<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. ) (1) The information required in the remainder
of this cover page shall not be deemed to be "filed" for the purpose of
Section 18 of the Securities Exchange Act of 1934 or otherwise subject to ten
liabilities of that section of the Act but shall be subject to all other
provisions of the Act (however, SEE the NOTES).
Cardiac Science, Inc.
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(Name of Issuer)
Common
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(Title of Class of Securities)
141410100
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(CUSIP Number)
Lava Investments Limited
Attn: Director
11th Floor, Tower 2, the Gateway
25-27 Canton Road
Kowloon, Hong Kong
Telephone Number (011) 852-2956-1188
------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 15, 1997
-----------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box. / /
NOTE. Six copies of this statement, including all exhibits, should be
filed with the Commission. SEE Rule 13d-1(a) for other parties to whom copies
are to be sent.
CUSIP NO.:
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(1) The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter the disclosures provided in a prior cover page.
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(1) Name of Reporting Persons and S.S. or I.R.S. Identification Nos. of Above
Persons:
LAVA INVESTMENTS LIMITED
------------------------
(2) Check the Appropriate Box if a Member of a Group: (a) / /
Not Applicable: (b) / /
(3) SEC Use Only:
------
(4) Source of Funds: PF
------
(5) Check Box if Disclosure of Legal Proceedings is Required Pursuant to Item
2(d) or 2(e): / /
(6) Citizenship or Place of Organization: British Virgin Islands
-------------------------------
Number of Shares (7) Sole Voting Power: 350,000
Beneficially Owned by -------
by Each Reporting (8) Shared Voting Power: -0-
Person With -------
(9) Sole Dispositive Power: 350,000
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(10) Shared Dispositive Power -0-
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person:
350,000
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(12) Check Box if the Aggregate Amount in row (11) Excludes Certain Shares: / /
(13) Percent of Class Represented by Amount in Row (11):
7.0%
----
(14) Type of Reporting Person:
CO
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<PAGE>
ITEM 1. SECURITY AND ISSUER.
This statement relates to the Common Stock (the "Common Stock"), par
value $.001 per share, of Cardiac Science, Inc., a Delaware
corporation (the "Company"). The principal executive office of the
Company is located at 1176 Main Street, Building "C", Irvine,
California 92614.
ITEM 2. IDENTITY AND BACKGROUND.
(a), (b), (c) and (f) The person filing this statement is Lava
Investments Limited ("Lava").
1. LAVA INVESTMENTS LIMITED
Business Address: 11th Floor, Tower 2, The Gateway
25-27 Canton Road
Kowloon, Hong Kong
Principal Business: Trade and investments
Citizenship: British Virgin Islands corporation
2. TENGIS INTERNATIONAL LIMITED
Business Address: 11th Floor, Tower 2, The Gateway
25-27 Canton Road
Kowloon, Hong Kong
Present Occupation: Company Secretary of Lava
Citizenship: British Virgin Islands corporation
3. KALIWOOD CORPORATION
Business Address: Room 1602, Tower 2, The Gateway
25-27 Canton Road
Kowloon, Hong Kong
Present Occupation: Director of Lava
Citizenship: British Virgin Islands corporation
<PAGE>
4. RAJIV MAKHIJA
Business Address: Room 1602, Tower 2, The Gateway
25-27 Canton Road
Kowloon, Hong Kong
Present Occupation: Manager and authorized person of Kaliwood
Citizenship: Hong Kong
(d) and (e) During the last five years, neither Lava nor, to the best
knowledge of Lava, any director of Lava listed above has been (i) convicted
in a criminal proceeding (excluding traffic violations or similar
misdemeanors), or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which was or is
subject to a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Lava paid $441,766 of its own monies to purchase 350,000 shares of the
Company's Common Stock.
ITEM 4. PURPOSE OF TRANSACTION.
Investment purposes. See also Item 6.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Lava currently owns 350,000 shares (the "Shares") of Common
Stock. This represents 7.0% of the Company's issued and
outstanding shares of Common Stock.
(a) Rajiv Makhija, representing Kaliwood Corporation, has the sole
power to vote or direct the vote of the Shares and the sole power
to dispose or direct the disposition of the Shares.
(c) None.
(d) Not applicable.
(e) Not applicable.
<PAGE>
ITEM 6. CONTRACTS, ARRANGEMENT, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Lava purchased the Shares in two tranches. The first tranche in the
amount of 43,900 shares of Common Stock was purchased directly from
the Company, which offered and sold the Shares to Lava pursuant to an
exemption from the registration requirements of the Securities Act of
1933 (the "Act") afforded by Regulation S ("Regulation S") promulgated
thereunder. Lava purchased the second tranche in the amount of
306,100 shares of Common Stock from Parsons & Whittemore Limited, a
United Kingdom company and a shareholder of the Company, pursuant to
the resale exemption provided by Regulation S. In connection with the
purchase of the Shares, Lava made certain representations and
warranties in the Subscription Agreement with the Company (a copy of
which is attached herewith), and the Letter Agreement with Parsons &
Whittemore (a copy of which is attached herewith), pursuant to which
it has agreed not to sell the Shares unless pursuant to an exemption
from the registration requirements of the Act or an exemption
therefrom.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Copies of the following documents are filed as Exhibits hereto:
Exhibit A: Letter Agreement with Parsons & Whittemore dated
December 3, 1997.
