EXHIBIT 10.35
CARESIDE, INC.
0000 XXXXXXX XXXXXXX
XXXXXX XXXX, XX 00000
May 25, 1999
Xxxxxxx Xxxxx Securities Incorporated
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to that certain Placement Agency Agreement (the
"1996 Placement Agreement"), dated December 10, 1996, by and between Careside,
Inc. (formerly known as Exigent Diagnostics, Inc.) (the "Company") and Xxxxxxx
Xxxxx Securities Incorporated ("Xxxxxxx Xxxxx"), that certain letter agreement
(the "Investment Banking Agreement"), dated January 31, 1997, by and between the
Company and Xxxxxxx Xxxxx, that certain Lock-Up and Right of First Offer
Agreement (the "Lock-Up Agreement"), dated January 31, 1997, by and among the
Company, X. Xxxxxxx Stoughton, Xxxxxx X. Xxxxx, Exigent Partners, L.P. and
Xxxxxxx Xxxxx and that certain Placement Agency Agreement (the "1998 Placement
Agreement"), dated January 29, 1998, by and between the Company and Xxxxxxx
Xxxxx entered into in connection with the 1998 private placement of common stock
by the Company (the "1998 Private Placement"). As set forth in the Investment
Banking Agreement, the Company agreed for a period of five years from the date
thereof to use the investment banking services of Xxxxxxx Xxxxx in connection
with any sale or exchange of the Company's stock or assets, merger,
consolidation, acquisition, financing, joint venture or other arrangement with
certain parties and to pay Xxxxxxx Xxxxx certain fees, as set forth in the
Investment Banking Agreement, at the closing of any such transaction.
Reference is also made to that certain letter agreement (the "Waiver Letter")
dated as of December 8, 1998 between the Company and Xxxxxxx Xxxxx pursuant to
which Xxxxxxx Xxxxx waived the right to require an employment agreement between
the Company and Xxxxxxx Xxxxxx and acknowledged the status of S.R. One, Limited
as an affiliate of SmithKline Xxxxxxx Corporation.
At present, the Company intends to undertake an initial public
offering of the Company's units consisting of common stock and common stock
purchase warrants utilizing the investment banking services of Xxxxxxx
Investment Company, Inc. ("Xxxxxxx"), Millennium Financial Group, Inc., xxxxxx
xxxx securities corporation (collectively, the "Underwriters") and the other
underwriters named in the Company's registration statement filed with the
Securities Exchange Commission in and after the IPO (the "IPO").
To induce the Company to proceed with the IPO, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the Company and Xxxxxxx Xxxxx
hereby confirm their agreements in the Waiver Letter and in addition agree as
follows:
1. Right to provide the Company with investment banking services in
or after the IPO, including in connection with any other public or private
offering of the Company's securities following the IPO. Further, Xxxxxxx Xxxxx
hereby consents to the Company utilizing the investment banking services of the
Underwriters.
2. Xxxxxxx Xxxxx hereby waives any right to receive the Placement
Agent's Fee and the Agent's Warrants (as each such term is defined in the 1996
and the 1998 Placement Agreements) pursuant to Section 3(f) of the 1996 and the
1998 Placement Agreements with respect to any person or entity which may invest
in the Company pursuant to the IPO.
3. This letter represents our entire agreement with respect to the
subject matter hereof, superseding all prior agreements and understandings,
written or oral. It may not be modified or amended except in a writing signed
by both parties. This letter agreement may be
signed in counterparts (including by facsimile signature) and shall be governed
by and construed in accordance with the laws of the State of New York without
reference to the choice of law doctrine thereof.
Very truly yours,
CARESIDE, INC.
By: /s/ X. Xxxxxxx Stoughton
________________________________
Name: X. Xxxxxxx Stoughton
Title: Chairman of the Board of Directors and
Chief Executive Officer
Acknowledged and Agreed:
XXXXXXX XXXXX SECURITIES INCORPORATED
By: /s/ Xxxxxxx Xxxxxxxxx
________________________________
Name:
Title:
/s/ X. Xxxxxxx Stoughton
___________________________________
X. Xxxxxxx Stoughton
/s/ Xxxxxx X. Xxxxx
___________________________________
Xxxxxx X. Xxxxx
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