Exhibit 4.17
B E T W E E N :
CEDARA SOFTWARE CORP.
(the "Corporation" or "Cedara")
-and-
SURGICAL NAVIGATION SPECIALISTS INC.
("SNS")
-and-
SNS SURGICAL NAVIGATION SPECIALISTS INTERNATIONAL GmbH
("SNS International")
-and-
CARL ZEISS, INC.
("Zeiss U.S.")
- and -
CARL ZEISS OBERKOCHEN
("Zeiss" )
MINUTES OF SETTLEMENT
WHEREAS the parties acknowledge that certain financial and other
contractual obligations and liabilities exist as between Zeiss U.S., Zeiss and
their respective affiliates (collectively, the "Zeiss Entities") on the one
hand and the Corporation and its direct and indirect subsidiaries
(collectively, the "Cedara Entities") on the other hand which include, without
limitation, obligations and liabilities arising from the purchase agreement
effective as of November 1, 2000 between the Corporation, Zeiss U.S., Zeiss,
SNS, a direct subsidiary of the Corporation and SNS International, an indirect
subsidiary of the Corporation (the "Purchase Agreement");
AND WHEREAS the parties have a desire to: (i) settle on the amounts
owing as between to the Zeiss Entities and the Cedara Entities; (ii) amend the
terms of the 363,636 non-voting, non-transferable warrants of the Corporation
(each a "Cedara Warrant") previously issued to Zeiss U.S. and Zeiss, and (iii)
terminate certain of the outstanding and future rights, obligations and
liabilities of the parties under the Purchase Agreement;
NOW THEREFORE the parties agree as follows:
1. Each of Zeiss U.S. and Zeiss specifically invoke its right to offset its
payables to SNS and SNS International against its receivables due from
SNS and SNS International pursuant to section 21.4 of the Purchase
Agreement, subject to applicable law.
2. The parties agree to offset all amounts owing as between the Zeiss
Entities and the Cedara Entities at the date hereof including, without
limitation, offsetting all amounts owing under the Purchase Agreement
referred to in paragraph 1 above, subject to applicable law, leaving the
net amount to be satisfied in full as follows:
(a) The Corporation will pay Zeiss U.S. and/or Zeiss US $1,500,000 in
18 equal monthly instalments beginning April 30, 2002 and ending
September 30, 2003;
(b) The Corporation will provide Zeiss U.S. and/or Zeiss, at no charge
to Zeiss U.S. and/or Zeiss, US $1,500,000 of software engineering
services and licences, based on the Corporation's standard
software licence rates and software engineering rates at the time
such licences or services are provided to Zeiss U.S. and/or Zeiss.
Software licences will be provided at any time after the effective
date hereof upon the request of Zeiss U.S. and/or Zeiss until
December 1, 2004. Engineering services will be provided at any
time between the period from December 1, 2002 to December 1,
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2004 upon the request of Zeiss U.S. and/or Zeiss. No payment will
be made by the Corporation to Zeiss U.S. and/or Zeiss to the
extent Zeiss U.S. and/or Zeiss does not utilize the software
licences or engineering services provided for in this paragraph
(b) within the time period specified herein;
Upon completion of paragraph (b) above, the parties agree to
negotiate in good faith the terms of an agreement under which the
Corporation shall become the preferred software supplier for
Ophthalmology of Zeiss U.S. and Zeiss; and
(c) Except for payments required hereunder, to the extent that other
payments are made by or on behalf of any of the Cedara Entities to
any of the Zeiss Entities after the effective date hereof which
relate to obligations or liabilities arising on or prior to the
effective date hereof, the Corporation shall be entitled to deduct
such amounts from the amount payable under paragraph (a) above, or
alternatively from the amount specified in paragraph (b) above if
the payments exceed the balance of the amount under paragraph (a)
or if the payments are made to Zeiss U.S. and/or Zeiss after
September 30, 2003.
3. The terms of the Cedara Warrants contained in Article 2 of the Purchase
Agreement including, without limitation, page 12(a) of the Purchase
Agreement are deleted and replaced in their entirety with the terms
described in Schedule "A" attached hereto. The form of Warrants referred
to in Schedule 2.4 of the Purchase Agreement shall be deemed to be
amended to reflect such changes (the "Amended Form of Warrants").
