-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, G7QKPckj+o47BwXpJsFk0L0gYkSnW5x7yNpre873525TIdXHyrtigZ6ngtrsB1rL PXKRAejpKqhmOMZ78AasAw== 0000950144-96-008792.txt : 19961203 0000950144-96-008792.hdr.sgml : 19961203 ACCESSION NUMBER: 0000950144-96-008792 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 19961202 SROS: NONE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SURVIVAL TECHNOLOGY INC CENTRAL INDEX KEY: 0000095676 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 520898764 STATE OF INCORPORATION: DE FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-35771 FILM NUMBER: 96675003 BUSINESS ADDRESS: STREET 1: 2275 RESEARCH BLVD STREET 2: STE 100 CITY: ROCKVILLE STATE: MD ZIP: 20850 BUSINESS PHONE: 3019261800 MAIL ADDRESS: STREET 1: 2275 RESEARCH BLVD SUITE 100 CITY: ROCKVILLE STATE: MD ZIP: 20850 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: INTERNATIONALE NEDERLANDEN CAPITAL CORP CENTRAL INDEX KEY: 0000939812 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 135 EAST 57TH STREET CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 212-446-1500 MAIL ADDRESS: STREET 1: MURPHY WEIR & BUTLER STREET 2: 101 CALIFORNIA STREET CITY: SAN FRANCISCO STATE: CA ZIP: 94111 SC 13D 1 ING INVESTMENT CORP SC 13D 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: / / --- 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 3
CUSIP NO. 00086902800 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 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- 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%
Page 3 of 15 Pages Exhibit Index on Page 15 4 14. TYPE OF REPORTING PERSON* CO
*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 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 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 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 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 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 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 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
Executive Officers - ------------------ Name Position - ---- -------- Timothy Schantz President William A. Austin General Counsel Joseph Kaminsky Senior Vice President Directors - --------- Principal Occupation Name (if other than as indicated above) - ---- ---------------------------------- Lane C. Grijns J. Clarke Gray
Page 11 of 15 Pages Exhibit Index on Page 15 12 ING (U.S.) CAPITAL CORPORATION
Executive Officers - ------------------ Name Position - ---- -------- Timothy Schantz President Bart Staal Chief Executive Officer J. Clarke Gray Chief Operting Officer Directors - --------- Principal Occupation Name (if other than as indicated above) - ---- ---------------------------------- Timothy Schantz Director Bart Staal Director J.Clarke Gray Director
ING (U.S.) CAPITAL FINANCIAL HOLDINGS CORPORATION
Executive Officers - ------------------ Name Position - ---- -------- Timothy Schantz President
Page 12 of 15 Pages Exhibit Index on Page 15 13
Directors - --------- Principal Occupation Name (if other than as indicated above) - ---- ---------------------------------- Timothy Schantz Director Bart Staal Director, Chairman
ING (U.S.) FINANCIAL HOLDINGS CORPORATION
Executive Officers - ------------------ Name Position ---- -------- Lane C. Grijns President Bart Staal Executive Vice President Directors Principal Occupation --------- (if other than as indicated above) ---------------------------------- Lane C. Grijns Director Bart Staal Director H. Lindenbergh Director, Chairman M. Minderhoud Director, Vice Chairman
ING BANK N.V.
Executive Officers - ------------------ Name Position - ---- -------- G.J.A. van der Lugt Chairman J.H.M. Lindenbergh Member C. Maas Member M. Minderhoud Member Directors - --------- Principal Occupation Name (if other than as indicated above) - ---- ---------------------------------- 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
Page 13 of 15 Pages Exhibit Index on Page 15 14 ING GROUP N.V.
