Exhibit 10-13
MERGER OF BRUNSWICK BIOMEDICAL CORPORATION AND SURVIVAL TECHNOLOGY, INC.
SECURITY HOLDER QUESTIONNAIRE AND AGREEMENT
FOR PARTNERSHIPS, CORPORATIONS, AND OTHER ENTITIES
In connection with the merger (the "Merger") of Brunswick Biomedical
Corporation ("BBC") with and into Survival Technology, Inc. ("STI"),
stockholders of BBC will be entitled to receive shares of common stock of STI
("Shares") and, in some cases, warrants for Shares ("Merger Warrants") in
exchange for the securities of BBC that they currently hold. In addition, in
connection with the Merger, STI will assume the obligations of BBC under
certain warrant agreements and stock options and, upon exercise of such
warrants or options in accordance with their terms as adjusted to reflect the
Merger, will issue Shares to the holders thereof. STI intends to offer
Shares and Merger Warrants in connection with the Merger and upon exercise of
the warrants, options and Merger Warrants without registration under the
Securities Act of 1933, as amended ("Securities Act"), in reliance on certain
provisions of the Securities Act and Regulation D promulgated thereunder that
provide an exemption from registration. Accordingly, the Shares and Shares
issued upon exercise of warrants, options, and Merger Warrants issued will be
restricted as to resale and may only be resold pursuant to registration under
the Securities Act or an exemption from registration, and the certificates
for the Shares will bear a legend evidencing this restriction.
The purpose of this questionnaire is to permit STI to determine
whether you meet the "accredited investor" standards imposed by Regulation D
and to enable STI to collect information necessary for preparation of the
resale registration statement referred to in the next paragraph. STI's
reliance upon the exemption provided by Regulation D will be based in part on
the information herein supplied.
STI intends to file a registration statement under the Securities Act
that will enable the security holders of BBC ("Stockholders") to resell the
Shares they receive in connection with the Merger or upon exercise of the
warrants, options or Merger Warrants as soon as practicable after they
receive such Shares. STI's agreement with respect to such registration is
contained in Section IV hereof. The agreement set forth in Section IV hereof
shall constitute STI's sole obligation to register the Shares notwithstanding
the terms of any other agreements or understandings that you may have with
BBC. By signing this questionnaire and agreement you also will ratify all
actions taken by BBC's board of directors prior to the Merger and waive any
and all claims against STI arising under the provisions of any security of
BBC, any agreement or understanding related thereto, or otherwise, including
without limitation any claim for any accrued and unpaid dividends or rights
to redemption arising prior to or as a result of the Merger, any stockholders
agreements, and any preferred stock agreements. In addition, by signing this
agreement you will agree that upon consummation of the Merger, all BBC
stockholder agreements and preferred stock agreements will be terminated. By
signing this questionnaire, you will also agree that, to the extent the terms
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of any security of BBC, any agreement or understanding with BBC related
thereto or otherwise differ from the terms of this Agreement or the Agreement
and Plan of Merger dated September 11, 1996 between STI and BBC, the terms of
this Agreement and such Agreement and Plan of Merger shall control.
Please complete fully, sign, date and return this Questionnaire to
Evelyn Mary Aswad, Arnold & Porter, 555 Twelfth Street, N.W., Washington,
D.C. 20004. Please print your response to each question and, where the
answer to the question is "None" or "Not Applicable," please so state.
If you have any questions about any of the items in this
Questionnaire, please contact Richard E. Baltz at Arnold & Porter, telephone
(202) 942-5124.
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SECTION I. GENERAL INFORMATION.
1. Full Name of Entity: _______________________________________________
Type of Entity: ____________________________________________________
State of Incorporation or Organization: ____________________________
Date of Incorporation or Organization: _____________________________
Employer Identification Number: ____________________________________
Address of Principal Place of Business: ____________________________
_____________________________________________________________________
_____________________________________________________________________
Telephone Number: __________________________________________________
Contact Person (name and title): ___________________________________
Total assets shown on most recent
audited financial statements: $____________
Total assets on the date hereof: $____________
2. Does the Entity have any debt or other obligations, or are there any
other reasonably foreseeable circumstances, that are likely in the
future to require the Entity to dispose of an interest which it may
acquire in STI?
Yes__________ No__________
3. Has the Entity ever been subject to bankruptcy, reorganization or debt
restructuring?
Yes__________ No__________
4. Is the Entity involved in any litigation which it reasonably believes
could materially and adversely affect its financial condition?
Yes__________ No__________
If yes, provide details:
_____________________________________________________________________
_____________________________________________________________________
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SECTION II. ACCREDITED INVESTOR STATUS.
