Exhibit 10.2
PATENT ACQUISITION AGREEMENT
This Patent Acquisition Agreement (this "Agreement") is made and entered into
this 1st day of July, 2000, by and among Xxxxxxx Xxxxxxx, M.D., an individual
with an address at 000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxx 00000 ("Xxxxxxx"),
Xxxxx-Xxxxx Xxxxxx, an individual with an address at 000 Xxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxx 00000 ("Xxxxxx", and together with Xxxxxxx, "Sellers"), and
Cardiac Science, Inc., a Delaware corporation, located at 00000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxx 00000 ("Cardiac").
W I T N E S S E T H :
WHEREAS, Sellers are the owners by assignment of U.S. Patent 4,576,170, "Heart
Monitor and Defibrillator Device," issued March 18, 1986, a copy of which is
attached hereto as Exhibit A (the "Patent");
WHEREAS, Sellers desire to sell the Patent to Cardiac, and Cardiac desires to
purchase the Patent from the Sellers, in consideration for an aggregate of
165,000 shares (the "Shares") of Cardiac's common stock, par value $0.001 per
share (the "Common Stock");
NOW, THEREFORE, for good and valuable consideration as described herein, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. PURCHASE OF PATENT. Sellers hereby sell, assign, and transfer to Cardiac,
and Cardiac hereby purchases from Sellers, all of the right, title, and
interest in and to the Patent and any continuations, continuations in part,
divisional, reexaminations, reissues, or foreign counterparts or
equivalents thereof.
2. CONSIDERATION; DELIVERY OF CERTIFICATE. As full consideration for the
purchase of the Patent, Cardiac hereby sells, transfers, and assigns the
Shares to Xxxxxxx. Concurrently with the execution and delivery of this
Agreement, Cardiac is delivering to Xxxxxxx a stock certificate evidencing
the Shares, which certificate shall be in definitive form and registered in
the name of Xxxxxxx.
3. REPRESENTATIONS AND WARRANTIES. Xxxxxxx represents, warrants, and covenants
to Cardiac as follows:
x. XXXXXXX'X INDEPENDENT INVESTIGATION. Xxxxxxx, in acquiring the
Shares hereunder, has relied solely upon an independent investigation made by
him and his representatives, if any. Prior to the date hereof, Xxxxxxx has been
given the opportunity to ask questions of, and receive answers from,
representatives of Cardiac. He also has been given access to and the opportunity
to examine all books and records of Cardiac, and all material contracts and
documents of Cardiac which have been filed as exhibits to Cardiac's filings made
under the Securities Act of 1933, as amended (the "Act"), and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). In making his investment
decision to purchase the Shares, Xxxxxxx is not relying on any oral or written
representations or assurances from Cardiac or any
other person other than as set forth in this Agreement. Xxxxxxx has received and
reviewed Cardiac's Annual Report on Form 10-K for the year ended December 31,
1999 and Cardiac's Form 10-Q for the quarter ended March 31, 2000.
b. ACCREDITED INVESTOR; INVESTMENT KNOWLEDGE. Xxxxxxx is an accredited
investor as defined in Rule 501 of Regulation D promulgated under the Act. He
has sufficient knowledge and experience in financial and business matters so as
to be capable of evaluating the risks, merits, and suitability of his investment
in Cardiac. He is knowledgeable about the affairs of Cardiac.
c. SELLER'S ECONOMIC RISK. Xxxxxxx understands and acknowledges that
the purchase of the Shares involves a high degree of risk. He acknowledges that
there are limitations on the liquidity of the Shares. Xxxxxxx is able to bear
the economic risk of his investment, including a possible total loss of
investment. He has adequate means of providing for his current needs and
contingencies, and he is able to afford to hold the Shares for an indefinite
period. Further, Xxxxxxx has no present need for liquidity in the Shares and he
is willing to accept such investment risks.
d. NO GOVERNMENT RECOMMENDATION OR APPROVAL. Xxxxxxx 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 Cardiac or the purchase of the Shares.