Exhibit B: Subscription Agreement dated October 15, 1997.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
February 15, 1998
LAVA INVESTMENTS LIMITED
For and on behalf of
LAVA INVESTMENTS LIMITED
By Tengis International Limited, as authorized
signatory,
----------------------------------------------
Authorized Signatories
<PAGE>
EXHIBIT A
Letter Agreement
<PAGE>
PARSONS & WHITTEMORE LIMITED
4 International Drive
Rye Brook, New York 10573
Telephone: (914) 937-9009
Fax: (914) 937-2259
December 3, 1997
Lava Investments Limited
11/F Tower 2
The Gateway
25-27 Canton Road
Hong Kong
Ladies and Gentlemen:
This letter agreement (the "Agreement") relates to ten secondary sale by
Parsons & Whittemore 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)
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December 3, 1997
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(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,
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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)
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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.
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December 3, 1997
Page 5
(aaa)
(bbb) Please indicate your agreement with the foregoing by signing in the space
provided below.
(ccc)
PARSONS & WHITTEMORE LIMITED
By:
--------------------------------
Its:
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For and on behalf of
LAVA INVESTMENTS LIMITED
By Tengis International Limited, as authorized signatory
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Authorized Signatory
<PAGE>
EXHIBIT B
Subscription Agreement
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1
December 3, 1997
Page 1
AGREEMENT, by and between Cardiac Science, Inc., a Delaware corporation
(the "Company"), and the investor listed on the signature page hereto (the
"Investor").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company is seeking to raise $2,000,000 (the "Financing")
through the sale of shares of the Company's common stock. par value $.001 per
share ("Common Stock")
WHEREAS, the Company has retained Serbus Asset Strategies, S.A., a Swiss
corporation (the "Advisor"), to assist the Company in finding qualified
investors to purchase shares of Common Stock:
WHEREAS, the Company may contract for the sale of shares of Common Stock
with (a) non-U.S. Persons (as defined below) in reliance upon an exemption from
registration provided for under Regulation S ("Regulation S") of the Securities
Act of 1933, as amended (the "Act"), pursuant to investor agreements identical
to this Agreement (collectively, the "Investor Agreements"), and (b) U.S.
Persons (as defined in Regulation S) in reliance upon an exemption from
registration provided for under Regulation D of the Act, pursuant to
subscription agreements similar to this Agreement (but identical as to purchase
price per Share)(collectively, the "Subscription Agreement"):
WHEREAS, as a condition to the consummation of the Financing, the Company,
among other things, is to effectuate an 11,42857143 for one reverse stock split
("Reverse Stock Split") of its Common Stock; and
WHEREAS, the Company desires to issue and sell to the Investor, and the
Investor desires to purchase from the Company, the number of post-Reverse Stock
Split shares of Common Stock (the "Shares") set forth opposite the name of the
Investor on the signature page hereto at a price of $2.00 per Share, on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties agrees as follows:
1ARTICLE
ISSUANCE AND SALE OF THE SHARES
1.1 Section ISSUANCE AND SALE OF THE SHARES. The Company hereby agrees to
sell to the Investor, and the Investor hereby agrees to purchase from the
Company, the number of Shares set forth on the signature page hereto, at the
aggregate purchase price also set forth on the signature page hereto.
1.2
1.3 Section PAYMENT FOR SHARES. Concurrently with the execution of this
Agreement the Investor shall deliver to Jones, Day, Reavis & Pogue, counsel for
the Advisor ("JDRP"). A check made payable to "Jones, Day, Reavis & Pogue for
Cardiac Science, Inc." in an amount
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December 3, 1997
Page 2
equal to the aggregate purchase price set forth on the signature page hereto,
or shall transfer such sum to JDRP by wire transfer.
