STOCK ISSUANCE AGREEMENT
THIS STOCK ISSUANCE AGREEMENT (this "Agreement"), dated as of October
23, 1996, by and among CardioDynamics International Corporation, a California
corporation ("CDIc"), and Xxxx Xxxxxxx Xxxxxx and Xxxxx Xxxxx Xxxxxx, Trustees
of the Xxxx Xxxxxxx Xxxxxx and Xxxxx Xxxxx Xxxxxx Family Trust UDT dated
December 10, 1991 (the "Purchasers").
ARTICLE I.
PURCHASE OF SHARES
SECTION 1.1 PURCHASE OF SHARES. (a) Upon the terms and subject to the
conditions set forth herein, upon the execution and delivery of this Agreement,
CDIc shall issue and sell 94,488 shares of common stock of CDIc to the
Purchasers for $250,000 cash.
SECTION 1.2 PAYMENT AND DELIVERY AT CLOSING. At the Closing occurring at
the same time as the execution and delivery of this Agreement, CDIc shall
deliver to the Purchasers a duly executed share certificate representing 94,488
shares of CDIc common stock, against payment in full of the purchase price.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. The
Purchasers hereby jointly and severally represent and warrant to CDIc as
follows:
(a) AUTHORITY. Each of the Purchasers has the full right, power and
authority to enter into, execute, deliver and carry out the terms of this
Agreement and
the transactions contemplated hereby and to perform his/her obligations
hereunder. This Agreement constitutes the valid and binding obligation of the
Purchasers enforceable in accordance with its terms.
(b) CONSENTS AND APPROVALS. All authorizations, approvals and
consents, if any, required to be obtained from, and all registrations,
declarations and filings, if any, required to be made with, all governmental
authorities and regulatory bodies to permit the Purchasers to execute and
deliver this Agreement, and to perform their obligations hereunder, have been
obtained or made, as the case may be, and all such authorizations, approvals,
consents, registrations, declarations and filings are in full force and effect.
(c) NO VIOLATIONS. Neither the execution or delivery by the
Purchasers of this Agreement, nor the consummation by the Purchasers of the
transactions herein contemplated, nor the fulfillment by the Purchasers of the
terms and provisions hereof (i)will conflict with, violate or result in a breach
of, any of the terms, conditions or provisions of any law, regulation, order,
writ, injunction, decree, judgment or award of any court, governmental
department, board, agency or instrumentality or any arbitrator, applicable to
the Purchasers (or either Purchaser) or (ii) will conflict with, violate or
result in a breach of, or constitute a default under, any of the terms,
conditions or provisions of any agreement or instrument to which the Purchasers
(or either Purchaser) is a party.
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(d) INVESTMENT INTENT.
(1) Each of the Purchasers has received, carefully read and
understood the documents provided to them by CDIc, including CDIc's most recent
Form 10-KSB and the three following Forms 10-QSB. Additionally, CDIc has
afforded them access to and ample opportunity to obtain other information
regarding CDIc. They have not relied on any oral representations of any kind.
(2) Each of the Purchasers has such knowledge and experience in
financial and business matters (including experience with investments of a
similar nature), that they are capable of evaluating the merits and risks of an
investment in CDIc common stock.
(3) The CDIc common stock is being acquired solely for their own
account for investment only and not with a view to or for any resale or
distribution thereof or with any present intention of distributing or selling
all or any part of such securities. They agree that the CDIc common stock is
UNREGISTERED and may not be transferred except upon registration under the
Securities Act of 1933, and under any applicable state securities or "blue sky"
laws, or upon receipt by CDIc of evidence in form and substance reasonably
satisfactory to CDIc, to the effect that such transfer may be made without
registration under the Securities Act of 1933 and applicable state securities
or "blue sky" laws. The Purchasers' share certificate representing CDIc common
stock will bear a legend to that effect. CDIc has no obligation to register the
Purchasers' CDIc common stock.
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(4) Each of the Purchasers recognizes that the purchase of the
CDIc Common Stock by them is a speculative investment that involves a high
degree of risk and is suitable only for persons with the financial capability of
making and holding long-term investments not readily reducible to cash.
SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF CDIC. CDIc hereby
represents and warrants as follows:
(a) AUTHORITY. CDIc is a validly existing California corporation in
good standing. CDIc has the full right, power and capacity necessary to enter
into, execute, deliver and perform its obligations under this Agreement. This
Agreement constitutes a valid and binding agreement of CDIc, enforceable in
accordance with its terms.