Executive Officers - ------------------ Name Position - ---- -------- 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
Page 14 of 15 Pages Exhibit Index on Page 15 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 EX-1 2 CREDIT AGREEMENT 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 ================================================================================ 2 TABLE OF CONTENTS
Page ---- 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
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Page ---- 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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Page ---- 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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Page ---- 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
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Page ---- 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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Page ---- 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
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) vi 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: 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. 2 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 3 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: 4 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. 5 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 6 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. 7 15 "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. 8 16 "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 9 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 10 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); 11 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." 12 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. 13 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. 14 22 "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. 15 23 "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 16 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 17 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. 18 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) 19 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. 20 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. 21 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 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 23 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. 24 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. 25 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 26 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 27 35 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 28 36 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: 29 37
Quarterly Quarterly Payment Dates Occuring Principal During the Period from: Payment -------------------------------- --------- 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
(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; 30 38 (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 31 39 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: 32 40 (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 33 41 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) 34 42 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 35 43 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 36 44 (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 37 45 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 38 46 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 39 47 (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 40 48 (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; 41 49 (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. 42 50 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. 43 51 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; 44 52 (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. 45 53 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; 46 54 (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 47 55 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; 48 56 (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 49 57 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 50 58 (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 51 59 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: 52 60 (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 53 61 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. 54 62 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 55 63 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 56 64 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 57 65 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. 58 66 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. 59 67 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); 60 68 (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 61 69 (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 62 70 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 63 71 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. 64 72 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. 65 73 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: 66 74 (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 67 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 68 76 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. 69 77 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):
Fiscal Quarter Ending: Ratio ---------------------- ----- 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
(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):
Fiscal Quarter Ending: Ratio ---------------------- ----- 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
70 78 July 31, 1999 and thereafter 1.2:1.0
(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):
Fiscal Quarter Ending: Ratio ---------------------- ----- 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
(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):
Fiscal Quarter Ending: Ratio ---------------------- ----- 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
71 79 (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):
Fiscal Quarter Ending: Amount ---------------------- ----------- 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
(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 72 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):
Fiscal Year: Amount ------------ ---------- 1996 $3,500,000 1997 $2,000,000 1998 $2,500,000 1999 $3,000,000 2000 $3,000,000 2001 $3,000,000
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):
Fiscal Year: Amount 1996 $1,000,000 1997 $1,000,000 1998 $1,250,000 1999 $1,250,000 2000 $1,250,000 2001 $1,250,000
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; 73 81 (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. 74 82 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, 75 83 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 76 84 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. 77 85 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; 78 86 (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). 79 87 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 80 88 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, 81 89 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. 82 90 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 83 91 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 84 92 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. 85 93 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 86 94 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; 87 95 (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 88 96 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, 89 97 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 90 98 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 91 99 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 92 100 (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 93 101 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. 94 102 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 95 103 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): 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-2 105 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-3 106 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-4 107 ACKNOWLEDGED AND AGREED TO: INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, as Agent By: --------------------------------- Name: Title: A-5 108 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. 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-2 110 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. 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-1-2 112 Schedule of Bridge Loan and Repayments
Person Amount of Amount of Outstanding Making Date Bridge Loan Repayment Balance Notation - ---- ----------- --------- ----------- --------
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. 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-2-2 115 Schedule of Revolving Loans and Repayments
Person Amount of Amount of Outstanding Making Date Bridge Loan Repayment Balance Notation - ---- ----------- --------- ----------- --------
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. 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-3-2 118 Schedule of Term Loan and Repayments
Person Amount of Amount of Outstanding Making Date Bridge Loan Repayment Balance Notation - ---- ----------- --------- ----------- --------
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; 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-2 121 Attachment 1 Period Ending ____________ (All figures consolidated) Senior Debt Leverage Ratio 1. Aggregate outstanding principal amount of the Loans $ -------------- 2. EBITDA (as calculated on Attachment 5 hereto) $ --------------
Ratio: Outstanding Loans (Item 1) to EBITDA (Item 2) is _________. D-3 122 Attachment 2 Period Ending ____________ (All figures consolidated) Total Debt Leverage Ratio 1. Aggregate outstanding principal amount of all Indebtedness of Borrower and its Subsidiaries $ -------------- 2. EBITDA (as calculated on Attachment 5 hereto) $ --------------
Total Debt Leverage Ratio: Outstanding Indebtedness (Item 1) to EBITDA (Item 2) is ____________. D-4 123 Attachment 3 Period Ending ____________ (All figures consolidated) Senior Debt Service Ratio 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)) $ --------------
Ratio: EBITDA (Item 1) to Senior Debt Service (Item 2(c)) is ___________. D-5 124 Attachment 4 Period Ending ____________ (All figures consolidated) Interest Coverage Ratio 1. EBITDA (as calculated on Attachment 5) $ -------------- 2. Interest Expense (as listed on Attachment 5) $ --------------
Ratio: EBITDA (Item 1) to Interest Expense (Item 2) is ___________. D-6 125 Attachment 5 Period Ending ____________ (All figures consolidated) EBITDA 1. Net Income $ -------------- 2. Interest expense $ -------------- 3. Provisions for Income Taxes 4. Depreciation, amortization of intangible assets $ -------------- 5. Total $ ==============
D-7 126 Attachment 6 Period Ending ____________ (All figures consolidated) Consolidated Capital Expenditures 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 $ ==============
D-8 127 Attachment 7 Period Ending ____________ (All figures consolidated) Borrower's and Subsidiaries "Lease Obligations" under Section 6.2.6 of the Credit Agreement 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 $ --------------
D-9 128 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. 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-2 130 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 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-2 132 ACKNOWLEDGED AND AGREED TO: [BRUNSWICK BIOMEDICAL CORPORATION] [SURVIVAL TECHNOLOGY, INC.] By: --------------------------------- Name: Title: F-3 133 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-1 134 "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-2 135 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-3 136 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-4 137 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-5 138 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-6 139 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-7 140 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; 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. 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 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. 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 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 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. 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, 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 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 - 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 - 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.
