CUSIP No. 141410 20 9 Page 1 of 11 Pages
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. )1
Cardiac Science, Inc.
(Name of Issuer)
Common Stock, $.001 par value
(Title of Class of Securities)
141410 20 9
(CUSIP Number)
Kathleen K. Schoemaker John C. MacMurray, Esq.
Domain Associates, L.L.C. Reboul, MacMurray, Hewitt,
One Palmer Square Maynard & Kristol
Princeton, New Jersey 08452 45 Rockefeller Plaza
Tel. (609) 683-5656 New York, New York 10111
Tel. (212) 841-5700
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 19, 2000
(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(e), 13d-1(f) or 13d-1(g), check the following
box [ ].
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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 disclosures provided in a prior cover page. The information required
on 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 the liabilities of that section of the Act but shall be subject to
all other provisions of the Act.
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CUSIP No. 141410 20 9 Page 2 of 11 Pages
1) Name of Reporting Person Domain Partners
I.R.S. Identification III, L.P.
No. of Above Person
(If an Entity)
2) Check the Appropriate Box (a) [x]
if a Member of a Group (b) [ ]
3) SEC Use Only
4) Source of Funds Not Applicable
5) Check if Disclosure of
Legal Proceedings is Not Applicable
Required Pursuant to
Items 2(d) or 2(e)
6) Citizenship or Place
of Organization Delaware
Number of 7) Sole Voting 797,243 shares of
Shares Beneficially Power Common Stock
Owned by Each
Reporting Person
With
8) Shared Voting
Power -0-
9) Sole Disposi- 797,243 shares of
tive Power Common Stock
10) Shared Dis-
positive Power -0-
11) Aggregate Amount Beneficially 797,243 shares of
Owned by Each Reporting Person Common Stock
12) Check if the Aggregate
Amount in Row (11)
Excludes Certain Shares
13) Percent of Class
Represented by 3.3%
Amount in Row (11)
14) Type of Reporting
Person PN
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CUSIP No. 141410 20 9 Page 3 of 11 Pages
1) Name of Reporting Person DP III Associates,
I.R.S. Identification L.P.
No. of Above Person
(If an Entity)
2) Check the Appropriate Box (a) [x]
if a Member of a Group (b) [ ]
3) SEC Use Only
4) Source of Funds Not Applicable
5) Check if Disclosure of
Legal Proceedings is Not Applicable
Required Pursuant to
Items 2(d) or 2(e)
6) Citizenship or Place
of Organization Delaware
Number of 7) Sole Voting 21,262 shares of
Shares Beneficially Power Common Stock
Owned by Each
Reporting Person
With
8) Shared Voting
Power -0-
9) Sole Disposi- 21,262 shares of
tive Power Common Stock
10) Shared Dis-
positive Power -0-
11) Aggregate Amount Beneficially 21,262 shares of
Owned by Each Reporting Person Common Stock
12) Check if the Aggregate
Amount in Row (11)
Excludes Certain Shares
13) Percent of Class
Represented by less than 0.1%
Amount in Row (11)
14) Type of Reporting
Person PN
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CUSIP No. 141410 20 9 Page 4 of 11 Pages
1) Name of Reporting Person Domain Partners
I.R.S. Identification IV, L.P.
No. of Above Person
(If an Entity)
2) Check the Appropriate Box (a) [x]
if a Member of a Group (b) [ ]
3) SEC Use Only
4) Source of Funds WC
5) Check if Disclosure of
Legal Proceedings is Not Applicable
Required Pursuant to
Items 2(d) or 2(e)
6) Citizenship or Place
of Organization Delaware
Number of 7) Sole Voting 1,085,109 shares of
Shares Beneficially Power Common Stock
Owned by Each
Reporting Person
With
8) Shared Voting
Power -0-
9) Sole Disposi- 1,085,109 shares of
tive Power Common Stock
10) Shared Dis-
positive Power -0-
11) Aggregate Amount Beneficially 1,085,109 shares of
Owned by Each Reporting Person Common Stock
12) Check if the Aggregate
Amount in Row (11)
Excludes Certain Shares
13) Percent of Class
Represented by 4.5%
Amount in Row (11)
14) Type of Reporting
Person PN
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CUSIP No. 141410 20 9 Page 5 of 11 Pages
1) Name of Reporting Person DP IV Associates,
I.R.S. Identification L.P.
