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EXHIBIT 5
FIRST AMENDMENT TO WARRANT PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO WARRANT PURCHASE AGREEMENT (the "Amendment"),
dated as of October 25, 1996, among BRUNSWICK BIOMEDICAL CORPORATION, a
Massachusetts corporation (the "Company"), and INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION, a Delaware corporation ("ING").
W I T N E S S E T H:
RECITALS:
A. The Company and ING have entered into a certain Warrant Purchase
Agreement, dated as of April 15, 1996 (the "Warrant Purchase Agreement");
capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Warrant Purchase Agreement.
B. The Company and ING wish to enter into this Amendment to amend certain
clerical errors contained in the Warrant Purchase Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment to Section 1.1. Section 1.1 of the Warrant
Purchase Agreement is hereby amended by replacing the definition of "Series A
Exercise Price" in its entirety with the following:
"Series A Exercise Price" means (a) at any time prior to the Merger
Consummation Date, $.0.01 per Warrant Share and (b) at any time on or
after the Merger Consummation Date, $0.10 per Warrant Share, in each case
as adjusted as herein provided.
SECTION 2. Amendment to Section 15(j). Section 15(j) of the Warrant
Purchase Agreement is hereby amended by replacing said Section in its entirety
with the following:
(j) Upon consummation of the Merger, (1) the Warrant Documents and
all obligations of Brunswick under the Warrant Documents shall
automatically become the legal, valid and binding obligations of STI,
enforceable against STI in accordance with their terms, as if STI had been
the signatory thereto, (2) each Series A Warrant shall be exercisable for
a number of shares of Class A Common Stock of STI equal to (i) the number
of shares of Class A Common Stock of Brunswick for which such Series A
Warrant is exercisable as of
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the Merger Consummation Date, multiplied by (ii) the Conversion Factor,
for an Exercise Price equal to $.10 per share, and (3) each Series B
Warrant shall be exercisable for a number of shares Class A Common Stock
of STI equal to (i) the number of shares of Class A Common Stock of
Brunswick for which such Series B Warrant is exercisable as of the Merger
Consummation Date, multiplied by (ii) the Conversion Factor, for an
Exercise Price equal to the Exercise Price immediately prior to
consummation of the Merger divided by the Conversion Factor. Brunswick
acknowledges and agrees that it is a condition to the Merger that STI
execute and deliver to the Purchaser, prior to or concurrently with the
consummation of the Merger, (1) an assumption agreement, in form and
substance reasonably satisfactory to the Required Holders, pursuant to
which STI shall expressly assume and reaffirm its obligations under the
Warrant Documents, (2) substitute Series A Warrant Certificates and Series
B Warrant Certificates evidencing warrants for the number of shares of
Class A Common Stock of STI set forth in the preceding sentence and
reflecting the Exercise Prices for the Series A Warrants and Series B
Warrants effective upon and after the Merger Consummation Date, and (3) an
opinion of counsel to STI in the form of Exhibit F.
SECTION 3. Continuing Effectiveness of Warrant Purchase Agreement. The
Warrant Purchase Agreement and each of the other Warrant Documents shall remain
in full force and effect in accordance with their respective terms, except as
expressly amended or modified by this Amendment.
SECTION 4. Cost and Expenses. The Company agrees to pay all
out-of-pocket expenses of ING for the negotiation, preparation, execution and
delivery of this Amendment (including fees and expenses of counsel to ING).
SECTION 5. Effectiveness. This Amendment shall become effective upon
receipt by ING of a copy of this Amendment, duly executed by each of the
Company and ING.
SECTION 6. Headings. The various headings of this Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
Amendment or any provision hereof.
SECTION 7. Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be executed by the Company
and ING and shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
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SECTION 8. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 9. Successors and Assigns. This Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that the Company may not assign or
transfer its rights or obligations hereunder or under the Warrant Purchase
Agreement except in accordance with the terms of the Warrant Purchase
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BRUNSWICK BIOMEDICAL CORPORATION
By:
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Xxxxx X. Xxxxxx
President
[CORPORATE SEAL]
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
By:
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Xxxxxx X. Xxxxx
Director
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