Notes Payable/Lender Outstanding Obligation -------------------- ---------------------- (as of 2/29/96) 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 ----------
13. (Section 5.18). Environmental Matters. BRUNSWICK: None - 4 - 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 - 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 - 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 - 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 - 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 - 157 DISCLOSURE SCHEDULE A BRUNSWICK BIOMEDICAL CORPORATION FINANCE SOURCES AND USES
NON- DEBT PREFSTK NOTE TOTAL CASH CASH ---- ------- ---- ----- ---- ---- 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
SERIES SERIES SERIES SUMMARY OF PREFERRED STOCK ISSUED D E F ------ ------ ------ 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
158 SCHEDULE D REGISTERED U.S. PATENTS (BRUNSWICK BIOMEDICAL CORPORATION)
TITLE REGISTRATION NO. REGISTRATION DATE - ----- ---------------- ----------------- 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
159 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
160 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
161 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
162 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
163 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
164 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
165 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
166 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
167 BRUNSWICK BIOMEDICAL CORPORATION PATENT LICENSES Patent Licenses with respect to which the Borrower is a licensor:
Patent Registration Licensee License or Serial Number - -------- ------- ---------------- Brunswick Biomedical Kiss of Life (KOL) Corporation Barrier Mask Brunswick Biomedical Profile Biosignal Electrode Corporation Brunswick Biomedical Improved Peak Flow Meter Corporation
168 REGISTERED U.S. TRADEMARKS (BRUNSWICK BIOMEDICAL CORPORATION)
MARK REGISTRATION NO. REGISTRATION DATE Cardio Beeper 1,214,758 11/02/82 Infantrode 1,201,906 07/20/82 Quiktrode 1,020,445 09/16/75 PENDING U.S. TRADEMARK APPLICATIONS MARK SERIAL NO. FILING DATE The Heart System 74-396,418 03/29/94
169 REGISTRED U.S. PATENTS (BRUNSWICK BIOMEDICAL TECHNOLOGIES, INC.)
TITLE REGISTRATION NO. REGISTRATION DATE - ----- ---------------- ----------------- 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
170 BRUNSWICK BIOMEDICAL TECHNOLOGIES, INC. PATENT LICENSES Patent Licenses with respect to which the Borrower is a licensor:
Patent Registration Licensee License or Serial Number - -------- ------- ------------------- Brunswick Biomedical Kiss of Life Technologies, Inc. Barrier Mask
171 REGISTERED U.S. TRADEMARKS (BRUNSWICK BIOMEDICAL TECHNOLOGIES, INC.)
MARK REGISTRATION NO. REGISTRATION DATE - ---- ---------------- ----------------- 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
172 REGISTERED U.S. PATENTS - SURVIVAL TECHNOLOGIES, INC.
REGISTRATION REGISTRATION TITLE NO. DATE - ----- -- ---- 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
173 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
- 2 - 174 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
- 3 - 175 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
PENDING U.S. PATENT APPLICATIONS TITLE FILING DATE - 4 - 176 REGISTERED U.S. TRADEMARKS - SURVIVAL TECHNOLOGIES, INC.