No. of Above Person
(If an Entity)
2) Check the Appropriate Box (a) [x]
if a Member of a Group (b) [ ]
3) SEC Use Only
4) Source of Funds WC
5) Check if Disclosure of
Legal Proceedings is Not Applicable
Required Pursuant to
Items 2(d) or 2(e)
6) Citizenship or Place
of Organization Delaware
Number of 7) Sole Voting 26,002 shares of
Shares Beneficially Power Common Stock
Owned by Each
Reporting Person
With
8) Shared Voting
Power -0-
9) Sole Disposi- 26,002 shares of
tive Power Common Stock
10) Shared Dis-
positive Power -0-
11) Aggregate Amount Beneficially 26,002 shares of
Owned by Each Reporting Person Common Stock
12) Check if the Aggregate
Amount in Row (11)
Excludes Certain Shares
13) Percent of Class
Represented by 0.1%
Amount in Row (11)
14) Type of Reporting
Person PN
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CUSIP No. 141410 20 9 Page 6 of 11 Pages
Schedule 13D
Item 1. Security and Issuer.
This statement relates to the Common Stock, $.001 par value (the
"Common Stock"), of Cardiac Science, Inc., a Delaware corporation (the
"Issuer"). The principal executive offices of the Issuer are located at 16931
Millikan Avenue, Irvine, California 92606.
Item 2. Identity and Background.
(a) Pursuant to Rules 13d-1(k)(1)-(2) of Regulation 13D-G of the
General Rules and Regulations under the Securities Act of 1934, as amended (the
"Act"), the undersigned hereby file this Schedule 13D on behalf of Domain
Partners III, L.P., a Delaware limited partnership ("DP III"), DP III
Associates, L.P., a Delaware limited partnership ("DP III A"), Domain Partners
IV, L.P., a Delaware limited partnership ("DP IV"), and DP IV Associates, L.P.,
a Delaware limited partnership ("DP IV A"). DP III, DP III A, DP IV and DP IV A
are sometimes hereinafter referred to as the "Reporting Persons". The Reporting
Persons are making this single joint filing because they may be deemed to
constitute a "group" within the meaning of Section 13(d)(3) of the Act. The
agreement between the Reporting Persons to file as a group (the "Group
Agreement") is attached hereto as Exhibit A.
(b)-(c) DP III and DP III A are Delaware limited partnerships, each of
whose principal business is that of a private investment partnership. The sole
general partner of DP III and DP III A is One Palmer Square Associates III,
L.P., a Delaware limited partnership ("OPSA III"), whose principal business is
that of acting as the general partner of DP III and DP III A. DP IV and DP IV A
are Delaware limited partnerships, each of whose principal business is that of a
private investment partnership. The sole general partner of DP IV and DP IV A is
One Palmer Square Associates IV, L.L.C., a Delaware limited liability company
("OPSA IV"), whose principal business is that of acting as the general partner
of DP IV and DP IV A. The following individuals, who are citizens of the United
States, are the general partners of OPSA III and managing members of OPSA IV:
(i) James C. Blair -- General Partner, OPSA III and Managing Member,
OPSA IV
(ii) Brian H. Dovey -- General Partner, OPSA III and Managing Member,
OPSA IV
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CUSIP No. 141410 20 9 Page 7 of 11 Pages
(iii) Jesse I. Treu -- General Partner, OPSA III and Managing Member,
OPSA IV
(iv) Kathleen K. Schoemaker -- General Partner, OPSA III and Managing
Member, OPSA IV
(v) Richard S. Schneider -- General Partner, OPSA III
(vi) Arthur J. Klausner -- Managing Member, OPSA IV
The principal business and principal office address of each entity and
person named in this paragraph is One Palmer Square, Princeton, New Jersey
08542.
