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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(RULE 13d - 101)
Information to be included in statements filed pursuant to
13d-1(a) and amendments thereto filed pursuant to 13d-2(a)
(Amendment No. 9 )*
Zoll Medical Corporation
(Name of Issuer)
Common Stock, $.02 par value
(Title of Class of Securities)
989922109
(CUSIP Number)
Stephen M. Schultz, Esq., Kleinberg, Kaplan, Wolff & Cohen,
P.C., 551 Fifth Avenue, 18th Floor, New York, New York 10176,
Tel: (212) 986-6000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
January 7, 1999
(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.
*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 ("Act") or otherwise
subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however,
see the Notes).
(Continued on the following pages)
(Page 1 of 22)
<PAGE>
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES
ONLY)
Elliott Associates, L.P., a Delaware Limited
Partnership
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) -
(b) -
3. SEC USE ONLY
4. SOURCE OF FUNDS*
00
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) -
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
7. SOLE VOTING POWER
476,100
1. SHARED VOTING POWER
0
2. SOLE DISPOSITIVE POWER
476,100
3. SHARED DISPOSITIVE POWER
0
4. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
476,100
5. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES*
6. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.69%
7. TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.<PAGE>
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES
ONLY)
Westgate International, L.P., a Cayman Islands
Limited Partnership
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) -
(b) -
3. SEC USE ONLY
4. SOURCE OF FUNDS*
00
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) -
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands, British West Indies
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
476,100
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
476,100
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
476,100
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.69%
14. TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.<PAGE>
1. NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES
ONLY)
Martley International, Inc., a Delaware corporation
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) -
(b) -
3. SEC USE ONLY
4. SOURCE OF FUNDS*
00
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) -
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH
REPORTING PERSON WITH
7. SOLE VOTING POWER
0
8. SHARED VOTING POWER
476,100
9. SOLE DISPOSITIVE POWER
0
10. SHARED DISPOSITIVE POWER
476,100
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
476,100
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES*
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.69%
14. TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE
ATTESTATION.<PAGE>
This statement is filed pursuant to Rule 13d-2(a) with
respect to the shares of common stock, $.02 par value (the
"Common Stock") of Zoll Medical Corporation (the "Issuer")
beneficially owned by the Reporting Persons specified herein
as of November 13, 1998 and amends and supplements the
Schedule 13D dated January 8, 1998, as amended on January 23,
1998, February 20, 1998, April 17, 1998, May 11, 1998, May 26,
1998, August 3, 1998, September 10, 1998 and November 13, 1998
(the "Schedule 13D"). Except as set forth herein, the
Schedule 13D, as previously amended, is unmodified.
ITEM 4. Purpose of Transaction
Each of Elliott and Westgate acquired the Common Stock
beneficially owned by it in the ordinary course of its trade
or business of purchasing, selling, trading and investing in
securities. Martley has acted as investment manager with
respect to Westgate's acquisition of beneficial ownership of
Common Stock.
Depending upon market conditions and other factors that
it may deem material, including the terms of the Settlement
(described below), each of Elliott and Westgate may purchase
additional shares of Common Stock or related securities or may
dispose of all or a portion of the Common Stock or related
securities that it now beneficially owns or may hereafter
acquire.
In accordance with a Settlement Agreement entered into
by Elliott, Westgate and the Issuer on January 7, 1999 (the
"Settlement"), a copy of which is attached hereto as Exhibit
D, Elliott and Westgate have agreed: (i) to dismiss the
litigation identified in Amendment #6 to the Schedule 13D
dated August 3, 1998, (ii) not to proceed with their proposed
proxy contest for the election of directors and the passage of
shareholder proposals at the Issuer's 1999 Annual Meeting of
Shareholders, and (iii) to limit their actions (including
their purchase of additional shares) with respect to the
Issuer prior to October 1, 1999 (or such later date as may
apply under the terms of the Settlement). Additionally, in
accordance with the Settlement, Dr. James W. Biondi was
elected to the Issuer's Board of Directors by its then current
members.
