preferred
stock agreements will be terminated. By signing this questionnaire, you will
also agree that, to the extent the terms of any security of BBC, any agreement
or understanding with BBC related thereto or otherwise differ from the terms of
this Agreement or the Agreement and Plan of Merger dated September 11, 1996
between STI and BBC, the terms of this agreement and such Agreement and Plan of
Merger shall control.
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Please complete fully, sign, date and return this questionnaire in
the enclosed pre-paid Federal Express envelope. Please print your response to
each question and, where the answer to the question is "None" or "Not
Applicable," please so state.
If you have any questions about any of the items in this Questionnaire,
please contact Richard E. Baltz at Arnold & Porter, telephone (202) 942-5124.
<PAGE>
-3-
Section I. General Information.
1. Full Name of Entity: ________________________________________________________
Type of Entity: _____________________________________________________________
State of Incorporation or Organization: _____________________________________
Date of Incorporation or Organization: ______________________________________
Employer Identification Number: _____________________________________________
Address of Principal Place of Business: _____________________________________
_____________________________________________________________________________
_____________________________________________________________________________
Telephone Number: ___________________________________________________________
Contact Person (name and title): ____________________________________________
Total assets shown on most recent audited financial
statements: $_______________________
Total assets on the date hereof: $_______________________
2. Does the Entity have any debt or other obligations, or are there any other
reasonably foreseeable circumstances, that are likely in the future to
require the Entity to dispose of an interest which it may acquire in STI?
Yes ___ No ___
3. Has the Entity ever been subject to bankruptcy, reorganization or debt
restructuring?
Yes ___ No ___
4. Is the Entity involved in any litigation which it reasonably believes could
materially and adversely affect its financial condition?
Yes ___ No ___
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If yes, provide details:
_____________________________________________________________________________
_____________________________________________________________________________
Section II. Accredited Investor Status.
Identify each of the following categories applicable to the undersigned
entity by placing a check next to the applicable category:
(a) ___ An organization defined in Section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or partnership,
not formed for the specific purpose of acquiring the securities offered,
with total assets in excess of $5,000,000.
(b) ___ A bank as defined in Section 3(a)(2) of the Securities Act or a savings
and loan association or other institution as defined in Section 3(a)5(A) of
the Securities Act, whether acting in regard to this investment in its
individual or a fiduciary capacity.
(c) ___ A broker or dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934, as amended ("Exchange Act").
(d) ___ An insurance company as defined in Section 2(13) of the Securities Act.
(e) ___ An investment company registered under the Investment Company Act of
1940.
(f) ___ A business development company as defined in Section 2(a)(48) of the
Investment Company Act of 1940.
(g) ___ A Small Business Investment Company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act of 1958.
(h) ___ A private business development company as defined in Section 202(a)(22)
of the Investment Advisers Act of 1940.
(i) ___ Each equity owner of the undersigned satisfies the conditions of
statements (i) or (ii) below:
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(i) He or she is a natural person whose net worth at the time of purchase of
the shares, or joint net worth with his or her spouse, exceeds $1,000,000.
(ii) He or she is a natural person who had individual income in excess of
$200,000 or joint income with spouse in excess of $300,000 in each of the
two most recent years, and reasonably expects to reach the same income level
in the current year.
Section III. Resale Registration Information.
1. How many shares of STI common stock does the undersigned own as of the date
of this questionnaire? ______________________________________________________
2. If, as of the date hereof, the undersigned owns any options, warrants, or
other rights to acquire shares of STI common stock, how many shares are
subject to such instruments as of this date?
_____________________________________________________________________________
_____________________________________________________________________________
3. All of the Shares you will receive as a result of the Merger or have the
right to receive upon exercise of warrants, options or Merger Warrants will
be registered for resale unless you indicate otherwise in the space provided
below.
_____________________________________________________________________________
4. Please indicate the nature of any material relationship which the undersigned
has had with STI or any of its predecessors or affiliates within the past
three years:
_____________________________________________________________________________
_____________________________________________________________________________
Section IV. Registration of the Shares; Compliance with the Securities Act.