(d) None of the entities or persons identified in this Item 2 has,
during the last five years, been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) None of the entities or persons identified in this Item 2 has,
during the last five years, been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
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.
This statement relates to the acquisition by DP IV and DP IV A of an
aggregate 1,111,111 shares of Common Stock (the "Shares") pursuant to a Stock
Purchase Agreement entered into by and between the Issuer and DP IV and DP IV A
on July 19, 2000 (the "Purchase Agreement"). The Purchase Agreement is attached
hereto as Exhibit B, and any description thereof is qualified in its entirety by
reference thereto. The purchase price was $4.50 per Share, and the source of
such funds was the working capital, or funds available for investment, of DP IV
and DP IV A. DP III and DP III A had previously acquired an aggregate 818,505
shares of Common Stock (the "Merger Shares")on June 30, 2000 pursuant to a
merger in which the Issuer acquired Cadent Medical Corporation, a privately-held
company ("Cadent"). As shareholders of Cadent, DP III and DP III A received the
Merger Shares in exchange for their respective holdings in Cadent.
Item 4. Purpose of Transaction.
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CUSIP No. 141410 20 9 Page 8 of 11 Pages
DP IV and DP IV A have acquired securities of the Issuer for
investment purposes. DP III and DP III A have acquired securities of the Issuer
as a result of the merger described in Item 3 above. As provided by the
agreement pursuant to which such merger was effected, Brian Dovey, a general
partner of OPSA III and managing member of OPSA IV, who was a director of
Cadent, was elected to the Issuer's Board of Directors on August 17, 2000.
Item 5. Interest in Securities of the Issuer.
The following information is based on a total of 24,023,078 shares of
Common Stock outstanding as of August 7, 2000, as reported in the Issuer's
Quarterly Report on Form 10-Q for the period ended June 30, 2000 filed with the
Securities and Exchange Commission on August 14, 2000.
(a)
DP III
DP III owns 797,243 shares of Common Stock, or approximately 3.3% of
the Common Stock outstanding. OPSA III, as the general partner of DP III,
may be deemed to beneficially own the shares of Common Stock owned by DP
III.
DP III A
DP III A owns 21,262 shares of Common Stock, or less than 0.1% of the
Common Stock outstanding. OPSA III, as the general partner of DP III A, may
be deemed to beneficially own the shares of Common Stock owned by DP III A.
DP IV
DP IV owns 1,085,109 shares of Common Stock, or approximately 4.5% of
the Common Stock outstanding. OPSA IV, as the general partner of DP IV, may
be deemed to beneficially own the shares of Common Stock owned by DP IV.
DP IV A
DP IV A owns 26,002 shares of Common Stock, or approximately 0.1% of
the Common Stock outstanding. OPSA IV, as the general partner of DP IV A,
may be deemed to beneficially own the shares of Common Stock owned by DP IV
A.
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CUSIP No. 141410 20 9 Page 9 of 11 Pages
(b) The general partners of OPSA III and managing members of OPSA IV
may be deemed to share the power to vote or direct the voting of and to dispose
or to direct the disposition of the Common Stock owned by DP III, DP III A, DP
IV and DP IV A. Each of the general partners of OPSA III and managing members of
OPSA IV disclaims beneficial ownership of all shares of Common Stock other than
the shares of Common Stock he or she may own directly, if any, or by virtue of
his or her indirect pro rata interest, as a general partner of OPSA III and/or
managing member of DP IV A, in the Common Stock owned by DP III, DP III A, DP IV
and/or DP IV A.
(c) Not applicable.
(d) Except as described in this statement, no person has the power to
direct the receipt of dividends on, or the proceeds from sales of, the shares of
Common Stock owned by DP III, DP III A, DP IV or DP IV A.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings
or Relationships with Respect to
Securities of the Issuer.
Pursuant to the Purchase Agreement, the Issuer has agreed to file
within ninety days of the date thereof a registration statement under the
Securities Act of 1933, as amended, covering the resale of the Shares.
Item 7. Material to be Filed as Exhibits.
Exhibit A - Group Agreement (Appears at page 11)
Exhibit B - Purchase Agreement
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CUSIP No. 141410 20 9 Page 10 of 11 Pages
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.