1.4
1.5 Section CLOSING; CONDITIONS TO CLOSING.
1.6
(a) Subject to Section 1.3(b) hereof, within seven business days after the
receipt by the Company of Investor Agreements and/or Subscription Agreements
aggregating at least $2,000,000, the receipt of JDRP of at least $2,000,000 in
cleared funds for the account of the Company, and the satisfaction of waiver of
the conditions set forth in Section 1.3(a) hereof (or on such date as the
Company and the Advisor shall mutually agree), a closing (the "Closing") shall
be held. At the Closing, the proceeds from the sale of the Shares shall be
disbursed in accordance with joint instructions from the Company and the
Advisor. Within a reasonable period of time after the date of the Closing (the
"Closing Date"), certificates representing the Shares sold to U.S. Persons (if
any) pursuant to Regulation D, containing appropriate legends, shall be
delivered to the purchasers thereof, and within seven (7) business days after
the forty-first (41st) day after the Closing Date, certificates representing the
Shares sold to Non-U.S. Persons (if any) pursuant to Regulation S (the "Reg S
Shares") shall be delivered to the purchasers thereof. The Investor and all
other purchasers of the Shares pursuant to Investor Agreement and/or
Subscription Agreements collectively shall be referred to herein as the
"Investors". If the Company receives the Opinion (as defined below) on or after
the forty-first (41st) day after the Closing Date, then the Reg S Shares shall
bear no restrictive legend and shall be freely tradeable. Prior to delivery of
the Reg S shares, the Advisor shall deliver or cause to be delivered to Beslow &
Walker LLP, counsel to the Company ("B&W"), an opinion of counsel (the
"Opinion") from David Kagel, Esq. (or such other attorney as is acceptable to
counsel for the Company) that the Reg S Shares may be publicly sold inside the
United States without restriction under the Act and which sets forth the
exemption from registration upon which such opinion relies. The form of the
Opinion shall be agreed upon by the Company and the Advisor as a condition to
the Closing.
(b)
(c) Notwithstanding the foregoing, if on or before May 30, 1997 (or such
later date (which shall not be beyond June 15, 1997) as shall be agreed upon in
writing by the Company and the Advisor, the "Termination Date"), (i) the Company
has not received Subscription Agreements and/or Investor Agreement aggregating
at least $2,000,000, (ii) JDRP has not received at least $2,000,000 in cleared
funds for the account of the Company, (iii) the conditions set forth in Section
1.3(c) hereof have not been satisfied or waived by the Advisor, (iv) there shall
have been a material breach of any of the representations, warranties or
covenants contained in this Agreement on the part of the Company or the Investor
(which breach is not waived by the party not in breach), or (v) JDRP shall have
received a certificate signed by the Company and the Advisor stating that the
Financing is being terminated, then the Agreement shall be null and void and
monies remitted by the Investor hereunder shall be returned to the Investor by
JDRP, without interest thereon or deduction therefrom.
(d)
(e) The consummation of the transactions contemplated hereby shall be
subject to the satisfaction, or the waiver by the Advisor, or the following
conditions:
(f)
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December 3, 1997
Page 3
(i) The Company shall have obtained the approval of its Board of
Directors and stockholders to amend the Company's Certificate of
Incorporation (1) to effectuate the Reverse Stock Split, and (2) to reduce
the number of authorized shares of Common Stock to 20,000,000 shares (the
"Stock Reduction").
(ii)
(iii) The Company shall have obtained (1) from each of J. Donald Hill,
Paul Quadros, B&W, Fran Daniels. Financial Sciences of America, Inc. ("FSA"),
Prabody Mathur, Howard Cooper, Medstone, Inc. and Technology Funding, Inc., an
agreement to lock-up their shares of Common Stock an shares of Common Stock
issuable upon the exercise of their options and/or warrants for a period of one
year from the Closing Date. (2) from such of the investors that participated in
the private placement (the "Private Placement") of Common Stock through A.R.
Baron & Co., Inc. ("Baron") in September, 1994 (the "A.R. Baron Private
Investors") as the Advisor determines, an agreement either to lock-up their
shares of Common Stock for a period of one year from the Closing Date or to sell
their shares of Common Stock to the Advisor or its designee, and (3) from the
holders of the warrants that originally were issued to Baron in connection with
the Private Placement (the "A.R. Baron Warrantholders"), an agreement to lock-up
the shares of Common Stock issuable upon exercise of their warrants for a period
of two years from the Closing Date, or to sell the warrants and/or shares of
Common Stock to the Advisor or its designee.
(vi)
(v) The Company shall have entered into an agreement with B&W,
effective as of the Closing Date, to defer collection of $128,692.50 in fees due
and owing to B&W (consisting of $86,000 previously deferred in connection with a
prior offering of securities by the Company and $42,692.50 owed in connection
with an aborted bridge financing), until the earlier of 12 months from the
Closing or the completion of the next financing for the Company; provided,
however, there shall be paid immediately upon B&W ceasing to act as general
counsel to the Company (other than an account of its voluntary resignation as
such counsel), the deferred fees referred to above.