1. Registration Procedures and Expenses. STI shall:
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(a) as soon as practicable, but no later than thirty (30) days after the
Closing Date established pursuant to that certain Agreement and Plan of
Merger entered into between STI and BBC, prepare and file with the
Securities and Exchange Commission (the "Commission") a registration
statement on a form available for the sale of the Shares from time to
time in the market or in privately negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from
the Stockholders, to cause such registration statement to become
effective as soon as practicable after the filing thereof;
(c) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective until the earlier of (i) the date all the Shares have been
sold pursuant thereto or (ii) three (3) years (or such shorter period as
provided in Rule 144(k) of the Securities Act) from the date the Shares
are received by the Stockholders;
(d) furnish to each Stockholder with respect to the Shares registered on
such registration statement (and to each underwriter, if any, of such
Shares) such number of copies of prospectuses and preliminary
prospectuses in conformity with the requirements of the Securities Act
and such other documents as the Stockholder may reasonably request, in
order to facilitate the public sale or other disposition of all or any
of the Shares by the Stockholder, provided, however, that the obligation
of STI to deliver copies of prospectuses or preliminary prospectuses to
the Stockholder shall be subject to the receipt by STI of reasonable
assurances from the Stockholder that the Stockholder will comply with
the applicable provisions of the Securities Act and of such other
securities or blue sky laws as may be applicable in connection with any
use of such prospectuses or preliminary prospectuses;
(e) file documents required for blue sky clearance for the sale of the
Shares in states specified in writing by any Stockholder;
(f) bear all expenses in connection with the procedures in paragraphs (a)
through (e) of this Section IV.1 and the registration of the Shares on
such registration statement and the satisfaction of the blue sky laws of
such states, including but not limited to all registrations, exemptions,
qualifications and filing fees, printing expenses, fees and
disbursements of counsel for STI, blue sky fees and expenses, and
excluding any underwriting discounts and selling commissions, and fees
and expenses, if any, of separate counsel or other independent advisors
to the Stockholder or other Stockholders.
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STI understands that the Stockholder disclaims being an underwriter, but the
Stockholder being deemed an underwriter shall not relieve STI of any
obligation it has hereunder.
2. Transfer of Shares.
Stockholder understands and agrees that the Shares will be or are restricted
as to resale and agrees that Stockholder will only resell the Shares
pursuant to an effective registration statement or an exemption from
registration satisfactory to STI for the removal of the restricted transfer
legend on the Shares. After the registration of the Shares pursuant to
Section IV.1 above, each Stockholder agrees that, during the period the
registration statement remains effective, such Stockholder:
(a) will not affect any disposition of the Shares that would constitute a
sale within the meaning of the Securities Act (a "Transfer") except as
contemplated in the registration statement referred to in Section IV.1;
and
(b) will not make any sale of the Shares without effectively causing the
prospectus delivery requirements under the Securities Act to be
satisfied.
3. Indemnification.
STI shall defend, indemnify and hold harmless the Stockholders and each of
them and each stockholder's directors, officers, employees and
representatives and each person, if any, that controls such stockholder
within the meaning of section 15 of the Securities Act, from any obligation,
liability, claim, loss, cost, suit, damage, action, proceeding or cause of
action including, without limitation, attorneys' fees and expenses
(collectively, "Claims") arising from or pertaining to: (i) the registration
of the Shares described in this Section IV and/or the registration or
exemption of the Shares under state blue sky laws, including but not limited
to all Claims arising under federal and state securities laws and including
(except as expressly set forth below) any misrepresentation or omission of a
material fact contained in the registration statement covering the Shares;
and (ii) any failure by STI to fulfill any undertaking included in the
registration statement and/or this Section IV; provided, however, that the
foregoing shall not apply and instead a Stockholder shall be obligated to
defend, indemnify and hold harmless STI (and each person, if any, that
controls STI within the meaning of Section 15 of the Securities Act, each
officer of STI who signs the registration statement, and each director of
STI) and the other Stockholders from any Claim if and to the extent such
Claim arises from or pertains to (a) the failure of such indemnifying
Stockholder to comply with the covenants and agreements contained in
Sections 2 and 6 of this Section IV; and/or (b) any misrepresentation or
omission of a material fact contained, as of the effective date of any
registration statement covering the Shares, in information furnished to STI
by or on behalf of such indemnifying Stockholder specifically for use in the
preparation of such registration statement.
