EXHIBIT A
Letter Agreement
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LIMITED
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
December 3, 1997
Lava Investments Limited
▇▇/▇ ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇
▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
Ladies and Gentlemen:
This letter agreement (the "Agreement") relates to ten secondary sale by
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Limited, a corporation organized under the laws of the
United Kingdom ("Seller"), to Lava Investments Limited, a British Virgin Islands
corporation (the "Purchaser") of 306,100 shares of the Common Stock, par value
$.001 per share (the "Securities"), of Cardiac Science, Inc., a Delaware
corporation (the "Issuer"). The aggregate purchase price for the Securities is
$353,966.63. The Purchaser understands and acknowledges that Seller has relied
on the Purchaser's representations and covenants herein in agreeing to sell the
Securities and for purposes of assuring compliance with applicable United States
securities law.
1. RECEIPT OF INFORMATION. The Purchaser represents, acknowledges and
confirms the following:
(a) that the Purchaser has received information regarding the Issuer to
the extent the Purchaser deems necessary, desirable and appropriate in
evaluating the merits and risks of investing in the Securities;
(b)
(c) that in making a decision to invest in the Securities, the Purchaser
has reviewed and relied upon the filings and other information regarding the
Issuer on file with the Securities and Exchange Commission ("SEC") under
applicable securities laws of the United States;
(d)
(e) that in connection with the Purchaser's decision to invest in the
Securities, Seller has not furnished to the Purchaser, and the Purchaser has not
relied upon, any information regarding or relating to the Issuer or its
financial condition, operations, assets, results of operations, or prospects;
and
(f)
(g) that the Purchaser has read and understands all information obtained
by or for the benefit of the Purchaser.
(h)
2
December 3, 1997
Page 2
(i) 2. SUITABLE INVESTMENT. The Purchaser has knowledge and experience in
financial and business matters, is capable of evaluating the merits and risks of
an investment in Securities of ten Issuer, has carefully considered the
suitability of such an investment for the Purchaser's particular financial and
tax situation, and has determined that the Securities are a suitable investment.
The Purchaser represents that the Purchaser is capable of bearing the economic
risks of the investment, that the Purchaser has adequate means of providing for
its current financial needs and possible contingencies, and that the Purchaser
has no present need, and anticipates no need in the foreseeable future, to sell
the Securities. Without limiting the generality of the foregoing, the Purchaser
represents that (i) it is an "accredited investor" within the meaning of rule
501 of Regulation D promulgated by the SEC, and (ii) that the Purchaser was not
formed solely for the purpose of making an investment in the Securities.
(j)
(k) 3. NATURE OF TRANSACTION. The Purchaser understands and acknowledges
that (i) the offer and sale of the Securities has not been and will not be
registered under the Securities Act of 1933, as amended (the "1933 Act"), (ii)
the Securities are being sold in accordance with, an in reliance upon, an
exemption from the registration requirements of the 1933 Act provided by ten
provisions of Regulation S promulgated pursuant to the 1933 Act ("Regulation
S"), and (iii) the Securities may not be offered or sold in ten United States,
or to or for the account or benefit of, any "U.S. Person" as defined n
Regulation S (a "U.S. Person") unless such offer and sale is registered under
the 1933 Act or unless an exemption from ten 1993 Act's registration
requirements is available.
(l)
(m) 4. STATUS OF PURCHASER. The Purchaser represents that it is not a U.S.
Person. Without limiting the generality of the foregoing the Purchaser
represents that it is organized under the laws of the British Virgin Islands an
has not been formed by or for the benefit of a U.S. Person. This Agreement is
being executed by the Purchaser outside the United States.
(n)
(o) 5. TRANSFER RESTRICTIONS. The Purchaser agrees (i) not to offer, sell or
otherwise transfer the Securities in the United States, or to or for the account
or benefit of, any U.S. Person prior to the expiration of a forty (40) day
period following the date hereof, and (ii) that during such forty (40) day
period, the Securities will remain outside of the United States. In the event
that the Issuer so requires in connection with the issuance to ten Purchaser of
replacement certificates representing the Securities, Purchaser shall permit a
legend to be prominently set forth and printed on any certificates representing
the Securities that substantially conforms with the requirements of this
paragraph 5 and applicable law.
(p)
(q) 6. OWN TAX AND LEGAL ADVISORS. The Purchaser has been advised to consult
with the Purchaser's financial or legal advisors regarding legal and financial
matters and tax consequences associated with an investment in Securities of the
Issuer, and has done so to the extent each the Purchaser considers necessary,
appropriate or desirable.
(r) 7. COMPLIANCE WITH LAWS. The Purchaser hereby represents that ten
Purchaser is satisfied as to the full observance of the laws of ten Purchaser's
jurisdiction in connection with the sale and purchaser of ten Securities,
including (i) the legal requirements within such jurisdiction relating to the
purchaser of ten Securities, (ii) any foreign exchange restrictions applicable
to a purchaser of the Securities, (iii) any governmental or other consents that
may be required in connection with the purchaser of the Securities, and (iv) any
income tax,
3
December 3, 1997
Page 3
documentary stamp tax, or other tax consequences that may be attributable to
ten acquisition, holding, sale or transfer of the Securities. The Purchaser
covenants to comply with applicable United States securities laws and Blue
Sky Laws in connection with its acquisition, holding, sale or transfer of the
Securities.