(vi)
(vii) The Company shall have entered into an agreement with FSA,
effective as of the Closing Date, to defer collection of (I) $10,000 of fees
currently due and owing to FSA, which fees were previously deferred in
connection with a prior offering of securities by the Company, and (2) $100,000
of fees which would otherwise be payable upon consummation of the Financing,
until the earlier of 12 months from the Closing or the completion of the next
financing by the Company; provided, however, there shall be paid immediately
upon the Company failing to honor the Investor Relations Services Agreement,
dated the St. day of October 1994, between the Company and FSA (except to the
extent that payments to FSA are deferred as provided above), the deferred fees
as provided above.
(viii)
(ix) The offer and sale of the Shares shall have been qualified in
such states and/or foreign jurisdictions as shall be required to effectively
offer and sell the Shares to the Investors.
(x)
(g) If, prior to the Termination Date, subscriptions are received
aggregating more than $2,000,000 then, upon written instructions from the
Advisor and the Company, JDRP shall remit to those subscribers whose
subscriptions are not being accepted, in whole or in part, an
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4
December 3, 1997
Page 4
amount of money equal to the price of that number of Shares for which each
such subscription is not being accepted.
(h)
1.7 Section ADVISOR. The Investor hereby acknowledges that the Company has
retained the Advisor in connection with the sale and purchase of the Shares, and
that for its services in connection with locating Investors, the Advisor will
receive, at the Closing, a transaction fee (the "Transaction Fee") consisting of
(a) a cash payment (the "Cash Payment") of $100,000, (b) additional newly-issued
shares of Common Stock (the "Transaction Fee Shares") in an amount equal to five
percent (5%) of the aggregate number of Shares issued and sold by the Company to
the Investors, and (c) one or more warrants (the "Warrants") to purchase that
number of additional shares of Common Stock ("Warrant Shares") which, in the
aggregate, shall be equal to ten percent (10%) of the number of Shares sold to
the Investors, at a post-Reverse Split exercise price equal to $2.25 per Warrant
Share, and on such other mutually acceptable terms and conditions as are set
forth in the Warrant. The Transaction Fee shall be paid by delivery to the
Advisor (aa) of the Cash Payment on the Closing Date. (bb) within seven (7)
business days after the forty-first (41st) day after the Closing Date, of one or
more duly executed share certificates representing the Transaction Fee Shares,
which Transaction Fee Shares shall be in the name of the Advisor and/or one or
more persons designated by the Advisor by notice to the Company (the
"Designees"), and (cc) within seven (7) business days after the Closing Date, of
one or more duly executed warrant certificates representing the Warrants, which
Warrants shall be in the name of the Advisor and/or such Designees designated by
the Advisor by notice to the Company. Provided that the Company receives the
Additional Opinion (as defined below) on or after the 41st day after the Closing
Date, the Transaction Fee Shares and the Warrant Shares shall bear no
restrictive legend and shall be freely tradable. Prior to delivery of the
Transaction Fee Shares and the Warrant Shares, the Advisor shall deliver or
cause to be delivered to B&W an opinion of counsel (the "Additional Opinion")
from David Kagel, Esq. (or such other attorney as is acceptable to counsel for
the Company that the Transaction Fee Shares and Warrant Shares may be publicly
sold, freely and without restrictions, inside the United States without
registration under the Act, and which sets forth the exemption from registration
upon which such opinion relies. The form of the Additional Opinion shall be
agreed upon by the Company and the Advisor as a condition to the Closing.
1.8
2ARTICLE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Investor as follows:
1.1 Section BUSINESS OF THE COMPANY. The Company is a development stage
company engaged in the development of a line of non-invasive, automatic,
external cardioverter defibrillator devices (the "Products") to treat persons
suffering from, or at high risk of, life-threatening arrhythmias that lead to
cardiac arrest. The Company has delivered to the Investor an Offering
Memorandum ("Offering Memorandum"), including the Company's Annual Report on
Form 10-K filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934 (the "Form 10-K"), which documents contain a
complete description of
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December 3, 1997
Page 5
the business of the Company, the management of the Company, including
compensation and the principal stockholders of the Company.
1.2
1.3 Section ORGANIZATION, QUALIFICATIONS AND CORPORATE POWER. The
Company is duly incorporated, validly existing, and in good standing under
the laws of Delaware, and has all requisite corporate power and authority to
own, operate, and lease its properties and to carry on its business as the
same is now being conducted. The Company is duly qualified to do business as
a foreign corporation an is in good standing in each jurisdiction in which
the character of its properties or the nature of its activities make such
qualification necessary, except where the failure to be so qualified and in
good standing would not have a material adverse effect on its business,
operations, or financial condition. The Company has the requisite corporate
power and authority to execute, deliver and perform this Agreement and to
sell, issue, and deliver the Shares.
