Exhibit 10.2
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SHAREHOLDERS AGREEMENT
BY AND BETWEEN
EDWARDS LIFESCIENCES CORPORATION
AND
PLC SYSTEMS INC.
DATED AS OF
JANUARY 9, 2001
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS...............................................................................1
SECTION 1.1 DEFINITIONS....................................................................1
ARTICLE II CORPORATE GOVERNANCE.....................................................................6
SECTION 2.1 THE PLC BOARD OF DIRECTORS....................................................6
SECTION 2.2 GENERAL COVENANT TO VOTE.......................................................8
ARTICLE III PREEMPTIVE RIGHTS AND ADDITIONAL STOCK SALES............................................8
SECTION 3.1 PREEMPTIVE RIGHTS..............................................................8
ARTICLE IV REGISTRATION RIGHTS......................................................................9
SECTION 4.1 REGISTRATION ON REQUEST........................................................9
SECTION 4.2 INCIDENTAL REGISTRATION.......................................................11
SECTION 4.3 REGISTRATION PROCEDURES.......................................................12
SECTION 4.4 INDEMNIFICATION...............................................................14
ARTICLE V VOTING...................................................................................16
SECTION 5.1 VOTING OF SHARES BY EDWARDS...................................................16
ARTICLE VI CERTAIN TAX MATTERS.....................................................................17
SECTION 6.1 REPRESENTATIONS AND WARRANTIES................................................17
SECTION 6.2 COVENANTS.....................................................................17
SECTION 6.3 INDEMNIFICATION; SURVIVAL.....................................................18
ARTICLE VII IMPUTED INCOME INDEMNIFICATION.........................................................19
SECTION 7.1 INDEMNIFICATION...............................................................19
SECTION 7.2 NOTICE AND PAYMENT............................................................19
SECTION 7.3 SURVIVAL......................................................................19
ARTICLE VIII TERMINATION...........................................................................19
SECTION 8.1 TERMINATION...................................................................19
ARTICLE IX MISCELLANEOUS...........................................................................20
SECTION 9.1 GOVERNING LAW.................................................................20
SECTION 9.2 JURISDICTION AND CONSENT TO SERVICE...........................................20
SECTION 9.3 NOTICES.......................................................................20
SECTION 9.4 INTERPRETATION................................................................21
SECTION 9.5 SEVERABILITY..................................................................21
SECTION 9.6 COUNTERPARTS..................................................................22
SECTION 9.7 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES................................22
SECTION 9.8 FURTHER ASSURANCES............................................................22
SECTION 9.9 AMENDMENTS AND MODIFICATIONS; WAIVERS AND EXTENSIONS..........................22
SECTION 9.10 ASSIGNMENT...................................................................23
SECTION 9.11 REMEDIES CUMULATIVE..........................................................23
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SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT (the "Agreement"), dated as of January 9, 2001,
by and between Edwards Lifesciences Corporation, a Delaware corporation
("Edwards"), and PLC Systems Inc., a Yukon Territory corporation ("PLC").
WHEREAS, Edwards and PLC are parties to a Securities Purchase
Agreement, dated as of January 7, 2001 (the "Purchase Agreement"), and upon
consummation of the transactions contemplated therein, Edwards will hold
5,333,333 shares (the "Shares") of common shares without par value of PLC (the
"PLC Common Shares") and Warrants (as defined herein) exercisable for a total of
3,000,000 PLC Common Shares (as adjusted from time to time pursuant to the
provisions of the Warrants, the "Warrant Shares") on the terms and conditions
set forth therein; and
WHEREAS, the parties hereto wish to set forth their agreement
concerning certain governance matters of PLC following consummation of the
Transactions (as defined herein) as well as certain matters relating to Edwards'
ownership and disposition of the Shares, Warrant Shares and any other shares of
PLC securities acquired by Edwards after the date of this Agreement
(collectively, the "Registrable Shares");
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
"ADDITIONAL CUMULATIVE CREDITABLE TAX AMOUNT" means the aggregate of
Cumulative Creditable Tax Amounts not taken into account under the CPA Imputed
Income Amount.
An "AFFILIATE" of any Person means any other Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first Person. For purposes of the definition
of affiliate, "control" has the meaning specified in Rule 12b-2 under the
Exchange Act as in effect on the date of this Agreement.
"AGREEMENT" has the meaning set forth in the Recitals.
"ANNUAL INFORMATION STATEMENT" means an information statement prepared
by the Tax Amounts CPA on an annual basis setting forth the deemed
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United States federal income inclusions in respect of the earnings of each of
PLC and the PLC Subsidiaries for the immediately preceding taxable year of PLC
related to (i) the controlled foreign corporation provisions set forth under
section 951 ET SEQ. of the Code, (ii) the foreign personal holding company
provisions set forth under section 551 ET SEQ. of the Code, and (iii) the
"qualified electing fund" provisions set forth under section 1295 of the Code.
Without limiting the foregoing, the Annual Information Statement shall,
consistent with the requirements set forth in Internal Revenue Notice 88-125 and
any successor provision, also set forth (A) the first and last days of the
taxable year of PLC to which the information statement applies, (B) sufficient
information to enable Edwards and any of its direct or indirect beneficial
owners of Equity Securities to calculate their respective pro rata share of the
ordinary earnings and net capital gain of PLC, determined in accordance with
United States federal income tax principles, for the immediately preceding
taxable year of PLC, and (C) the amount of cash and the fair market value of
other property distributed or deemed distributed on a per share basis during the
immediately preceding taxable year of the PLC and shall include a statement that
PLC will permit any direct or indirect United States holder of Equity Securities
to inspect and copy PLC's permanent books of account, records, and such other
documents as may be maintained by PLC to the extent necessary to establish that
the ordinary earnings and net capital gain referred to in (B) above are computed
in accordance with United States federal income tax principles.