Identify each of the following categories applicable to the
undersigned entity by placing a check next to the applicable category:
(a) ____ An organization defined in Section 501(c)(3) of the Internal
Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the
securities offered, with total assets in excess of $5,000,000.
(b) ____ A bank as defined in Section 3(a)(2) of the Securities Act or a
savings and loan association or other institution as defined in
Section 3(a)5(A) of the Securities Act, whether acting in regard to
this investment in its individual or a fiduciary capacity.
(c) ____ A broker or dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended ("Exchange Act").
(d) ____ An insurance company as defined in Section 2(13) of the
Securities Act.
(e) ____ An investment company registered under the Investment Company Act
of 1940.
(f) ____ A business development company as defined in Section 2(a)(48) of
the Investment Company Act of 1940.
(g) ____ A Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
(h) ____ A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940.
(i) ____ Each equity owner of the undersigned satisfies the conditions of
statements (i) or (ii) below:
(i) He or she is a natural person whose net worth at the time of
purchase of the shares, or joint net worth with his or her
spouse, exceeds $1,000,000.
(ii He or she is a natural person who had individual income in excess
of $200,000 or joint income with spouse in excess of $300,000 in
each of the two most recent years, and reasonably expects to
reach the same income level in the current year.
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SECTION III. RESALE REGISTRATION INFORMATION.
1. How many shares of STI common stock does the undersigned own as of the
date of this questionnaire? _________________________________________
2. If, as of the date hereof, the undersigned owns any options, warrants,
or other rights to acquire shares of STI common stock, how many shares
are subject to such instruments as of this date?
_____________________________________________________________________
_____________________________________________________________________
3. All of the Shares you will receive as a result of the Merger or have
the right to receive upon exercise of warrants, options or Merger
Warrants will be registered for resale unless you indicate otherwise
in the space provided below.
_____________________________________________________________________
4. Please indicate the nature of any material relationship which the
undersigned has had with STI or any of its predecessors or affiliates
within the past three years:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
SECTION IV. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES
ACT.
1. REGISTRATION PROCEDURES AND EXPENSES. STI shall:
(a) as soon as practicable, but no later than thirty (30) days after the
Closing Date established pursuant to that certain Agreement and Plan
of Merger entered into between STI and BBC, prepare and file with the
Securities and Exchange Commission (the "Commission") a registration
statement on a form available for the sale of the Shares from time to
time in the market or in privately negotiated transactions;
(b) use its best efforts, subject to receipt of necessary information from
the Stockholders, to cause such registration statement to become
effective as soon as practicable after the filing thereof;
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(c) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective until the earlier of (i) the date all the Shares have been
sold pursuant thereto or (ii) three (3) years (or such shorter period
as provided in Rule 144(k) of the Securities Act) from the date the
Shares are received by the Stockholders;
(d) furnish to each Stockholder with respect to the Shares registered on
such registration statement (and to each underwriter, if any, of such
Shares) such number of copies of prospectuses and preliminary
prospectuses in conformity with the requirements of the Securities Act
and such other documents as the Stockholder may reasonably request,
in order to facilitate the public sale or other disposition of all or
any of the Shares by the Stockholder, PROVIDED, HOWEVER, that the
obligation of STI to deliver copies of prospectuses or preliminary
prospectuses to the Stockholder shall be subject to the receipt by STI
of reasonable assurances from the Stockholder that the Stockholder
will comply with the applicable provisions of the Securities Act and
of such other securities or blue sky laws as may be applicable in
connection with any use of such prospectuses or preliminary
prospectuses;
(e) file documents required for blue sky clearance for the sale of the
Shares in states specified in writing by any Stockholder;
(f) bear all expenses in connection with the procedures in paragraphs (a)
through (e) of this Section IV.1 and the registration of the Shares on
such registration statement and the satisfaction of the blue sky laws
of such states, including but not limited to all registrations,
exemptions, qualifications and filing fees, printing expenses, fees
and disbursements of counsel for STI, blue sky fees and expenses, and
excluding any underwriting discounts and selling commissions, and fees
and expenses, if any, of separate counsel or other independent
advisors to the Stockholder or other Stockholders.
STI understands that the Stockholder disclaims being an underwriter, but
the Stockholder being deemed an underwriter shall not relieve STI of any
obligation it has hereunder.
2. TRANSFER OF SHARES.
Stockholder understands and agrees that the Shares will be or are
restricted as to resale and agrees that Stockholder will only resell the
Shares pursuant to an effective registration statement or an exemption from
registration satisfactory to STI for the removal of the restricted transfer
legend on the Shares. After the registration of the Shares
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pursuant to Section IV.1 above, each Stockholder agrees that, during the
period the registration statement remains effective, such Stockholder:
(a) will not affect any disposition of the Shares that would
constitute a sale within the meaning of the Securities Act (a
"Transfer") except as contemplated in the registration statement
referred to in Section IV.1; and
(b) will not make any sale of the Shares without effectively causing
the prospectus delivery requirements under the Securities Act to
be satisfied.
