Exhibit 10.1
[LETTERHEAD OF PLC SYSTEMS, INC.]
___________, 1999
[NAME AND ADDRESS OF PURCHASER]
Dear Sirs:
This letter sets forth the agreement of ___________________________ and PLC
Systems, Inc. (the "Company") regarding purchases by _________ from the Company
of the Company's common stock (the "Common Stock") during the Investment Period
(as defined below). The parties agree as follows:
1. This agreement relates to the investment period which commenced on
_________, 1999 and ended on _______, 1999 (the "Investment Period").
2. The Company represents and warrants that the shares of Common Stock
issued by the Company to ____________ have been registered under the Securities
Act of 1933, as amended (the "Securities Act"), pursuant to a registration
statement on Form S-3 dated February 12, 1999, (the "Registration Statement")
and the Company will take all action necessary to keep the Registration
Statement effective at all times until the earliest of (a) one year from the
date the shares of Common Stock are issued and (b) __________________ no longer
owns any of the shares of Common Stock purchased during the Investment Period.
3. The Company will keep current the prospectus supplement to the
prospectus which is a part of the Registration Statement (the "Prospectus
Supplement") to be filed with the Securities and Exchange Commission (the
"Commission") in connection with the shares of Common Stock sold during the
Investment Period for __ days after the filing of the Prospectus Supplement.
4. The Company will take all action necessary to continue the listing or
trading of its Common Stock on the American Stock Exchange or any relevant
market or system, if applicable, and will comply in all respects with the
Company's reporting, listing (including, without limitation, the listing of the
shares of Common Stock purchased by _____________) or other obligations under
the rules of the American Stock Exchange or any relevant market or system.
5. The Company and __________ will indemnify each other as provided in
Schedule A attached hereto against liability with respect to the Registration
Statement (including, without limitation, the Prospectus Supplement) relating to
the Common Stock which was sold by the Company to _____________.
6. The Company will promptly notify ____________ of (a) any stop order or
other suspension of the effectiveness of the Registration Statement and (b) the
happening of any event as
a result of which the prospectus included in the Registration Statement
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein, in light of the circumstances under which
they were made, not misleading.
7. The Company will furnish ______________ promptly after the same is
prepared and publicly distributed, filed with the Commission or received by the
Company, each Prospectus Supplement or amendment and such number of copies of
the prospectus, Prospectus Supplement and amendments as ____________ may request
in connection with its purchase of the shares of Common Stock.
Please execute a copy of this letter which, when executed by
______________, will constitute a agreement between the Company and
______________.
Very truly yours,
[Name of the Company]
By:
-----------------------------
Name:
Title:
AGREED TO:
- ----------------------------
By:
-------------------------
Name:
Title:
SCHEDULE A
TERMS OF INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company will indemnify and hold
harmless _________________ and each person, if any, who controls
_________________ within the meaning of Section 15 of the Securities Act of
1933, as amended (the "Securities Act") or Section 20(a) of the Securities
Exchange Act, as amended (the "Exchange Act") from and against any losses,
claims, damages, liabilities and expenses (including reasonable costs of
defense and investigation and all attorney's fees) to which
_________________ and each person, if any, who controls _________________
may become subject, under the Securities Act or otherwise, insofar as such
lossses, claims, damages, liabilities and expenses (or actions in respect
thereof) arise out of or are based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained, or incorporated by
reference, in the Registration Statement relating to Common Stock being
sold to _________________ (including the Prospectus dated
____________________, 1999, the Prospectus Supplement dated
_________________ (the "Prospectus Supplement") which are a part of it), or
any amendment or supplement to it, or (ii) the omission or alleged omission
to state in that Registration Statement or any document incorporated by
reference in the Registration Statement, a material fact required to be
stated therein or necessary to make the statements therein not misleading.
The Company will reimburse _________________ and each such controlling
person promptly upon demand for any legal or other costs or expenses
REASONABLY incurred by _________________ or the controlling person in
investigating, defending against, or preparing to defend against any such
claim, action, suit or proceeding, except that the Company will not be
liable to the extent a claim or action which results in a loss, claim,
damage, liability or expense arises out of, or is based upon, an untrue
statement, alleged untrue statement, omission or alleged omission, included
in any Prospectus Supplement or any amendment or supplement to the
Prospectus Supplement in reliance upon, and in conformity with, written
information furnished by _________________ to the Company for inclusion in
the Prospectus Supplement.