Dated: August 29, 2000
DOMAIN PARTNERS III, L.P.
By: One Palmer Square Associates
III, L.P., General Partner
By /s/ Kathleen K. Schoemaker
General Partner
DP III ASSOCIATES, L.P.
By: One Palmer Square Associates
III, L.P., General Partner
By /s/ Kathleen K. Schoemaker
General Partner
DOMAIN PARTNERS IV, L.P.
By: One Palmer Square Associates
IV, L.L.C., General Partner
By /s/ Kathleen K. Schoemaker
Managing Member
DP IV ASSOCIATES, L.P.
By: One Palmer Square Associates
IV, L.L.C., General Partner
By /s/ Kathleen K. Schoemaker
Managing Member
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CUSIP No. 141410 20 9 Page 11 of 11 Pages
EXHIBIT A
AGREEMENT OF
DOMAIN PARTNERS III, L.P.,
DP III ASSOCIATES, L.P.,
DOMAIN PARTNERS IV, L.P.
AND
DP IV ASSOCIATES, L.P.
PURSUANT TO RULE 13d-1(k)
The undersigned hereby agree that the Statement on Schedule 13D to
which this Agreement is annexed as Exhibit A is filed on behalf of each of them
in accordance with the provisions of 13d-1(k) under the Securities Exchange Act
of 1934, as amended.
Dated: August 29, 2000
DOMAIN PARTNERS III, L.P.
By: One Palmer Square Associates
III, L.P., General Partner
By /s/ Kathleen K. Schoemaker
General Partner
DP III ASSOCIATES, L.P.
By: One Palmer Square Associates
III, L.P., General Partner
By /s/ Kathleen K. Schoemaker
General Partner
DOMAIN PARTNERS IV, L.P.
By: One Palmer Square Associates
IV, L.L.C., General Partner
By /s/ Kathleen K. Schoemaker
Managing Member
DP IV ASSOCIATES, L.P.
By: One Palmer Square Associates
IV, L.L.C., General Partner
By /s/ Kathleen K. Schoemaker
Managing Member
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EXHIBIT B
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is entered by and between
Cardiac Science, Inc., a Delaware corporation with an office at 16931 Millikan
Avenue, Irvine, California, 92606 (the "Company"), and the subscriber identified
on the signature page hereof ("Subscriber").
W I T N E S S E T H:
WHEREAS, the Company desires to sell to Subscriber, and Subscriber desires
to subscribe for and purchase from the Company, shares of the Company's common
stock, $.001 par value per share (the "Common Stock"), pursuant to Regulation D
("Regulation D") promulgated under the Securities Act of 1933, as amended (the
"Act");
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the parties agree as follows:
1. Purchase and Sale of the Shares; Delivery of Certificates; Payment.
1.1 Purchase and Sale of the Shares. The Company hereby sells, transfers,
assigns, and delivers to Subscriber the number of shares of Common Stock set
forth on the signature page hereof (the "Shares"), and Subscriber hereby
purchases and acquires the Shares from the Company for the aggregate purchase
price set forth on the signature page hereof (the "Purchase Price").
1.2 Delivery of Certificates; Payment of Purchase Price. Concurrently with
the execution and delivery of this Agreement, (a) the Company is delivering to
Subscriber a stock certificate representing the Shares which shall be in
definitive form and registered in the name of Subscriber, and (b) the Subscriber
is delivering to the Company a certified or cashier's check (or other form of
payment acceptable to the Company, in its sole discretion) in an amount equal to
the Purchase Price, or shall transfer such sum to the account of the Company by
wire transfer.
2. Representations, Warranties, and Covenants of Subscriber. Subscriber hereby
represents, warrants, and covenants to the Company as follows:
2.1 Subscriber's Independent Investigation. Subscriber, in subscribing for
the Shares hereunder, has relied solely upon an independent investigation made
by it and its representatives, if any. Prior to the date hereof, Subscriber has
been given the opportunity to ask questions of, and receive answers from,
representatives of the Company. Subscriber also has 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, Subscriber is not relying on any oral or written representations or
assurances from the Company or any other person other than as set forth in this
Agreement. Subscriber has received and reviewed the Company's Annual Report on
Form 10-K for the year ended December 31, 1999 and the Company's Form 10-Q for
the quarter ended March 31, 2000 (collectively the "Disclosure Documents").
