Exhibit 10.17
SHAREHOLDERS AGREEMENT
This Shareholders Agreement ("Agreement") is entered into as of __________
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__, 2001, by and among Cardiac Science, Inc., a Delaware corporation (the
"Company"), and the former shareholders of Survivalink or former holders of
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options or warrants to purchase shares of capital stock of Survivalink, each
listed on the Shareholder Signature Page attached hereto (collectively, the
"Shareholders").
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WHEREAS, the Board of Directors of the Company and Survivalink Corporation,
a Minnesota corporation ("Survivalink") deem it in the best interests of their
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respective companies and their respective shareholders to enter into that
certain First Amended and Restated Agreement and Plan of Merger, dated as of
June 5, 2001 (the "Merger Agreement"), pursuant to which the Company will
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acquire all the outstanding securities of Survivalink (the "Merger") and, in
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furtherance thereof, have approved the Merger and the transactions set forth in
the Merger Agreement;
WHEREAS, pursuant to the Merger Agreement, the Company will deliver to the
Shareholders the merger consideration consisting of cash, secured promissory
notes of the Company (the "Notes") and shares of its common stock, $0.001 par
value per share ("Common Stock," or "Merger Shares," and collectively with the
cash and notes, the "Merger Consideration");
WHEREAS, in connection with the Merger, Common Stock and Notes equal to
five percent (5%) of the Merger Consideration shall be held in escrow by the
Escrow Agent, pursuant to the terms of the Escrow Agreement, by and among the
Company, the Escrow Agent, and the Shareholders' Representative (the "Escrow
Agreement"); and,
WHEREAS, the parties hereto desire to enter into this Agreement to evidence
the foregoing agreement of the Company and the mutual covenants of the parties
relating thereto.
NOW THEREFORE, in consideration of the mutual agreements, covenants and
conditions contained herein, the Company and the Shareholders hereby agree as
follows:
1. Representations and Warranties of the Shareholders. This Agreement and
the Merger Agreement is made with the Shareholders in reliance upon each
Shareholder's representations to the Company, which by the Shareholder's
execution of this Agreement, each such Shareholder hereby severally warrants and
represents that:
1.1 Title to Capital Stock. Each Shareholder represents that it holds
good and marketable title to his, her or its shares of capital stock of
Survivalink, free and clear of all liens, agreements, voting trusts, proxies and
other arrangements or restrictions of any kind whatsoever, other than as
disclosed in the Merger Agreement.
1.2 No Restrictions. There are no limitations or restrictions on the
Shareholder's ability to invest in the Company and to perform its obligations
under this Agreement.
1.3 Termination of Warrants. Each Shareholder hereby acknowledges and
agrees that any warrant that they may hold as of the Effective Time of the
Merger that was originally issued by Survivalink and that entitles the holder
thereof to purchase equity securities of Survivalink
is or will be automatically cancelled by reason of the Merger and that all
applicable notices and provisions called for by the terms of such warrant have
either been duly made or are hereby waived by such Shareholder and the
Shareholder agrees to surrender and deliver the original copy of such warrant to
Survivalink within a reasonable amount of time after the Effective Time.
2. LOCK-UP
2.1 Lock-up/Further Restrictions on Transfer. Each Shareholder hereby
agrees that it shall not sell, transfer, assign, convey, donate, pledge,
encumber, alienate or in any way dispose of their Registrable Shares (any one of
the foregoing, a "Transfer"), except in accordance with the following schedule:
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Number of Days after Effective Time, after Maximum Percentage of Transferable
which Registrable Shares are Transferable Registrable Shares (cumulative)
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after 90 days 34%
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after 180 days 67%
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after 270 days 100%
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provided that, each Shareholder may Transfer Registrable Shares in a non-public
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transaction, notwithstanding this Section 3.9, to any person if such person
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agrees to join and be bound by the terms of this Agreement. Any purported or
attempted Transfer whether voluntary or involuntary, in violation of this
Section 3.9 shall be null and void and of no legal effect.
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2.2 Stop Transfer Instructions; No Requirement to Transfer. Each
Shareholder agrees that, in order to ensure compliance with the restrictions
referred to herein, the Company may issue appropriate "stop transfer"
instructions to its transfer agent. The Company shall not be required (i) to
transfer or have transferred on its books any shares of Common Stock that have
been sold or otherwise transferred in violation of any of the provisions of this
Agreement or the Merger Agreement or (ii) to treat as owner of such shares of
Common Stock or to accord the right to vote or pay dividends to any purchaser or
other transferee to whom such shares of Common Stock shall have been so
transferred in violation of any provision of this Agreement or the Merger
Agreement.
