EXHIBIT 7(e)1
Ascend Partners, LP
c/o Ascend Capital LLC
Xxx Xxxxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
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Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
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between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
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and Ascend Partners, LP, a Delaware limited partnership (the "Purchaser").
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Capitalized terms used in this Agreement shall have the meanings set forth in
the attached Schedule B.
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(1) Purchase and Sale of Registered Shares.
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(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
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$4.35 (such product, the "Purchase Price").
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(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
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with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
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and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
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be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
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Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of Registered Shares
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
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Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
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any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
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represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
--------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
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set forth in Schedule D hereto, no fees or commissions will be payable by the
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Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
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Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
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(a) The Seller agrees to indemnify and hold harmless the Purchaser,
its shareholders, officers, directors, employees, agents and representatives
against any damages, claims, losses, liabilities and expenses (including
reasonable counsel fees and expenses) which may be suffered or incurred by any
of them as a result of a breach of any representation, warranty or covenant made
by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to this Section, such Person (the "indemnified party") shall
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promptly notify the Person against whom such indemnity may be sought (the
"indemnifying party") in writing of the occurrence of the facts and
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circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
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the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
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required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be
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waived or amended except in a written instrument signed, in the case of an
amendment, by the parties or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
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constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
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benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction,
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validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
------------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
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contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
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counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent
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jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement is unenforceable in any respect, then such provision
shall be deemed limited to the extent such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall be the interpreted as if such
provision were so excluded and shall nevertheless remain in full force and
effect. With regard to any provision, or portion thereof deemed wholly
unenforceable, the parties shall attempt to agree upon a valid and enforceable
provision or portion thereof, which shall be a reasonable substitute therefor,
and upon such agreement, shall incorporate such substitute provision or portion
thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
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Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
ASCEND PARTNERS, LP
By:________________________________
Name:
Title:
Address for Notice:
Ascend Partners, LP
c/o Ascend Capital LLC
Xxx Xxxxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Attn: Chief Financial Officer
Schedule A
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Registered Shares Purchased by Purchaser
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Purchaser Registered Shares Purchased
--------- ---------------------------
Ascend Partners, LP 48,000
Schedule B
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"Affiliate" means, with respect to any Person, any other Person that
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directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
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respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
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shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
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Commission.
"Common Stock" shall mean the shares of common stock, no par value per
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share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
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"Person" means an individual or corporation, partnership, trust,
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incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
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Purchaser DTC Account Instructions
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Ascend Partners, LP:
DTC#: 773
Institutional ID: 94115
Agent Bank #: 94115
Tax ID #: 00-000-0000
Internal Account #: 37
Tax I.D. No. of Purchaser: 880431210
Schedule D
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Schedule of Fees Payable by Seller
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In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
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Wire Transfer Instructions
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1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
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Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
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DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)2
Ascend Partners Sapient, LP
c/o Ascend Capital LLC
Xxx Xxxxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
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Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
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between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
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and Ascend Partners Sapient, LP, a Delaware limited partnership (the
"Purchaser"). Capitalized terms used in this Agreement shall have the meanings
---------
set forth in the attached Schedule B.
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(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
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Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of Registered Shares
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
---------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives
against any damages, claims, losses, liabilities and expenses (including
reasonable counsel fees and other expenses) ("Purchaser Losses") which may be
----------------
suffered or incurred by it as a result of any breach of any representation,
warranty, or covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be waived or
-------------------
amended except in a written instrument signed, in the case of an amendment, by
the parties or, in the case of a waiver, by the party against whom enforcement
of any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent jurisdiction
------------
shall determine that any provision, or any portion thereof, contained in this
Agreement is unenforceable in any respect, then such provision shall be deemed
limited to the extent such court deems it enforceable, and as so limited shall
remain in full force and effect. In the event that such court shall deem any
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall be the interpreted as if such provision were so excluded
and shall nevertheless remain in full force and effect. With regard to any
provision, or portion thereof deemed wholly unenforceable, the parties shall
attempt to agree upon a valid and enforceable provision or portion thereof,
which shall be a reasonable substitute therefor, and upon such agreement, shall
incorporate such substitute provision or portion thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
ASCEND PARTNERS SAPIENT, LP
By:_____________________________________
Name:
Title:
Address for Notice:
Ascend Partners Sapient, LP
c/o Ascend Capital LLC
Xxx Xxxxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Attn: Chief Financial Officer
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Ascend Partners Sapient, LP 48,000
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
Ascend Partners Sapient, LP:
DTC#: 773
Institutional ID: 94115
Agent Bank #: 94115
Tax ID #: 00-000-0000
Internal Account #: 37
Tax I.D. No. of Purchaser: 00-0000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)3
Ascend Offshore Fund, Ltd.
c/o Ascend Capital LLC
Xxx Xxxxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and Ascend Offshore Fund, Ltd., a company organized under the laws of the
British Virgin Islands (the "Purchaser"). Capitalized terms used in this
---------
Agreement shall have the meanings set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of Registered Shares
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite
--------------------------
power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
hereunder. The execution and delivery of this Agreement by the Seller and the
consummation by it of the transactions contemplated thereby have been duly
authorized by all necessary action on the part of the Seller and no further
action is required by the Seller. This Agreement has been duly executed by the
Seller and, when delivered in accordance with the terms hereof, will constitute
the valid and binding obligation of the Seller enforceable against the Seller in
accordance with its terms. The Seller is not in violation of any of the
provisions of its organizational or charter documents as a result of the
transactions contemplated in this Agreement.
(b) No liens on Registered Shares. As of the date on which
-----------------------------
Registered Shares are delivered to the Purchaser pursuant to the terms hereof,
the Seller will be the sole beneficial owner of the Registered Shares and at the
time that Registered Shares are delivered to the Purchaser such Registered
Shares will not be subject to any liens, pledges, encumbrances, security
interests, or other restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller
------------
as set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be waived or
-------------------
amended except in a written instrument signed, in the case of an amendment, by
the parties or, in the case of a waiver, by the party against whom enforcement
of any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent jurisdiction
------------
shall determine that any provision, or any portion thereof, contained in this
Agreement is unenforceable in any respect, then such provision shall be deemed
limited to the extent such court deems it enforceable, and as so limited shall
remain in full force and effect. In the event that such court shall deem any
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall be the interpreted as if such provision were so excluded
and shall nevertheless remain in full force and effect. With regard to any
provision, or portion thereof deemed wholly unenforceable, the parties shall
attempt to agree upon a valid and enforceable provision or portion thereof,
which shall be a reasonable substitute therefor, and upon such agreement, shall
incorporate such substitute provision or portion thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
------------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
ASCEND OFFSHORE FUND, LTD.
By:_____________________________________
Name:
Title:
Address for Notice:
Ascend Offshore Fund, Ltd.
c/o Ascend Capital LLC
Xxx Xxxxxxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Attn: Chief Financial Officer
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Ascend Offshore Fund, Ltd. 204,000
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
Ascend Offshore Fund, Ltd.:
DTC#: 773
Institutional ID: 94115
Agent Bank #: 94115
Tax ID #: 00-000-0000
Internal Account #: 37
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)4
AIM Funds Group
00 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and AIM Funds Group, a Delaware business trust (the "Purchaser"). Capitalized
--------
terms used in this Agreement shall have the meanings set forth in the attached
Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The purchase by the Purchaser
of Registered Shares hereunder has been
duly authorized by all necessary action on the part of the Purchaser. This
Agreement has been duly executed by the Purchaser, and when delivered by the
Purchaser in accordance with the terms hereof, will constitute the valid and
legally binding obligation of the Purchaser, enforceable against it in
accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
---------------------------
and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its
obligations hereunder. The execution and delivery of this Agreement by the
Seller and the consummation by it of the transactions contemplated thereby have
been duly authorized by all necessary action on the part of the Seller and no
further action is required by the Seller. This Agreement has been duly executed
by the Seller and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Seller enforceable against
the Seller in accordance with its terms. The Seller is not in violation of any
of the provisions of its organizational or charter documents as a result of the
transactions contemplated in this Agreement.