All references to and summaries of the Settlement
described in this Schedule 13D are qualified in their entirety
by the information set forth in the full text of the
Settlement attached hereto as Exhibit D, which should be read
in its entirety for a more complete description of the
information contained therein.
None of Elliott, Westgate or Martley currently has any
definitive plans or proposals, other than those described
above, which relate to or would result in any of the actions
set forth in subparagraphs (a) through (j) of Item 4.<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its
knowledge and belief, the undersigned each certifies that the
information with respect to it set forth in this statement is
true, complete, and correct.
Dated:
January 7, 1999 ELLIOTT ASSOCIATES, L.P.
By: /s/ Paul E. Singer
Paul E. Singer
General Partner
WESTGATE INTERNATIONAL, L.P.
By: Martley International, Inc.,
as attorney-in-fact
By: /s/ Paul E. Singer
Paul E. Singer
President
MARTLEY INTERNATIONAL, INC.
By: /s/ Paul E. Singer
Paul E. Singer
President
<PAGE>
Exhibit D
AGREEMENT
This AGREEMENT, dated as of January 7, 1999 (the
"Agreement"), is by and among Zoll Medical Corporation, a
Massachusetts corporation ("Zoll"), Elliott Associates, L.P.,
a Delaware limited partnership ("Elliott"), and Westgate
International, L.P., a Cayman Islands limited partnership
("Westgate" and together with Elliott, the "Holders").
WHEREAS, the Holders beneficially own an aggregate of
952,200 shares (the "Shares") of common stock, par value $0.02
per share, of Zoll ("Zoll Common Stock");
WHEREAS, on August 3, 1998, Elliott and Westgate filed a
lawsuit against Zoll and each of the Directors of Zoll in the
United States District Court, District of Massachusetts,
captioned Elliott Associates, L.P. and Westgate International,
L.P. v. Zoll Medical Corporation, Willard M. Bright, Thomas M.
Claflin II, M. Stephen Heilman, Noah T. Herndon, Daniel M.
Mulvena, Richard A. Packer and Rolf S. Stutz, Civ. Action
Docket No. 98CV-11626-PBS (the "Litigation");
WHEREAS, by letter dated September 23, 1998, Elliott and
Westgate have demanded that Zoll deliver certain information
to Elliott and Westgate and have subsequently amended such
requests for information (such requests collectively, as
amended, the "Demand");
WHEREAS, by letter dated November 9, 1998, Elliott and
Westgate nominated James W. Biondi and Michael W. Cleman for
election as directors of Zoll and put forth two proposals to
be acted on by the stockholders of Zoll at its 1999 Annual
Meeting of Stockholders (the "1999 Annual Meeting" and the
"Stockholder Nominations and Proposals"); and
WHEREAS, Zoll and the Holders desire to resolve all
disputes between them, including those matters at issue in or
with respect to the Litigation, the Demand and the Stockholder
Nominations and Proposals.
NOW, THEREFORE, in consideration of the mutual covenants
and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
<PAGE>
Section 1. Representations.
(a) Binding Agreement. Zoll hereby represents and
warrants that this Agreement has been duly authorized,
executed and delivered by Zoll, and is a valid and binding
obligation of Zoll, enforceable against Zoll in accordance
with its terms. Each of the Holders jointly and severally
represents and warrants that this Agreement has been duly
authorized, executed and delivered by each Holder, and is a
valid and binding obligation of each such Holder, enforceable
against each such Holder in accordance with its terms.
(b) Share Ownership of Zoll Common Stock. The Holders
hereby represent and warrant that as of the date hereof, each
of the Holders and their Affiliates are the beneficial owners
of the number of shares (the "Shares") of Zoll Common Stock
set forth opposite such Holder's or Affiliate's name on
Exhibit A hereto, and the Holders and the Affiliates are not
the beneficial owners of, and do not have any rights, options
or agreements to acquire, any other shares of Zoll Common
Stock.