2.3 Legends. Each Shareholder understands and agrees that there will be
placed on the certificates evidencing the ownership of the Registrable Shares
the following legends, in addition to any legends required by applicable
securities laws, by the Company's certificate of incorporation, as amended from
time to time, until such time as such legends or portions thereof are no longer
required in contemplation of the provisions of this Agreement, the Merger
Agreement or the Securities Act:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED,
SOLD, PLEDGED, EXCHANGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN
ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"). THE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED,
EXCHANGED OR TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT (AND CURRENT PROSPECTUS) IS IN EFFECT AS TO THE SECURITIES,
OR (2) AN
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EXEMPTION FROM REGISTRATION IS AVAILABLE, OR (3) THE SECURITIES ARE SOLD
PURSUANT TO RULE 144 OF THE SECURITIES ACT. THE ISSUER OF THESE SECURITIES
MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE
WITH THE SECURITIES ACT AND ANY APPLICABLE STATE OR OTHER NATIONAL
SECURITIES LAWS.
THE HOLDER OF THESE SECURITIES HAS AGREED PURSUANT TO THE TERMS OF A
SHAREHOLDERS AGREEMENT (A COPY OF WHICH IS AVAILABLE UPON REQUEST OF THE
COMPANY) NOT TO TRANSFER THE SAME UNTIL A CERTAIN DATE.
Any legend required by applicable state securities the laws.
3. Shareholders' Representative. Each Shareholder hereby acknowledges the
appointment of a committee consisting of a representative of U.S. Trust, a
representative of Fidelity Investments and Xxxx Xxxxxx as the Shareholders'
Representative (as defined in the Merger Agreement) pursuant to Section 9.06 of
the Merger Agreement and hereby grants to the Shareholders' Representative the
authority to act on its behalf in accordance with Section 9.06 of the Merger
Agreement, including, without limitation, the authority to act on behalf of the
Shareholders in connection with payments made out of the Escrow Account pursuant
to the terms of the Merger Agreement and the Escrow Agreement. Notwithstanding
the foregoing, each shareholder shall indemnify the Shareholders' Representative
for all actions taken on behalf of the Shareholders and in accordance with the
authority granted herein; provided, however, that the maximum amount of the
indemnification obligation for each Shareholder shall not exceed the value of
the proceeds received by such Shareholder in the Merger.
4. Assignability. This Agreement shall be binding upon and inure to the
benefit of the permitted heirs, successors and assigns of the parties hereto,
but any purported assignment or transfer is subject to the terms of this
Agreement, including but not limited to, Section 2.1.
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5. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
6. Amendment. Any modification, amendment, or waiver of this Agreement or
any provision hereof, either retroactively or prospectively, shall be in writing
and executed by the Company and the holders of not less than fifty percent (50%)
of the Merger Shares which shall be binding upon all of the parties hereto.
7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken, will bear the signatures of both
parties reflected hereon as signatories.
8. Notice. Any notices and other communications required or permitted
under this Agreement shall be effective if in writing and delivered personally
or sent by telecopier, federal express or registered or certified mail, postage
prepaid, addressed as follows:
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If to the Shareholders: The names and addresses set forth on Exhibit A
hereto.
with a copy to:
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Xxxxxx & Whitney LLP
Pillsbury Center South
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. XxXxxxxxx
If to the Company:
Cardiac Science, Inc.
00000 Xxxxxxxx Xxx.
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxx
with a copy to:
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Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Unless otherwise specified herein, such notices or other communications
shall be deemed effective (a) on the date delivered, if delivered personally,
(b) two business days after being sent, if sent by Federal Express, (c) one
business day after being sent, if sent by telecopier with confirmation of good
transmission and receipt, and (d) three business days after being sent, if sent
by registered or certified mail. Each of the parties herewith shall be entitled
to specify another address by giving notice as aforesaid to each of the other
parties hereto.
9. Stamp Duty. Any stamp duty, transfer tax or similar tax payable in
connection with the transfer of by any Shareholder of its Survivalink securities
shall be payable by such Shareholder.
(signature pages follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Shareholders'
Agreement to be executed as of the date first above written.
Cardiac Science, Inc., a Delaware corporation
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By: Xxxxxxx Xxxxx
Its: President
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SHAREHOLDER SIGNATURE PAGE TO
THE SHAREHOLDERS AGREEMENT
This page constitutes an executed counterpart, which, when taken together with
all other counterparts, shall constitute one originally executed document.
More than one signature block is provided below for convenience purposes
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for those shareholders who hold title to their Survivalink stock jointly,
or otherwise if more than one shareholder wishes to sign on the same page
for any reason such as because they are in close proximity with one
another or are affiliated companies.
IN WITNESS WHEREOF, the undersigned shareholders have executed this
Shareholders Agreement as of the date first written above.
SHAREHOLDER SHAREHOLDER
_________________________________________________ _________________________________________________
_________________________________________________ _________________________________________________
(Print name of person/company on lines above) (Print name of person/company on lines above)
_________________________________________________ _________________________________________________
(signature) (signature)
_________________________________________________ _________________________________________________
(Title of officer/partner/manager, if applicable) (Title of officer/partner/manager, if applicable)
_____________________________________________ _______________________________________________
(Print name of officer/partner/manager) (Print name of officer/partner/manager)
Address: _______________________ Address: _______________________
_______________________ _______________________
_______________________ _______________________
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