(b) No liens on Registered Shares. As of the date on which
-----------------------------
Registered Shares are delivered to the Purchaser pursuant to the terms hereof,
the Seller will be the sole beneficial owner of the Registered Shares and at the
time that Registered Shares are delivered to the Purchaser such Registered
Shares will not be subject to any liens, pledges, encumbrances, security
interests, or other restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
its shareholders, officers, directors, employees, agents and representatives
against any damages, claims, losses, liabilities and expenses (including
reasonable counsel fees and expenses) which may be suffered or incurred by any
of them as a result of a breach of any representation, warranty or covenant made
by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
----------------
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to this Section, such Person (the "indemnified party") shall
-----------------
promptly notify the Person against whom such indemnity may be sought (the
"indemnifying party") in writing of the occurrence of the facts and
-------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via
facsimile at the facsimile telephone number specified in this Section prior to
6:30 p.m. (California time) on a Business Day, (ii) the Business Day after the
date of transmission, if such notice or communication is delivered via facsimile
at the facsimile telephone number specified in this Agreement later than 6:30
p.m. (California time) on any date, and (iii) the Business Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be
-------------------
waived or amended except in a written instrument signed, in the case of an
amendment, by the parties or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and
permitted assigns. Neither the Seller nor the Purchaser may assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Purchaser or the Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction,
-------------
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
------------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and
--------
covenants contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature page were an original thereof.
(14) Severability. In the event that any court of competent
------------
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement is unenforceable in any respect, then such provision
shall be deemed limited to the extent such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall be the interpreted as if such
provision were so excluded and shall nevertheless remain in full force and
effect. With regard to any provision, or portion thereof deemed wholly
unenforceable, the parties shall attempt to agree upon a valid and enforceable
provision or portion thereof, which shall be a reasonable substitute therefor,
and upon such agreement, shall incorporate such substitute provision or portion
thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
AIM FUNDS GROUP, ON BEHALF OF ITS PORTFOLIO, AIM
SMALL CAP EQUITY FUND
By:____________________________________
Name:
Title:
Address for Notice:
AIM Funds Group
00 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Attn: General Counsel
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ----------------------------
AIM Funds Group 300,000
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
AIM Funds Group:
Custodian Bank: State Street Bank and Trust Co.
Agent ID Number: 20997
Agent's DTC Participation Number: 997
Agent's Internal Account Number: KG69
Institution Number: 57949
Tax ID Number: 00-0000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)5
Blue Coast Partners II, L.P.
Xxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and Blue Coast Partners, L.P., a California limited partnership (the
"Purchaser"). Capitalized terms used in this Agreement shall have the meanings
---------
set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The purchase by the Purchaser
of Registered Shares hereunder has been
duly authorized by all necessary action on the part of the Purchaser. This
Agreement has been duly executed by the Purchaser, and when delivered by the
Purchaser in accordance with the terms hereof, will constitute the valid and
legally binding obligation of the Purchaser, enforceable against it in
accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
---------------------------
and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its
obligations hereunder. The execution and delivery of this Agreement by the
Seller and the consummation by it of the transactions contemplated thereby have
been duly authorized by all necessary action on the part of the Seller and no
further action is required by the Seller. This Agreement has been duly executed
by the Seller and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Seller enforceable against
the Seller in accordance with its terms. The Seller is not in violation of any
of the provisions of its organizational or charter documents as a result of the
transactions contemplated in this Agreement.
(b) No liens on Registered Shares. As of the date on which
-----------------------------
Registered Shares are delivered to the Purchaser pursuant to the terms hereof,
the Seller will be the sole beneficial owner of the Registered Shares and at the
time that Registered Shares are delivered to the Purchaser such Registered
Shares will not be subject to any liens, pledges, encumbrances, security
interests, or other restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via
facsimile at the facsimile telephone number specified in this Section prior to
6:30 p.m. (California time) on a Business Day, (ii) the Business Day after the
date of transmission, if such notice or communication is delivered via facsimile
at the facsimile telephone number specified in this Agreement later than 6:30
p.m. (California time) on any date, and (iii) the Business Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be
-------------------
waived or amended except in a written instrument signed, in the case of an
amendment, by the parties or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and
permitted assigns. Neither the Seller nor the Purchaser may assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Purchaser or the Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction,
-------------
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
------------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and
--------
covenants contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature page were an original thereof.
(14) Severability. In the event that any court of competent
------------
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement is unenforceable in any respect, then such provision
shall be deemed limited to the extent such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall be the interpreted as if such
provision were so excluded and shall nevertheless remain in full force and
effect. With regard to any provision, or portion thereof deemed wholly
unenforceable, the parties shall attempt to agree upon a valid and enforceable
provision or portion thereof, which shall be a reasonable substitute therefor,
and upon such agreement, shall incorporate such substitute provision or portion
thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
BLUE COAST PARTNERS II, L.P.
By:_____________________________________
Name:
Title:
Address for Notice:
Blue Coast Partners II, L.P.
c/o Fort Point Capital Management LLC
Xxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Blue Coast Partners II, L.P. 26,500
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
DTC #0773
Banc of America Securities LLC
A/C#: 118-15601
A/C NAME: BLUE COAST PARTNERS II, L.P.
ATTN: XXXXX XXXXXX
TaxID 00-0000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)6
Citi Fort Point Ltd.
c/o CIBC Xxxxxxx Trust Company
Xxxxxx Street
Grand Cayman, Cayman Islands
British West Indies
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and Citi Fort Point Ltd., a company formed under the laws of the Cayman Islands
(the "Purchaser"). Capitalized terms used in this Agreement shall have the
---------
meanings set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The purchase by the Purchaser of Registered
Shares hereunder has been duly authorized by all necessary action on the part of
the Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
--------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be waived or
-------------------
amended except in a written instrument signed, in the case of an amendment, by
the parties or, in the case of a waiver, by the party against whom enforcement
of any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent
------------
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement is unenforceable in any respect, then such provision
shall be deemed limited to the extent such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall be the interpreted as if such
provision were so excluded and shall nevertheless remain in full force and
effect. With regard to any provision, or portion thereof deemed wholly
unenforceable, the parties shall attempt to agree upon a valid and enforceable
provision or portion thereof, which shall be a reasonable substitute therefor,
and upon such agreement, shall incorporate such substitute provision or portion
thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
CITI FORT POINT LTD.
By:_____________________________________
Name:
Title:
Address for Notice:
Citi Fort Point Ltd.
c/o CIBC Xxxxxxx Trust Company
Xxxxxx Street
Grand Cayman, Cayman Islands
British West Indies
Tel.: 000-000-0000 & 000-000-0000
Fax: 000-000-0000
With a copy to: Fort Point Capital Management LLC
Xxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Citi Fort Point Ltd. 12,390
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
DTC #0773
Banc of America Securities LLC
A/C#: 313-15398
A/C NAME: CITI FORT POINT LTD.