For purposes of this Agreement, the term "Affiliate" and
"Associate" shall have the respective meanings set forth in
Rule 12b-2 promulgated by the Securities and Exchange
Commission (the "SEC") under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
For the purposes of this Agreement, the term "beneficial
owner"shall have the same meaning as ascribed thereto in Rule
13d-3 promulgated by the SEC under the Exchange Act except
that a person shall also be deemed to be the beneficial owner
of all shares of Zoll Common Stock which such person has the
right to acquire pursuant to the exercise of any rights in
connection with any securities or any agreement, regardless of
when such rights may be exercised and whether they are
conditional.
Section 2. Directors.
(a) Effective upon the execution of this Agreement,
the Board of Directors of Zoll (the "Board") has voted to
increase the size of the Board to eight members and has
elected Dr. James W. Biondi as a Class III Director for a two-
year term ending upon the election of Directors at Zoll's 2001
annual meeting of stockholders to fill the resulting vacancy
on the Board.
(b) Until the earliest of February 1, 2001, the date
any of the Holders or any Affiliate of a Holder commences a
Proxy Contest (as defined below) or such time as the Holders
and their Affiliates in the aggregate are the beneficial
owners of less than 5% of the then outstanding shares of Zoll
Common Stock, the Holders, jointly and severally, and Zoll
agree that:
(i) If the Board is subsequently expanded to at
least ten (10) members, one additional Director (i.e., the
eleventh) shall be elected to serve on the Board as provided
in Section 2(b)(ii). In no event shall Zoll expand its Board
to more than twelve (12) directors; and
(ii) If Mr. Biondi ceases to serve as a Director
for any reason, or an additional Director is to be added to
the Board pursuant to Section 2(b)(i), Zoll shall promptly
take such actions as are necessary to elect a person or
persons, as the case may be, proposed by the Holders and
reasonably acceptable to Zoll, to be a Director. Mr. Biondi
and any such additional Director added pursuant to Section
2(b), or their replacements elected pursuant to this
Agreement, shall not be removed from the Board except for
cause. If any of such directors is no longer serving as a
director, the Holders shall have the right to propose a
replacement, reasonably acceptable to Zoll, to replace such
director and Zoll shall promptly take such actions as are
necessary to elect such proposed person. It is understood
that any person proposed by the Holders pursuant to this
Section 2(b)(ii) to be elected as a director is intended by
the parties to be independent of both Zoll and the Holders,
and Zoll may take into consideration any former or current
relationships any such proposed person has or had with either
of the Holders or any of their Affiliates or Associates in
deciding whether to accept any such proposed person.
Section 3 Voting.