<PAGE>
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Promptly after receipt by any indemnified person of a notice of a claim or
the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 3, such indemnified
person shall notify the indemnifying person in writing of such claim or of
the commencement of such action, and, subject to the provisions hereinafter
stated, in case any such action shall be brought against an indemnified
person and such indemnifying person shall have been notified thereof, such
indemnifying person shall be entitled to participate therein, and, to the
extent it shall wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. After notice from the indemnifying
person to such indemnified person of its election to assume the defense
thereof, such indemnifying person shall not be liable to such indemnified
person for any legal expenses subsequently incurred by such indemnified
person in connection with the defense thereof, provided, however, that if
there exists or shall exist a conflict of interest that would make it
inappropriate in the reasonable judgment of the indemnified person for the
same counsel to represent both the indemnified person and such indemnifying
person or any affiliate or associate thereof, the indemnified person shall
be entitled to retain its own counsel at the expense of such indemnifying
person. The failure of an indemnified person to give any notice shall not
affect its entitlement to indemnity hereunder except to the extent that the
indemnifying person is actually and materially prejudiced by such failure.
4. Termination of Conditions and Obligations. The conditions precedent imposed
upon the transferability of the Shares shall cease and terminate as to any
particular number of the Shares when such Shares shall have been effectively
registered under the Securities Act and sold or otherwise disposed of in
accordance with the intended method of disposition set forth in the
registration statement covering such Shares.
5. Information Available. So long as any registration statement is effective
covering the resale of Shares and Shares of such Stockholders remain unsold,
STI will furnish to each Stockholder:
(a) as soon as practicable after available (but in the case of STI's Annual
Report to Stockholders, within 120 days after the end of each fiscal
year of STI, if then available), one copy of (i) its Annual Report to
Stockholders, (ii) if not included in substance in the Annual Report to
Stockholders, its annual report on Form 10-K, (iii) each of its
Quarterly Reports to Stockholders, and its quarterly report on Form
10-Q, (iv) each of its reports on Form 8-K, and (v) a full copy of the
particular registration statement covering the Shares (the foregoing, in
each case, excluding exhibits); and
(b) upon the reasonable request of the Stockholder, all exhibits excluded by
the parenthetical to subparagraph (a) (iv) of this Section IV.5 and all
other information that is generally available to the public;
<PAGE>
- 9 -
and STI, upon the reasonable request of the Stockholder and receipt of
reasonable assurances of confidentiality, will meet with the Stockholder or
a representative thereof during regular business hours, at STI's
headquarters to discuss all information relevant for disclosure in any
registration statement covering the Shares and will otherwise cooperate with
any Stockholder conducting an investigation for the purpose of reducing or
eliminating such Stockholders' exposure to liability under the Securities
Act, including the production of information at STI's headquarters.
6. No Sale Periods. STI will notify each Stockholder, at any time when a
prospectus relating to the registered Shares is required to be delivered
under the Securities Act, if STI becomes aware of the happening of any event
as a result of which the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated in the prospectus or
necessary to make the statements made in the prospectus not misleading in
the light of the then existing circumstances. STI will use its best efforts
consistent with its reasonable needs to amend the prospectus to eliminate
such untrue statement or omission. Each Stockholder agrees not to effect a
sale of the Shares pursuant to the registration statement during any period
that STI reasonably requests due to the existence of information relating to
events outside the ordinary course of STI's business that has not been
publicly disclosed, it being understood and agreed that STI is under no
obligation to disclose any such information for the purpose of permitting
any such sale provided that such period shall not exceed 90 days on account
of any one event.