Subscriber has such experience in business and financial matters that it is
capable of evaluating the risk of its investment and determining the suitability
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of its investment.
2.2 Accredited Investor; Investment Knowledge. Subscriber is an accredited
investor as defined in Rule 501 of Regulation D promulgated under the Act.
Subscriber has sufficient knowledge and experience in financial and business
matters so as to be capable of evaluating the risks and merits of Subscriber's
investment in the Company. Subscriber is knowledgeable about the affairs of the
Company.
2.3 Subscriber's Economic Risk. Subscriber understands and acknowledges
that an investment in the Shares involves a high degree of risk. Subscriber
acknowledges that there are limitations on the liquidity of the Shares.
Subscriber represents that Subscriber is able to bear the economic risk of an
investment in the Shares, including a possible total loss of investment. In
making this statement, Subscriber hereby represents and warrants to the Company
that Subscriber has adequate means of providing for Subscriber's current needs
and contingencies, and that Subscriber is able to afford to hold the Shares for
an indefinite period. Further, Subscriber has no present need for liquidity in
the Shares and Subscriber is willing to accept such investment risks.
2.4 No Government Recommendation or Approval. Subscriber 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 purchase of the Shares.
2.5 Company's Reliance on Representations of Subscribers. Subscriber
understands that the Shares are 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
Subscriber set forth herein in order to determine the applicability of such
exemptions and the suitability of Subscriber to acquire the Shares.
2.6 Shares Not Registered Under the Act or State Acts. Subscriber
understands that (a) the offer and sale of the Shares have not been registered
under the Act or applicable state securities laws ("State Acts"), and are being
offered and sold pursuant to Regulation D based in part upon the representations
of Subscriber contained herein, (b) the Shares must be held indefinitely unless
a subsequent disposition thereof is registered under the Act and State Acts, or
is made pursuant an exemption from such registration; (c) the certificate
evidencing the Shares shall bear a legend to such effect, and (d) the Company
will make a notation on its transfer books to such effect.
2.7 Investment Intent. Subscriber is acquiring the Shares for its own
account for investment, not as a nominee and not with a view to the distribution
thereof. Subscriber has no present plan or intention to sell the Shares at any
predetermined time, and has made no predetermined arrangements to sell the
Shares.
2.8 Subscriber's Power and Authority. Subscriber has the full power and
authority to
2
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execute, deliver, and perform this Agreement. This Agreement, when executed and
delivered by Subscriber, will constitute a valid and legally binding obligation
of Subscriber, enforceable in accordance with its terms.
2.9 No Tax Advice From Company or Its Agents. Subscriber has had an
opportunity to review with its own tax advisors the foreign, federal, state and
local tax consequences of this investment, and the transactions contemplated by
this Agreement. Subscriber is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents and
understands that Subscriber (and not the Company) shall be responsible for
Subscriber's own tax liability that may arise as a result of this investment or
the transactions contemplated by this Agreement.
2.10 No Legal Advice from Company or Its Agents. Subscriber acknowledges
that it has had the opportunity to review this Agreement and the transactions
contemplated by this Agreement with its own legal counsel. Subscriber 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 representations,
warranties and covenants set forth herein.
2.11 No Scheme to Evade Registration. Subscriber'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.
3. Resales of Shares by Subscriber; Legends.
3.1 Resales of Shares. Subscriber acknowledges, covenants, and agrees that
Subscriber may not and will not resell the Shares unless such resale is made
pursuant to an exemption from registration under the Act and State Acts, or
pursuant to an effective and current registration statement under the Act and
State Acts. Subscriber shall cause a transferee of the Shares to execute, prior
to any such transfer, an agreement containing provisions substantially similar
to Sections 2, 3, 5 and 6 hereof.