(a) For so long as Mr. Biondi or any person proposed
by the Holders and elected pursuant to Section 2 holds any
Board seat, or the Holders are then entitled (and have not
irrevocably waived their rights) to propose a person to be
elected a Director pursuant to Section 2, the Holders will
cause all shares of Zoll Common Stock beneficially owned by
any Holder, or any Holder's Affiliates, and will use all
reasonable efforts to cause all shares of Zoll Common Stock
beneficially owned by any Holder's Associates, as of the
record date for any meeting, to be present for quorum purposes
at any meeting of stockholders of Zoll at which the vote of
Zoll's common stockholders is sought. The Holders further
agree to vote, or cause to be voted, all shares beneficially
owned by any Holder or any Affiliate, and will use all
reasonable efforts to cause to be voted all shares owned by
any Associate of any Holder, as follows:
(i) Notwithstanding anything in this Section 3
to the contrary, for the Board's two nominees for director at
the 1999 Annual Meeting and, if the average closing price of
Zoll Common Stock as reported in The Wall Street Journal is at
or above $11.75 (adjusted to reflect any stock dividends,
stock splits, reverse stock splits or similar events after the
date hereof) per share over any period of twenty (20)
consecutive trading days at any time during the sixty (60)
trading days up to and including the trading day immediately
preceding the date on which matters are voted on at the 2000
Annual Meeting of Stockholders (the "2000 Annual Meeting"),
for all of the Board's nominees for director at the 2000
Annual Meeting;
(ii) In favor of the Board's proposal to be
presented at the 1999 Annual Meeting to increase the number of
shares available for grant under Zoll's 1992 Stock Option Plan
by 300,000 shares; and
(iii)Either for the position recommended by the
Board or by abstaining from voting on all other proposals at
the 1999 Annual Meeting and, if the average closing price of
the Zoll Common Stock as reported in The Wall Street Journal
is at or above $11.75 (adjusted to reflect any stock
dividends, stock splits, reverse stock splits or similar
events after the date hereof) per share over any period of
twenty (20) consecutive trading days at any time during the
sixty (60) trading days up to and including the trading day
immediately preceding the date on which matters are voted on
at the 2000 Annual Meeting, for the position recommended by
the Board or by abstaining from voting against, all proposals
(other than the election of Directors) at the 2000 Annual
Meeting.
The Holders further agree to take all action necessary
to carry out the intention of this Section 3(a), including,
without limitation, delivering executed proxies for all shares
of Zoll Common Stock beneficially owned by any Holder or their
Affiliates, and will use all reasonable efforts to cause the
Holder's Associates to take such actions, as of the applicable
record date.
(b) In the event any of the Holders or their
Affiliates desires to commence a Proxy Contest relating to
Zoll that is not otherwise prohibited by the terms of this
Agreement, and Mr. Biondi or any director proposed by the
Holders who has been elected pursuant to Section 2(b) hereof
is then serving on the Board, then the Holders shall (i)
notify Zoll that they will commence a Proxy Contest at least
ten (10) business days prior to commencing such contest and (
ii) provide to Zoll written offers to resign from the Board
from all of such directors. If Zoll, within such ten business
day period, notifies the Holders in writing of its intention
not to accept one or more of such offers of resignation and
any of such directors remains on the Board after such ten-day
period, then the Holders agree that if the Proxy Contest
relates to the election of directors, the Holders will put
forth one or two fewer nominees, as applicable, as calculated
by subtracting from the number of seats open for election the
number of directors serving on the Board pursuant to Section 2
who did not resign. If Zoll, within such ten business day
period, accepts all of such resignations or such directors
resign within such ten day period, then the provisions of the
immediately preceding sentence shall not apply.
For purposes of this Agreement (i) the commencement of
any proxy contest shall mean any public announcement
(including any SEC filing) after the date hereof (and, for
purposes of Section 5(b) only, any communication with any of
Zoll's shareholders after the date hereof) that any Holder or
its Affiliate or any Associate of any Holder has commenced,
will commence or is considering commencing a Proxy Contest and
(ii) a proxy contest shall mean any attempt to nominate, or
cause any other person to nominate, a director of Zoll (except
as permitted by Section 2), or to make or support a
shareholder proposal not supported by management, at any
meeting of Zoll's shareholders (a "Proxy Contest").
Zoll hereby covenants and agrees not to move the date of
its annual meeting of shareholders, or a special meeting of
shareholders in lieu thereof, for the year 2000 to a date
earlier than February 1, 2000.
Section 4. Acquisition of Stock.