1.4
1.5 Section AUTHORIZATION OF AGREEMENT, ETC.
1.6
(a) The execution and delivery by the Company of this Agreement, the
performance of its obligations hereunder, and the sale, issuance, and delivery
of the Shares have been duly authorized or ratified by all requisite corporate
action of the Company and will not violate any provision of United States law,
any order of any court or other agency of government, the Company's Certificate
of Incorporation or By-laws, or any provision of any indenture, agreement, or
other instrument to which the Company or any of its properties or assets is
bound, or conflict with, result in a breach of, or constitute (with due notice
or lapse of time or both) a default under, any such indenture, agreement, or
other instrument, or result in the creation or imposition of any lien, charge,
restriction, claim, or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b)
(c) The Shares have been duly authorized and, when issued in accordance
with this Agreement, will be validly issued, fully paid and non-assessable
shares of Common Stock free and clear of all liens, charges, restrictions,
claims, and encumbrances imposed by or through the Company, and are not subject
to any preemptive right of stockholders of the Company or to any right in favor
of any person.
(d)
1.7 Section VALIDITY. This Agreement has been executed and delivered by the
Company and constitutes the legal, valid, and binding obligation of the Company,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting creditors' rights generally, and subject to general
principles of equity. No approval, consent, authorization, order of, or filing
with any court or governmental authority is required in connection with the sale
of the Shares to the Investors, except as may be required under the Act and the
jurisdictions in which the Shares are offered and sold.
1.8
1.9 Section CAPITALIZATION. Giving effect to the Reverse Stock Split and
the Stock Reduction, the authorized capital stock of the Company consists of
(a) 20,000,000 shares of Common Stock, par value $.01 per share, of which (i)
3,778,728 shares of Common Stock are issued and outstanding (including
500,000 shares of Common Stock into which the Series A
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December 3, 1997
Page 6
Preferred Stock, as defined below, was converted upon the effectiveness of
the Reverse Stock Split), and (ii) there are subscriptions outstanding for
145,833 shares of Common Stock, and (b) 1,000,000 shares of Preferred Stock,
par value $.001 per share, of which 5,714,285 shares of Series A Convertible
Preferred Stock ("Series A Preferred Stock") were issued and outstanding
prior to the Reverse Stock Split and were automatically converted into
500,000 shares of Common Stock on the effectiveness of the Reverse Stock
Split. In addition, giving effect to the Reverse Stock Split, the Company
has outstanding (aa) warrants to purchase 1,175,642 shares of Common Stock,
1,050,000 of which are exercisable at a price of $.01 per share, and (bb)
options to purchase 36,750 shares of Common Stock pursuant to the Company's
stock option plans. Except for the Transaction Fee Shares, Warrants and
Warrant Shares payable to the Advisor as set forth in Section 1.4 hereof,
there are no other subscriptions, warrants, options, convertible debt or
other securities or any commitments, agreement or rights of any kind with
respect to securities of the Company outstanding, nor will any be outstanding
at the time of Closing. The Company has no obligation (contingent or other)
to purchase, redeem, or otherwise acquire any of its equity securities or any
interest therein or to pay any dividend or make any other distribution in
respect thereof, except that if the Series A Preferred Stock has not been
converted into Common Stock (i.e. the Reverse Stock Split is not effectuated)
by April 9, 1999, then the holders of the Series A Preferred Stock shall have
the right to demand redemption thereof by the Company at a price of $175.00
per share of Preferred Stock (or an aggregate of $1,000,000).
1.10
1.11 Section FINANCIAL STATEMENTS. The Company's Form 10-K contains the
Company's audited financial statements for the years ended December 31, 1996 and
1995. Such financial statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis and fairly present
the financial position of the Company on such dates and the results of
operations for the years then ended.
1.12
1.13 Section LITIGATION. There are no actions, suits, proceedings, claims,
hearings, or any investigations before or by any court, governmental authority,
or instrumentality (or any state of facts which would give rise thereto),
pending, threatened against, or involving the properties of the Company, which
might be materially adverse to the business, properties, financial position, or
results of operations of the Company or which might adversely affect the
transactions or other acts contemplated by this Agreement or the validity or
enforceability of this Agreement.
1.14
1.15 Section FINDERS. Except for the Advisor (which has been retained by and
whose fees will be paid by the Company), there are no finders in connection with
the sale of the Shares.
1.16
1.17 Section TITLE TO PROPERTIES. The Company has good and marketable
title to (or a valid leasehold interest in) its properties and assets, free
and clear of mortgages, pledges, security interests, liens, charges, claims,
restrictions and other encumbrances, except for minor imperfections of title,
if any, not material in nature or amount and not materially detracting from
the value or impairing the use of the property subject thereto or impairing
the operations or proposed operations of the Company.
1.18
1.19 Section OTHER AGREEMENTS. The Company is not a party to or otherwise
bound by any contracts, commitments, obligations or undertakings, written or
oral, which, to the best
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knowledge of the Company, would have a material adverse effect on the Company
or would prevent it from fulfilling its obligations hereunder.