3.2 Legend. To insure compliance with the provisions of the Act and State
Acts, the Shares shall bear a legend (the "Restrictive Legend") substantially as
follows:
"THE ISSUANCE OF THE SECURITIES EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS ("STATE ACTS"). THE
SECURITIES MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED UNLESS
SUCH OFFERS, SALES, AND TRANSFERS ARE REGISTERED UNDER THE ACT AND
STATE ACTS, OR ARE MADE PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THOSE LAWS."
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3.3 Removal of Legend.
(a) The Restrictive Legend may be removed (and the restrictions on the
transferability of the Shares shall terminate) when (i) the sale of the Shares
has been registered under the Act and State Acts, and the Shares have been sold
by the holder thereof in accordance with such registration, (ii) a written
opinion to the effect that such restrictions are no longer required or necessary
under any federal or state securities law or regulation has been received from
counsel for the holder thereof (provided that such counsel, and the form and
substance of such opinion, are reasonably satisfactory to the Company) or
counsel for the Company, (iii) the Shares have been sold without registration
under the Act in compliance with Rule 144 or Rule 144A promulgated under the
Act, (iv) the Company is reasonably satisfied that the holder of the Shares, in
accordance with the terms of Subsection (k) of Rule 144 or of Rule 144A
promulgated under the Act, shall be entitled to sell the Shares pursuant to such
Subsection, or (v) a letter or an order has been issued to the holder thereof by
the staff of the Securities and Exchange Commission (the "Commission") stating
that no enforcement action shall be recommended by such staff or taken by the
Commission if the Shares are transferred without registration under the Act in
accordance with the conditions set forth in such letter or order and such letter
or order specifies that no subsequent restrictions on transfer are required.
(b) Whenever the restrictions imposed by this Section 3 shall
terminate as hereinabove provided, the holder of a certificate representing any
of the Shares then outstanding as to which such restrictions shall have
terminated shall be entitled to receive from the Company, without expense to
such holder, one or more new certificates for Shares not bearing the restrictive
legend set forth in Section 3.2.
4. Representations and Warranties of Company. The Company represents and
warrants to Subscriber as follows:
4.1 Organization, Good Standing, and Qualification. The Company is a
corporation duly organized, validly existing, and in good standing under the
laws of State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted. The
Company is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on the business or properties of the Company. The Company, to its
knowledge, is not the subject of any pending or threatened investigation or
administrative or legal proceeding by the Internal Revenue Service, the taxing
authorities of any state or local jurisdiction, or the Commission which could
have a material adverse effect on the Company and which have not been disclosed
in the Disclosure Documents.
4.2 Authorization. All corporate action on the part of the Company
necessary for the authorization, execution and delivery of this Agreement, the
performance of all obligations of the Company hereunder, and the authorization,
issuance, and delivery of the Shares have been taken. This Agreement constitutes
valid and legally binding obligation of the Company, enforceable in accordance
with its terms. The Company has obtained all consents and approvals required for
it to execute, deliver, and perform this Agreement.
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4.3 No Conflicts. The Company is not in violation or default of any
provisions of its Certificate of Incorporation or By-laws, as amended and in
effect on and as of the date of this Agreement, or of any material provision of
any instrument or contract to which it is a party or by which it is bound or of
any material provision of any federal or state judgment, writ, decree, order,
statute, rule or governmental regulation applicable to the Company, except where
such violation, default or conflict would have no material adverse affect on the
Company's business or financial condition, or on the transactions contemplated
herein. The execution, delivery, and performance of this Agreement and the
consummation of the transactions contemplated hereby will not result in any such
violation or conflict with or constitute, with or without the passage of time
and giving of notice, either a default under any such provision, instrument or
contract or an event which results in the creation of any lien, charge or
encumbrance upon any assets of the Company.
4.4 Valid Issuance of Shares. The Shares, when issued, sold, and delivered
in accordance with the terms hereof and for the consideration expressed herein,
will be duly and validly issued, fully paid and non-assessable, free of any
preemptive rights, and the holders thereof shall not be subject to personal
liability solely by reason of being such holders.