4. The parties agree that all outstanding and future (contingent or
otherwise) rights, obligations and liabilities of any Zeiss Entity or
Cedara Entity
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under the Purchase Agreement and the schedules thereto and any guarantees
or indemnities provided by any Zeiss Entity or Cedara Entity, including,
without limitation, related to the SNS Call Option (as defined in the
Purchase Agreement), are hereby terminated. Notwithstanding the
foregoing, the parties agree that all rights, obligations and liabilities
under the Amended Form of Warrants and Schedule 2.5 (Warrant Exercise
Notice) and Schedule 12.2(a)(vii) (Technology and Patent License
Agreement) other than Schedule "C" to Schedule 12.2(a)(vii) of the
Purchase Agreement are unaffected and continue to be in full force and
effect. The parties acknowledge and agree that nothing contained herein
or in the Purchase Agreement prohibits or limits any Zeiss Entity to use
or sublicence the intellectual property and patents owned by the Zeiss
Entities which are identified or referred to in the Purchase Agreement
including, without limitation, Schedule 12.2(a)(vii) of the Purchase
Agreement. The parties also agree that Cedara, Zeiss and Zeiss U.S. will
negotiate in good faith a new licence agreement (the "New Licence
Agreement") in favour of the Cedara Entities to replace Schedule "C" to
Schedule 12.2(a)(vii) of the Purchase Agreement, such licence to be on a
non-exclusive royalty-free basis and on such other terms and conditions
as they may agree.
5. In consideration of the fulfilment of the benefits and obligations set
out herein, each of Zeiss U.S. and Zeiss, on behalf of itself and the
other Zeiss Entities, hereby releases and forever discharges the
Corporation, SNS, SNS International and any of their respective
affiliates, of and from all actions, causes of action, suits, duties,
debts, accounts, bonds, covenants, contracts, claims and demands
whatsoever that the Zeiss Entities, now have or hereafter can, shall or
may have for or by reason of or in any way arising out of any cause,
matter or thing whatsoever existing up to the
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effective date hereof and in particular, without in any way limiting the
generality of the foregoing, in respect of all claims under the Purchase
Agreement and any guarantees or indemnities.
6. In consideration of the fulfilment of the benefits and obligations set
out herein, the Corporation on behalf of itself and its direct and
indirect subsidiaries hereby releases and forever discharges the Zeiss
Entities from all actions, causes of action, suits, duties, debts,
accounts, bonds, covenants, contracts, claims and demands whatsoever that
the Corporation or any of its direct or indirect subsidiary, now have or
hereafter can, shall or may have for or by reason of or in any way
arising out of any cause, matter or thing whatsoever existing up to the
effective date hereof and in particular, without in any way limiting the
generality of the foregoing, in respect of all claims under the Purchase
Agreement and any guarantees or indemnities.
7. These Minutes shall be governed by the laws of the Province of Ontario.
8. The parties agree that these Minutes may be executed by facsimile and in
two or more counterparts, each of which shall be deemed to be an original
and all of which taken together shall constitute one instrument.
9. These Minutes are subject to the following conditions being satisfied:
(a) Cedara and SNS signing a letter agreement with Medtronic Surgical
Navigation Technologies ("M/SNT") related to transition of the SNS
installed base, whether or not court approval, if required, is
obtained subsequently to the signing of such agreement;
(b) Zeiss signing a letter agreement with M/SNT related to support of
the SNS installed base;
(c) Approval of the board of directors of Zeiss;
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(d) Approval of the board of directors of Cedara;
(e) The execution of the New Licence Agreement; and
(f) Consent of the insolvency administrator appointed by Amstgericht
Aalen (Germany) in so far as the Minutes relate to SNS
International.
10. The effective date of these Minutes shall be the date that all the
conditions set out in paragraph 9 above are satisfied. In the event that
any one of the conditions in paragraph 9 is not satisfied on or prior to
January 15, 2002, these Minutes of Settlement will be terminated with no
force and effect.
11. Cedara and SNS represent to Zeiss and Zeiss U.S. that no approval of any
court is required in connection with SNS executing these Minutes of
Settlement and acknowledge that Zeiss and Zeiss U.S. are relying on such
representation for purposes of entering into these Minutes of Settlement.
DATED this 10th day of December, 2001.
CEDARA SOFTWARE CORP.
Per: /s/ Michael Greenberg
-----------------------------
SURGICAL NAVIGATION SPECIALISTS INC.