"APPLICABLE LAW" shall mean, with respect to any Person, any statute,
law, regulation, ordinance, rule, judgment, rule of common law, order, decree,
award, Governmental Approval, concession, grant, franchise, license, agreement,
directive, guideline, policy, requirement, or other governmental restriction or
any similar form of decision of, or determination by, or any interpretation or
administration of any of the foregoing by, any Governmental Authority, whether
in effect as of the date hereof or thereafter and in each case as amended,
applicable to such Person or its subsidiaries or their respective assets.
A Person shall be deemed to "BENEFICIALLY OWN," to have "BENEFICIAL
OWNERSHIP" of, or to be "BENEFICIALLY OWNING" any securities (which securities
shall also be deemed "BENEFICIALLY OWNED" by such Person) that such Person is
deemed to "beneficially own" within the meaning of Rule 13d-3 under the Exchange
Act as in effect on the date of this Agreement and, for certainty, Edwards shall
be deemed to Beneficially Own the Shares and the Warrant Shares.
"CLOSING" has the meaning set forth in the Purchase Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CPA IMPUTED INCOME AMOUNT" means the Imputed Income Amount, as
determined by the Tax Amounts CPA and on the basis of assuming that 100% of the
shares of PLC are owned by one "United States shareholder" (as defined in
section 951 of the Code).
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"CREDITABLE TAX" means a foreign tax that may be claimed as a foreign
tax credit under section 901 ET SEQ. of the Code in respect of dividends (or
imputed dividends) received from PLC.
"CUMULATIVE CPA IMPUTED INCOME AMOUNT" means, the aggregate amount of
the CPA Imputed Income Amounts in respect of the taxable year ending on December
31, 2001, and each subsequent taxable year ending prior to the date in respect
of which such Cumulative CPA Imputed Income Amount is being calculated.
"CUMULATIVE CREDITABLE TAX AMOUNT" means the aggregate amount of
Realized Benefit in respect of a Creditable Tax. Edwards will be considered to
have achieved a "REALIZED BENEFIT" in respect of a Creditable Tax with respect
to a particular taxable year only to the extent that Edwards is able to actually
utilize a credit for a Creditable Tax to reduce its federal income tax liability
for any taxable year.
"CUMULATIVE DIVIDEND AMOUNT" means, the aggregate amount of dividends
paid in cash by PLC on a pro-rata, as converted basis, with respect to all
classes of shares of PLC for the period commencing with the Date of the Closing
and ending on and including the day prior to date of payment of any dividend for
which the Cumulative Dividend Amount is being calculated.
"DISTRIBUTION AGREEMENT" means the Distribution Agreement, dated as of
January 9, 2001, by and between Edwards Lifesciences LLC and PLC.
"EDWARDS" has the meaning set forth in the Recitals.
"EDWARDS DESIGNEE" means the individual designated by Edwards who is
employed by Edwards with a title of director or above.
"EQUITY SECURITIES" means the Shares and any rights, warrants, options
or other instruments, including the Warrants, entitling the holder thereof,
whether or not on a contingency, to acquire from PLC, shares in the capital of
PLC and any instrument, directly or indirectly, convertible into or exercisable
or exchangeable for, whether or not on a contingency, shares in the capital of
PLC.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"FINAL DETERMINATION" means a "final determination" as defined under
section 1313 of the Code or a similar determination under applicable state or
local laws.
"FINAL DETERMINATION IMPUTED INCOME AMOUNT" means, in the case of any
particular Relevant Taxable Period for any particular Imputed Income Indemnitee,
the Imputed Income Amount as determined pursuant to a Final Determination.
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"FINAL DETERMINATION SHORTFALL" means, in the case of any particular
Relevant Taxable Period for any particular Imputed Income Indemnitee, an amount
equal to the aggregate of (i) 50% of the excess of (A) the Final Determination
Imputed Income Amount in respect of such Relevant Taxable Period over (B) the
CPA Imputed Income Amount attributable to such Imputed Income Indemnitee for
such Relevant Taxable Period, reduced by the Additional Cumulative Creditable
Tax Amount, and (ii) interest and penalties attributable thereto.
"GOVERNMENTAL APPROVAL" means any action, order, authorization,
consent, approval, license, lease, ruling, permit, tariff, rate, certification,
exemption, filing or registration by or with any Governmental Authority.
"GOVERNMENTAL AUTHORITY" means any government or political subdivision
thereof, governmental department, commission, board, bureau, agency, regulatory
authority, instrumentality, judicial or administrative body having jurisdiction
over the matter or matters in question.
"IMPUTED INCOME AMOUNT" means, in the case of any particular Relevant
Taxable Period, for any particular Imputed Income Indemnitee, the aggregate
amount of income that would be includible, for United States federal income tax
purposes, in the gross income of such Imputed Income Indemnitee, pursuant to,
and without double counting, (i) the controlled foreign corporation provisions
set forth under section 951 et seq. of the Code, (ii) the foreign personal
holding company provisions set forth under section 551 et seq. of the Code, and
(iii) the "qualified electing fund" provisions set forth under section 1291 ET
SEQ. of the Code on the basis of assuming that 100% of the shares of PLC are
owned by one "United States shareholder" (as defined in section 951 of the
Code).
"INDEMNIFIED PERSON" has the meaning set forth in Section 4.4(a).
"IMPUTED INCOME INDEMNITEE" has the meaning set forth in Section 7.1.
"IMPUTED INCOME LOSSES" has the meaning set forth in Section 7.1.
"LICENSE AGREEMENT" means the Manufacturing License Agreement, dated as
of January 9, 2001, by and among Edwards Lifesciences LLC, PLC and PLC Medical
Systems, Inc.
"LOSSES" has the meaning set forth in Section 4.4.
"PERSON" means any individual, group, corporation, firm, partnership,
limited liability company, joint venture, trust, business association,
organization, governmental entity or other entity.