REGISTRATION NO MARK DATE - --------------- ---- ---- 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
- 5 - 177 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
- 6 - 178 SCHEDULE C PERMITTED LIENS
============================================================================================================ DEBTOR: SURVIVAL TECHNOLOGY, INC. ============================================================================================================ SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL ====================================================================================------------------------ 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 - ------------------------------------------------------------------------------------------------------------
179
============================================================================================================ DEBTOR: SURVIVAL TECHNOLOGY, INC. ============================================================================================================ SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL ====================================================================================------------------------ 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 - ------------------------------------------------------------------------------------------------------------
180
============================================================================================================ DEBTOR: SURVIVAL TECHNOLOGY, INC. ============================================================================================================ SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL ====================================================================================------------------------ 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 - ------------------------------------------------------------------------------------------------------------
181
============================================================================================================ DEBTOR: SURVIVAL TECHNOLOGY, INC. ============================================================================================================ SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL ====================================================================================------------------------ 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. - ------------------------------------------------------------------------------------------------------------
182
============================================================================================================ DEBTOR: SURVIVAL TECHNOLOGY, INC. ============================================================================================================ SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL ====================================================================================------------------------ 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 - -------------------------------------------------------------------------------------------------------------
183
============================================================================================================ DEBTOR: SURVIVAL TECHNOLOGY, INC. ============================================================================================================ SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL ====================================================================================------------------------ 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 ============================================================================================================
184
============================================================================================================ DEBTOR: SURVIVAL TECHNOLOGY, INC. ============================================================================================================ SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL ============================================================================================================ 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 - ------------------------------------------------------------------------------------------------------------
185
============================================================================================================ DEBTOR: SURVIVAL TECHNOLOGY, INC. ============================================================================================================ SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL ============================================================================================================ 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 - ------------------------------------------------------------------------------------------------------------
186
============================================================================================================ DEBTOR: BRUNSWICK BIOMEDICAL CORPORATION ============================================================================================================ SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL ============================================================================================================ 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 - ------------------------------------------------------------------------------------------------------------
EX-2 3 WARRANT PURCHASE AGREEMENT 1 EXHIBIT 2 - -------------------------------------------------------------------------------- WARRANT PURCHASE AGREEMENT BETWEEN BRUNSWICK BIOMEDICAL CORPORATION AND INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION Dated as of April 15, 1996 - -------------------------------------------------------------------------------- 2 TABLE OF CONTENTS
Page ---- 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
- i - 3
Page ---- 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
- ii - 4
Page ---- 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)
- iii - 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 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; - 2 - 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 - 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 - 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 - 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 - 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 - 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 - 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) - 9 - 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. - 10 - 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 - 11 - 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 - 12 - 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; - 13 - 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 - 14 - 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 - 15 - 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 - 16 - 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 - 17 - 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 - 18 - 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 - 19 - 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 - 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"): - 21 - 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 - 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 - 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 - 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 - 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 - 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; - 27 - 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; - 28 - 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, - 29 - 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). - 30 - 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 - 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 - 32 - 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 - 33 - 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; - 34 - 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") - 35 - 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 - 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 - 37 - 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) - 38 - 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 - 39 - 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 - 40 - 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. - 41 - 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 - 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 - 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 - 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 - 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. 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 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 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 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 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 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. 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 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 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 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 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) 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. 63 EXHIBIT D Stockholder List 64 BRUNSWICK BIOMEDICAL CORPORATION Common Stock Register
- ----------------------------------------------------------------------------------------------------------------------------------- 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 - ----------------------------------------------------------------------------------------------------------------------------------- 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 ===================================================================================================================================
65 BRUNSWICK BIOMEDICAL CORPORATION Series A Preferred Stock Register
- ----------------------------------------------------------------------------------------------------------------------------------- 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 - ----------------------------------------------------------------------------------------------------------------------------------- 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 ===================================================================================================================================