Per: /s/ Shlomit Dekel
-------------------------------
SNS SURGICAL NAVIGATION
SPECIALISTS INTERNATIONAL GmbH
Per: /s/ Joachim Luber
-------------------------------
CARL ZEISS, INC. for itself and on
behalf of the other Zeiss Entities
incorporated in the United States
Per: /s/ James Kelly
-----------------------------
CARL ZEISS OBERKOCHEN for itself and
on behalf of the other Zeiss Entities
Per: /s/ Uli Krauss
----------------------------
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SCHEDULE "A"
TERMS OF THE CEDARA WARRANTS
1. Each Cedara Warrant shall be exercisable into one common share of Cedara
(the "Cedara Common Share") for no additional consideration.
2. Beginning on November 1, 2001, Zeiss and Zeiss U.S. have the right to
sell up to 90,909 Cedara Common Shares received on an exercise of Cedara
Warrants. If Zeiss and Zeiss U.S. choose to sell any such Cedara Common
Shares between November 1, 2001 and July 31, 2004, price protection will
not apply with respect to the exercise of any of such Cedara Warrants
relating to the 90,909 Cedara Common Shares referred to in this
paragraph.
3. Beginning on November 1, 2002, Zeiss and Zeiss U.S. have the right to
sell a further 90,909 Cedara Common Shares received on the exercise of
Cedara Warrants. If Zeiss and Zeiss U.S. choose to sell any such Cedara
Common Shares between November 1, 2002 and July 31, 2004, price
protection will not apply with respect to the exercise of any of such
Cedara Warrants relating to the 90,909 Cedara Common Shares referred to
in this paragraph.
4. Beginning on August 1, 2003, Zeiss and Zeiss U.S. have the right to sell
a further 181,818 Cedara Common Shares received on the exercise of Cedara
Warrants. To the extent that Zeiss or Zeiss U.S. have elected to exercise
Cedara Warrants representing any of these 181,818 Cedara Common Shares on
or after August 1, 2003 but on or prior to July 31, 2004, Cedara will
promptly pay to Zeiss or Zeiss U.S., as the case may be, an amount by
which the price per Cedara Common Share is trading below US $5.50 (based
on the weighted closing price average for the 20 NASDAQ trading days,
ending on the date immediately prior to the date of such exercise). Such
payment, if any, may be made by Cedara, at its option, either in cash or
in freely tradable Cedara Common Shares (which shares shall be valued on
the basis of the weighted closing price average for the 20 NASDAQ trading
days, ending on the date immediately prior to the date of such exercise).
After July 31, 2004, the price protection will not apply with respect to
the exercise of any of the Cedara Warrants relating to the 181,818 Cedara
Common Shares referred to in this paragraph. For greater certainty, the
maximum payment Cedara would be obliged to make on or after August 1,
2003 but on or before July 31, 2004 would be, in the aggregate, US
$1,000,000.
5. To the extent that Zeiss or Zeiss U.S. elects to exercise any of the
Cedara Warrants representing those Cedara Common Shares that are
described in
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Paragraphs 2 and 3 above on or after August 1, 2004 but on or prior to
July 31, 2005, Cedara will promptly pay to Zeiss or Zeiss U.S., as the
case may be, an amount by which the price per Cedara Common Share is
trading below US $5.50 (based on the weighted closing price average for
the 20 NASDAQ trading days, ending on the date immediately prior to the
date of such exercise). Such payment, if any, may be made by Cedara, at
its option, either in cash or in freely tradable Cedara Common Shares
(which shares shall be valued on the basis of the weighted closing price
average for the 20 NASDAQ trading days, ending on the date immediately
prior to the date of such exercise). After July 31, 2005, the price
protection will not apply with respect to the exercise of any of the
Cedara Warrants relating to the Cedara Common Shares referred to in this
paragraph. For greater certainty, the maximum payment Cedara would be
obliged to make on or after August 1, 2004 but on or before July 31, 2005
would be, in the aggregate, US $1,000,000.
6. Sections 2.4 to 2.10 inclusive of the Purchase Agreement shall be
unaffected and continue in full force and effect to the Cedara Warrants,
provided that Section 2.7(1)(iii) of the Purchase Agreement and the
references to "Section 2.19 and Section 2.20" in Section 2.10(1) and the
"SNS Call Options" in Section 2.10(2) are deleted.
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THIS AMENDMENT TO THE MINUTES OF SETTLEMENT is dated effective as of
January 15, 2002 between Cedara Software Corp. ("Cedara"), Surgical Navigation
Specialists Inc. ("SNS"), SNS Surgical Navigation Specialists International
GmbH ("SNS International"), Carl Zeiss, Inc. ("Zeiss U.S.") and Carl Zeiss
Oberkochen ("Zeiss").