"PLC" has the meaning set forth in the Recitals.
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"PLC BOARD" means the board of directors of PLC.
"PLC COMMON SHARES" has the meaning set forth in the Recitals.
"PLC SUBSIDIARIES" has the meaning set forth in the Purchase Agreement.
"PROPOSED ISSUANCE" has the meaning set forth in Section 3.1.
"PUBLIC OFFERING" means any offering of PLC Common Shares registered
under the Securities Act.
"PURCHASE AGREEMENT" has the meaning set forth in the Recitals.
"REGISTRABLE SHARES" has the meaning set forth in the Recitals.
"REGISTRATION EXPENSES" has the meaning set forth in Section 4.2(d).
"RELEVANT TAXABLE PERIOD" means any calendar year period for which a
particular CPA Imputed Income Amount, Final Determination Imputed Income Amount,
or Imputed Income Amount is calculated.
"SEC" means the Securities and Exchange Commission or any successor
governmental entity.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SHARES" has the meaning set forth in the Recitals.
"TAX AMOUNTS CPA" means Ernst & Young LLP or a similar accounting firm
of international reputation with comparable United States federal income tax
expertise.
"TAX AMOUNT SHORTFALL" means, in the case of a particular Imputed
Income Indemnitee, an amount equal to the excess of (i) 50% of the Cumulative
CPA Imputed Income Amount attributable to such Imputed Income Indemnitee over
the aggregate of (ii) the Cumulative Dividend Amount previously distributed to
such Imputed Income Indemnitee and (iii) the Cumulative Creditable Tax Amount.
"TAX MATTERS INDEMNITEE" has the meaning set forth in Section 6.3(a).
"TRANSACTION AGREEMENTS" means this Agreement, the Purchase Agreement,
the Distribution Agreement, the License Agreement, and the Warrants.
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"TRANSACTIONS" means the transactions contemplated by the Transaction
Agreements.
"UNITED STATES PERSON" means a United States person for United States
federal income tax purposes.
"U.S. SHAREHOLDER-APPOINTED DIRECTOR" means a director (i) designated
by Edwards or (ii) any other Person designated by a shareholder who is a United
States Person.
"U.S. TAX ADVISOR" means any of (i) United States tax counsel to the
Corporation; (ii) Ernst & Young LLP; or (iii) an accounting firm of
international reputation similar to (ii) above with comparable United States
federal income tax expertise.
"WARRANT SHARES" has the meaning set forth in the Recitals.
"WARRANTS" has the meaning set forth in the Purchase Agreement.
ARTICLE II
CORPORATE GOVERNANCE
Section 2.1 THE PLC BOARD OF DIRECTORS.
(a) PLC hereby agrees to take, at any time and from time to
time, all action necessary and within its power such that the PLC Board shall
consist of not more than ten directors. So long as Edwards and its Affiliates
Beneficially Own at least 5% of the PLC Common Shares outstanding on a fully
diluted basis, Edwards shall be entitled to nominate the Edwards Designee for
election as a director to the PLC Board.
(b) Upon a written notice from Edwards to PLC naming an
Edwards Designee, PLC shall use its best efforts to cause such Edwards Designee
to become a director of PLC.
(c) From the date of the election of an Edwards Designee until
receipt of written notice by PLC from Edwards that it no longer wishes to have
an Edwards Designee on the PLC Board, PLC shall use its best efforts to ensure
that each slate of persons nominated by the PLC Board for election as directors
of PLC includes the Edwards Designee.
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(d) If at any time an Edwards Designee ceases to be a member
of the PLC Board and Edwards continues to be entitled to an Edwards Designee
pursuant to Section 2.1(a), PLC shall use its best efforts to cause the
resulting vacancy on the PLC Board to be filled by a replacement Edwards
Designee at the next meeting of the PLC Board.
(e) So long as Edwards is entitled but declines to designate
an Edwards Designee or so long as Edwards and it Affiliates Beneficially Own at
least 2% but less than 5% of the PLC Common Shares outstanding on a fully
diluted basis and the Distribution Agreement has not been terminated, Edwards
shall be entitled to have an observer attend meetings of the PLC Board and to
receive materials distributed to members of the PLC Board, subject to fiduciary
and confidentiality limitations set by the PLC Board at its reasonable good
faith discretion.
(f) Only Edwards shall be entitled to request the removal of
the Edwards Designee. If Edwards requests that the Edwards Designee be removed
(with or without cause), PLC agrees to take or cause to be taken all appropriate
action within its power to effect the removal of such designee from the PLC
Board.
(g) At Edwards' election, unless prohibited by applicable
stock exchange rules or Applicable Law, any board of directors of any subsidiary
of PLC and any committee of the board of directors of PLC and such subsidiary
shall include the Edwards Designee, PROVIDED, HOWEVER, that the Edwards Designee
shall act only in an EX OFFICIO, i.e., non-voting, capacity on such committee of
the PLC Board or on such subsidiary board of directors or committee thereof.
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Section 2.2 GENERAL COVENANT TO VOTE. PLC agrees to take all actions
necessary at any time or from time to time to call, or to cause its subsidiaries
or the appropriate officers or directors of its subsidiaries to call, one or
more annual meetings of shareholders of its subsidiaries and to vote all
securities Beneficially Owned or over which control or direction is exercised by
PLC at any such annual meeting in favor of, or to consent by written consent in
lieu of any such meeting to, the election of a board of directors consistent
with, and the taking of any other action required by or to effect the intent of,
this Agreement.
ARTICLE III
PREEMPTIVE RIGHTS AND ADDITIONAL STOCK SALES
Section 3.1 PREEMPTIVE RIGHTS.