1.20
1.21 Section PROPRIETARY TECHNOLOGY AND BUSINESS KNOW-HOW. Except as set
forth in Schedule 2.11 hereto, the Company owns or has the right to use all
of its proprietary technology and business know-how, without restrictions or
limitations, free and clear of all mortgages, covenants, leases, agreements,
royalty or other payment obligations, restrictions, security interests,
liens, encumbrances, attachments and claims of every kind whatsoever; the
Company has not received any notice of conflict with the asserted rights of
others with respect to any proprietary technology and business know-how, nor
does the Company have knowledge of any basis for any such claim (whether or
not pending or threatened); the Company has not granted or assigned to any
other person or entity any right to its proprietary technology and business
know-how, nor has it permitted any other person or entity to use its
proprietary technology and business know-how. To the best of the knowledge
of the Company, all proprietary technical information belonging to the
Company has either been kept confidential or is the subject of a patent
application.
1.22
2ARTICLE
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to the Company that:
1.1 Section RISK FACTORS. The Shares offered hereby are highly
speculative and involve a high degree of risk. The Investor acknowledges
that it has carefully reviewed and considered, along with other matters
referred to herein, the risk factors set forth in the Offering Memorandum.
1.2
1.3 Section OFFSHORE TRANSACTION. The Investor represents and warrants
to the Company that (a) the Investor is not a U.S. Person as that term is
defined in Rule 902(o) of Regulation S; (b) the Shares were not offered to
the Investor in the United States; (c) at the time of execution of this
Agreement and the time of any offer to the Investor to purchase the Shares
hereunder, the Investor was physically outside the United States; (d) the
Investor is purchasing the Shares for its own account and not on behalf of or
for the benefit of any U.S. Person and the sale and resale of the Shares have
not been prearranged with any U.S. Person or buyer in the United States; an
(e) the Investor is not an underwriter, dealer, distributor or other person
who is participating, pursuant to a contractual arrangement, in the
distribution of the Shares offered or sold in reliance on Regulation S.
1.4
1.5 Section INDEPENDENT INVESTIGATION. The Investor, in subscribing for the
Shares hereunder, has relied solely upon an independent investigation made by
the Investor and its representatives, if any, and has, prior to the date hereof,
been given access to and the opportunity to examine all books and records of the
Company, and all material contracts and documents of the Company which have been
filed as exhibits to the Company's filings made under the Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). In making its investment
decision to purchase the Shares, the Investor is not relying on any oral or
written
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December 3, 1997
Page 8
representations or assurances from the Company or any other person other
than as set forth in this Agreement.
1.6
1.7 Section ECONOMIC RISK. The Investor understands and acknowledges
that an investment in the Shares involves a high degree of risk, including,
without limitation, limitations on the liquidity of the Shares, and the
Investor is willing to accept such investment risks. Ten Investor represents
that the Investor is able to bear the economic risk of an investment in the
Shares, including a possible total loss of investment. In making this
statement, the Investor hereby represents and warrants to the Company that
the Investor has adequate means of providing for the Investor's current needs
and contingencies, can afford to hold the Shares for an indefinite period,
and as of the date of signing this Agreement, has no present need for
liquidity of the Shares.
1.8
1.9 Section NO GOVERNMENT RECOMMENDATION OR APPROVAL. The Investor
understands that no United States federal or state agency, or similar agency of
any other country, has reviewed, approved, passed upon, or made any
recommendation or endorsement of the Company or the subscription for the Shares.
1.10
1.11 Section NO DIRECTED SELLING EFFORTS IN REGARD TO THIS TRANSACTION.
To the knowledge of the Investor, without any independent investigation,
neither the Company, nor any person acting for the Company, has conducted any
"directed selling efforts" in the United States as such term is defined in
Rule 902(b) of Regulation S, which in general, means any activity undertaken
for the purpose of, or that could reasonably be expected to have the effect
of conditioning the market in the United States for any of the Shares being
offered in reliance on Regulation S. Such activity includes, without
limitation, the mailing of printed material to investors residing in the
United States, the holding of promotional seminars in the United States and
the placement of advertisements with radio or television stations
broadcasting in the United States or in publications with a general
circulation in the United States, that refers to the offering of the Shares
in reliance on Regulation S.
1.12
1.13 Section COMPANY'S RELIANCE ON REPRESENTATIONS OF THE INVESTORS. The
Investor understands that the Shares being offered and sold to it in reliance on
specific exemptions from the registration requirements of U.S. securities laws
and that the Company is relying upon the truth and accuracy of the
representations, warranties, agreements, acknowledgments, and understandings of
the Investor set forth herein in order to determine the applicability of such
exemptions and the suitability of the Investor to acquire the Shares.