e. COMPANY'S RELIANCE ON REPRESENTATIONS OF SELLERS. Xxxxxxx
understands that the Shares are being offered and sold to him in reliance on
specific exemptions from the registration requirements of U.S. securities laws,
and that Cardiac is relying upon the truth and accuracy of his representations,
warranties, agreements, acknowledgments, and understandings set forth herein in
order to determine the applicability of such exemptions and his suitability to
acquire the Shares.
f. SHARES NOT REGISTERED UNDER THE ACT OR STATE ACTS. Xxxxxxx
understands that (i) 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 Xxxxxxx contained herein, (ii) 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; (iii) the certificate
evidencing the Shares shall bear a legend to such effect, and (iv) Cardiac will
make a notation on its transfer books to such effect.
g. INVESTMENT INTENT. Xxxxxxx is acquiring the Shares for his own
account for investment, not as a nominee and not with a view to the distribution
thereof. Xxxxxxx has no present plan or intention to sell the Shares at any
predetermined time, and has made no predetermined arrangements to sell the
Shares.
h. POWER AND AUTHORITY. Each Seller has the full power and authority
to execute, deliver, and perform this Agreement. This Agreement, when executed
and delivered by each Seller, will constitute a valid and legally binding
obligation of such Seller, enforceable in accordance with its terms.
i. NO TAX ADVICE FROM COMPANY OR ITS AGENTS. Xxxxxxx has had an
opportunity to review with his own tax advisors the foreign, federal, state and
local tax consequences of this investment,
and the transactions contemplated by this Agreement. Xxxxxxx is relying solely
on such advisors and not on any statements or representations of Cardiac or any
of its agents and understands that Xxxxxxx (and not Cardiac) shall be
responsible for his own tax liability that may arise as a result of this
investment or the transactions contemplated by this Agreement.
j. NO LEGAL ADVICE FROM COMPANY OR ITS AGENTS. Xxxxxxx acknowledges
that he has had the opportunity to review this Agreement and the transactions
contemplated by this Agreement with his own legal counsel. Xxxxxxx is relying
solely on such counsel and not on any statements or representations of Cardiac
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.
k. NO SCHEME TO EVADE REGISTRATION. Xxxxxxx'x acquisition of 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.
4. RESALES OF SHARES; LEGENDS.
a. RESALES OF SHARES. Xxxxxxx acknowledges, covenants, and agrees that
he 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.
Xxxxxxx shall cause any transferee of the Shares to execute, prior to any such
transfer, an agreement containing provisions substantially similar to Sections
4, 5, and 6 hereof.
b. 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."
c. REMOVAL OF LEGEND.
(i) The Restrictive Legend may be removed (and the restrictions
on the transferability of the Shares shall terminate) when (1) 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, (2) 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 Cardiac)
or counsel for Cardiac, (3) the Shares have been sold without registration under
the Act in compliance with Rule 144 or Rule 144A promulgated under the Act, (4)
Cardiac 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 (5) 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.
(ii) Whenever the restrictions imposed by this Section 5 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 Cardiac, without expense to such
holder, one or more new certificates for Shares not bearing the restrictive
legend set forth in Section 4b.
5. LOCK-UP AGREEMENT. Xxxxxxx hereby covenants and agrees that for a period
of 27 months from the date hereof, he will not, without the prior written
consent of Cardiac, directly or indirectly offer, sell (including any short
sale), assign, grant any option for the sale of, acquire any option to dispose
of, or otherwise dispose of, any of the Shares.
6. MODIFICATIONS. This Agreement cannot be altered, amended, or modified in
any way, except by a writing signed by the parties hereto.
7. BINDING EFFECT; GOVERNING LAW. This Agreement shall be binding upon the
parties hereto and their respective successors, heirs, and assigns. This
Agreement shall be governed by and construed in accordance with the internal
laws, notwithstanding any conflict of laws provisions, of the State of
California.
8. NOTICES. Any notice, demand, or request required or permitted to be
given 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 parties at their respective addresses set
forth above (or at such other address as a party may specify by notice to the
others).
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. The representations and warranties contained
herein shall survive the closing of the sale of the Patent. 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.
IN WITNESS WHEREOF, the undersigned executed this Agreement this 1st day of
July, 2000.
CARDIAC SCIENCE, INC.
By:
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XXXXXXX XXXXXXX, M.D.
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XXXXX-XXXXX XXXXXX