Edwards shall be entitled to participate in all future issuances by PLC
of PLC Common Shares (or rights to acquire PLC Common Shares or securities
convertible into, or exchangeable for, or carrying the right to purchase PLC
Common Shares) to the extent necessary for Edwards to maintain its proportionate
fully diluted equity interest in PLC as that interest exists at the time of such
issuance. PLC will provide Edwards with at least 20 days advance written notice
of any such proposed issuance (a "Proposed Issuance"), which notice shall
contain all relevant information pertaining thereto (including, without
limitation, if then known, the identity of the proposed beneficial and record
owners of the PLC Common Shares to be issued and sold by PLC and the issue price
per security, or proposed range of issue prices per security) and an offer to
Edwards to participate in the Proposed Issuance (at a price per security and
upon terms and conditions no less favorable than those provided to other
offerees or purchasers of PLC Common Shares in the Proposed Issuance) to the
extent necessary for Edwards to maintain its proportionate fully diluted equity
interest in PLC. At Edwards' sole option, it may participate in the Proposed
Issuance by purchasing the full number of PLC Common Shares necessary to
maintain its proportionate equity interest or any lesser number thereof. In the
event the terms of the Proposed Issuance change, PLC will provide Edwards with a
new 20-day advance notice period prior to consummating the transaction
contemplated by the Proposed Issuance. These preemptive rights shall not apply
to the following sales or issuances: (a) pursuant to the exercise, conversion or
exchange of securities, exercisable, convertible or exchangeable into PLC Common
Shares that are outstanding as of the date hereof; (b) the issuance of PLC
Common Shares as a stock dividend to holders of PLC Common Shares or upon any
subdivision or combination of PLC Common Shares; (c) the issuance of PLC Common
Shares in a Public Offering; (d) pursuant to an employee stock option plan,
stock purchase plan or similar benefit program, or sales or issuances to
directors, employees or consultants which sales or issuances do not exceed, in
any five-year period, 20%,
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on a fully diluted basis, of the outstanding equity shares of PLC as of the date
hereof, provided that in the event any employee is terminated and such
employee's options are terminated, the reissuance of such options shall not be
counted in the 20% threshold; or (e) as consideration for the acquisition by PLC
or any of its affiliates of all or a part of another business or the merger of
any business entity with or into PLC or any of its affiliates.
ARTICLE IV
REGISTRATION RIGHTS
Section 4.1 REGISTRATION ON REQUEST.
(a) Upon the written request of Edwards requesting that PLC
effect the registration under the Securities Act of all or part of its
Registrable Shares and specifying the intended method of disposition thereof,
PLC will, subject to the terms of this Agreement, use its reasonable best
efforts to effect the registration under the Securities Act of the Registrable
Shares which PLC has been so requested to register by Edwards for disposition in
accordance with the intended method of disposition stated in such request.
(b) Registrations under the Securities Act under this Section
4.1 shall be on such appropriate registration form of the SEC as shall be
selected by Edwards and PLC. If, in connection with any registration under the
Securities Act under Section 4.1(a), which is proposed by PLC to be on Form S-3
or any similar short form registration statement which is a successor to Form
S-3, the managing underwriters, if any, shall advise PLC in writing that in
their opinion the use of another permitted form is of material importance to the
success of the offering, then such registration shall be on such other permitted
form.
(c) PLC will pay all expenses associated with any registration
requested pursuant to this Section 4.1 by Edwards including, without limitation,
legal, accounting, registration, printing and distribution fees and expenses,
except that Edwards shall pay for commissions and underwriting discounts payable
with respect to the Registrable Securities ("Registration Expenses").
(d) A registration or qualification requested pursuant to this
Section 4.1 shall not be deemed to have been effected (i) unless a registration
statement with respect thereto has become effective, PROVIDED that a
registration which does not become effective after PLC has filed a registration
statement with respect thereto solely by reason of the refusal to proceed of
Edwards (other than a
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refusal to proceed based upon the advice of counsel relating to information
concerning the business or financial condition of PLC which is made known to
Edwards after the date on which such registration was requested) shall be deemed
to have been effected by PLC at the request of Edwards unless Edwards shall have
elected to pay all Registration Expenses in connection with such registration,
(ii) if, after it has become effective, such registration statement or
distribution of Registrable Shares becomes subject to any stop order, injunction
or other order or requirement of the SEC or other governmental agency or court
for any reason other than by reason of some act or omission by, or circumstance
relating to, Edwards, or (iii) the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection with
such registration are not satisfied, other than by reason of some act or
omission by, or circumstances relating to, Edwards.
(e) If a requested registration pursuant to this Section 4.1
involves an underwritten offering, the managing underwriter or underwriters
thereof shall be selected by Edwards and shall be reasonably acceptable to PLC.
(f) PLC shall not be required to effect more than three
registrations pursuant to this Section 4.1. In addition, notwithstanding any
other language herein, PLC shall not be required to effect any registration
(other than on Form S-3 or any successor form relating to secondary offerings)
within six months after the effective date of the registration statement
relating to a Public Offering. If at the time of any request to register
Registrable Shares pursuant to this Section 4.1, PLC is engaged or has plans to
engage in a Public Offering or is engaged in any other activity which, in the
good faith determination of the PLC Board, would be adversely affected by the
requested registration, then PLC may at its option direct that such request be
delayed for a period not in excess of 90 days from the date of such request,
such right to delay a request to be exercised by PLC not more than once in any
12-month period.
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Section 4.2 INCIDENTAL REGISTRATION. If PLC proposes at any time to
register PLC Common Shares under the Securities Act (other than pursuant to a
registration statement on Form S-8 or Form S-4 (or a similar successor form))
with respect to an offering of PLC Common Shares for its own account or for the
account of any of its security holders, it will promptly (but in no event less
than 30 days before the anticipated filing date) give written notice thereof to
Edwards and offer Edwards the opportunity to register or distribute such number
of Registrable Shares as Edwards may request. Upon the written request of
Edwards made within 30 days after the receipt of any such notice (which request
shall specify the Registrable Shares intended to be disposed of by Edwards), PLC
will, subject to the terms of this Agreement, use its best efforts to include
the Registrable Shares which Edwards has been requested to register in such
registration.