1.14
1.15 Section SHARES NOT REGISTERED UNDER THE ACT OR ANY STATE ACT. The
Investor understands that (a) the Shares have not been registered under the Act
or any state securities laws ("State Acts") and are being offered and sold
pursuant to Regulation S based in part upon the representations of the Investor
contained herein, and (b) the Shares may not be offered or sold in the United
States unless such disposition is registered under the Act and any applicable
State Acts or such offer or sale is made pursuant to exemption from those
registration requirements.
1.16
1.17 Section NO PUBLIC SOLICITATION. The Investor knows of no public
solicitation or advertisement of an offer in connection with the proposed
issuance and sale of the Shares.
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December 3, 1997
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1.18
1.19 Section INVESTMENT INTENT. The Investor is acquiring the Shares for
his, her, or its own account (or a trust account if such the Investor is a
trustee) for investment and not as a nominee or with a view to the resale or
distribution thereof. The Investor understands that the Investor must bear
the economic risk of this investment indefinitely unless such Shares are
registered pursuant to the Act and any applicable State Acts, or an exemption
from such registration is available, and that the Company has no present
intention of registering any such sale of the Shares. The Investor
represents and warrants to the Company, as of the date of this Agreement,
that the Investor has no present plan or intention to sell the Shares in the
United States at any predetermined time, and has made no predetermined
arrangements to sell the Shares.
1.20
1.21 Section INVESTOR NOT TO SELL OR TRANSFER SHARES IN VIOLATION OF THE
SECURITIES LAWS. The Investor covenants that he, she, or it will not knowingly
make any sale, transfer, or other disposition of the Shares in violation of the
Act (including Regulation S), the Exchange Act, any applicable State Acts, or
the rules and regulations of the Commission or of any state securities
commissions or similar state authorities promulgated under any of the foregoing.
1.22
1.23 Section INVESTOR'S POWER AND AUTHORITY. The Investor has the full
power and authority to execute, deliver, and perform this Agreement. This
Agreement, when executed and delivered by the Investor, will constitute a
valid and legally binding obligation of the Investor enforceable in
accordance with its terms.
1.24
1.25 Section NO TAX ADVICE FROM COMPANY OR ITS AGENTS. The Investor has
had an opportunity to review the foreign. U.S. federal, state, and local tax
consequences of this investment (and the transactions contemplated by this
Agreement) with his, her, or its own tax advisor. The Investor is relying
solely on such advisors and not on any statements or representations of the
Company or any of its agents, and understands that the Investor (and not the
Company) shall be responsible for the Investor's own tax liability that may
arise as a result of this investment or the transactions contemplated by this
Agreement.
1.26
1.27 Section NO LEGAL ADVICE FROM COMPANY OR ITS AGENTS. The Investor
acknowledges that he, she, or it has had the opportunity to review this
Agreement (and the transactions contemplated by this Agreement) with his, her or
its own legal counsel. The Investor is relying solely on such counsel and not
on any statements or representations of the Company or any of its agents for
legal advice with respect to this investment or the transactions contemplated by
this Agreement, except for the representations, warranties, and covenants set
forth herein.
1.28
1.29 Section NO SCHEME TO EVADE REGISTRATION. The Investor's acquisition of
the Shares is not a transaction (or any element of a series of transactions)
that is part of a plan or scheme to evade the registration provisions of the
Act.
1.30
1.31 Section NO SHORT SALES. During the Restricted Period (as defined in
Regulation S, neither the Investor nor any of its affiliates will, directly or
indirectly, maintain any short position in the securities of the Company.
1.32
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December 3, 1997
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2ARTICLE
COVENANTS OF THE INVESTOR
During the Restricted Period (as defined in Regulation S), the Investor
covenants not to offer or sell the Shares in the United States unless such
disposition is registered under the Act and any applicable State Acts or such
offer or sale is made pursuant to exemption from such registration
requirements. The Investor shall cause any transferee of the Shares during
the Restricted Period to execute an agreement substantially similar to this
Agreement.
1ARTICLE
POST-CLOSING COVENANTS OF THE COMPANY
The Company covenants and agrees with the Investor that:
(a) Within three (3) business days after the Closing Date, it will
file an amendment to the Company's Certificate of Incorporation to effectuate
the Reverse Stock Split and Stock's Reduction.
(b)
(c) The proceeds of the sale of the Shares (estimated to be $1.850.000
after deduction of the Cash Payment and legal fees in connection with the
Financing) shall be used as follows: approximately 45% will be used for
research and development expenses, including expenses associated with FDA
submissions, and various other expenses associated with advancing Phase II
clinical trials of the Company's Powerheart bedside model; approximately 20%
will be used for sales and marketing expenses, including literature and
materials, advertising, and trade shows; and approximately 35% will be used for
general corporate and working capital purpose, including, among other things,
salaries of executive and administrative expenses, legal and accounting costs,
and recruiting expenses; provided, however, the Company may make a bona fide
good faith change in the use of proceeds if, on the basis of changed
circumstances, the Company deems such change to be advisable.
