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EXHIBIT 3
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REGISTRATION RIGHTS AGREEMENT
BETWEEN
BRUNSWICK BIOMEDICAL CORPORATION
AND
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
DATED AS OF APRIL 15, 1996
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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
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PAGE
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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
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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):
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"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 Xx.
Xxxxxxx Xxxxxxx 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.
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"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.
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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 X-0, X-0 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
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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
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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 X-0, X-0 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 Xx. Xxxxxxx Xxxxxxx 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
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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,
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(c) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose,
(d) of the Company's becoming aware at any time
that the representations and warranties of the Company
contemplated by paragraph (xiv)(a) below have ceased to be
true and correct,
(e) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Warrant Shares for sale in any
jurisdiction or the initiation or threat of any proceeding for
such purpose, and
(f) of the existence of any fact which, to the
knowledge of the Company, results in the Registration
Statement, the Prospectus or any document incorporated therein
by reference containing an untrue statement of material fact
or omitting to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading;
(iv) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the Registration
Statement or any qualification referred to in paragraph (iii)(e) at
the earliest possible moment;
(v) if reasonably requested by the managing underwriter(s)
or the Required Holders of Warrant Shares being sold in connection with
an underwritten offering, promptly incorporate in a Prospectus
supplement or post-effective amendment to the Registration Statement
such information as the managing underwriter(s) or the Required Holders
of the Warrant Shares being sold reasonably request to have included
therein relating to the plan of distribution with respect to such
Warrant Shares, including, without limitation, information with respect
to the amount of Warrant Shares being sold to such underwriters, the
purchase price being paid therefor by such underwriters and any other
terms of the underwritten (or best-efforts underwritten) offering of
the Warrant Shares to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment to
the Registration Statement as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment
to the Registration Statement;
(vi) at the request of any selling Holder of Warrant
Shares, furnish to such selling Holder of Warrant Shares and each
managing underwriter, if any, without charge, at least one signed copy
of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
incorporated by reference);
(vii) deliver to each selling Holder of Warrant Shares and
the managing underwriter(s), if any, without charge, as many copies of
the Registration Statement, each
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Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto (in each case including all exhibits), as such
Persons may reasonably request, together with all documents
incorporated by reference in such Registration Statement or Prospectus,
and such other documents as such selling Holder may reasonably request
in order to facilitate the disposition of its Warrant Shares covered by
such Registration Statement; the Company consents to the use of each
Prospectus and any supplement thereto by each of the selling Holders of
Warrant Shares and the managing underwriter(s), if any, in connection
with the offering and sale of the Warrant Shares covered by each
Prospectus or any supplement thereto;
(viii) prior to any public offering of Warrant Shares, use
its best efforts to register or qualify or reasonably cooperate with
the selling Holders of Warrant Shares, the managing underwriter(s), if
any, and their respective counsel in connection with the registration
or qualification of such Warrant Shares for offer and sale under the
securities or blue sky laws of such jurisdictions as any selling Holder
or managing underwriter(s) reasonably request(s) and do any and all
other acts or things reasonably necessary to enable the disposition in
such jurisdictions of the Warrant Shares covered by the Registration
Statement, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service or process in any such
states or jurisdictions, unless the Company is already subject to
service in such jurisdiction and except as may be required by the Act;
(ix) cooperate with the selling Holders of Warrant Shares
and the managing underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Warrant Shares
to be sold and not bearing any legends restricting the transfer
thereof; and enable such Warrant Shares to be in such denominations
and registered in such names as the managing underwriters may request
at least two Business Days prior to any sale of Warrant Securities to
the underwriters;
(x) use its best efforts to cause the Warrant Shares
covered by the applicable Registration Statement to be registered with
or approved by such United States, state and local governmental
agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the
disposition of such Warrant Shares;
(xi) if any fact contemplated by paragraph (iii)(f) above
shall exist, promptly notify each Holder on whose behalf Warrant