66 BRUNSWICK BIOMEDICAL CORPORATION Series B Preferred Stock Register
- ----------------------------------------------------------------------------------------------------------------------------------- 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 - ----------------------------------------------------------------------------------------------------------------------------------- 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 ===================================================================================================================================
67 BRUNSWICK BIOMEDICAL CORPORATION Series C Preferred Stock Register
- ----------------------------------------------------------------------------------------------------------------------------------- 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 - ----------------------------------------------------------------------------------------------------------------------------------- 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 ===================================================================================================================================
68 BRUNSWICK BIOMEDICAL CORPORATION Series C Preferred Stock Register
- ----------------------------------------------------------------------------------------------------------------------------------- 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 - ----------------------------------------------------------------------------------------------------------------------------------- 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 ===================================================================================================================================
69 BRUNSWICK BIOMEDICAL CORPORATION Series C Preferred Stock Register
- ----------------------------------------------------------------------------------------------------------------------------------- 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 - ----------------------------------------------------------------------------------------------------------------------------------- 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 ===================================================================================================================================
70 BRUNSWICK BIOMEDICAL CORPORATION Series D Preferred Stock Register
- ----------------------------------------------------------------------------------------------------------------------------------- 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 - ----------------------------------------------------------------------------------------------------------------------------------- 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 ===================================================================================================================================
71 BRUNSWICK BIOMEDICAL CORPORATION Series E Preferred Stock Register
- ----------------------------------------------------------------------------------------------------------------------------------- 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 - ----------------------------------------------------------------------------------------------------------------------------------- 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 ===================================================================================================================================
72 BRUNSWICK BIOMEDICAL CORPORATION Series F Preferred Stock Register
- ----------------------------------------------------------------------------------------------------------------------------------- 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 - ----------------------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------------------- 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 ===================================================================================================================================
73 EXHIBIT E-1 WARRANT REGISTER
Warrant # Holder Face Vested % Vested # Expiration Current Common Reserved 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
74 WARRANT REGISTER (Continued)
Warrant # Holder Face Vested % Vested # Expiration Current Common Reserved C-29 Sarnoff Estate 50,000 100% 50,000 4-15-01 50,000 50,000
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. 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. 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. 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 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). 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 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). 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, EX-3 4 REGISTRATION RIGHTS AGREEMENT 1 EXHIBIT 3 - -------------------------------------------------------------------------------- REGISTRATION RIGHTS AGREEMENT BETWEEN BRUNSWICK BIOMEDICAL CORPORATION AND INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION DATED AS OF APRIL 15, 1996 - -------------------------------------------------------------------------------- 2 TABLE OF CONTENTS
PAGE 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
- i - 3
PAGE ---- 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
- ii - 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): 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 - 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 - 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 - 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 - 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 - 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 - 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 - 8 - 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; - 9 - 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 - 10 - 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. - 11 - 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); - 12 - 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; - 13 - 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 - 14 - 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 - 15 - 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 - 16 - 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); - 17 - 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)). - 18 - 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 - 19 - 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 - 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 - 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 - 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 - EX-4 5 1ST AMENDMENT TO CREDIT AGREEMENT 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: 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):
Fiscal Quarter Ending: Ratio --------------------- ----- 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
(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):
Fiscal Quarter Ending: Ratio --------------------- ----- 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
-2- 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):
Fiscal Quarter Ending: Ratio --------------------- ----- 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
(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): 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
-3- 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):
Fiscal Quarter Ending: Amount --------------------- ------ 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
(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- 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- 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- 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] 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] EX-5 6 1ST AMENDMENT TO WARRANT PURCHASE AGREEMENT 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 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- 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- EX-6 7 ASSUMPTION AGREEMENT TO CREDIT AGREEMENT 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): 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 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 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 5 ACKNOWLEDGED AND AGREED TO: ING (U.S.) CAPITAL CORPORATION, as Agent By: /s/ Darren J. Wells --------------------------------- Darren J. Wells Managing Director EX-7 8 ASSUMPTION AGREEMENT TO WARRANT PURCHASE AGREEMENT 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. 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. 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 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. 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 EX-8 9 TERM NOTE OF MERIDIAN MEDICAL TECHNOLOGY 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 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 3 Schedule of Term Loan and Repayments
Person Amount of Amount of Outstanding Making Date Term Loan Repayment Balance Notation ---- ---------- --------- ----------- --------
EX-9 10 REVOLVING NOTE 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. 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 3 Schedule of Revolving Loans and Repayments
Person Amount of Amount of Outstanding Making Date Revolving Loan Repayment Balance Notation ---- --------------- --------- ----------- --------
EX-10 11 WARRANT CERTIFICATE FOR 90,912 WARRANTS 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 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 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 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) 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) 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) EX-11 12 WARRANT CERTIFICATE FOR 83,579 WARRANTS 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 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 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 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.) 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: -------------------- ---------------------------------------- (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) 5 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) -----END PRIVACY-ENHANCED MESSAGE-----