ATTN: XXXXX XXXXXX
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)7
Xxxxxxxx Capital Corp.
c/o Icaza, Xxxxxxxx-Xxxx & Xxxxxx
P.O. Box 873
Road Town, Tortola, British Virgin Islands
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and Xxxxxxxx Capital Corp., a company organized under the laws of the British
Virgin Islands (the "Purchaser"). Capitalized terms used in this Agreement shall
---------
have the meanings set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of Registered Shares
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
--------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
its shareholders, officers, directors, employees, agents and representatives
against any damages, claims, losses, liabilities and expenses (including
reasonable counsel fees and expenses) which may be suffered or incurred by any
of them as a result of a breach of any representation, warranty or covenant made
by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its shareholders,
officers, directors, employees, agents and representatives against any damages,
claims, losses, liabilities and expenses (including reasonable counsel fees and
other expenses) ("Purchaser Losses") which may be suffered or incurred by it as
----------------
a result of any breach of any representation, warranty, or covenant made by the
Purchaser in this Agreement.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to this Section, such Person (the "indemnified party") shall
-----------------
promptly notify the Person against whom such indemnity may be sought (the
"indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be waived or
-------------------
amended except in a written instrument signed, in the case of an amendment, by
the parties or, in the case of a waiver, by the party against whom enforcement
of any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent jurisdiction
------------
shall determine that any provision, or any portion thereof, contained in this
Agreement is unenforceable in any respect, then such provision shall be deemed
limited to the extent such court deems it enforceable, and as so limited shall
remain in full force and effect. In the event that such court shall deem any
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall be the interpreted as if such provision were so excluded
and shall nevertheless remain in full force and effect. With regard to any
provision, or portion thereof deemed wholly unenforceable, the parties shall
attempt to agree upon a valid and enforceable provision or portion thereof,
which shall be a reasonable substitute therefor, and upon such agreement, shall
incorporate such substitute provision or portion thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
------------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
XXXXXXXX CAPITAL CORP.
By:_____________________________________
Name:
Title:
Address for Notice:
Xxxxxxxx Capital Corp.
c/o Icaza, Xxxxxxxx-Xxxx & Xxxxxx
X.X. Xxx 000
Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
Fax: 000-00-00000
If via Federal Express:
Xxxxxxxx Capital Corp.
c/o Icaza, Xxxxxxxx-Xxxx & Xxxxxx
Xxxxxxxxxx Plaza
Wickhams Cay I
With a copy to: Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Fax: 000-000-0000
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Xxxxxxxx Capital Corp. 200,000
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
Xxxxxxxx Capital Corp.
Bear, Xxxxxxx & Co.
DTC # 352
For the account of Xxxxxxxx Capital Corp., Account # 102-26302.
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)8
The Children's Institute of Pittsburgh
c/o Xxxxxxx Xxxxx & Company, L.L.C.
00 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and The Children's Institute of Pittsburgh, a Pennsylvania not-for-profit
corporation (the "Purchaser"). Capitalized terms used in this Agreement shall
---------
have the meanings set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E, and,
----------
simultaneously therewith, (ii) the Seller shall, pursuant to the account
instructions on Schedule C hereto, cause the Registered Shares to be
----------
delivered to the Purchaser's account through the Depository Trust Company
DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of Registered Shares
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
--------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be waived or
-------------------
amended except in a written instrument signed, in the case of an amendment, by
the parties or, in the case of a waiver, by the party against whom enforcement
of any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent jurisdiction
------------
shall determine that any provision, or any portion thereof, contained in this
Agreement is unenforceable in any respect, then such provision shall be deemed
limited to the extent such court deems it enforceable, and as so limited shall
remain in full force and effect. In the event that such court shall deem any
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall be the interpreted as if such provision were so excluded
and shall nevertheless remain in full force and effect. With regard to any
provision, or portion thereof deemed wholly unenforceable, the parties shall
attempt to agree upon a valid and enforceable provision or portion thereof,
which shall be a reasonable substitute therefor, and upon such agreement, shall
incorporate such substitute provision or portion thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
THE CHILDREN'S INSTITUTE OF PITTSBURGH
By:_____________________________________
Name:
Title:
Address for Notice:
The Children's Institute of Pittsburgh
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
The Children's Institute of Pittsburgh 14,925
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
The Children's Institute of Pittsburgh:
DTC # 2616
Agent Bank # 27817
Account # 010010596930
Tax ID # 00-0000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)9
Xxxxxxx Xxxxx Small Cap Growth Fund
c/o Xxxxxxx Xxxxx & Company, L.L.C.
00 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and Xxxxxxx Xxxxx Small Cap Growth Fund, a Massachusetts business trust
registered under the Investment Act of 1940 (the "Purchaser"). Capitalized terms
---------
used in this Agreement shall have the meanings set forth in the attached
Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The purchase by the Purchaser of Registered
Shares hereunder has been duly authorized by all necessary action on the part of
the Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
--------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be waived or
-------------------
amended except in a written instrument signed, in the case of an amendment, by
the parties or, in the case of a waiver, by the party against whom enforcement
of any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1 (b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent
------------
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement is unenforceable in any respect, then such provision
shall be deemed limited to the extent such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall be the interpreted as if such
provision were so excluded and shall nevertheless remain in full force and
effect. With regard to any provision, or portion thereof deemed wholly
unenforceable, the parties shall attempt to agree upon a valid and enforceable
provision or portion thereof, which shall be a reasonable substitute therefor,
and upon such agreement, shall incorporate such substitute provision or portion
thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
XXXXXXX XXXXX SMALL CAP GROWTH FUND
By:_____________________________________
Name:
Title:
Address for Notice:
Xxxxxxx Xxxxx Small Cap Growth Fund
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Xxxxxxx Xxxxx Small Cap Growth Fund 112,580
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
Xxxxxxx Xxxxx Small Cap Growth Fund:
DTC # 2212
Agent Bank # 26580
Account # 77303
Tax ID # 00-0000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
EXHIBIT 7(e)10
Kentucky State District Council of Carpenters
c/o Xxxxxxx Xxxxx & Company, L.L.C.
00 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and Kentucky State District Council of Carpenters, an state employee pension
plan organized under the laws of Kentucky (the "Purchaser"). Capitalized terms
---------
used in this Agreement shall have the meanings set forth in the attached
Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The purchase by the Purchaser
of Registered Shares hereunder has been duly authorized by all necessary action
on the part of the Purchaser. This Agreement has been duly executed by the
Purchaser, and when delivered by the Purchaser in accordance with the terms
hereof, will constitute the valid and legally binding obligation of the
Purchaser, enforceable against it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
--------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be waived or
-------------------
amended except in a written instrument signed, in the case of an amendment, by
the parties or, in the case of a waiver, by the party against whom enforcement
of any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent jurisdiction
------------
shall determine that any provision, or any portion thereof, contained in this
Agreement is unenforceable in any respect, then such provision shall be deemed
limited to the extent such court deems it enforceable, and as so limited shall
remain in full force and effect. In the event that such court shall deem any
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall be the interpreted as if such provision were so excluded
and shall nevertheless remain in full force and effect. With regard to any
provision, or portion thereof deemed wholly unenforceable, the parties shall
attempt to agree upon a valid and enforceable provision or portion thereof,
which shall be a reasonable substitute therefor, and upon such agreement, shall
incorporate such substitute provision or portion thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
KENTUCKY STATE DISTRICT COUNCIL OF CARPENTERS
By:_____________________________________
Name:
Title:
Address for Notice:
Kentucky State Council District of Carpenters
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Kentucky State Council District of
Carpenters 16,820
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
Kentucky State Council District of Carpenters:
DTC # 2669
Agent Bank # 20290
Account # 1781063B
Tax ID # 00-0000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)11
Xxxxxxxxxxxxx XXX
x/x Xxxxxxx Xxxxx & Xxxxxxx, X.X.X.