3. INDEMNIFICATION.
STI shall defend, indemnify and hold harmless the Stockholders and each of
them and each stockholder's directors, officers, employees and
representatives and each person, if any, that controls such stockholder
within the meaning of section 15 of the Securities Act, from any
obligation, liability, claim, loss, cost, suit, damage, action, proceeding
or cause of action including, without limitation, attorneys' fees and
expenses (collectively, "Claims") arising from or pertaining to: (i) the
registration of the Shares described in this Section IV and/or the
registration or exemption of the Shares under state blue sky laws,
including but not limited to all Claims arising under federal and state
securities laws and including (except as expressly set forth below) any
misrepresentation or omission of a material fact contained in the
registration statement covering the Shares; and (ii) any failure by STI to
fulfill any undertaking included in the registration statement and/or this
Section IV; PROVIDED, HOWEVER, that the foregoing shall not apply and
instead a Stockholder shall be obligated to defend, indemnify and hold
harmless STI (and each person, if any, that controls STI within the meaning
of Section 15 of the Securities Act, each officer of STI who signs the
registration statement, and each director of STI) and the other
Stockholders from any Claim if and to the extent such Claim arises from or
pertains to (a) the failure of such indemnifying Stockholder to comply with
the covenants and agreements contained in Sections 2 and 6 of this Section
IV; and/or (b) any misrepresentation or omission of a material fact
contained, as of the effective date of any registration statement covering
the Shares, in information furnished to STI by or on behalf of such
indemnifying Stockholder specifically for use in the preparation of such
registration statement.
Promptly after receipt by any indemnified person of a notice of a claim or
the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 3, such indemnified
person shall notify the indemnifying person in writing of such claim or of
the commencement of such action, and, subject to the provisions hereinafter
stated, in case any such action shall be brought against an indemnified
person and such indemnifying person shall have been notified thereof, such
indemnifying person shall be entitled to participate therein, and, to the
extent it shall wish, to assume the
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defense thereof, with counsel reasonably satisfactory to such indemnified
person. After notice from the indemnifying person to such indemnified
person of its election to assume the defense thereof, such indemnifying
person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection
with the defense thereof, PROVIDED, HOWEVER, that if there exists or shall
exist a conflict of interest that would make it inappropriate in the
reasonable judgment of the indemnified person for the same counsel to
represent both the indemnified person and such indemnifying person or any
affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person. The
failure of an indemnified person to give any notice shall not affect its
entitlement to indemnity hereunder except to the extent that the
indemnifying person is actually and materially prejudiced by such failure.
4. TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed upon the transferability of the Shares shall cease and terminate as
to any particular number of the Shares when such Shares shall have been
effectively registered under the Securities Act and sold or otherwise
disposed of in accordance with the intended method of disposition set forth
in the registration statement covering such Shares.
5. INFORMATION AVAILABLE. So long as any registration statement is effective
covering the resale of Shares and Shares of such Stockholders remain
unsold, STI will furnish to each Stockholder:
(a) as soon as practicable after available (but in the case of STI's
Annual Report to Stockholders, within 120 days after the end of
each fiscal year of STI, if then available), one copy of (i) its
Annual Report to Stockholders, (ii) if not included in substance
in the Annual Report to Stockholders, its annual report on
Form 10-K, (iii) each of its Quarterly Reports to Stockholders,
and its quarterly report on Form 10-Q, (iv) each of its reports on
Form 8-K, and (v) a full copy of the particular registration
statement covering the Shares (the foregoing, in each case,
excluding exhibits); and
(b) upon the reasonable request of the Stockholder, all exhibits
excluded by the parenthetical to subparagraph (a) (iv) of this
Section IV.5 and all other information that is generally
available to the public;
and STI, upon the reasonable request of the Stockholder and receipt of
reasonable assurances of confidentiality, will meet with the Stockholder or
a representative thereof during regular business hours, at STI's
headquarters to discuss all information relevant for disclosure in any
registration statement covering the Shares and will otherwise cooperate
with any Stockholder conducting an investigation for the purpose of
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reducing or eliminating such Stockholders' exposure to liability under the
Securities Act, including the production of information at STI's
headquarters.