(a) If the proposed registration by PLC is an underwritten
Public Offering of PLC Common Shares, PLC shall so advise Edwards as a part of
the written notice given pursuant to Section 4.2. In such event, the right of
Edwards to include its Registrable Shares in such registration pursuant to
Section 4.2 shall be conditioned upon Edwards' participation in such
underwriting on the terms and conditions agreed to by PLC and the managing
underwriter or underwriters. PLC will use its reasonable best efforts to cause
the managing underwriter or underwriters to include such Registrable Shares
among those securities to be distributed by or through such underwriters.
Notwithstanding the foregoing, if in the reasonable judgment of the managing
underwriter or underwriters, the success of the Public Offering would be
adversely affected by inclusion of the Registrable Shares requested to be
included, PLC shall include in such registration the number (if any) of
Registrable Shares so requested to be included which, in the opinion of such
underwriters, can be sold.
(b) If, at any time after giving written notice of its
intention to register a Public Offering and prior to the effective date of the
registration statement, PLC shall determine for any reason either not to
register, or to delay registration of, such securities, PLC may, at its
election, give written notice of such determination to Edwards and, thereupon,
(i) in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Shares in connection with such
registration or (ii) in the case of a determination to delay registering, shall
be permitted to delay registering any Registrable Shares, for the same period as
the delay in registering such other PLC Common Shares.
(c) The selection of the underwriters for any such offering
shall be at the sole discretion of PLC.
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(d) PLC will pay all Registration Expenses associated with the
registration and sale of Registrable Shares pursuant to this Section 4.2.
Section 4.3 REGISTRATION PROCEDURES.
(a) If and whenever PLC is required by the provisions of
Section 4.1 or 4.2 hereof to effect the registration of Registrable Shares, PLC
will as promptly as practicable:
(i) furnish to Edwards such number of conformed
copies of such registration statement and of each such
amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in
any such registration statement (including each preliminary
prospectus and any summary prospectus), in conformity with the
requirements of the Securities Act, such documents
incorporated by reference in such registration statement or
prospectus, and such other documents, as Edwards may
reasonably request to facilitate the disposition of
Registrable Shares;
(ii) use its best efforts to register or qualify the
securities covered by such registration statement under such
state securities or blue sky laws of such jurisdictions, if
applicable, as shall be reasonably appropriate for
distribution of the Registrable Shares; provided, however,
that PLC shall not be required, solely in order to accomplish
the foregoing, to qualify to do business as a foreign
corporation in any jurisdiction where it would not otherwise
be required to qualify, subject itself to taxation in any such
jurisdiction or consent to general service of process in any
such jurisdiction;
(iii) advise Edwards, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any
stop order by the SEC or any state securities commission or
agency suspending the effectiveness of such registration
statement or the initiation or threatening of any proceeding
for that purpose and use its reasonable best efforts to
prevent the issuance of any stop order and to obtain its
withdrawal if such stop order should be issued;
(iv) notify Edwards upon PLC's discovery that, or
upon the happening of any event as a result of which, any
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prospectus included in any registration statement which
includes Registrable Shares, as then in effect, includes an
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing, and at the request of Edwards
prepare and furnish to Edwards a reasonable number of copies
of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus shall
not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances then existing; and
(v) use its reasonable best efforts to cause all such
Registrable Shares to continue to be listed on each securities
exchange or inter-dealer quotation system on which the PLC
Common Shares are now listed.
(b) Edwards agrees that, upon receipt of any notice from PLC
of the occurrence of any event of the kind described in Section 4.3(a)(iv), it
will forthwith discontinue the disposition of Registrable Shares pursuant to the
registration statement relating to such Registrable Shares until its receipt of
a supplemented or amended prospectus from PLC; PROVIDED that if the registration
statement is for an underwritten Public Offering, Edwards will use its
reasonable best efforts to cause the underwriters of such Public Offering to
discontinue the disposition of Registrable Shares.
(c) In the event that, in the judgment of PLC, it is advisable
to suspend use of a prospectus included in a registration statement which
includes Registrable Shares due to pending material developments or other events
that have not yet been publicly disclosed and as to which PLC believes public
disclosure would be detrimental to PLC, PLC shall notify Edwards to such effect,
and, upon receipt of such notice, Edwards shall immediately discontinue any
sales of Registrable Shares pursuant to such registration statement until
Edwards has received copies of a supplemented or amended prospectus or until
Edwards is advised in writing by PLC that the then current prospectus may be
used and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such prospectus.
Notwithstanding anything to the contrary herein, PLC shall not exercise its
rights under this Section 4.3(c) to suspend sales of Registrable Shares for a
period or periods in excess of, in the aggregate, 90 days in any 12-month
period.
13
(d) If any Registrable Shares are included in any registration
pursuant to this Article IV, Edwards shall take such actions and furnish PLC
with such information regarding itself and relating to the distribution of the
Registrable Shares as PLC may from time to time reasonably request and as shall
be required in connection with any registration, qualification or compliance
referred to in this Agreement, including, without limitation, the following: (i)
enter into an appropriate underwriting agreement containing terms and provisions
then customary in agreements of that nature and cause each underwriter of the
Registrable Shares to be sold to agree in writing with PLC to provisions with
respect to indemnification that are substantially the same as set forth in
Section 4.4 hereof; (ii) enter into such custody agreements, powers of attorney
and related documents at such time and on such terms and conditions as may then
be customarily required in connection with such offering; and (iii) distribute
the Registrable Shares in accordance with and in the manner of the distribution
contemplated by the applicable registration statement and prospectus.
Section 4.4 INDEMNIFICATION.