Shares have been registered and prepare and furnish to such Holders a
supplement or post-effective amendment to the Registration Statement
or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Warrant Shares, neither the
Registration Statement nor the Prospectus will contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading;
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(xii) if requested by the Required Holders of the Warrant
Shares covered by the Registration Statement or by the managing
underwriter(s), if any, use its best efforts to cause all Warrant
Shares covered by the Registration Statement to be (A) listed on each
securities exchange on which securities of the same class are then
listed or (B) admitted for trading in any inter-dealer quotation
system on which securities of the same class are then traded;
(xiii) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Warrant Shares
covered by the Registration Statement and provide the applicable
transfer agent with printed certificates for such Warrant Shares which
are in a form eligible for deposit with Depository Trust Company;
(xiv) enter into agreements (including underwriting
agreements) and take all other reasonable actions in order to expedite
or facilitate the disposition of such Warrant Shares and in such
connection, except as otherwise provided, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(a) make such representations and warranties to
the Holders selling such Warrant Shares and, in connection
with any underwritten offering, to the underwriters, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings;
(b) use its best efforts to obtain opinions of
counsel to the Company and updates thereof addressed to each
selling Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in similar
underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters, which
counsel and opinions shall be reasonably satisfactory (in
form, scope and substance) to the managing underwriters, if
any, and the Required Holders of such Warrant Shares;
(c) in connection with any underwritten offering,
use its best efforts to obtain so-called "cold comfort"
letters and updates thereof from the Company's independent
certified public accountants addressed to the selling Holders
of Warrant Shares and the underwriters, if any, such letters
to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters to underwriters
in connection with similar underwritten offerings;
(d) if an underwriting agreement is entered into,
cause the same to set forth in full the indemnification and
contribution provisions and procedures of Section 5 (or such
other substantially similar provisions and procedures as the
underwriters shall reasonably request) with respect to all
parties to be indemnified pursuant to said Section 5; and
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14
(e) deliver such documents and certificates as
may reasonably be requested by the Required Holders of the
Warrant Shares being sold, or the managing underwriter(s), if
any, to evidence compliance with this paragraph (xiv) and with
any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company;
the foregoing to be done upon each closing under any underwriting or
similar agreement as and to the extent required thereunder and from
time to time as may reasonably be requested by any selling Holder of
Warrant Shares in connection with the disposition of Warrant Shares
pursuant to such Registration Statement, all in a manner consistent
with customary industry practice;
(xv) upon execution and delivery of such confidentiality
agreements as the Company may reasonably request, make available to
the Holders of the Warrant Shares being sold, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by such Holders or
underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such Holder, underwriter, attorney or accountant in
connection with the registration for purposes of satisfying any
diligence obligations such Persons may have, at such time or times as
the Person requesting such information shall reasonably determine;
(xvi) otherwise use its best efforts to comply with the
Securities Act, the Exchange Act, all applicable rules and regulations
of the SEC and all applicable state blue sky and other securities
laws, rules and regulations, and make generally available to its
security holders an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act, as soon as practicable, but in no
event later than ninety (90) days after the end of the 12 calendar
month period commencing after the effective date of the Registration
Statement;
(xvii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter" that is required to be retained in accordance with the
rules and regulations of the NASD); and
(xviii) prior to the filing of any document which is being
prepared for incorporation by reference into the Registration
Statement or the Prospectus, upon receipt of such confidentiality
agreements as the Company may reasonably request, provide copies of
such document to counsel to the selling Holders of Warrant Shares, and
to the managing underwriter(s), if any, and make the Company's
representatives available for discussion of such document.
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15
Each Holder agrees, if requested by the Company and an underwriter of Warrant
Shares (or other securities) of the Company, not to sell or otherwise transfer
or dispose of any Warrant Shares (or other securities) of the Company held by
it during the 180-day period following the effective date of a registration
statement of the Company filed under the Act, provided that (a) such agreement
only applies to the first such registration statement of the Company including
securities to be sold on its behalf to the public in an underwritten offering
(which shall include the first such registration statement of STI following the
Merger Consummation Date) and (b) all holders of Preferred Stock of Brunswick
(or of shares of STI issued in exchange for such Preferred Stock pursuant to
the Merger), and officers and directors of the Company enter into or are
otherwise subject to similar agreements (except that if any such agreement
provides for a shorter non-sale period, the non-sale period applicable to the
Holders under this sentence shall be the shortest of such periods).