(d)
1ARTICLE
INDEMNIFICATION
1.1 Section INDEMNITY OF THE COMPANY. The Company agrees to indemnify
and hold harmless the Investor and, if applicable, its officers and
directors, from and against, for and in respect of, and shall promptly
reimburse them for, any and all claims, losses, costs and expenses (including
the cost of any investigation and reasonable attorneys' fees), damages,
lawsuits, obligations, deficiencies, and liabilities (collectively "Losses")
which arise as a result of (a) the inaccuracy or breach in any material
respect of any representation or warranty made by the Company herein, or (b)
any breach or failure of the Company to perform any of the covenants or
agreements set forth herein.
1.1 Section INDEMNITY OF INVESTOR. The Investor agrees to indemnify and
hold harmless the Company and its officers and directors from any and all
Losses which arise as a result of (a) the
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December 3, 1997
Page 11
inaccuracy or breach of any representation or warranty made herein by such
Investor, or (b) any breach or failure of the Investor to perform any of the
covenants or agreements set forth herein.
1.2
1.3 Section INDEMNIFICATION PROCEDURE. An indemnifying party shall not be
liable under this indemnity agreement with respect to any claim made against an
indemnified party unless such indemnifying party shall be notified in writing of
the nature of the claim within a reasonable time after the assertion thereof,
but failure so to notify such indemnifying party shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party shall be entitled to participate at its own
expense in the defense of such claim or, if it so elects within a reasonable
time after receipt of such notice, to assume the defense of such claim, which
defense shall be conducted by counsel chosen by it and reasonably satisfactory
to the indemnified party defendant or defendants in any suit so brought,
provided however, the indemnifying party shall not be entitled to assume the
defense of such claim if such indemnified party reasonably objects to such
assumption on the ground that there may be legal defenses available to such
indemnified party different from or in addition to those available to such
indemnifying party. In the event that the indemnifying party elects to assume
the defense of any such suit and retains such counsel, the indemnified party
defendant as defendants in the suit shall bear the fees and expenses of any
additional counsel thereafter retained by such indemnified party. However, in
the event that the parties to any such action (including impleaded parties)
include the Company or controlling persons thereof and the Investor, and
representation of all parties would be inappropriate due to actual or potential
differing interests among them, then the Investor shall have the right to retain
separate counsel and the Company shall reimburse the Investor for the reasonable
fees and expenses of such counsel.
1.4
1ARTICLE
MISCELLANEOUS
1.1 Section SURVIVAL OF AGREEMENTS. All covenants, agreements,
representations, and warranties made herein shall survive the execution and
delivery hereof.
1.1 Section PARTIES IN INTEREST. All representations, covenants, and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective heirs, executors,
administrators, successors, and assigns of the parties hereto. Except as
otherwise expressly provided herein, nothing in this Agreement is intended to
confer upon any other person any rights or remedies hereunder.
1.2
1.3 Section NOTICES. All notices, requests, consents, and other
communications hereunder shall be in writing and shall be delivered in person,
mailed by certified or registered mail, return receipt requested, or telexed or
faxed.
1.4
1.5 Section GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
1.6
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December 3, 1997
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1.7 Section ENTIRE AGREEMENT. This Agreement, including the Exhibits and
Schedules hereto, constitutes the sole and entire agreement of the parties with
respect to the subject matter hereof. All Exhibits and Schedules hereto are
hereby incorporated herein by reference.
1.8
1.9 Section COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but taken together shall constitute
one and the same instrument.
1.10
1.11 Section AMENDMENTS. This Agreement may be amended or modified, or any
provision hereof may be waived, only pursuant to a written instrument executed
by the parties hereto.
1.12
1.13 Section SEVERABILITY. If any provision of this Agreement shall be
declared void or unenforceable by a judicial or administrative authority, the
validity of any other provision and of the entire Agreement shall not be
affected thereby.
1.14
1.15
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Page 13
1.16 IN WITNESS WHEREOF, the parties have executed this Agreement
this day of , 199 .
1.17
1.18Investor: (if an individual) Investor: (other than an individual
1.19 for his own account)
1.20
1.21(signature)
1.22 (printed name of Investor)
1.23 For and on behalf of
1.24(printed name) LAVA INVESTMENTS LIMITED
1.25 By Tengis International Limited, as
1.26 authorized signatory
1.27(signature of joint holder,
1.28 if applicable) By:
1.29 (signature of authorized officer or
Investor's Permanent Address: other representative)
W.K. Timso and H.K. Yip,
(printed name and title of signatory)
Investor's country or jurisdiction of
citizenship:
CARDIAC SCIENCE, INC.
By:
Raymond W. Cohen, President
If this agreement is being executed other
than in the jurisdiction set forth above,
indicate such location:
Number of Purchased Shares:
Total Purchase Price:
13