00 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and Pensionskasse SBB, a railway employee pension plan organized under the laws
of Switzerland (the "Purchaser"). Capitalized terms used in this Agreement shall
---------
have the meanings set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to
consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The purchase by the Purchaser of Registered
Shares hereunder has been duly authorized by all necessary action on the part of
the Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
--------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be
-------------------
waived or amended except in a written instrument signed, in the case of an
amendment, by the parties or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent
------------
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement is unenforceable in any respect, then such provision
shall be deemed limited to the extent such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall be the interpreted as if such
provision were so excluded and shall nevertheless remain in full force and
effect. With regard to any provision, or portion thereof deemed wholly
unenforceable, the parties shall attempt to agree upon a valid and enforceable
provision or portion thereof, which shall be a reasonable substitute therefor,
and upon such agreement, shall incorporate such substitute provision or portion
thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
PENSIONSKASSE SBB
By:_____________________________________
Name:
Title:
Address for Notice:
Xxxxxxxxxxxxx XXX
x/x Xxxxxxx Xxxxx & Xxxxxxx, X.X.X.
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Pensionskasse SBB 123,100
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
Pensionskasse SBB:
DTC # 012
Agent Bank # 03798
Account # 00000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
EXHIBIT 7(e)12
Rush Presbyterian St. Luke's Pension & Retirement
c/o Xxxxxxx Xxxxx & Company, L.L.C.
00 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and Rush Presbyterian St. Luke's Pension & Retirement, an Illinois pension plan
(the "Purchaser"). Capitalized terms used in this Agreement shall have the
---------
meanings set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of Registered Shares
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
--------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be
-------------------
waived or amended except in a written instrument signed, in the case of an
amendment, by the parties or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
covenants contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent jurisdiction
------------
shall determine that any provision, or any portion thereof, contained in this
Agreement is unenforceable in any respect, then such provision shall be deemed
limited to the extent such court deems it enforceable, and as so limited shall
remain in full force and effect. In the event that such court shall deem any
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall be the interpreted as if such provision were so excluded
and shall nevertheless remain in full force and effect. With regard to any
provision, or portion thereof deemed wholly unenforceable, the parties shall
attempt to agree upon a valid and enforceable provision or portion thereof,
which shall be a reasonable substitute therefor, and upon such agreement, shall
incorporate such substitute provision or portion thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
RUSH PRESBYTERIAN ST. LUKE'S
PENSION & RETIREMENT
By:_____________________________________
Name:
Title:
Address for Notice:
Rush Presbyterian St. Luke's Pension & Retirement
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Rush Presbyterian St. Luke's Pension
& Retirement 39,085
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
Rush Presbyterian St. Luke's Pension & Retirement:
DTC # 2669
Agent Bank 20290
Account # 0000000
Tax ID # 00-0000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)13
Rush Presbyterian St. Luke's Endowment
c/o Xxxxxxx Xxxxx & Company, L.L.C.
00 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and Rush Presbyterian St. Luke's Endowment, an Illinois not-for-profit (the
"Purchaser"). Capitalized terms used in this Agreement shall have the meanings
---------
set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of Registered Shares
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
---------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be waived or
-------------------
amended except in a written instrument signed, in the case of an amendment, by
the parties or, in the case of a waiver, by the party against whom enforcement
of any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
covenants contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent jurisdiction
------------
shall determine that any provision, or any portion thereof, contained in this
Agreement is unenforceable in any respect, then such provision shall be deemed
limited to the extent such court deems it enforceable, and as so limited shall
remain in full force and effect. In the event that such court shall deem any
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall be the interpreted as if such provision were so excluded
and shall nevertheless remain in full force and effect. With regard to any
provision, or portion thereof deemed wholly unenforceable, the parties shall
attempt to agree upon a valid and enforceable provision or portion thereof,
which shall be a reasonable substitute therefor, and upon such agreement, shall
incorporate such substitute provision or portion thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
RUSH PRESBYTERIAN ST. LUKE'S
ENDOWMENT
By:_____________________________________
Name:
Title:
Address for Notice:
Rush Presbyterian St. Luke's Endowment
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Rush Presbyterian St. Luke's Endoqment 42,500
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
Rush Presbyterian St. Luke's Endowment:
DTC # 2669
Agent Bank # 20290
Account # 0000000
Tax ID # 00-0000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)14
Children's Institute of Pittsburgh -- Pension
c/o Xxxxxxx Xxxxx & Company, L.L.C.
00 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and Children's Institute of Pittsburgh -- Pension, a Pennsylvania pension plan
(the "Purchaser"). Capitalized terms used in this Agreement shall have the
---------
meanings set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of Registered Shares
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
--------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
its shareholders, officers, directors, employees, agents and representatives
against any damages, claims, losses, liabilities and expenses (including
reasonable counsel fees and expenses) which may be suffered or incurred by any
of them as a result of a breach of any representation, warranty or covenant made
by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its shareholders,
officers, directors, employees, agents and representatives against any damages,
claims, losses, liabilities and expenses (including reasonable counsel fees and
other expenses) ("Purchaser Losses") which may be suffered or incurred by it as
----------------
a result of any breach of any representation, warranty, or covenant made by the
Purchaser in this Agreement.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to this Section, such Person (the "indemnified party") shall
-----------------
promptly notify the Person against whom such indemnity may be sought (the
"indemnifying party") in writing of the occurrence of the facts and
-------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be waived or
-------------------
amended except in a written instrument signed, in the case of an amendment, by
the parties or, in the case of a waiver, by the party against whom enforcement
of any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent jurisdiction
------------
shall determine that any provision, or any portion thereof, contained in this
Agreement is unenforceable in any respect, then such provision shall be deemed
limited to the extent such court deems it enforceable, and as so limited shall
remain in full force and effect. In the event that such court shall deem any
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall be the interpreted as if such provision were so excluded
and shall nevertheless remain in full force and effect. With regard to any
provision, or portion thereof deemed wholly unenforceable, the parties shall
attempt to agree upon a valid and enforceable provision or portion thereof,
which shall be a reasonable substitute therefor, and upon such agreement, shall
incorporate such substitute provision or portion thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
CHILDREN'S INSTITUTE OF PITTSBURGH
-- PENSION
By:_____________________________________
Name:
Title:
Address for Notice:
Children's Institute of Pittsburgh -- Pension
c/o Xxxxxxx Xxxxx & Company, L.L.C.
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Children's Institute of Pittsburgh --
Pension 3,290
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
Children's Institute of Pittsburgh -- Pension:
DTC # 2816
Agent Bank # 27817
Account # 100021043344
Tax ID # 00-0000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)15
XxxXxxx Health Foundation
c/o Xxxxxxx Xxxxx & Company, L.L.C.
00 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and XxxXxxx Health Foundation, an Illinois not-for-profit corporation (the
"Purchaser"). Capitalized terms used in this Agreement shall have the meanings
---------
set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of Registered Shares
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
---------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be
-------------------
waived or amended except in a written instrument signed, in the case of an
amendment, by the parties or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and
--------
covenants contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent
------------
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement is unenforceable in any respect, then such provision
shall be deemed limited to the extent such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall be the interpreted as if such
provision were so excluded and shall nevertheless remain in full force and
effect. With regard to any provision, or portion thereof deemed wholly
unenforceable, the parties shall attempt to agree upon a valid and enforceable
provision or portion thereof, which shall be a reasonable substitute therefor,
and upon such agreement, shall incorporate such substitute provision or portion
thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
XXXXXXX HEALTH FOUNDATION
By:_____________________________________
Name:
Title:
Address for Notice:
XxxXxxx Health Foundation
x/x Xxxxxxx Xxxxx & Xxxxxxx, X.X.X.