4.5 Current Public Information. The Company has a class of securities
registered under Section 12(b) or 12(g) of the Exchange Act or is required to
file reports pursuant to Section 13 or 15(d) of the Exchange Act, and has filed
all the materials required to be filed as reports pursuant to the Exchange Act
for a period of at least twelve months preceding the date hereof (or for such
shorter period as the Company was required by law to file such material), and
all such filings have been made on a timely basis.
4.6 Use of Proceeds. As of the date hereof, the Company expects to use the
net proceeds from the sale of the Shares for working capital and general
corporate purposes, including the funding of research and development and
marketing.
5. Covenants by the Company
5.1 Registration of Shares.
(a) On or before the ninetieth day after the date hereof, the Company
shall file, at its own expense, a registration statement (the "Registration
Statement") under the Act covering the resale of the Shares by the holders
thereof (the "Holders"), and shall use its reasonable efforts to cause the
Registration Statement to become effective. The Shares also shall be registered
under such State Acts as the Holders may reasonably request. The Company
promptly shall give the Holders written notification of the effectiveness of the
Registration Statement under the Act, and, when determined, each state where
registered.
(b) Notwithstanding the above, the Company's obligation to file the
Registration Statement, and/or to keep the Registration continuously effective
shall be suspended during any period
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that there exists any material, non-public information relating to the Company.
Subscriber recognizes that the occurrence of certain corporate developments,
including significant acquisitions, may result in the failure of the
Registration Statement to contain all information required in accordance with
applicable law until an amendment or supplement is filed and made available to
the Holders. Subscriber recognizes that in such event, sales under the
Registration Statement will be suspended until the Company files the necessary
amendments or supplements thereto. The Company agrees to prepare and file with
the Commission, as promptly as reasonably practicable, such amendments and
supplements to the Registration Statement, as well as the prospectus used in
connection therewith, as may be necessary to keep the Registration Statement
effective until such time as all of the Shares covered by the Registration
Statement are sold or the Holders can sell such Shares under Rule 144 without
volume restrictions. In connection therewith, the Company shall supply
prospectuses and such other documents as the Holders may reasonably request in
order to facilitate the sale or other disposition of such Shares.
5.2 Indemnification.
(a) The Company shall indemnify and hold harmless the Holders of the
Shares covered by the Registration Statement (a "Distributing Holder"), each
underwriter (within the meaning of the Act) of the Shares, and each person, if
any, who controls (within the meaning of the Act) the Distributing Holder and/or
any such underwriter, from, against, for and in respect of any and all losses,
claims, damages, liabilities, expenses (including reasonable attorneys fees),
and costs (collectively, the "Liabilities") to which each such Distributing
Holder, underwriter, or controlling person may become subject, under the Act or
otherwise, insofar as such Liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any preliminary
prospectus or final prospectus constituting a part thereof, or any amendment or
supplement thereto, or arise out of or are based upon the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Company shall reimburse each such
Distributing Holder, underwriter, and controlling person for any and all legal
or other expenses reasonably incurred by each such party in connection with
investigating or defending any such Liability or action; provided, however, the
Company shall not be liable in any such case to the extent that any such
Liability arises out of or is based upon an untrue statement, alleged untrue
statement, omission, or alleged omission in such Registration Statement,
preliminary prospectus, final
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<PAGE>
prospectus, amendment or supplement, made in reliance upon and in conformity
with information furnished by any such Distributing Holder, underwriter, or
controlling person.
(b) The Distributing Holder shall indemnify and hold harmless the
Company, each of its directors and officers who have signed such Registration
Statement as well as such amendments and supplements thereto, and each person,
if any, who controls the Company (within the meaning of the Act), from, against,
for and in respect to any and all Liabilities to which the Company or any such
director, officer, or controlling person may become subject, under the Act or
otherwise, insofar as such Liabilities (or actions in respect thereof) arise out
of or are based upon any untrue or alleged untrue statement of any material fact
contained in such Registration Statement, preliminary prospectus, final
prospectus, amendment or supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading. Such
Distributing Holder shall reimburse the Company or any such director, officer,
or controlling person for any legal or other expenses reasonably incurred by
them or any of them in connection with investigating or defending any such
Liability or action; provided, however, in each case, the Distributing Holder
shall be liable only to the extent that such untrue statement, alleged untrue
statement, omission, or alleged omission in such Registration Statement,
preliminary prospectus, final prospectus, amendment or supplement, was made in
reliance upon and in conformity with information furnished by such Distributing
Holder.