(b) CONSENTS AND APPROVALS. All authorizations, approvals and
consents, if any, required to be obtained from, and all registrations,
declarations and filings, if any, required to be made with, all governmental
authorities and regulatory bodies to permit CDIc to execute and deliver, and to
perform its obligations under, this Agreement have been obtained or made, as the
case may be, and all such authorizations, approvals, consents, registrations,
declarations and filings are in full force and effect.
(c) NO VIOLATIONS. Neither the execution or delivery by CDIc of this
Agreement, nor the consummation by CDIc of the transactions herein contemplated,
nor the fulfillment by CDIc of the terms and provisions hereof (i) will conflict
with, violate or result in a breach of any of the terms, conditions or
provisions of any law, regulation, order, writ, injunction, decree, judgment or
award of any court, governmental department, board, agency or instrumentality or
any arbitrator, applicable to CDIc, or
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(ii) will conflict with, violate or result in a breach of, or constitute a
default under, any of the terms, conditions or provisions of any agreement or
instrument to which CDIc is a party.
(d) CAPITALIZATION. The current capitalization of CDIc consists of
50,000,000 shares of authorized Common Stock, 29,282,588 shares of which are
outstanding, and 500,000 shares of Preferred Stock, 235,944 shares of which are
outstanding. In addition, options to purchase 1,160,000 shares of Common Stock
are outstanding.
(e) NO MISSTATEMENTS OR OMISSIONS. The oral and written
information regarding CDIc provided, inside and outside this Agreement, by CDIc
to the Purchasers does not contain any misstatements of a material fact or omit
to state anything necessary to avoid making materially misleading the statements
which were provided.
ARTICLE III.
COVENANTS
SECTION 3.1 MARKET STAND-OFF AGREEMENT. Each of the Purchasers hereby
agrees that, during the period of duration (not to exceed 180 days) specified by
CDIc and an underwriter of Common Stock or other securities of CDIc, following
the effective date of a registration statement of CDIc filed under the
Securities Act of 1933, he/she will not, to the extent requested by CDIc and
such underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase or
otherwise transfer or dispose of (other than to transferees or donees who agree
to be similarly bound) any securities of CDIc held by
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him/her at any time during such period; PROVIDED, HOWEVER, that all officers and
directors of CDIc enter into similar agreements. In order to enforce the
foregoing covenant, CDIc may impose stop-transfer instructions with respect to
the Purchasers' CDIc Common Stock until the end of such period. CDIc is NOT
representing to the Purchasers that it will engage in any such public offering
by any particular date, or ever.
SECTION 3.2 RESCISSION/REINVESTMENT OPTION. CDIc is considering making
in the near future a private placement of securities, which may or may not be on
the same terms and conditions as this Agreement. CDIc shall have no obligation
to the Purchasers to make any private placement of securities. Nonetheless, if
within the next four months CDIc does make through an outside placement agent a
private placement of securities in excess of $2,000,000, not counting this
Agreement's $250,000 and a contemporaneous direct investment of approximately
$1,000,000, CDIc shall so notify the Purchasers in writing and the Purchasers
shall have an option, which shall expire 15 days after such notice, to rescind
their purchase of CDIc common stock under this Agreement on condition that they
immediately reinvest the $250,000 in the CDIc securities offered in the private
placement, on whatever terms and conditions are established for the private
placement.
ARTICLE IV.
MISCELLANEOUS
SECTION 4.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter hereof and
completely supersedes all prior or contemporaneous agreements, understandings,
arrangements,
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commitments, negotiations and discussions of the parties, whether oral or
written (all of which shall have no substantive significance or evidentiary
effect). Each party acknowledges, represents and warrants that this Agreement
is fully integrated and not in need of parol evidence in order to reflect the
intentions of the parties. The parties specifically intend that the literal
words of this Agreement shall, alone, conclusively determine all questions
concerning the parties' intent.
SECTION 4.2 WAIVERS. The failure at any time of any party hereto to
require performance by any other party hereto of any responsibility or
obligation required by this Agreement shall in no way affect a party's right to
require such performance at any time thereafter, nor shall the waiver by the
party of a breach of any provision of this Agreement by any other party
constitute a waiver of any other breach of the same or any other provision of
this Agreement nor constitute a waiver of the responsibility or obligation
itself.
SECTION 4.3 ASSIGNABILITY. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of each party hereto, and, for each
Purchaser, his/her administrators, executors, personal representatives,
beneficiaries, heirs or legatees.