Each of the Holders jointly and severally covenants and
agrees that, from and after the date hereof, neither the
Holders nor any of their Affiliates will, directly or
indirectly, including without limitation by encouraging,
assisting or using any Associate of any Holder or of any
Affiliate of any Holder, without the prior written consent of
Zoll specifically expressed in a vote adopted by the Board,
purchase or cause to be purchased or otherwise acquire or
agree to acquire, or become or agree to become the beneficial
owner of, any other securities (other than the Shares) issued
by Zoll, or any securities convertible into or exchangeable
for any other equity securities of Zoll, if in any such case
immediately after the taking of such action the Holders, their
Affiliates or any Associates of the Holders being directly or
indirectly encouraged, assisted or used by the Holder or an
Affiliate of a Holder, either individually or in the
aggregate, would then be or become the beneficial owner of
more than 15.46% of the then outstanding shares of Zoll Common
Stock (provided that if the event immediately preceding such
15.46% threshold's having been exceeded is a reduction in the
number of shares of Zoll Common Stock outstanding, the Holders
shall not be obligated to sell any shares of Zoll Common Stock
as a result of such event).
Section 5. Standstill Arrangements.
Each of the Holders jointly and severally agrees that,
from and after the date of this Agreement and prior to the
Termination Date (as defined in Section 8 below), none of the
Holders nor any of their Affiliates will, directly or
indirectly, solicit, request, actively advise, actively assist
or encourage others to:
(a) form, join in or in any other way participate in a
"partnership, limited partnership, syndicate or other group"
within the meaning of Section 13(d)(3) of the Exchange Act
with respect to shares of Zoll Common Stock or deposit any
shares in a voting trust or similar arrangement or subject any
shares to any voting agreement or pooling arrangement, other
than solely with one or more Affiliates with respect to the
Shares or pursuant to this Agreement;
(b) commence a Proxy Contest, solicit proxies or
written consents of shareholders with respect to Zoll Common
Stock under any circumstances, or make, or in any way
participate in, any "solicitation" of any "proxy" to vote any
shares of Zoll Common Stock, or become a "participant" in any
election contest with respect to Zoll (as such terms are
defined or used in Rules 14a-1 and 14a-11 under the Exchange
Act);
(c) seek to call, or to request the call of, a special
meeting of the shareholders of Zoll, or seek to make
(including, without limitation, making any request for a list
of shareholders of Zoll), or make, a shareholder proposal at
any meeting of the shareholders of Zoll;
(d) commence or announce any intention to commence any
tender offer for any shares of Zoll Common Stock, or file with
or send to the SEC a Schedule 13D or any amendments to any
Schedule 13D under the Exchange Act with respect to Zoll
Common Stock to reflect changes to the disclosures set forth
therein and exhibits filed therewith, except (i) for the
amendment to the Schedule 13D previously filed with the SEC by
the Holders with respect to Zoll Common Stock (the "Current
Schedule 13D") in the form previously agreed to in writing by
the parties or (ii) to the extent such amendment is filed
solely to report one or a combination of (A) purchases of Zoll
Common Stock permitted by this Agreement, (B) dispositions of
Zoll Common Stock (including dispositions that reduce the
Holders' beneficial ownership below 5%), (C) the proposing of
a candidate for election to the Board of Directors as
permitted by Section 2, or (D) material litigation involving
the Shareholder Rights Agreement or this Agreement (if, but
only if, the reporting of such litigation on such amendment is
required by law and the Holders have given Zoll, in writing, a
copy of the proposed amendment at least three (3) business
days prior to the filing thereof). In addition, the Holders
may file a Schedule 13D to comply with amendments after the
date hereof to Section 13(d) of the Exchange Act, to the rules
promulgated thereunder, or to the SEC's interpretation of
either of the foregoing. Such permitted amendments shall be
referred to as the "Permitted Schedule 13D Amendments." In no
case shall Item 4 of the Current Schedule 13D be amended,
except as otherwise permitted by this Section 5(d);
(e) make a proposal or bid with respect to, or
announce any intention or desire to make, or publicly make or
disclose, cause to be made or disclosed publicly, any proposal
or bid with respect to, the acquisition of any substantial
portion of the assets of Zoll or of all or any portion of the
outstanding Zoll Common Stock (except the Holders may file
Permitted Schedule 13D Amendments), or any merger,
consolidation, other business combination, restructuring,
recapitalization, liquidation or other extraordinary
transaction involving Zoll;
(f) otherwise act alone or in concert with others to
seek control of the Board or, except for any person proposed
by the Holders pursuant to Section 2(b)(ii) hereof, any change
in the composition of the Board.