WHEREAS on December 10, 2001, Cedara, SNS, SNS International, Zeiss U.S.
and Zeiss (collectively referred to herein as the "Parties") entered into a
minutes of settlement (the "Minutes of Settlement");
AND WHEREAS the Parties have agreed to extend the date by which all the
conditions set out in paragraph 9 of the Minutes of Settlement must be
satisfied in order for the Minutes of Settlement to come into effect;
NOW THEREFORE in consideration of the mutual covenants herein contained
and for other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), the Parties agree as follows:
7. Capitalized terms used in this amending agreement and not otherwise
defined shall have the meanings set forth in the Minutes of Settlement.
8. All the references in the Minutes of Settlement to "January 15, 2002"
shall be deleted and replaced with "January 22, 2002".
9. This amending agreement shall be construed and enforced in accordance
with the laws of the Province of Ontario.
10. Except as specifically amended by this amending agreement, the Minutes of
Settlement shall remain in full force and effect and is hereby ratified
and confirmed.
IN WITNESS WHEREOF the Parties have caused this amending agreement to be
signed by their duly authorized officers.
CEDARA SOFTWARE CORP.
Per: /s/ Michael Greenberg
------------------------------
SURGICAL NAVIGATION SPECIALISTS INC.
Per: /s/ Michael Greenberg
------------------------------
SNS SURGICAL NAVIGATION
SPECIALISTS INTERNATIONAL GmbH
Per: /s/ Joachim Luber
-----------------------------
CARL ZEISS, INC. for itself and on
behalf of the other Zeiss Entities
incorporated in the United States
Per: /s/ James Kelly
------------------------------
CARL ZEISS OBERKOCHEN for itself and
on behalf of the other Zeiss Entities
Per: /s/ Uli Krauss
------------------------------
Per: /s/ Karl-Heinz Raffin
------------------------------
THIS SECOND AMENDMENT TO THE MINUTES OF SETTLEMENT is dated effective as
of September 23, 2003 among Cedara Software Corp. ("Cedara"), Carl Zeiss, Inc.
("Zeiss U.S.") and Carl Zeiss Oberkochen ("Zeiss").
WHEREAS on December 10, 2001, Cedara, SNS, SNS International, Zeiss U.S.
and Zeiss (collectively referred to herein as the "Parties") entered into a
minutes of settlement, as amended by an amendment dated January 15, 2002
(collectively, the "Minutes of Settlement");
AND WHEREAS the Parties have agreed to extend the expiry date of the
price protection mechanism provided for in Schedule "A" to the Minutes of
Settlement which contains certain amendments to the terms of Cedara Warrants
issued by Cedara to Zeiss, subject to obtaining regulatory approval;
NOW THEREFORE in consideration of the mutual covenants herein contained
and for other good and valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), the Parties agree as follows:
11. Capitalized terms used in this amending agreement and not otherwise
defined shall have the meanings set forth in the Minutes of Settlement.
12. All references in paragraph 4 in Schedule "A" of the Minutes of
Settlement to "July 31, 2004" shall be deleted and replaced with "October
31, 2005".
13. All references in paragraph 5 in Schedule "A" of the Minutes of
Settlement to "July 31, 2005" shall be deleted and replaced with "October
31, 2005".
14. This second amending agreement shall be construed and enforced in
accordance with the laws of the Province of Ontario.
15. Except as specifically amended by this second amending agreement, the
Minutes of Settlement shall remain in full force and effect and is hereby
ratified and confirmed.
16. Notwithstanding any other provision of this second amending agreement,
this second amending agreement shall only become effective on the date
that all regulatory approvals required in connection with the matters
contained in this second amending agreement have been obtained.
IN WITNESS WHEREOF the Parties have caused this second amending agreement
to be signed by their duly authorized officers.
CEDARA SOFTWARE CORP.
Per: /s/ Abe Schwartz
---------------------------
CARL ZEISS, INC. for itself and on
behalf of the other Zeiss Entities
incorporated in the United States
Per: /s/ James Kelly
----------------------------
CARL ZEISS OBERKOCHEN for itself and
on behalf of the other Zeiss Entities
Per: /s/ Ludwig Munz
----------------------------
Per: /s/ Karl-Heinz Raffin
----------------------------