Such agreement shall be in writing in a form satisfactory to the Company and
such underwriter. The Company may impose stop-transfer instructions with
respect to the shares (or securities) subject to the foregoing restriction
until the end of the 90-day period.
SECTION 3. Registration Expenses.
(a) All expenses incident to the Company's performance of
or compliance with its obligations under this Agreement (excluding underwriting
discounts, selling commissions and brokerage fees) will be paid by the Company,
regardless of whether Warrant Shares are sold pursuant to any Registration
Statement, including, without limitation:
(i) all registration, filing and listing fees;
(ii) fees and expenses of compliance with securities or
blue sky laws to the extent the Company is obligated to act under
Section 2(c)(viii) (including, without limitation, the reasonable fees
and disbursements of counsel for the underwriters, if any, or selling
Holders in connection with blue sky and state securities qualifications
of Warrant Shares and determination of their eligibility for investment
under the laws of such jurisdictions as the managing underwriter(s), if
any, or the Required Holders of the Warrant Shares covered by such
Registration Statement may reasonably designate);
(iii) printing (including, without limitation, expenses of
printing or engraving certificates for the Warrant Shares in a form
eligible for deposit with Depository Trust Company and of printing
prospectuses), messenger, telephone and delivery expenses;
(iv) fees and disbursements of counsel for the Company
and, subject to Section 3(b), counsel for the selling Holders of the
Warrant Shares;
(v) fees and disbursements of all independent certified
public accountants of the Company (including, without limitation, the
expenses of any special audit and, in connection with any underwritten
offering, "cold comfort" letters required by or incident to such
performance);
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16
(vi) Securities Act liability insurance if the Company so
desires;
(vii) fees and expenses of other Persons (including special
experts) retained by the Company; and
(viii) fees and expenses associated with any NASD filing
required to be made in connection with the Registration Statement,
including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be
retained in accordance with the rules and regulations of the NASD.
The Company will, in any event, pay its internal expenses, the expense of any
annual audit, the fees and expenses incurred in connection with the listing of
the securities to be registered on each securities exchange on which securities
of the same class are then listed or the qualification for trading of the
securities to be registered in each inter-dealer quotation system in which
securities of the same class are then traded, and rating agency fees.
(b) In connection with each Registration Statement
required hereunder, the Company will reimburse the Holders of Warrant Shares
being registered pursuant to such Registration Statement for the reasonable
fees and disbursements of not more than one counsel chosen by the Required
Holders of the Warrant Shares being sold; the expense of any additional counsel
for the Holders shall be paid by the Holders.
(c) The term "Registration Expenses" shall mean the
expenses payable by the Company pursuant to the provisions of this Section 3.
(d) Notwithstanding the foregoing, if a registration
request under Section 2 is subsequently withdrawn at the request of the Holders
of Warrant Shares requesting registration and if the requesting Holders elect
not to have such registration counted as a registration requested under Section
2, the requesting Holders shall pay the expenses of such registration pro rata
in accordance with the number of their Warrant Shares included in such
registration.
Section 4. Conditions to Registration.
Each Holder's right to have Warrant Shares included in any
Registration Statement filed by the Company in accordance with the provisions
of Section 2 shall be subject to the following conditions:
(a) The Holders on whose behalf such Warrant Shares are to
be included shall be required to furnish the Company in a timely manner with all
information required by the applicable rules and regulations of the SEC
concerning the proposed method of sale or other disposition of such securities,
the identity of and compensation to be paid to any proposed underwriters to be
employed in connection therewith, and such other information as may be
reasonably required by the Company properly to prepare and file such
Registration Statement in accordance with applicable provisions of the
Securities Act;
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17
(b) If any such Holder desires to sell and distribute
Warrant Shares over a period of time, or from time to time, at then prevailing
market prices, then any such Holder shall execute and deliver to the Company
such written undertakings as the Company and its counsel may reasonably require
in order to assure full compliance with relevant provisions of the Securities
Act and the Exchange Act;
(c) In the case of any registration requested pursuant to
the provisions of Section 2(a), the offering price for any Warrant Shares to be
so registered shall be no less than for any shares of the same class then to be
registered for sale for the account of the Company or other security holders
and the offering price for shares of Class A Common Stock shall be no less than
for Voting Common Stock, unless such Warrant Shares are to be offered from time
to time based on the prevailing market price;
(d) Upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraph (xi) of Section 2(c),
such Holder will forthwith discontinue disposition of Warrant Shares until such
Holder's receipt of the copies of the supplemented Prospectus contemplated by
such paragraph, or until it is advised in writing by the Company that the use
of the Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus,
and, if so directed by the Company, such Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Warrant Shares
current at the time of receipt of such notice; and
(e) In the case of any underwritten offering on behalf of
the Holders of Warrant Shares, such Holders will enter into such agreements
(including underwriting agreements and lock-up agreements) as the managing
underwriter(s) shall reasonably request and as are customary in similar
circumstances.