(g) take any action or form any intention which would
require an amendment to the Current Schedule 13D (other than
amendments containing only the Permitted Schedule 13D
Amendments);
(h) make, or in any way assist any party in making,
any short sale, as defined in Rule 3b-3 under the Exchange
Act, with respect to shares of Zoll Common Stock;
(i) arrange, or in any way participate in, any
financing for any transaction referred to in clauses (a)
through (h) above inclusive; or
(j) make public, or cause or facilitate the making
public (including by disclosure to any journalist or other
representative of the media) of, any request, or otherwise
seek (in any fashion that would require public disclosure by
any of the Holders or their Affiliates), to obtain any waiver
or consent under, or any amendment of, any provision of this
Agreement.
Section 6. Dismissal of Litigation and Withdrawal of Demand
and Stockholder Nominations and Proposals
Concurrently with the execution hereof, the parties are
causing their counsel to execute and file in the United States
District Court, District of Massachusetts a Stipulation of
Dismissal Without Prejudice in the form attached hereto as
Exhibit B. The Holders hereby covenant and agree that until
the Termination Date they will not commence, or in any way
maintain or participate in any action, suit or proceeding of
any kind, or, directly or indirectly, support or encourage any
other person to commence, join in or in any way maintain or
participate in, any action, suit or proceeding of any kind
with respect to the "Adverse Person" provisions of the
Shareholder Rights Agreement between Zoll and State Street
Bank and Trust Company dated as of June 8, 1998 (the
"Shareholder Rights Agreement"); provided, however, that (A)
if Zoll notifies the Holders pursuant to Section 7 below of
its intention to declare either of the Holders or any of their
Affiliates or Associates an "Adverse Person" pursuant to the
Shareholder Rights Agreement, the preceding covenant shall not
apply unless and until Zoll shall withdraw such notice or (B)
if Zoll declares either of the Holders or their Affiliates or
Associates "Adverse Persons" pursuant to the Shareholder
Rights Agreement, the preceding covenant shall not apply. The
Holders hereby withdraw the Demand and the Stockholder
Nominations and Proposals and hereby waive any rights related
to the Demand or the Stockholder Nominations and Proposals.
Section 7. Notification of Intention to Declare the Holder an
Adverse Person.
Zoll covenants and agrees that until the Termination
Date (as defined in Section 8 below), if Zoll believes valid
grounds exist to declare either of the Holders or any of their
Affiliates or Associates an Adverse Person, as defined in the
Shareholder Rights Agreement, Zoll shall, before making any
such declaration, give such person at least ten (10) business
days advance written notice of the grounds it believes exist
to declare such person an Adverse Person.
<PAGE>
Section 8. Termination.
This Agreement shall terminate on October 1, 1999 (the
"Termination Date"); provided, however, that the provisions of
Section 2 and 3 shall survive any such termination and shall
expire as provided in Section 2 or 3, as applicable.
Notwithstanding the foregoing, in the event that the average
closing price of the Zoll Common Stock as reported in The Wall
Street Journal is at or above $13.50 (adjusted to reflect any
stock dividends, stock splits, reverse stock splits or similar
events after the date hereof) per share over any period of 20
consecutive trading days between the date of this Agreement up
to and including the trading day immediately preceding October
1, 1999, the Termination Date shall automatically be extended
to the later of March 31, 2000 and the date of the final
adjournment of Zoll's Annual Meeting of Stockholders to be
held in the year 2000, provided that such meeting shall
initially be scheduled to be held no later than February 15,
2000 and unless delayed by litigation or other matters beyond
Zoll's control (including the necessity under the proxy rules
promulgated by the SEC to amend proxy materials as a result of
any such matters) be held and finally adjourned no later than
March 31, 2000. Notwithstanding the foregoing, Zoll or the
Holders may terminate this Agreement in their reasonable
discretion if either of the Holders or Zoll, as the case may
be, fails to comply in all material respects with its
respective covenants and obligations in this Agreement.