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
XxxXxxx Health Foundation 22,800
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
XxxXxxx Health Foundation:
DTC # 2669
Agent Bank # 20290
Account # 0000000
Tax ID # 00-0000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
EXHIBIT 7(e)16
CF Industries
c/o Xxxxxxx Xxxxx & Company, L.L.C.
00 X. Xxxxx Xxxxxx
Xxxxxxx, XX 00000
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and CF Industries, an Illinois corporation (the "Purchaser"). Capitalized terms
--------
used in this Agreement shall have the meanings set forth in the attached
Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
delivered to the Purchaser's account through the Depository Trust Company
DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of Registered Shares
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
---------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
its shareholders, officers, directors, employees, agents and representatives
against any damages, claims, losses, liabilities and expenses (including
reasonable counsel fees and expenses) which may be suffered or incurred by any
of them as a result of a breach of any representation, warranty or covenant made
by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be
-------------------
waived or amended except in a written instrument signed, in the case of an
amendment, by the parties or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction,
-------------
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
------------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent
------------
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement is unenforceable in any respect, then such provision
shall be deemed limited to the extent such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall be the interpreted as if such
provision were so excluded and shall nevertheless remain in full force and
effect. With regard to any provision, or portion thereof deemed wholly
unenforceable, the parties shall attempt to agree upon a valid and enforceable
provision or portion thereof, which shall be a reasonable substitute therefor,
and upon such agreement, shall incorporate such substitute provision or portion
thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE ALLEN E. PAULSON LIVING TRUST
By: /s/ John Michael Paulson
------------------------------
Name: John Michael Paulson
Title: Co-Trustee
By: /s/ Nicholas Diaco
------------------------------
Name: Nicholas Diaco
Title: Co-Trustee
CF INDUSTRIES
By:_____________________________________
Name:
Title:
Address for Notice:
CF Industries
c/o William Blair & Company, L.L.C.
222 W. Adams Street
Chicago, Illinois 60606
Tel.: (312) 364-8262
Fax: (312) 551-4646
Attn: Gregory B. Campbell, Esq.
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
CF Industries 13,300
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
CF Industries:
DTC # 2669
Agent Bank # 20290
Account # 2638949
Tax ID # 13-3895900
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
San Diego Regional Office
San Diego, CA 92101
Phone (858) 338-1500
Account number 1891661462
Routing/ABA Number 121137522
In favor of:
CardioDynamics International Corporation
6175 Nancy Ridge Drive, Suite 300
San Diego, CA 92121
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Pershing
- Chase Manhattan Bank NYC
- ABA# 021000021
- Pershing A/C# 930-1-032992
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Allen E. Paulson Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
111 Wall Street
New York, NY
Routing/ABA Number 021000089
Bear Stearns Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Allen E. Paulson Living Trust
Exhibit 7(e)17
Canton of Zurich
c/o William Blair & Company, L.L.C.
22 W. Adams Street
Chicago, IL 60606
November 5, 2001
The Allen E. Paulson Living Trust
Paulson Enterprises
P.O. Box 9660
Rancho Santa Fe, CA 92067
Attn: J. Michael Paulson and Nicholas Diaco
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Allen E. Paulson Living Trust, a California trust (the "Seller"),
------
and Canton of Zurich, a canton organized under the laws of Switzerland (the
"Purchaser"). Capitalized terms used in this Agreement shall have the meanings
---------
set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its
obligations hereunder. The purchase by the Purchaser of Registered Shares
hereunder has been duly authorized by all necessary action on the part of the
Purchaser. This Agreement has been duly executed by the Purchaser, and when
delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the Purchaser, enforceable against
it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
---------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
its shareholders, officers, directors, employees, agents and representatives
against any damages, claims, losses, liabilities and expenses (including
reasonable counsel fees and expenses) which may be suffered or incurred by any
of them as a result of a breach of any representation, warranty or covenant made
by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Allen E. Paulson Living Trust
by U.S. mail or Paulson Enterprises
facsimile transmission: P.O. Box 9660
Rancho Santa Fe, CA 92067
Facsimile Numbers.: 858-756-3194
Attn: J. Michael Paulson
and Nicholas Diaco
If to the Seller The Allen E. Paulson Living Trust
by courier service: c/o Del Mar Country Club
6001 Clubhouse Drive
Rancho Santa Fe, CA 92067
With a copy to: Gibson, Dunn & Crutcher LLP
2029 Century Park East
Century City, CA 90067-3026
Facsimile No.: 310-551-8741
Telephone No.: 310-552-8500
Attn: Shari Leinwand, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be
-------------------
waived or amended except in a written instrument signed, in the case of an
amendment, by the parties or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction,
-------------
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
------------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and
--------
covenants contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent
------------
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement is unenforceable in any respect, then such provision
shall be deemed limited to the extent such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall be the interpreted as if such
provision were so excluded and shall nevertheless remain in full force and
effect. With regard to any provision, or portion thereof deemed wholly
unenforceable, the parties shall attempt to agree upon a valid and enforceable
provision or portion thereof, which shall be a reasonable substitute therefor,
and upon such agreement, shall incorporate such substitute provision or portion
thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE ALLEN E. PAULSON LIVING TRUST
By: /s/ John Michael Paulson
-------------------------------------
Name: John Michael Paulson
Title: Co-Trustee
By: /s/ Nicholas Diaco
-------------------------------------
Name: Nicholas Diaco
Title: Co-Trustee
CANTON OF ZURICH
By:_____________________________________
Name:
Title:
Address for Notice:
Canton of Zurich
c/o William Blair & Company, L.L.C.
222 W. Adams Street
Chicago, Illinois 60606
Tel.: (312) 364-8262
Fax: (312) 551-4646
Attn: Gregory B. Campbell, Esq.
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Canton of Zurich 211,600
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
Canton of Zurich:
DTC # 997
Agent Bank # 29796
Account # U9B0
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
San Diego Regional Office
San Diego, CA 92101
Phone (858) 338-1500
Account number 1891661462
Routing/ABA Number 121137522
In favor of:
CardioDynamics International Corporation
6175 Nancy Ridge Drive, Suite 300
San Diego, CA 92121
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Pershing
- Chase Manhattan Bank NYC
- ABA# 021000021
- Pershing A/C# 930-1-032992
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Allen E. Paulson Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
111 Wall Street
New York, NY
Routing/ABA Number 021000089
Bear Stearns Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Allen E. Paulson Living Trust
Exhibit 7(e)18
Goldman Sachs GDP 2000 Master Fund Ltd. - Fort Point Capital Mgmt LLC
c/o Maples & Calder
P.. Box 309 Ugland House
S. Church Street
Georgetown, Grand Cayman
British West Indies
November 5, 2001
The Allen E. Paulson Living Trust
Paulson Enterprises
P.O. Box 9660
Rancho Santa Fe, CA 92067
Attn: J. Michael Paulson and Nicholas Diaco
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Allen E. Paulson Living Trust, a California trust (the "Seller"),
------
and Goldman Sachs GDP 2000 Master Fund Ltd. - Fort Point Capital Mgmt LLC, a
company organized under the laws of the Cayman Islands (the "Purchaser").