7. Holdback Agreement. The Stockholder agrees, if so required by the managing
underwriter in an underwritten offering, not to effect any public sale or
distribution of his Shares during the seven days prior to and the 90 days
after any underwritten registration has become effective or, if the managing
underwriter advises STI in writing that, in its opinion, no such public sale
or distribution should be effected for a specific period longer than 90 days
after such underwritten registration in order to complete the sale and
distribution of securities included in such registration, and STI gives
notice to the Stockholder of such advice, during a reasonable longer period
not to exceed 180 days after such underwritten registration, whether or not
the Stockholder participates in such registration. The number of days during
which a Stockholder is not permitted to sell Shares as a result of Section
IV.6 or this Section IV.7 shall be added to the period during which STI
agrees to keep the registration statement in effect under this Agreement.
8. Notices. All notices, requests, consents and other communications hereunder
shall be in writing, shall be mailed by first-class registered or certified
air mail, postage prepaid, and shall be deemed given when so mailed:
(a) if to STI, to Chontelle Woodward, Survival Technology, Inc., 2275
Research Boulevard, Suite #100, Rockville, Maryland 20850;
<PAGE>
- 10-
(b) if to the Stockholder, at the address as set forth in this document, or
at such other address or addresses as may have been furnished to STI in
writing; or
(c) if to any transferee or transferees of the Stockholder, at such address
or addresses as shall have been furnished to STI at the time of the
transfer or transfers, or at such other address or addresses as may have
been furnished by such transferee or transferees to STI in writing.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware and the United States of
America.
10. Survival. The representations, covenants, rights and obligations set forth
in this Agreement shall remain in effect throughout the effectiveness of any
registration statement covering the Shares and for a period of six years
thereafter.
Section V. Acknowledgment, Release and Ratification.
The undersigned hereby acknowledges that STI's sole obligation with respect to
the registration of Shares is as set forth in Section IV hereof, notwithstanding
the terms of any other agreements or understandings that the undersigned may
have with BBC. By signing this questionnaire and agreement, the undersigned also
hereby ratifies any and all actions taken by the board of directors of BBC prior
to the effectiveness of the Merger. In addition, in consideration of STI's
agreement under Section IV hereof and other good and valuable consideration, the
receipt of which is hereby acknowledged, the undersigned hereby:
(i) releases and discharges STI and its affiliates, successors, assigns,
predecessors, representatives, directors, officers, stockholders,
employees and agents with respect to any and all claims that the
undersigned may have arising under the provisions of any security of BBC,
any agreement or understanding with BBC related thereto, or otherwise with
respect thereto, including without limitation any claim for any accrued
and unpaid dividends or right of redemption arising prior to or as a
result of the Merger, any stockholder agreements, and any BBC preferred
stock agreements;
(ii) agrees that upon consummation of the Merger, all stockholder agreements
and preferred stock agreements with BBC will be terminated and of no
further force and effect; and
(iii) agrees that, to the extent the terms of any security of BBC, any agreement
or understanding with BBC related thereto or otherwise differ from the
terms of this Agreement or the Agreement and Plan of Merger dated
September 11, 1996 between STI and BBC, the terms of this Agreement and
such Agreement and Plan of Merger shall control.
<PAGE>
- 11 -
[signature page follows]
<PAGE>
- 12 -
The undersigned represents and warrants that the information stated herein
is true and complete as of the date hereof and will be true and complete as of
the date on which the undersigned receives any shares of STI common stock. If,
prior to the receipt of such shares, there should be any change in such
information or any of such information becomes incorrect or incomplete, the
undersigned agrees to notify, and promptly supply corrective information to
Evelyn Mary Aswad, Arnold & Porter, 555 Twelfth Street, N.W., Washington, D.C.
20004.
EM Industries, Incorporated
-------------------------------------
Print Name of Entity
Witness or Attest:
/s/ Stephen J. Kunst By: /s/ Walter W. Zywottek
- --------------------------------------- ---------------------------------
(signature) (signature)
Stephen J. Kunst Walter W. Zywottek
- --------------------------------------- -------------------------------------
Print Name of Individual Signing Print Name of Individual Signing
General Counsel President & CEO
- --------------------------------------- --------------------------------------
Title (if any) Title
Date: November 4, 1996
---------------------------------
AGREED AND ACCEPTED as to Section IV:
SURVIVAL TECHNOLOGY, INC.
By: /s/ James H. Miller
-----------------------------------
Title: President/CEO
--------------------------------