Section 9. Remedies.
(a) Each party hereto hereby acknowledges and agrees
that irreparable harm would occur in the event any of the
provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to
specific relief hereunder, including, without limitation, an
injunction or injunctions to prevent and enjoin breaches of
the provisions of this Agreement and to enforce specifically
the terms and provisions hereof in any state or federal court
in The Commonwealth of Massachusetts, in addition to any other
remedy to which they may be entitled at law or in equity. Any
requirements for the securing or posting of any bond with such
remedy are hereby waived.
(b) The parties hereto agree that any actions, suits
or proceedings arising out of or relating to this Agreement,
the transactions contemplated hereby or any document referred
to herein shall be brought exclusively in the courts of The
Commonwealth of Massachusetts and/or the courts of The United
States of America located in The Commonwealth of Massachusetts
(and the parties agree not to commence any action, suit or
proceeding relating thereto except in such courts), and
further agree that service of any process, summons, notice or
document by U.S. registered or certified mail, return receipt
requested, to the respective addresses set forth in Section 13
hereof shall be effective service of process for any such
action, suit or proceeding brought against any party in any
such court. The parties irrevocably and unconditionally waive
any objection to the laying of venue of any action, suit or
proceeding arising out of this agreement or the transactions
contemplated hereby, in the courts of The Commonwealth of
Massachusetts or the United States of America located in The
Commonwealth of Massachusetts, and hereby further irrevocably
and unconditionally waive and agree not to plead or claim in
any such court that any such action, suit or proceeding
brought in any such court has been brought in any inconvenient
forum.
Section 10. Entire Agreement.
This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and may be
amended only by an agreement in writing executed by the
parties hereto.
Section 11. Headings.
Descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any
provision of this Agreement.
Section 12. Number; Gender.
Whenever the singular number is used herein, the same
shall include the plural where appropriate, and words of any
gender shall include each other gender where appropriate.
Section 13. Notices.
All notices, consents, requests, instructions, approvals
and other communications provided for herein and all legal
process in regard hereto shall be validly given, made or
served, if sent by facsimile with a copy to be delivered by
overnight courier on the next business day to the following
addresses or such other addresses specified in writing by the
relevant recipient at least five (5) calendar days before the
notice:
<PAGE>
if to Zoll: Zoll Medical Corporation.
32 Second Avenue, Northwest Park
Burlington, Massachusetts 01803
Facsimile: (781) 273-0658
Attention: Chief Executive Officer
with a copy to: Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
Facsimile: (617) 523-1231
Attention: Stephen W. Carr, P.C.
Raymond C. Zemlin, P.C.
if to the Holders: Elliott Associates, L.P.
712 Fifth Avenue
36th Floor
New York, New York 10019
Facsimile: (212) 974-2092
Attention: Mr. Paul E. Singer
Michael Loew, Esq.
with copies to: Kleinberg, Kaplan, Wolff & Cohen, P.C.
551 Fifth Avenue
18th Floor
New York, New York 10176
Facsimile: (212) 986-8866
Attention: David Parker, Esq.
Stephen M. Schultz, Esq.
Section 14. Enforceability.
If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be
affected, impaired or invalidated. It is hereby stipulated
and declared to be the intention of the parties that the
parties would have executed the remaining terms, provisions,
covenants and restrictions without including any of such which
may be hereafter declared invalid, void or unenforceable. In
addition, the parties agree to use their best efforts to agree
upon and substitute a valid and enforceable term, provision,
covenant or restriction for any of such that is held invalid,
void or unenforceable by a court of competent jurisdiction.
Section 15. Law Governing.