(a) INDEMNIFICATION BY PLC. In the event of any registration
of Registrable Shares pursuant to Section 4.1 or 4.2, PLC agrees to indemnify
and hold harmless Edwards and its directors and officers and each other person,
if any, who controls Edwards within the meaning of the Securities Act (each, an
"Indemnified Person") from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable attorneys' fees and costs of
investigation) to which such Indemnified Person becomes subject under the
Securities Act or otherwise (the "Losses"), insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of material fact contained in any
registration statement under which such securities were registered or qualified
under the Securities Act or otherwise, any preliminary prospectus, final
prospectus or summary prospectus included therein, or any amendment or
supplement thereto, or (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that PLC shall not be liable to such
Indemnified Person in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with information furnished in
writing by Edwards to PLC expressly for use therein.
(b) INDEMNIFICATION BY EDWARDS. In the event of any
registration of Registrable Shares pursuant to Section 4.1 or 4.2, Edwards
agrees
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to indemnify and hold harmless PLC and its directors and officers and each other
person, if any, who controls PLC within the meaning of the Securities Act from
and against any and all Losses, insofar as such Losses arise out of or based
upon (i) any untrue statement or alleged untrue statement of material fact
contained in any registration statement under which such securities were
registered or qualified under the Securities Act or otherwise, any preliminary
prospectus, final prospectus or summary prospectus included therein, or any
amendment or supplement thereto, or (ii) any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading if such statement or omission was made
solely in reliance upon and in conformity with information furnished in writing
to PLC by Edwards expressly for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement.
(c) DEFENSE OF CLAIM. If any action or proceeding (including
any governmental investigation) shall be brought or directed against any party
hereto (or its officers, directors or agents), the party against whom
indemnification is sought shall be permitted to assume the defense of such
claim, including the employment of counsel and the payment of all expenses,
unless a conflict of interest may exist with respect to such claim or differing
or additional defenses may be available to the other party. If defense of a
claim is assumed by an indemnifying party, the indemnified party shall not be
liable for any settlement of such action or proceedings effected without its
prior written consent, which shall not be unreasonably withheld, conditioned or
delayed. Any such indemnifying party shall not, without the prior written
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to the indemnified party an unconditional
release from all liability in respect to such claim or litigation. If defense of
a claim is not assumed by an indemnifying party, the indemnifying party shall
not be liable for any settlement effected without its prior written consent,
which shall not be unreasonably withheld, conditioned or delayed. Any party
entitled to indemnification hereunder agrees to give prompt written notice to
the other party of any written notice of the commencement of any action, suit,
proceedings or investigation or threat thereof for which such party may claim
indemnification or contribution pursuant to this Agreement; PROVIDED, HOWEVER,
that failure to give such notice shall not limit any party's right to
indemnification or contribution hereunder. Notwithstanding the foregoing, an
indemnified party hereunder shall always have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party.
(d) SURVIVAL. The indemnification provided for under this
Agreement will (i) remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or
15
controlling Person of such indemnified party, (ii) survive the transfer of any
Registrable Securities and (iii) survive the termination of this Agreement.
(e) RIGHT OF CONTRIBUTION. If the indemnification provided for
in this Section 4.4 is unavailable to, or insufficient to hold harmless, an
indemnified party under Section 4.4(a) or Section 4.4(b) above in respect of any
Losses referred to in such Sections, then each applicable indemnifying party
shall have an obligation to contribute to the amount paid or payable by such
indemnified party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of PLC, on the one hand, and of
Edwards, on the other, in connection with the misstatement or omission which
resulted in such Losses, taking into account any other relevant equitable
considerations. The amount paid or payable by a party as a result of the Losses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 4.4(c) above, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation, lawsuit or legal or
administrative action or proceeding.
ARTICLE V
VOTING
Section 5.1 VOTING OF SHARES BY EDWARDS. Until the third anniversary of
the date hereof, in any matter submitted to holders of PLC Common Shares,
Edwards shall be present for purposes of establishing a quorum and shall vote
all the PLC Common Shares that it Beneficially Owns in proportion to the votes
cast by all other holders of PLC Common Shares; PROVIDED, HOWEVER, that Edwards
shall be free to vote all of its PLC Common Shares in its sole discretion on the
following matters submitted to holders of PLC Common Shares:
(a) any merger, consolidation, acquisition or other business
combination involving PLC in which PLC is not the surviving corporation or as a
result of which a majority of the outstanding common equity of PLC is owned by
another entity;
(b) any sale, lease, transfer or other disposition of the
business operations or all or substantially all assets of PLC (on a consolidated
basis); and
(c) any dissolution or complete liquidation or similar
arrangement of PLC.
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ARTICLE VI
CERTAIN TAX MATTERS
Section 6.1 REPRESENTATIONS AND WARRANTIES. Based on the advice of
PLC's U.S. Tax Advisor, PLC is not, and immediately following the sale of the
Shares to Edwards under the Purchase Agreement will not be, classified as (i) a
"controlled foreign corporation" or (ii) a "foreign personal holding company"
for United States federal income tax purposes.
Section 6.2 COVENANTS.
(a) So long as Edwards holds any Equity Securities, none of
PLC or any PLC Subsidiary shall, directly or indirectly, issue, sell (whether
involuntarily, by judicial sale, or otherwise), transfer, grant a security
interest in, pledge, hypothecate, assign, give, or otherwise (voluntarily or by
operation of law) dispose of (any such act is hereinafter referred to as a
"Transfer") any Equity Security to any person or enter into any arrangement to
shift voting power away from United States holders of Equity Securities (any
such arrangement hereinafter referred to as an "Arrangement") in respect of any
Equity Security if such Transfer or Arrangement would, for purposes of section
951 ET SEQ. and 551 ET SEQ. of the Code, result in more than 50% of the voting
power or the value of the outstanding stock of the PLC being owned, directly or
indirectly (taking into account the applicable constructive ownership rules
under the Code), by (i) five (5) or fewer "United States shareholders" as
defined in section 951 of the Code, or (ii) five (5) or fewer individuals who
are citizens or residents of the United States as described in section 552 of
the Code, without the prior written consent of Edwards, so long as it holds
Equity Securities.