Section 5. Indemnification.
(a) Indemnification by the Company. In the event of the
registration of any Warrant Shares under the Securities Act pursuant to the
provisions hereof, the Company will indemnify and hold harmless each and every
seller of Warrant Shares, its directors, officers, employees and agents, each
underwriter, broker and dealer, if any, who participates in the offering or
sale of such Shares, and each other Person, if any, who controls such seller or
any such underwriter, broker or dealer within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act (each such Person being
hereinafter sometimes referred to as an "Indemnified Person" provided that for
clauses (b), (c) and (d) of this Section 5 "Indemnified Person" shall include
the Company, its directors, officers, employees and agents, and each other
Person, if any who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act) from and against any
losses, claims, damages, liabilities or expenses, joint or several, to which
such indemnified Person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or
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18
alleged untrue statement of any material fact contained or incorporated by
reference in any Registration Statement or Prospectus or any amendment or
supplement thereto, or any document incorporated by reference therein, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each such Indemnified Person for any
legal or other expenses reasonably incurred by such Indemnified Person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made or incorporated by reference in the
Registration Statement or Prospectus or any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by such Indemnified Person stated to be specifically for use in
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Person
and shall survive the transfer of such Warrant Shares by such seller.
(b) Indemnification by Holders of Warrant Shares. In the
event of the registration of any Warrant Shares under the Securities Act
pursuant to the provisions hereof, each Holder on whose behalf such Warrant
Shares shall have been registered will indemnify and hold harmless each and
every Indemnified Person, against any losses, claims, damages or liabilities,
joint or several, to which such Indemnified Person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained or incorporated by reference in any Registration
Statement or Prospectus or any amendment or supplement thereto or any document
incorporated by reference therein, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
which untrue statement or alleged untrue statement or omission or alleged
omission has been made or incorporated therein in reliance upon and in
conformity with written information furnished to the Company by such Holder
specifically stating that it is for use in preparation thereof, and will
reimburse each such Indemnified Person for any legal and other expenses
reasonably incurred by such Indemnified Person in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the liability of each Holder hereunder shall be limited to the
proceeds received by such Holder from the sale of Warrant Shares covered by
such Registration Statement.
(c) Procedure. Promptly after receipt by an Indemnified
Person of notice of the commencement of any action (including any governmental
investigation or inquiry), such Indemnified Person will, if such Indemnified
Person intends to make a claim in respect thereof against the party agreeing to
indemnify such Indemnified Person pursuant to paragraphs (a) or (b) hereof (any
such Party being hereinafter referred to as an "Indemnifying Person"), give
written notice to such Indemnifying Person of the commencement thereof, but the
omission so to notify the Indemnifying Person shall not relieve the Indemnifying
Person from any of its obligations pursuant to the provisions of this Section 5
except to the extent that the Indemnifying Person is actually
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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);
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21
(c) use its best efforts to file with the SEC in a timely
manner all reports and documents required of the Company under the Securities
Act and the Exchange Act (at any time after it has become subject to such
reporting requirements); and
(d) furnish to any Holder promptly upon request (i) a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144 (at any time after ninety (90) days after the
effective date of the first registration statement filed by the Company for an
offering of its Shares to the general public), and of the Securities Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of the
Company (beginning after the Company becomes subject to such reporting
requirements), and (iii) such other reports and documents of the Company and
other information in the possession of or reasonably attainable by the Company
as such Holder may reasonably request in availing itself of any Rule or
Regulation of the SEC allowing such Holder to sell any such Shares without
registration.
