ADDENDUM NO. 1 TO MUTUAL NON-DISCLOSURE AGREEMENT
Exhibit
(e)(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 advised in writing by CSC or its financial advisor,
Xxxxx Xxxxxxx Companies,
it will not in any manner, directly or indirectly:
(a) effect, offer or purpose 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 concern 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 |
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By: | /s/ Xxxx Xxxxxx | |||
Name: | Xxxx Xxxxxx | |||
Title: | CEO | |||
OPTO CIRCUITS (INDIA) LTD. |
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By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Chairman and Managing Director | |||
CRITICARE SYSTEMS, INC. |
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By: | /s/ Xxxxxx XxXxxxx | |||
Name: | Xxxxxx XxXxxxx | |||
Title: | CEO | |||