SECTION 4.4 NOTICES. In any case where any notice or other communication
is required or permitted to be given under this Agreement such notice or
communication shall be in writing and (a)personally delivered,(b) sent by
registered United States mail, postage prepaid, return receipt requested,(c)
transmitted by telecopy or (d) sent by way
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of a recognized overnight courier service, with instructions to deliver on the
next business day, in each case as follows:
(i) If to CDIc, to:
0000 Xxxxxxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: President
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx
Xxxxxxx, Phleger & Xxxxxxxx LLP
000 Xxxx "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
(ii) If to the Purchasers, to:
000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
All such notices or other communications shall be deemed to have been
given or received (i) upon receipt if personally delivered, (ii) on the fifth
day following posting if by registered United States mail, (iii) when sent if by
confirmed telecopy or (iv) on the next business day following deposit with an
overnight courier.
SECTION 4.5 THIRD PARTY RIGHTS. Nothing in this Agreement, whether
express or implied, is intended or shall be construed to confer, directly or
indirectly, upon or give to any person other than the Purchasers and CDIc, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
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SECTION 4.6 CHOICE OF LAW. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of California without
giving effect to the principles of conflict of laws of the State of California.
SECTION 4.7 SEVERABILITY. All provisions contained herein are severable
and in the event that any of them shall be held to be to any extent invalid or
otherwise unenforceable by any court of competent jurisdiction, such provision
shall be construed as if it were written so as to effectuate to the greatest
possible extent the parties' expressed intent; and in every case the remainder
of this Agreement shall not be affected thereby and shall remain valid and
enforceable, as if such affected provision were not contained herein.
SECTION 4.8 ENFORCEMENT OF AGREEMENT. Any action or proceeding brought by
any party to this Agreement, in connection with or relating to this Agreement or
any provision hereof, shall be brought only in a federal or state court of
competent jurisdiction in San Diego County, California. Each of the parties
hereto, solely in connection with any such action or proceeding, does hereby (a)
submit to the jurisdiction of any such court,(b) waive any defense of or
relating to lack of jurisdiction with respect to any such action or proceeding
in any such court, and (c) agree not to claim improper venue or attempt to
transfer such proceeding out of such court.
SECTION 4.9 REFERENCES TO AGREEMENT. Any reference herein to this
Agreement shall be deemed to be a reference to such Agreement as the same may be
modified, varied, amended or supplemented from time to time by the parties in
accordance with the provisions hereof. Unless the context otherwise expressly
requires, the words
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"herein," "hereof" and "hereunder" and other words of similar importance refer
to this Agreement as a whole and not to any particular Article, Section or other
subdivision.
SECTION 4.10 HEADINGS, ETC. The Article and Section headings in this
Agreement are inserted for convenience of reference only and shall not affect
the interpretation of this Agreement. Whenever the context shall require, each
term stated in either the singular or plural shall include the singular and the
plural. References herein to masculine, feminine or neuter pronouns shall be
construed to refer to another gender when the context may require.
SECTION 4.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
SECTION 4.12 SURVIVAL. All acknowledgments, representations and
warranties made by any party herein shall survive the Closing.
SECTION 4.13 AMENDMENTS. This Agreement may be amended or modified only
by a written instrument executed by each of the parties hereto.
SECTION 4.14 AGREEMENT TO COOPERATE. Subject to the terms and conditions
herein provided, each of the parties shall cooperate and use his/her/its
respective best efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement.
SECTION 4.15 FURTHER ACTION. If at any time hereafter any party shall
consider that any further agreements, documents, instruments or assurances in
law or any other
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things are necessary or desirable to carry out the provisions of this Agreement,
the parties to this Agreement shall execute and deliver any and all such
agreements, documents, instruments or assurances in law and do all other things
necessary or proper which shall be reasonably requested to carry out the
provisions of this Agreement.
SECTION 4.16 EXPENSES. All expenses incurred by the parties hereto in
connection with or related to the authorization, preparation and execution of
this Agreement and the Closing of the transactions contemplated hereby shall be
borne solely and entirely by the party which has incurred the same.
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Issuance
Agreement to be duly executed and delivered as of the day and year first written
above.
CARDIODYNAMICS INTERNATIONAL
CORPORATION
By:
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Name:
Title:
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XXXX XXXXXXX XXXXXX, TRUSTEE OF THE XXXX
XXXXXXX XXXXXX AND XXXXX XXXXX XXXXXX FAMILY
TRUST UDT DATED DECEMBER 10, 1991
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XXXXX XXXXX XXXXXX, TRUSTEE OF THE XXXX
XXXXXXX XXXXXX AND XXXXX XXXXX XXXXXX FAMILY
TRUST UDT DATED DECEMBER 10, 1991
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