(b) INDEMNIFICATION BY _________________. _________________ will indemnify and
hold harmless the Company, each of its directors and officers, and each
person, if any, who controls the Company within the meaning of Section 15
of the Securities Act of 1933, as amended (the "Securities Act") or Section
20(a) of the Securities Exchange Act, as amended (the "Exchange Act") from
and against any expenses (including reasonable costs of defense and
investigation and all attorneys fees) to which _________________ and each
person, if any, who controls _________________ may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities and expenses (or actions in respect thereof) arise out of or
are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus Supplement or any amendment or
supplement to it or (ii) the omission or alleged omission to state in any
Prospectus Supplement or any amendment or supplement to it a material fact
required to be stated therein or necessary to make the statements therein
not misleading, to the extent, but only to the extent, the untrue
statement, alleged untrue statement, omission or alleged omission was made
in reliance upon, and in conformity with, written information furnished by
_________________ to the Company for inclusion in the Prospectus Supplement
or an amendment or supplement to it, and _________________ will reimburse
the Company and each such director, officer or controlling person promptly
upon demand for any legal or other costs or expenses reasonably incurred by
the Company or the other person in investigating, defending against, or
preparing to defend against any such claim, action, suit or proceeding.
(c) INDEMNIFICATION PROCEDURES. Promptly after a person receives notice of a
claim or the commencement of an action for which the person intends to seek
indemnification under Paragraph (a) or (b), the person will notify the
indemnifying party in writing of the claim or commencement of the action,
suit or proceeding, but failure to notify the indemnifying party will not
relieve the indemnifying party from liability under Paragraph (a) or (b),
except to the extent it has been materially prejudiced by the failure to
give notice. The indemnifying party will be entitled to participate in the
defense of any claim, action, suit or proceeding as to which
indemnification is being sought, and if the indemnifying party acknowledges
in writing the obligation to indemnify the party against whom the claim or
action is brought, the indemnifying party may (but will not be required to)
assume the defense against the claim, action, suit or proceeding with
counsel satisfactory to it. After an indemnifying party notifies an
indemnified party that the indemnifying party wishes to assume the defense
of a claim, action, suit or proceeding the indemnifying party will not be
liable for any legal or other expenses incurred by the indemnified party in
connection with the defense against the claim, action, suit or proceeding
except that if, in the opinion of counsel to the indemnifying party, one or
more of the indemnified parties should be separately represented in
connection with a claim, action, suit or proceeding the indemnifying party
will pay the fees and expenses of one separate counsel for the indemnified
parties. Each indemnified party, as a condition to receiving
indemnification as provided in Paragraph (a) or (b), will cooperate in all
reasonable respects with the indemnifying party in the defense of any
action or claim as to which indemnification is sought. No indemnifying
party will be liable for any settlement of any action effected without its
prior written consent. No indemnifying party will, without the prior
written consent of the indemnified party, effect any settlement of a
pending or threatened action with respect which an indemnified party is, or
is informed that it may be, made a party and for which it would be entitled
to indemnification, unless the settlement includes an unconditional release
of the indemnified party from all liability and claims which are the
subject matter of the pending or threatened action.
(d) CONTRIBUTION. If for any reason the indemnification provided for in this
agreement is not available to, or is not sufficient to hold harmless, an
indemnified party in respect of any loss or liability referred to in
Paragraph (a) or (b), each indemnifying party will, in lieu of indemnifying
the indemnified party, contribute to the amount paid or payable by the
indemnified party, contribute to the amount paid or payable by the
indemnified party as a result of the loss or liability, (i) in the
proportion which is appropriate to reflect the relative benefits received
by the indemnifying party on the one hand and by the indemnified party on
the other from the sale of stock which is the subject of the claim, action,
suit or proceeding which resulted in the loss or liability or (ii) if that
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits of the sale of stock,
but also the relative fault of the indemnifying party and the indemnified
party with respect to the statements or omissions which are the subject of
the claim, action, suit or proceeding that resulted in the loss or
liability, as well as any other relevant equitable considerations.