6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to agreements
made in and wholly to be performed in that jurisdiction.
7. Entire Agreement; Amendments. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof, and no party shall be liable or bound to any other party in any
manner by any warranties, representations, or covenants except as specifically
set forth herein. Neither this Agreement nor any term hereof may be amended,
waived, discharged, or terminated other than by a written instrument signed by
the party against whom enforcement of any such amendment, waiver, discharge, or
termination is sought.
8. Written Notices, Etc. Any notice, demand, or request required or permitted to
be given by either the Company or Subscriber pursuant to the terms of this
Agreement shall be in writing and shall be deemed given when delivered
personally, by overnight courier, or by registered or certified mail, return
receipt requested, or by facsimile or other standard form of telecommunication,
to the Company at its address set forth above and to Subscriber at its address
set forth on the applicable signature page hereto.
9. Execution in Counterparts Permitted. This Agreement may be executed by
facsimile in any number of counterparts, each of which shall be enforceable
against the parties actually executing such counterparts, and all of which
together shall constitute one instrument.
10. Survival; Severability. Subscriber's and the Company's representations and
warranties shall survive the closing of the transaction. If any provision of
this Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable, or void, this Agreement, to the extent permitted by law,
shall continue in full force and effect without said provision; provided that no
such severability shall be effective if it materially changes the economic
benefit of this Agreement to any party.
11. Titles; Gender. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement. The use in the Agreement of a masculine, feminine or neuter pronoun
shall be deemed to include a reference to the others.
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<PAGE>
12. Assignment. Neither party to this Agreement may assign this Agreement
without the prior written consent of the other (which may be withheld for any
reason).
13. Indemnification. The Company shall indemnify and hold harmless Subscriber
against any Liabilities suffered or incurred by Subscriber and not otherwise
reimbursed, arising from or due to any material breach of a representation,
warranty, or covenant of the Company contained in this Agreement. Subscriber
shall indemnify and hold harmless the Company and each of its officers,
directors, stockholders, employees, control persons, and agents (each, a
"Company Indemnified Party") against any Liabilities suffered or incurred by a
Company Indemnified Party and not otherwise reimbursed, arising from or due to
any material breach of a representation, warranty, or covenant of Subscriber
contained in this Agreement.
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SUBSCRIPTION AGREEMENT SIGNATURE PAGE FOR INDIVIDUALS
Executed this day of , 2000.
Number of Shares Subscribed for: ____ Shares at $4.50 per Share:
Total Purchase Price: $________.
Residence Address:______________________________________________________________
Street
________________________________________________________________________________
City State Zip Code
Telephone Number: ( )
________________________
(Signature of Investor)
________________________
(Printed Name of Investor)
Approved and Accepted this ___ day of ______, 2000
Cardiac Science, Inc.
By:________________________________________________
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<PAGE>
SUBSCRIPTION AGREEMENT SIGNATURE PAGE
FOR CORPORATIONS, PARTNERSHIPS, TRUSTS, ETC.
Executed this day of , 2000.
Number of Shares Subscribed for: ____ Shares at $4.50 per Share:
Total Purchase Price: $________.
Business Address:_______________________________________________________________
Street
________________________________________________________________________________
________________________________________________________________________________
City State Zip Code
Telephone Number: (_____)
Taxpayer Identification Number:
Check appropriate space:
____ Corporation/Partnership/Limited Liability Company
____ Trust/Estate/Pension or Profit Sharing Plan
____ Other
[Print or type name of Investor]
By
Signature of Authorized Signatory
Print or type name and title of Signatory]
Approved and Accepted this ___ day of ______, 2000
Cardiac Science, Inc.
By:_______________________________________________