(b) PLC shall, at its own expense, furnish to Edwards by
February 28 of each year, commencing February 28, 2002, an Annual Information
Statement for the immediately preceding taxable year of PLC. PLC shall also
provide such other information as may be required by the United States Internal
Revenue Service to enable Edwards and any of its direct or indirect beneficial
owners, as the case may be, to make a "qualified electing fund" election under
section 1295 of the Code.
(c) None of PLC or any PLC Subsidiary shall enter into any
agreement, or make any amendment to any existing agreement, that would restrict
or prohibit any payment made pursuant to and in accordance with the terms of
this Article VI or Article VII of this Agreement, without the prior written
consent of Edwards, so long as it holds Equity Securities.
17
(d) Based on the advice of the PLC's U.S. Tax Advisor, PLC
shall use its best efforts to (i) avoid being classified as a "passive foreign
investment company" or a "foreign personal holding company" for United States
federal income tax purposes in any taxable year ending after the Closing, and
(ii) cause each PLC Subsidiary to avoid being classified as a "passive foreign
investment company" or a "foreign personal holding company" for United States
federal income tax purposes for any taxable year ending after the Closing.
(e) PLC shall not (and shall cause the PLC Subsidiaries not
to) undertake any action which could result in a material risk of PLC (or any of
the PLC Subsidiaries) being classified as a "controlled foreign corporation,"
"passive foreign investment company" or "foreign personal holding company" for
United States federal income tax purposes in any taxable year ending after the
Closing.
(f) So long as Edwards and its Affiliates Beneficially Own at
least 5% of the PLC Common Shares outstanding on a fully diluted basis as
described in Section 2.1(a), PLC shall use its best efforts to ensure that a
majority of the Board of Directors is comprised of directors other than U.S.
Shareholder-Appointed Directors, unless previously approved in writing by
Edwards so long as it holds Equity Securities.
Section 6.3 INDEMNIFICATION; SURVIVAL.
(a) PLC shall defend, indemnify, and hold harmless Edwards and
its officers, directors, partners, members, direct and indirect beneficial
owners, employees, representatives, successors and assigns (each, a "Tax Matters
Indemnitee") from and against any and all losses, damages, taxes, additions to
tax, interest, penalties, and expenses (including, without limitation,
reasonable attorneys' fees, costs, and expenses incurred in investigating and
defending against the assertion of such liabilities) that may be sustained,
suffered, or incurred by any such Indemnitee arising from, or in connection with
or relating to any breach by PLC of its representations, warranties, covenants,
or agreements set forth in this Article VI after the Closing.
(b) In respect of any matter for which a claim can be made
under Section 6.3(a) or Section 7.1, any amount due and payable under Section
7.1 shall reduce the amount due and payable under Section 6.3(a).
(c) The obligations of PLC under this Section 6.3 shall
survive the termination of this Agreement and shall continue in full force and
effect.
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ARTICLE VII
IMPUTED INCOME INDEMNIFICATION
Section 7.1 INDEMNIFICATION. PLC shall defend, indemnify, and hold
harmless Edwards and its respective officers, directors, partners, members,
direct and indirect beneficial owners, employees, representatives, successors,
and assigns (each, an "Imputed Income Indemnitee") from and against any and all
losses, damages, taxes, additions to tax, interest, penalties, and expenses
(including, without limitation, reasonable attorneys' fees, costs, and expenses
incurred in investigating and defending against the assertion of such
liabilities) (collectively, "Imputed Income Losses") that may be sustained,
suffered, or incurred by reason of (i) any Imputed Income Amount attributable to
such Imputed Income Indemnitee (provided, however, that the indemnification
provided for in this clause (i) shall not exceed, for any Relevant Taxable
Period, the Tax Amount Shortfall), and (ii) Final Determination Imputed Income
Amount attributable to such Imputed Income Indemnitee (provided, however, that
the indemnification provided for in this clause (ii) shall not exceed, for any
Relevant Taxable Period, the Final Determination Shortfall).
Section 7.2 NOTICE AND PAYMENT. In the event that an Imputed Income
Indemnitee suffers an Imputed Income Loss such Imputed Income Indemnitee shall
provide written notice thereof to PLC including a statement as to the nature and
amount of such Imputed Income Loss and, not later than 10 Business Days
following receipt of such written notice, PLC shall pay to such Imputed Income
Indemnitee any and all amounts owed to it pursuant to Section 7.1.
Section 7.3 SURVIVAL. The obligations of PLC under this Article VII
shall survive the termination of this Agreement and shall continue to remain in
full force and effect.
ARTICLE VIII
TERMINATION
Section 8.1 TERMINATION. Article II of this Agreement shall
automatically terminate on the date Edwards and its Affiliates no longer
Beneficially Own, in the aggregate, at least 2% of the PLC Common Shares
outstanding on a fully diluted basis. Articles III and IV of this Agreement
shall automatically terminate on the date Edwards and its Affiliates no longer
Beneficially Own, in the aggregate, at least 5% of the PLC Common Shares
outstanding on a fully diluted basis.
19
ARTICLE IX
MISCELLANEOUS
Section 9.1 GOVERNING LAW. This Agreement shall be governed by,
interpreted under, and construed in accordance with the internal laws of the
State of New York, including, without limitation, Sections 5-1401, 5-1402 of the
New York General Obligations Law and New York Civil Practice Laws and Rules
327(b).