---------
Capitalized terms used in this Agreement shall have the meanings set forth in
the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The purchase by the Purchaser
of Registered Shares hereunder has been duly authorized by all necessary action
on the part of the Purchaser. This Agreement has been duly executed by the
Purchaser, and when delivered by the Purchaser in accordance with the terms
hereof, will constitute the valid and legally binding obligation of the
Purchaser, enforceable against it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite
--------------------------
power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
hereunder. The execution and delivery of this Agreement by the Seller and the
consummation by it of the transactions contemplated thereby have been duly
authorized by all necessary action on the part of the Seller and no further
action is required by the Seller. This Agreement has been duly executed by the
Seller and, when delivered in accordance with the terms hereof, will constitute
the valid and binding obligation of the Seller enforceable against the Seller in
accordance with its terms. The Seller is not in violation of any of the
provisions of its organizational or charter documents as a result of the
transactions contemplated in this Agreement.
(b) No liens on Registered Shares. As of the date on which
-----------------------------
Registered Shares are delivered to the Purchaser pursuant to the terms hereof,
the Seller will be the sole beneficial owner of the Registered Shares and at the
time that Registered Shares are delivered to the Purchaser such Registered
Shares will not be subject to any liens, pledges, encumbrances, security
interests, or other restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller
------------
as set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Allen E. Paulson Living Trust
by U.S. mail or Paulson Enterprises
facsimile transmission: P.O. Box 9660
Rancho Santa Fe, CA 92067
Facsimile Numbers.: 858-756-3194
Attn: J. Michael Paulson
and Nicholas Diaco
If to the Seller The Allen E. Paulson Living Trust
by courier service: c/o Del Mar Country Club
6001 Clubhouse Drive
Rancho Santa Fe, CA 92067
With a copy to: Gibson, Dunn & Crutcher LLP
2029 Century Park East
Century City, CA 90067-3026
Facsimile No.: 310-551-8741
Telephone No.: 310-552-8500
Attn: Shari Leinwand, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be waived
-------------------
or amended except in a written instrument signed, in the case of an amendment,
by the parties or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
-----------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and
--------
covenants contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent jurisdiction
------------
shall determine that any provision, or any portion thereof, contained in this
Agreement is unenforceable in any respect, then such provision shall be deemed
limited to the extent such court deems it enforceable, and as so limited shall
remain in full force and effect. In the event that such court shall deem any
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall be the interpreted as if such provision were so excluded
and shall nevertheless remain in full force and effect. With regard to any
provision, or portion thereof deemed wholly unenforceable, the parties shall
attempt to agree upon a valid and enforceable provision or portion thereof,
which shall be a reasonable substitute therefor, and upon such agreement, shall
incorporate such substitute provision or portion thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE ALLEN E. PAULSON LIVING TRUST
By: /s/ John Michael Paulson
-------------------------------------
Name: John Michael Paulson
Title: Co-Trustee
By: /s/ Nicholas Diaco
-------------------------------------
Name: Nicholas Diaco
Title: Co-Trustee
GOLDMAN SACHS GDP 2000 MASTER FUND LTD. - FORT
POINT CAPITAL MGMT. LLC
By:_____________________________________
Name:
Title:
Address for Notice:
Goldman Sachs GDP 2000 Master Fund Ltd. - Fort Point Capital
Mgmt LLC
c/o Maples & Calder
P.. Box 309 Ugland House
S. Church Street
Georgetown, Grand Cayman
British West Indies
Tel.: 415-394-0450 & 609-497-5500
Fax: 415-394-0456
With a copy to: Fort Point Capital Management LLC
One Montgomery Street
San Francisco, CA 94104
Tel.: 415-394-0450
Fax: 415-394-0456
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Goldman Sachs GDP 2000 Master
Fund Ltd. - Fort Point Mgmt LLC 7,070
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
DTC #0773
Banc of America Securities LLC
A/C#: 313-15199
A/C NAME: GOLDMAN SACHS GDP 2000 MASTER FUND LTD. -
FORT POINT CAPITAL MGMT LLC
ATTN: SAHLE DENEKE
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
San Diego Regional Office
San Diego, CA 92101
Phone (858) 338-1500
Account number 1891661462
Routing/ABA Number 121137522
In favor of:
CardioDynamics International Corporation
6175 Nancy Ridge Drive, Suite 300
San Diego, CA 92121
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Pershing
- Chase Manhattan Bank NYC
- ABA# 021000021
- Pershing A/C# 930-1-032992
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Allen E. Paulson Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
111 Wall Street
New York, NY
Routing/ABA Number 021000089
Bear Stearns Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Allen E. Paulson Living Trust
Exhibit 7(e)19
Blue Coast Partners, L.P.
One Montgomery Street
San Francisco, CA 94104
November 5, 2001
The Allen E. Paulson Living Trust
Paulson Enterprises
P.O. Box 9660
Rancho Santa Fe, CA 92067
Attn: J. Michael Paulson and Nicholas Diaco
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Allen E. Paulson Living Trust, a California trust (the "Seller"),
------
and Blue Coast Partners, L.P., a California limited partnership (the
"Purchaser"). Capitalized terms used in this Agreement shall have the meanings
--------
set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
-----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The purchase by the Purchaser
of Registered Shares hereunder has been
duly authorized by all necessary action on the part of the Purchaser. This
Agreement has been duly executed by the Purchaser, and when delivered by the
Purchaser in accordance with the terms hereof, will constitute the valid and
legally binding obligation of the Purchaser, enforceable against it in
accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to obtain
----------------------
any consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all delivery
---------------------
requirements under the Securities Act of 1933, as amended, with respect to any
resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
--------------------------
and authority to enter into and to consummate the
transactions contemplated by this Agreement and otherwise to carry out its
obligations hereunder. The execution and delivery of this Agreement by the
Seller and the consummation by it of the transactions contemplated thereby have
been duly authorized by all necessary action on the part of the Seller and no
further action is required by the Seller. This Agreement has been duly executed
by the Seller and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligation of the Seller enforceable against
the Seller in accordance with its terms. The Seller is not in violation of any
of the provisions of its organizational or charter documents as a result of the
transactions contemplated in this Agreement.
(b) No liens on Registered Shares. As of the date on which Registered
-----------------------------
Shares are delivered to the Purchaser pursuant to the terms hereof, the Seller
will be the sole beneficial owner of the Registered Shares and at the time that
Registered Shares are delivered to the Purchaser such Registered Shares will not
be subject to any liens, pledges, encumbrances, security interests, or other
restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via
facsimile at the facsimile telephone number specified in this Section prior to
6:30 p.m. (California time) on a Business Day, (ii) the Business Day after the
date of transmission, if such notice or communication is delivered via facsimile
at the facsimile telephone number specified in this Agreement later than 6:30
p.m. (California time) on any date, and (iii) the Business Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier
service, or (iv) upon actual receipt by the party to whom such notice is
required to be given. The address for such notices and communications shall be
as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be
-------------------
waived or amended except in a written instrument signed, in the case of an
amendment, by the parties or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and
permitted assigns. Neither the Seller nor the Purchaser may assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Purchaser or the Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction,
-------------
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
------------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and
--------
covenants contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature page were an original thereof.
(14) Severability. In the event that any court of competent
------------
jurisdiction shall determine that any provision, or any portion thereof,
contained in this Agreement is unenforceable in any respect, then such provision
shall be deemed limited to the extent such court deems it enforceable, and as so
limited shall remain in full force and effect. In the event that such court
shall deem any provision, or portion thereof, wholly unenforceable, the
remaining provisions of this Agreement shall be the interpreted as if such
provision were so excluded and shall nevertheless remain in full force and
effect. With regard to any provision, or portion thereof deemed wholly
unenforceable, the parties shall attempt to agree upon a valid and enforceable
provision or portion thereof, which shall be a reasonable substitute therefor,
and upon such agreement, shall incorporate such substitute provision or portion
thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
BLUE COAST PARTNERS, L.P.