(s)
(t) 8. INDUCEMENT TO SELLER. Each Purchaser is executing this Agreement as
an inducement to Seller to sell the Securities. Seller may rely upon the
information contained herein to confirm the Purchaser's qualifications to
purchase such Securities.
(u)
(v) 9. CONDITIONS PRECEDENT TO CLOSING BY TEN PURCHASER. The obligations
hereunder of the Purchaser to purchase and acquire the Securities are subject to
the satisfaction of each of the following conditions at or prior to ten Closing
unless waived by the Purchaser in writing:
(w)
(x) (a) The representations and warranties of the Seller contained in
this Agreement shall be true in all material respects, on the date of the
closing of this transaction (the "Closing Date"), as if originally made on such
date.
(y)
(z) (b) Seller shall have performed and complied in all material respects
with the agreements and covenants required by this Agreement to be performed or
complied with by it prior to or at the Closing Date.
(aa)
(bb) (c) Seller shall have delivered one or more stock certificates
evidencing the Securities to ten Purchaser, and shall have duly endorsed such
certificates in blank (or executed blank stock powers with respect thereto).
(cc)
(dd) (d) Seller shall not have filed or had filed against it a petition
under the United States Bankruptcy Code, 11 U.S.C. REWRITE 101, et seq., or any
other similar law or laws, and Seller shall not be the subject of or be engaged
in the appointment of any receiver, trustee or assignee for the benefit of its
creditors or (other than as contemplated by this Agreement) any reorganization,
moratorium, workout, recapitalization or restructuring.
(ee)
(ff) 10. CONDITIONS PRECEDENT TO CLOSING BY THE SELLER. The obligations
hereunder of the Seller to sell ten Securities to the Purchaser are subject to
ten satisfaction of each of the following conditions at or prior to the Closing
Date unless waived by the Seller in writing:
(gg)
(hh) (a) The representations and warranties of ten Purchaser contained in
this Agreement shall be true in all material respects on the Closing Date, as if
originally made on such date.
(ii) (b) The Purchaser shall have performed and complied in all material
respects with the agreements and covenants required by this Agreement to be
performed or complied with by it prior to or at the Closing Date.
(jj)
(kk) 11. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby
represents and warrants to the Purchaser that:
(ll)
4
December 3, 1997
Page 4
(mm) (a) The execution, delivery and performance by the Seller of this
Agreement and the documents herein contemplated, and the consummation by the
Seller of the transactions contemplated hereby and thereby, have been duly
authorized by all requisite corporate and shareholder action of the Seller,
which has not been revoked, and no other corporate and shareholder action of the
Seller, which has not been revoked, and no other corporate or shareholder action
on the part of the Seller is necessary. This Agreement is, and the other
agreements contemplated to be delivered by the Seller hereby when executed will
be, the valid and binding obligations of the Seller legally enforceable against
it in accordance with their respective terms, subject to the effects of
bankruptcy, insolvency, reorganization, moratorium and other similar laws
related to or affecting creditors' rights generally and of general equitable
principles (whether considered in a proceeding in equity or at law).
(nn)
(oo) (b) Upon payment of the purchase price contemplated by this Agreement
in immediately available funds, and delivery of the Securities as described in
Section 9(c), Purchaser shall acquire all of Seller's right, title and interest
in and to the Securities. The Seller has not encumbered or otherwise subjected
the Securities to any lien, claim, security interest or other rights or
interests of any third party whatsoever (other than the rights or interests in
favor of the Purchaser hereunder and any rights and interests granted to third
parties by or through the Purchaser).
(pp)
(qq) 12. INDEMNIFICATION. Each party hereto agrees to indemnify and hold
harmless the other parties and their respective affiliates, directors, officers,
members, controlling persons, and agents from and against all damages, losses,
costs and expenses (including reasonable attorneys' fees) which they may incur
by reason of the breach of any representations, acknowledgments and covenants
made herein by such party, or in any other document provided by such party.
(rr)
(ss) 13. FURTHER ASSURANCES. The parties hereto agree that, from time to time
hereafter, and upon request of the other, each of them will execute, acknowledge
and deliver such other documents and instruments as may be reasonably required
more effectively to carry out the terms and conditions of this Agreement.
(tt)
(uu) 14. NOTICES. Any notices or other communications required or permitted
hereby shall be sufficiently given if sent by registered or certified mail,
postage prepaid, return receipt requested, if to Seller at the address at the
head of this Agreement, and, if to Purchaser, at the address first below the
head of Agreement, or to such other address as either Seller or the Purchaser
shall designate to the other by notice in writing.
(vv) 15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
(ww)
(xx) 16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes any prior or contemporaneous agreements, and may be amended only by a
writing executed by all parties.
(yy)
(zz) 17. APPLICABLE LAW. The Agreement shall be governed by and construed in
accordance with the laws of the State of New York and, to the extent it involves
any United States statute, in accordance with the laws of the United States of
America.
5
December 3, 1997
Page 5
(aaa)
(bbb) Please indicate your agreement with the foregoing by signing in the space
provided below.
(ccc)
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LIMITED
By:
--------------------------------
Its:
-------------------------------
For and on behalf of
LAVA INVESTMENTS LIMITED
By Tengis International Limited, as authorized signatory
---------------------------------------
Authorized Signatory