This Agreement shall be governed by and construed and
enforced in accordance with the laws of The Commonwealth of
Massachusetts, without regard to any conflict of laws
provisions thereof.
Section 16. Binding Effect.
This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the successors and assigns of
the parties hereto. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the
parties hereto or their respective heirs, successors,
executors, administrators and assigns any rights, remedies,
obligations or liabilities under or by reason of this
Agreement.
Section 17. Counterparts.
This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
Section 18. No Presumption Against Draftsperson.
Each of the undersigned parties hereby acknowledges the
undersigned parties fully negotiated the terms of this
Agreement, that each such party had an equal opportunity to
influence the drafting of the language contained in this
Agreement and that there shall be no presumption against any
such party on the ground that such party was responsible for
preparing this Agreement or any part hereof.
Section 19. Compliance with Obligations.
Zoll's and the Holders' covenants and obligations
hereunder are expressly conditioned upon and subject to
compliance in all material respects by the Holders and Zoll,
respectively, with their respective covenants and obligations
hereunder.
Section 20. Press Release.
Promptly after the execution of this Agreement the
parties hereto shall issue a press release in the form
previously agreed to in writing by the parties hereto.
[END OF TEXT]
<PAGE>
{Signature Page to Agreement}
IN WITNESS WHEREOF, each of the parties hereto has
executed this Agreement as of the date first above written.
ZOLL MEDICAL CORPORATION
By: /s/ Rolf S. Stutz
Rolf S. Stutz, Chairman
ELLIOTT ASSOCIATES, L.P.
By: Braxton Associates, L.P., as general partner
By: Braxton Associates, Inc., as general partner
By: /s/ Ralph DellaCamera
Ralph DellaCamera, Vice President
WESTGATE INTERNATIONAL, L.P.
By: Martley International, Inc., as attorney-in-fact
By: /s/ Ralph DellaCamera
Ralph DellaCamera, Vice President
<PAGE>
EXHIBIT A
Ownership of Stock by the Holders and Affiliates
Name Zoll Shares
Elliott Associates, L.P. 476,100
Westgate International, L.P. 476,100*
Martley International, Inc. 476,100*
* Westgate and Martley share dispositive power over these
476,100 shares.
<PAGE>
EXHIBIT B
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
* * * * * * * * * * * * * * * *
*
ELLIOTT ASSOCIATES, L.P. and, *
WESTGATE INTERNATIONAL, L.P., *
*
Plaintiff, *
*
v. * CIVIL ACTION
* NO. 98CV11626PBS
ZOLL MEDICAL CORPORATION, *
WILLARD M. BRIGHT, *
THOMAS M. CLAFLIN II, *
M. STEPHEN HEILMAN, *
NOAH T. HERNDON, *
DANIEL M. MULVENA, *
RICHARD A. PACKER, *
and ROLF S. STUTZ, *
*
Defendants. *
*
* * * * * * * * * * * * * * * *
STIPULATION
It is hereby stipulated and agreed by, between and among
the undersigned counsel for the parties that this action shall
be, and the same hereby is, dismissed without prejudice and
without costs.
<PAGE>
The Stipulation may be filed without notice.
ZOLL MEDICAL CORPORATION,
WILLARD M. BRIGHT,
THOMAS M. CLAFLIN II,
M. STEPHEN HEILMAN,
NOAH T. HERNDON,
DANIEL M. MULVENA,
RICHARD A. PACKER,
and ROLF S. STUTZ
By their attorneys,
__________________________________
F. Dennis Saylor, IV (BBO# 443710)
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
(617) 570-1977
ELLIOTT ASSOCIATES, L.P. and
WESTGATE INTERNATIONAL, L.P.
By their attorneys,
_______________________________
Jeffrey B. Rudman (BBO #433380)
Daniel W. Halston, (BBO#548692)
Hale and Dorr LLP
60 State Street
Boston, MA 02109
(617) 526-6000
____________________
Dated: January __, 1999
