ADDENDUM NO.1 TO MUTUAL NON-DISCLOSURE AGREEMENT
Exhibit
(d)(4)
This Addendum No. 1 to Mutual Non-Disclosure Agreement (“Addendum”) is made and entered into as of
the 26th
day of July, 2010 between Cardiac Science Corporation (“CSC”), Opto-Circuits
(India) Ltd (“Opto”) and its subsidiary Criticare Systems, Inc. (“Criticare,” and together with
Opto, the “Opto Parties”).
AGREEMENT
1. Expense Reimbursement. In consideration of the Opto Parties’ continued evaluation of a
potential transaction involving CSC and the agreements set forth in
Section 2, CSC hereby agrees
that if, prior to September 8, 2010, CSC enters into a definitive agreement to sell all or a
material part of its business to a party other than the Opto Parties, CSC will reimburse the Opto
Parties for their documented reasonable out-of-pocket expenses incurred in connection with such
potential transaction, subject to a cap of $300,000.
2. Standstill. In consideration of CSC’s agreement in Section 1, each of the Opto Parties
agrees that, for a period of 42 days from the date of this
Addendum, unless specifically invited in
writing by CSC or its financial advisor, Xxxxx Xxxxxxx Companies, it will not in any manner,
directly or indirectly;
(a) effect, offer or propose to effect, announce any intention to effect (i) any acquisition of
any securities of CSC (including rights or options to acquire any securities representing the right
to vote or economic benefits of any such securities) or any assets or
businesses of CSC or any of its
affiliates, (ii) any tender or exchange offer, merger or other business combination involving CSC
or any of its affiliates, or any assets of CSC or its affiliates constituting a significant portion
of the consolidated assets of CSC and its affiliates, (iii) any recapitalization, restructuring,
liquidation, dissolution or other extraordinary transaction with respect to CSC or any of its
affiliates, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of
the Securities and Exchange Commission) or consents to vote any voting securities of CSC or any of
its affiliates;
(b) otherwise
act, alone or in concert with others, to seek representation on or to control
the Board of Directors of CSC;
(c) form, join or in any way participate in a “group” (as defined under the Securities
Exchange Act of 1934, as amended (the “1934 Act”)) with
respect to, or otherwise act in concert with
any person in respect of, any of the types of matters set forth in (a) or (b) above; or
(d) enter into any arrangements with any third party with respect to any of the foregoing;
provided, however, that nothing in this Section 2 will prohibit the passive ownership by any person
or “group” (as defined under the 0000 Xxx) of not more than 2% of the common stock, par value $.001
per share, of CSC, so long as such person or group has no intention to, and does not, exercise any
“control” (as defined in Rule 12b-2 under the 0000 Xxx) over CSC or participate in the business of
CSC.
3. Effect of Addendum. This Addendum amends the Mutual Non-Disclosure Agreement among the
CSC and the Opto Parties dated June 25, 2010 (the “Original NDA”). Except as amended hereby, the
Original NDA remains in full force and effect in accordance with its terms, and each party hereto
confirms its obligations thereunder.
IN WITNESS
WHEREOF, the parties hereto have entered into this Addendum as of the
date set first written above.
| CARDIAC SCIENCE CORPORATION | ||||
By: |
/s/ Xxxx Xxxxxx | |||
Name:
|
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Title:
|
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| OPTO-CIRCUITS (INDIA) LTD. | ||||
By: |
/s/ Xxxxx Xxxxxxx | |||
Name:
|
||||
Title:
|
Chairman & Managing Director |
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| CRITICARE SYSTEMS, INC. | ||||
By: |
/s/ Xxxxxx XxXxxxx | |||
Name:
|
||||
Title:
|
CEO |
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