By:_____________________________________
Name:
Title:
Address for Notice:
Blue Coast Partners, L.P.
c/o Fort Point Capital Management LLC
Xxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Blue Coast Partners, L.P. 16,380
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
----------
Purchaser DTC Account Instructions
----------------------------------
DTC #0773
Banc of America Securities LLC
A/C#: 118-14009
A/C NAME: BLUE COAST PARTNERS, L.P.
ATTN: XXXXX XXXXXX
TaxID 00-0000000
Schedule D
----------
Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
----------
Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
Exhibit 7(e)20
Green Coast Offshore Limited
c/o Citco Fund Services (Curacao) N.V.
P.O. Box 31106 SMB
West Bay Road, Grand Cayman, Cayman Islands
British West Indies
November 5, 2001
The Xxxxx X. Xxxxxxx Living Trust
Xxxxxxx Enterprises
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Attn: J. Xxxxxxx Xxxxxxx and Xxxxxxxx Xxxxx
Re: CardioDynamics International Corporation
----------------------------------------
Ladies and Gentlemen:
This letter agreement (this "Agreement"), dated as of November 5, 2001, is
---------
between The Xxxxx X. Xxxxxxx Living Trust, a California trust (the "Seller"),
------
and Green Coast Offshore Limited, a mutual fund formed under the laws of the
Cayman Islands (the "Purchaser"). Capitalized terms used in this Agreement shall
---------
have the meanings set forth in the attached Schedule B.
----------
(1) Purchase and Sale of Registered Shares.
--------------------------------------
(a) The Purchaser shall purchase from the Seller and the Seller shall
sell to the Purchaser, the number of registered shares of Common Stock set
forth on Schedule A hereto ("Registered Shares") for an aggregate purchase
---------- -----------------
price equal to the product of the number of Registered Shares multiplied by
-------------
$4.35 (such product, the "Purchase Price").
--------------
(b) No later than ten (10) Business Days following the date on which
the supplement to the prospectus and registration statement, dated
September 26, 2001, shall become effective (the "Registered Shares Sale
Date"): (i) the Purchaser shall, in accordance with and in the amounts set
forth on Schedule E hereto (as the same may be amended from time to time
----------
with the mutual consent of the Purchaser and the Seller), pay the Purchase
Price for the Registered Shares to the parties set forth on Schedule E,
----------
and, simultaneously therewith, (ii) the Seller shall, pursuant to the
account instructions on Schedule C hereto, cause the Registered Shares to
----------
be delivered to the Purchaser's account through the Depository Trust
Company DWAC system.
(2) Representations, Warranties and Covenants of the Purchaser. The
----------------------------------------------------------
Purchaser represents, warrants and covenants to the Seller as follows:
(a) Organization; Authority. The Purchaser is an entity duly
-----------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with the requisite power and authority to enter
into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The purchase by the Purchaser
of Registered Shares hereunder has been duly authorized by all necessary action
on the part of the Purchaser. This Agreement has been duly executed by the
Purchaser, and when delivered by the Purchaser in accordance with the terms
hereof, will constitute the valid and legally binding obligation of the
Purchaser, enforceable against it in accordance with its terms.
(b) Access to Information. The Purchaser acknowledges that it has
---------------------
reviewed all necessary information concerning the Seller (including, without
limitation, the registration statement and prospectus, dated September 26, 2001,
with respect to the Registered Shares, the supplement thereto and the most
recent quarterly statement of the Company on Form 10-Q on file with the
Commission), and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the
Seller concerning the terms and conditions of the offering of the Registered
Shares and the merits and risks of investing in the Registered Shares; and (ii)
the opportunity to obtain such additional information which the Seller possesses
or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Purchaser and the consummation by the Purchaser of the
transaction contemplated hereby do not and will not (i) conflict with or violate
any provision of the Purchaser's organizational or charter documents (each as
amended through the date hereof), or (ii) conflict with, or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Purchaser is a
party or by which any property or asset of the Purchaser is bound or affected,
or (iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Purchaser is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Purchaser is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Purchaser.
(d) Consents and Approvals. The Purchaser is not required to
----------------------
obtain any consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any court or other federal, state, local
or other governmental authority or other Person in connection with the
execution, delivery and performance by the Purchaser of this Agreement.
(e) Delivery Requirements. The Purchaser shall satisfy all
---------------------
delivery requirements under the Securities Act of 1933, as amended, with respect
to any resales of the Registered Shares to subsequent purchasers.
(3) Representations and Warranties of the Seller. The Seller hereby
--------------------------------------------
represents and warrants to the Purchaser as follows:
(a) Authorization; Enforcement. The Seller has the requisite power
--------------------------
and authority to enter into and to consummate the transactions contemplated by
this Agreement and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Seller and the consummation by
it of the transactions contemplated thereby have been duly authorized by all
necessary action on the part of the Seller and no further action is required by
the Seller. This Agreement has been duly executed by the Seller and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of the Seller enforceable against the Seller in accordance
with its terms. The Seller is not in violation of any of the provisions of its
organizational or charter documents as a result of the transactions contemplated
in this Agreement.
(b) No liens on Registered Shares. As of the date on which
-----------------------------
Registered Shares are delivered to the Purchaser pursuant to the terms hereof,
the Seller will be the sole beneficial owner of the Registered Shares and at the
time that Registered Shares are delivered to the Purchaser such Registered
Shares will not be subject to any liens, pledges, encumbrances, security
interests, or other restrictions.
(c) No Conflicts. The execution, delivery and performance of this
------------
Agreement by the Seller and the consummation by the Seller of the transaction
contemplated hereby do not and will not (i) conflict with or violate any
provision of the Seller's organizational or charter documents (each as amended
through the date hereof), or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any material
agreement or other instrument or other understanding to which the Seller is a
party or by which any property or asset of the Seller is bound or affected, or
(iii) result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental authority
to which the Seller is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Seller is bound or
affected, except to the extent that any such violation would not have a material
adverse effect on the Seller.
(d) Consents and Approvals. The Seller is not required to obtain any
----------------------
consent, waiver, authorization or order of, give any notice to, or make any
filing or registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Seller of this Agreement, other than reports of
beneficial ownership to applicable governmental authorities, which the Seller
agrees to promptly make.
(e) Certain Fees. Except for certain fees payable by the Seller as
------------
set forth in Schedule D hereto, no fees or commissions will be payable by the
----------
Seller to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by this Agreement.
(f) Disclosure. The Seller confirms that neither it nor any other
----------
Person acting on its behalf has provided the Purchaser or its agents or counsel
with any information that constitutes or might constitute material non-public
information. The Seller understands and confirms that the Purchaser shall be
relying on the foregoing representations in effecting transactions with respect
to the Registered Shares.
(4) Indemnification.
---------------
(a) The Seller agrees to indemnify and hold harmless the
Purchaser, its shareholders, officers, directors, employees, agents and
representatives against any damages, claims, losses, liabilities and expenses
(including reasonable counsel fees and expenses) which may be suffered or
incurred by any of them as a result of a breach of any representation, warranty
or covenant made by the Seller in this Agreement.