Section 9.2 JURISDICTION AND CONSENT TO SERVICE. In accordance with the
laws of the State of New York, and without limiting the jurisdiction or venue of
any other court, the parties (a) agree that any suit, action or proceeding
arising out of or relating to this Agreement shall be brought solely in the
state or federal courts of New York; (b) consent to the exclusive jurisdiction
of each such court in any suit, action or proceeding relating to or arising out
of this Agreement; (c) waive any objection which any of them may have to the
laying of venue in any such suit, action or proceeding in any such court; and
(d) agree that service of any court paper in any such suit, action or proceeding
may be made in any manner as may be provided under the applicable laws or court
rules governing service of process in such court.
Section 9.3 NOTICES. All notices, demands, requests, consents,
approvals or other communications required or permitted to be given hereunder or
which are given with respect to this Agreement shall be in writing and shall be
delivered (charges prepaid, receipt confirmed or return receipt requested (if
available)) by hand, by nationally recognized air courier service, by certified
mail or facsimile, addressed as set forth below or to such other address as such
party shall have specified most recently by written notice. Notice shall be
deemed given and effective (i) if delivered by hand or by nationally recognized
courier service, when delivered at the address specified in this Section 9.3 (or
in accordance with the latest unrevoked written direction from such party), (ii)
if by certified mail, upon mailing or (iii) if given by facsimile when such
facsimile is transmitted to the fax number specified in this Section 9.3 (or in
accordance with the latest unrevoked written direction from such party),
provided the appropriate confirmation is received.
To PLC:
PLC Systems Inc.
10 Forge Park
Franklin, MA 02038
Attention: Chief Executive Officer
Fax: (508) 541-7990
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with a copy (which shall not constitute notice) to:
Hale and Dorr LLP
60 State Street
Boston, MA 02109
Attention: Steven D. Singer, Esq.
Fax: (617) 526-5000
To Edwards:
Edwards Lifesciences LLC
One Edwards Way
Irvine, California 92614
Attention: Associate General Counsel
Fax: (949) 250-6850
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, California 90071-3144
Attention: Joseph J. Giunta, Esq.
Fax: (213) 687-5600
Section 9.4 INTERPRETATION. When a reference is made in this Agreement
to a Section, Schedule or Exhibit, such reference shall be to a Section,
Schedule or Exhibit of this Agreement unless otherwise indicated. When a
reference is made in this Agreement to a specific Schedule, such reference shall
be deemed to include, to the extent applicable, all the other Schedules. The
table of contents, table of definitions, titles and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. When the words "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." All accounting terms not defined in this
Agreement shall have the meanings determined by generally accepted accounting
principles as of the date hereof. All capitalized terms defined herein are
equally applicable to both the singular and plural forms of such terms.
Section 9.5 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
parties shall negotiate in good faith with a view to the substitution therefore
of a suitable and equitable solution in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid provision;
PROVIDED, HOWEVER, that the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be in any way
21
impaired thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
Section 9.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall,
taken together, be considered one and the same agreement, it being understood
that both parties need not sign the same counterpart.
Section 9.7 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This
Agreement and the other Transaction Agreements, including all exhibits hereto
and thereto, by and between Edwards and PLC,
(a) constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede all prior and contemporaneous
agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written, with respect to the subject matter
hereof; and
(b) shall be binding upon and shall inure to the benefit of
each of the parties hereto and thereto and their respective successors and
permitted assigns and is not intended to confer any rights, remedies or benefits
on any Persons other than as expressly set forth in this Section 9.7.
Section 9.8 FURTHER ASSURANCES. Each party hereto shall do all such
further acts and execute, acknowledge, deliver and file all such further
instruments and documents as may be necessary or desirable to give effect to and
carry out the transactions contemplated herein.
Section 9.9 AMENDMENTS AND MODIFICATIONS; WAIVERS AND EXTENSIONS.
(a) No amendment, modification or termination of this
Agreement shall be binding upon any other party unless executed in writing by
the parties hereto intending to be bound thereby.
(b) Any party to this Agreement may waive any right, breach or
default which such party has the right to waive; provided that such waiver will
not be effective against the waiving party unless it is in writing, is signed by
such party, and specifically refers to this Agreement. Waivers may be made in
advance or after the right waived has arisen or the breach or default waived has
occurred. Any waiver may be conditional. No waiver of any breach
22
of any agreement or provision herein contained shall be deemed a waiver of any
preceding or succeeding breach thereof nor of any other agreement or provision
herein contained. No failure or delay in exercising any right, power or
privilege hereunder shall be deemed a waiver or extension of the time for
performance of any other obligations or acts nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
Section 9.10 ASSIGNMENT. Neither this Agreement nor any of the rights,
duties or obligations hereunder may be assigned or delegated by any of the
parties hereto without the prior written consent of PLC or Edwards, as the case
may be, which may be withheld in its sole discretion except that (1) Edwards may
assign all or any portion of its rights and obligations to (a) the acquirer of
all or substantially all of the assets of Edwards including an acquisition
through merger; (b) any subsidiary or affiliate of Edwards and (c) the
transferee of any of the Shares or Warrant Shares who, after giving effect to
the transfer Beneficially Owns at least 5% of the PLC Common Shares then
outstanding on a fully-diluted basis and (2) PLC may assign its rights and
obligations to any acquirer of all or substantially all of the assets or
business of PLC, whether by merger, sale of assets or otherwise. Any attempted
assignment or delegation of rights, duties or obligations hereunder in
contravention hereof shall be void and of no effect.
Section 9.11 REMEDIES CUMULATIVE. The remedies provided herein shall be
cumulative and shall not preclude the assertion by any party hereto of any other
rights or the seeking of any other remedies against the other party hereto.
23
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered, all as of the date first set forth above.
EDWARD LIFESCIENCES CORPORATION
By: /s/ John H. Kehl, Jr.
-------------------------------------
Name: John H. Kehl, Jr.
Title: Corporate Vice President
Business Development and Strategy
PLC SYSTEMS INC.
By: /s/ James G. Thomasch
-------------------------------------
Name: James G. Thomasch
Title: Senior Vice President and
Chief Financial Officer