6. NO SALE PERIODS. STI will notify each Stockholder, at any time when a
prospectus relating to the registered Shares is required to be delivered
under the Securities Act, if STI becomes aware of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated in the
prospectus or necessary to make the statements made in the prospectus not
misleading in the light of the then existing circumstances. STI will use
its best efforts consistent with its reasonable needs to amend the
prospectus to eliminate such untrue statement or omission. Each
Stockholder agrees not to effect a sale of the Shares pursuant to the
registration statement during any period that STI reasonably requests due
to the existence of information relating to events outside the ordinary
course of STI's business that has not been publicly disclosed, it being
understood and agreed that STI is under no obligation to disclose any such
information for the purpose of permitting any such sale provided that such
period shall not exceed 90 days on account of any one event.
7. HOLDBACK AGREEMENT. The Stockholder agrees, if so required by the managing
underwriter in an underwritten offering, not to effect any public sale or
distribution of his Shares during the seven days prior to and the 90 days
after any underwritten registration has become effective or, if the
managing underwriter advises STI in writing that, in its opinion, no such
public sale or distribution should be effected for a specific period longer
than 90 days after such underwritten registration in order to complete the
sale and distribution of securities included in such registration, and STI
gives notice to the Stockholder of such advice, during a reasonable longer
period not to exceed 180 days after such underwritten registration, whether
or not the Stockholder participates in such registration. The number of
days during which a Stockholder is not permitted to sell Shares as a result
of Section IV.6 or this Section IV.7 shall be added to the period during
which STI agrees to keep the registration statement in effect under this
Agreement.
8. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed by first-class registered or
certified air mail, postage prepaid, and shall be deemed given when so
mailed:
(a) if to STI, to Chontelle Woodward, Survival Technology, Inc., 2275
Research Boulevard, Suite #100, Rockville, Maryland 20850;
(b) if to the Stockholder, at the address as set forth in this document,
or at such other address or addresses as may have been furnished to
STI in writing; or
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(c) if to any transferee or transferees of the Stockholder, at such
address or addresses as shall have been furnished to STI at the time
of the transfer or transfers, or at such other address or addresses as
may have been furnished by such transferee or transferees to STI in
writing.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware and the United States of
America.
10. SURVIVAL. The representations, covenants, rights and obligations set forth
in this Agreement shall remain in effect throughout the effectiveness of any
registration statement covering the Shares and for a period of six years
thereafter.
SECTION V. ACKNOWLEDGMENT, RELEASE AND RATIFICATION.
The undersigned hereby acknowledges that STI's sole obligation with respect
to the registration of Shares is as set forth in Section IV hereof,
notwithstanding the terms of any other agreements or understandings that the
undersigned may have with BBC. By signing this questionnaire and agreement,
the undersigned also hereby ratifies any and all actions taken by the board
of directors of BBC prior to the effectiveness of the Merger. In addition,
in consideration of STI's agreement under Section IV hereof and other good
and valuable consideration, the receipt of which is hereby acknowledged, the
undersigned hereby:
(i) releases and discharges STI and its affiliates, successors, assigns,
predecessors, representatives, directors, officers, stockholders,
employees and agents with respect to any and all claims that the
undersigned may have arising under the provisions of any security of
BBC, any agreement or understanding with BBC related thereto, or
otherwise with respect thereto, including without limitation any claim
for any accrued and unpaid dividends or right of redemption arising
prior to or as a result of the Merger, any stockholder agreements, and
any BBC preferred stock agreements;
(ii) agrees that upon consummation of the Merger, all stockholder
agreements and preferred stock agreements with BBC will be terminated
and of no further force and effect; and
(iii) agrees that, to the extent the terms of any security of BBC, any
agreement or understanding with BBC related thereto or otherwise
differ from the terms of this Agreement or the Agreement and Plan of
Merger dated September 11, 1996 between STI and BBC, the terms of this
Agreement and such Agreement and Plan of Merger shall control.
[SIGNATURE PAGE FOLLOWS]
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The undersigned represents and warrants that the information stated
herein is true and complete as of the date hereof and will be true and
complete as of the date on which the undersigned receives any shares of STI
common stock. If, prior to the receipt of such shares, there should be any
change in such information or any of such information becomes incorrect or
incomplete, the undersigned agrees to notify, and promptly supply corrective
information to Evelyn Mary Aswad, Arnold & Porter, 555 Twelfth Street, N.W.,
Washington, D.C. 20004.
_______________________________________
Print Name of Entity
Witness or Attest:
________________________________ By: _________________________________
(signature) (signature)
________________________________ ______________________________________
Print Name of Individual Signing Print Name of Individual Signing
________________________________ ______________________________________
Title (if any) Title
Date: _________________________
AGREED AND ACCEPTED as to Section IV:
SURVIVAL TECHNOLOGY, INC.
By: ___________________________
Title: ________________________