The Company represents and warrants that such registration
statement or any information, document or report filed with the SEC in
connection therewith or any information so made public shall not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements contained
therein not misleading. The Company agrees to indemnify and hold harmless (or
to the extent the same is not enforceable, make contribution to) the Holders,
their partners, officers, directors, employees and agents, each broker, dealer
or underwriter (within the meaning of the Securities Act) acting for any Holder
in connection with any offering or sale by such Holder of Warrant Shares or any
Person controlling (within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act) such Holder and any such broker, dealer
or underwriter from and against any and all losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arising out of or
resulting from any breach of the foregoing representation or warranty, all on
terms and conditions comparable to those set forth in Section 5.
Section 7. Limitation on Registration Rights of Others.
The Company represents and warrants that, except as set forth on
Exhibit E of the Warrant Agreement, it has not granted to any Person the right
to request or require the Company to register any Shares issued by the Company.
The Company covenants and agrees that, so long as any Holder holds any Warrant
Shares in respect of which any registration rights provided for in Section 2
remain in effect, the Company will not, directly or indirectly, grant to any
Person or agree to or otherwise become obligated in respect of (a) any
registration rights of securities of the Company upon the demand of any Person
without the prior written consent of the Required Holders; or (b) rights of
registration in the nature or substantially in the nature of those set forth in
Section 2(a), unless in each such case such rights are expressly subject and
subordinated to the rights of registration of the Holders pursuant to Section
2(a) and 2(b) hereof on terms reasonably satisfactory to the Required Holders,
which shall include, without limitation, priority of registration over any
Person exercising any such demand (whether upon exercise of rights of
registration of the Holders pursuant to Section 2(a) or Section 2(b)).
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22
Section 8. Mergers, etc.
In addition to any other restrictions on mergers, consolidations and
reorganizations contained in the Warrant Agreement or in the articles of
incorporation or organization, by-laws or agreements of the Company, the
Company covenants and agrees that it shall not, directly or indirectly, enter
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation and in which the Holders shall not have had the
option to receive cash for all their Warrant Shares, unless the surviving
corporation shall, prior to such merger, consolidation or reorganization, agree
in a writing satisfactory in form, scope and substance to the Required Holders
to assume the obligations of the Company under this Agreement, and for such
purpose references hereunder to "Warrant Shares" shall be deemed to include the
Shares which such Holders would be entitled to receive in exchange for Warrant
Shares pursuant to any such merger, consolidation or reorganization.
If, and as often as, there are any changes in the Warrant Shares by
way of stock split, stock dividend, combination or classification, or through
merger, consolidation, reorganization or recapitalization, or by any other
means, appropriate adjustments shall be made in the provisions hereof as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Warrant Shares as so changed.
Upon consummation of the Merger, this Agreement and all obligations of
Brunswick hereunder shall become the legal, valid and binding obligations of
STI, enforceable against STI in accordance with their terms, as if STI had been
the signatory hereto.
Section 9. Notices, etc.
All notices, consents, approvals, agreements and other communications
provided hereunder shall be in writing or by telex or telecopy and shall be
sufficiently given to the Purchaser, the Holders and the Company if addressed
or delivered to them in accordance with Section 20 of the Warrant Agreement:
Section 10. Entire Agreement.
The parties hereto agree that this Agreement and the agreements
specifically referred to in Section 33 of the Warrant Agreement constitute the
entire agreement among the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings between them as to such
subject matter; and there are no restrictions, agreements, arrangements, oral
or written, between any or all of the parties relating to the subject matter
hereof which are not fully expressed or referred to herein or therein.
Section 11. Waivers and Further Agreements.
Any waiver of any terms or conditions of this Agreement shall not
operate as a waiver of any other breach of such terms or conditions or any
other term or condition, nor shall any failure
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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
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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.
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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.
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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 X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
President
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxx
--------------------------------
Xxxxxx Xxxxx
Managing Director
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