(b) The Purchaser agrees to indemnify the Seller and its
shareholders, officers, directors, employees, agents and representatives against
any damages, claims, losses, liabilities and expenses (including reasonable
counsel fees and other expenses) ("Purchaser Losses") which may be suffered or
----------------
incurred by it as a result of any breach of any representation, warranty, or
covenant made by the Purchaser in this Agreement.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to this Section, such Person (the "indemnified
-----------
party") shall promptly notify the Person against whom such indemnity may be
-----
sought (the "indemnifying party") in writing of the occurrence of the facts and
------------------
circumstances giving rise to such claim. The failure of any Person to deliver
the notice required by this Section shall not in any way affect the indemnifying
party's indemnification obligation hereunder except and only to the extent that
the indemnifying party is actually prejudiced thereby. In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel or pay its own expenses. Notwithstanding the
foregoing, the indemnifying party shall pay as incurred the fees and expenses of
the counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceedings (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent (which consent may not be unreasonably withheld) but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment and the
indemnifying party shall obtain a full release of the indemnified party.
(5) Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral or written, with respect thereto.
(6) Notices. Any and all notices or other communications or deliveries
-------
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section prior to 6:30 p.m. (California time)
on a Business Day, (ii) the Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile telephone
number specified in this Agreement later than 6:30 p.m. (California time) on any
date, and (iii) the Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (iv) upon actual receipt by
the party to whom such notice is required to be given. The address for such
notices and communications shall be as follows:
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by U.S. mail or Xxxxxxx Enterprises
facsimile transmission: X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000
Facsimile Numbers.: 000-000-0000
Attn: J. Xxxxxxx Xxxxxxx
and Xxxxxxxx Xxxxx
If to the Seller The Xxxxx X. Xxxxxxx Living Trust
by courier service: c/o Del Mar Country Club
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000-0000
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
If to the Purchaser: To the address set forth under the
Purchaser's name on the signature
pages hereto
(7) Amendments; Waivers. No provision of this Agreement may be waived or
-------------------
amended except in a written instrument signed, in the case of an amendment, by
the parties or, in the case of a waiver, by the party against whom enforcement
of any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of either party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
(8) Headings. The headings herein are for convenience only, do not
--------
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
(9) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties and their successors and permitted assigns.
Neither the Seller nor the Purchaser may assign this Agreement or any rights or
obligations hereunder without the prior written consent of the Purchaser or the
Seller, respectively.
(10) No Third-Party Beneficiaries. This Agreement is intended for the
----------------------------
benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.
(11) Governing Law. All questions concerning the construction, validity,
-------------
enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
California, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretation,
enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective Affiliates, directors,
officers, shareholders, employees or agents) shall be commenced in the state or
federal courts sitting in the Central District of the City of Los Angeles (the
"California Courts"). Each party hereto hereby irrevocably submits to the
------------------
jurisdiction of the California Courts for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is improper
or that such California Courts are inconvenient or will be an improper forum for
such proceeding. Each party hereto hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably waives, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Agreement, then the prevailing
party in such action or proceeding shall be reimbursed by the other party for
its attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(12) Survival. The representations, warranties, agreements and covenants
--------
contained herein shall survive the closing until the date on which the
Registered Shares are delivered to the Purchaser pursuant to Section 1(b).
(13) Execution. This Agreement may be executed in two or more
---------
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
(14) Severability. In the event that any court of competent jurisdiction
------------
shall determine that any provision, or any portion thereof, contained in this
Agreement is unenforceable in any respect, then such provision shall be deemed
limited to the extent such court deems it enforceable, and as so limited shall
remain in full force and effect. In the event that such court shall deem any
provision, or portion thereof, wholly unenforceable, the remaining provisions of
this Agreement shall be the interpreted as if such provision were so excluded
and shall nevertheless remain in full force and effect. With regard to any
provision, or portion thereof deemed wholly unenforceable, the parties shall
attempt to agree upon a valid and enforceable provision or portion thereof,
which shall be a reasonable substitute therefor, and upon such agreement, shall
incorporate such substitute provision or portion thereof in this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK --
SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
THE XXXXX X. XXXXXXX LIVING TRUST
By: /s/ Xxxx Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Co-Trustee
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Co-Trustee
GREEN COAST OFFSHORE LIMITED
By:_____________________________________
Name:
Title:
Address for Notice:
Green Coast Offshore Limited
c/o Citco Fund Services (Curacao) N.V.
P.O. Box 31106 SMB
West Bay Road, Grand Cayman, Cayman Islands
British West Indies
Tel.: 000-000-0000 & 000-0000-000-0000
Fax: 000-000-0000
With a copy to:
Fort Point Capital Management LLC
Xxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Tel.: 000-000-0000
Fax: 000-000-0000
Schedule A
----------
Registered Shares Purchased by Purchaser
----------------------------------------
Purchaser Registered Shares Purchased
--------- ---------------------------
Green Coast Offshore Limited 37,660
Schedule B
----------
"Affiliate" means, with respect to any Person, any other Person that
---------
directly or indirectly controls or is controlled by or under common control with
such Person. For the purposes of this definition, "control," when used with
-------
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of "affiliated," "controlling" and "controlled" have meanings
---------- ----------- ----------
correlative to the foregoing.
"Business Day" shall mean any day except Saturday, Sunday and any day which
------------
shall be a legal holiday or a day on which banking institutions in New York City
or California are authorized or required by law or other governmental action to
close.
"Commission" shall mean the United States Securities and Exchange
----------
Commission.
"Common Stock" shall mean the shares of common stock, no par value per
------------
share of CardioDynamics International Corporation.
"Company" shall mean CardioDynamics International Corporation.
-------
"Person" means an individual or corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof)
or other entity of any kind.
Schedule C
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Purchaser DTC Account Instructions
----------------------------------
DTC #0773
Banc of America Securities LLC
A/C#: 313-14766
A/C NAME: GREEN COAST OFFSHORE LIMITED
ATTN: XXXXX XXXXXX
Schedule D
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Schedule of Fees Payable by Seller
----------------------------------
In connection with the purchase of Registered Shares under this Agreement, the
Seller shall pay (i) to Gruntal & Co., L.L.C., a dollar amount equal to 2.00% of
the gross purchase price paid by the Purchaser and for the Registered Shares and
(ii) to the Company, a dollar amount equal to 2.00% of the gross purchase price
paid by the Purchaser for the Registered Shares.
Schedule E
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Wire Transfer Instructions
--------------------------
1. The sum equal to 2.00% of the Purchase Price shall be paid to the Company
by wire transfer of immediately available funds, pursuant to the following
wire transfer instructions:
CardioDynamics International Corporation's Wire Transfer Instructions
---------------------------------------------------------------------
Comerica Bank
Xxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Phone (000) 000-0000
Account number 1891661462
Routing/ABA Number 000000000
In favor of:
CardioDynamics International Corporation
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
2. The sum equal to 2.00% of the Purchase Price shall be paid to Gruntal &
Co., L.L.C. by wire transfer of immediately available funds, pursuant to
the following wire transfer instructions:
Gruntal & Co., L.L.C. Wire Transfer Instructions
------------------------------------------------
Xxxxxxxx
- Xxxxx Manhattan Bank NYC
- ABA# 000000000
- Pershing A/C# 000-0-000000
- Re: Cardio Dynamics
- FFC BondInvest A/C# 75F-891578
3. The remainder of the Purchase Price shall be paid to the Seller by wire
transfer of immediately available funds, pursuant to the following wire
transfer instructions:
The Xxxxx X. Xxxxxxx Living Trust's Wire Transfer Instructions
--------------------------------------------------------------
DTC #352
Citibank
000 Xxxx Xxxxxx
Xxx Xxxx, XX
Routing/ABA Number 000000000
Bear Xxxxxxx Account Number 0925-3186
For Further Credit To: Account Number 720-51920
FBO: Xxxxx X. Xxxxxxx Living Trust
