EXHIBIT 1
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SECURITIES PURCHASE AGREEMENT
by and between
▇▇▇▇▇▇▇ LIFESCIENCES CORPORATION,
PLC SYSTEMS INC.
and
PLC MEDICAL SYSTEMS, INC.
Dated as of
January 7, 2001
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS...............................................................1
ARTICLE II SALE AND PURCHASE........................................................4
SECTION 2.1 AGREEMENT TO SELL AND TO PURCHASE...............................4
SECTION 2.2 CLOSING.........................................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES..........................................5
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF PURCHASER.....................5
(a) AUTHORITY..............................................................5
(b) PURCHASE FOR INVESTMENT................................................6
(c) BROKERS, FINDERS, ETC..................................................6
(d) EXPERIENCE.............................................................6
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF PLC AND PLC SUB...............6
(a) ORGANIZATION AND STANDING..............................................6
(b) SUBSIDIARIES...........................................................7
(c) AUTHORITY..............................................................7
(d) CAPITAL STOCK..........................................................7
(e) CONSENTS; NO CONFLICT..................................................8
(f) SEC REPORTS AND FINANCIAL STATEMENTS...................................9
(g) NO UNDISCLOSED LIABILITIES.............................................9
(h) ABSENCE OF CERTAIN CHANGES OR EVENTS...................................9
(i) COMPLIANCE WITH APPLICABLE LAWS........................................9
(j) LITIGATION; DECREES...................................................10
(k) ENVIRONMENTAL MATTERS.................................................10
(l) GOVERNMENT REGULATIONS................................................10
(m) TAXES.................................................................10
(n) INTELLECTUAL PROPERTY.................................................11
(o) STOCKHOLDER APPROVAL..................................................11
(p) BROKERS, FINDERS, ETC.................................................12
(q) LABOR MATTERS.........................................................12
(r) PRIVATE OFFERING......................................................12
(s) FDA MATTERS...........................................................12
(t) EMPLOYEE BENEFITS.....................................................13
ARTICLE IV COVENANTS...............................................................13
SECTION 4.1 CONDUCT OF BUSINESS OF PLC.....................................13
SECTION 4.2 ACCESS TO INFORMATION..........................................13
SECTION 4.3 TRANSACTION AGREEMENTS; CONSENTS...............................14
SECTION 4.4 AMEX LISTING...................................................14
SECTION 4.5 FURTHER ASSURANCES.............................................14
SECTION 4.6 REQUIRED NOTICES...............................................14
SECTION 4.7 NO GENERAL SOLICITATION........................................15
SECTION 4.8 FDA CORRESPONDENCE.............................................15
SECTION 4.9 EMPLOYEE COMPENSATION..........................................15
SECTION 4.10 GOOD STANDING AND QUALIFICATION................................15
ARTICLE V CONDITIONS PRECEDENT.....................................................15
SECTION 5.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PLC.....................15
(a) NO INJUNCTIONS OR RESTRAINTS..........................................15
(b) REPRESENTATIONS AND WARRANTIES........................................16
(c) PERFORMANCE OF OBLIGATIONS OF PURCHASER...............................16
(d) CERTIFICATE...........................................................16
(e) TRANSACTION AGREEMENTS................................................16
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SECTION 5.2 CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION.................16
(a) NO INJUNCTIONS OR RESTRAINTS; NO PENDING OR THREATENED LITIGATION.....16
(b) CONSENTS..............................................................17
(c) REPRESENTATIONS AND WARRANTIES........................................17
(d) PERFORMANCE OF OBLIGATIONS OF PLC.....................................17
(e) CERTIFICATE...........................................................17
(f) TRANSACTION AGREEMENTS................................................17
(g) LISTING...............................................................17
ARTICLE VI TERMINATION.............................................................17
SECTION 6.1 TERMINATION....................................................17
SECTION 6.2 EFFECT OF TERMINATION..........................................18
ARTICLE VII SURVIVAL; INDEMNIFICATION..............................................18
SECTION 7.1 INDEMNIFICATION................................................18
SECTION 7.2 SURVIVAL.......................................................19
SECTION 7.3 CLAIMS.........................................................19
ARTICLE VIII MISCELLANEOUS.........................................................20
SECTION 8.1 GOVERNING LAW..................................................20
SECTION 8.2 ESCALATION.....................................................20
SECTION 8.3 JURISDICTION AND CONSENT TO SERVICE............................21
SECTION 8.4 NOTICES........................................................21
SECTION 8.5 INTERPRETATION.................................................22
SECTION 8.6 SEVERABILITY...................................................22
SECTION 8.7 COUNTERPARTS...................................................23
SECTION 8.8 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES.................23
SECTION 8.9 AMENDMENTS AND MODIFICATIONS; WAIVERS AND EXTENSIONS...........23
SECTION 8.10 ASSIGNMENT.....................................................24
SECTION 8.11 REMEDIES CUMULATIVE............................................24
SECTION 8.12 EXHIBITS.......................................................24
SECTION 8.13 EXPENSES.......................................................24
SECTION 8.14 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS........................24
EXHIBITS
Exhibit A Form of Shareholders Agreement
Exhibit B Form of Distribution Agreement
Exhibit C Form of Manufacturing License Agreement
Exhibit D Form of Warrant
Exhibit E Form of Opinion
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SECURITIES PURCHASE AGREEMENT
Securities Purchase Agreement, dated as of January 7, 2001
(this "Agreement"), by and between ▇▇▇▇▇▇▇ Lifesciences Corporation, a Delaware
corporation ("Purchaser"), PLC Systems Inc., a Yukon Territory corporation
("PLC") and PLC Medical Systems, Inc., a Delaware corporation ("PLC Sub").
WHEREAS, PLC desires to sell to Purchaser 5,333,333 shares
(the "Shares") of common shares without par value of PLC (the "PLC Common
Shares") and Warrants (as defined below) upon the terms and subject to the
conditions set forth herein;
WHEREAS, Purchaser desires to purchase the Shares and the
Warrants;
WHEREAS, prior to Closing Purchaser and PLC shall enter into a
Shareholders Agreement, substantially in the form attached hereto as EXHIBIT A
(the "Shareholders Agreement"), and a Distribution Agreement, substantially in
the form attached hereto as EXHIBIT B (the "Distribution Agreement"); and
WHEREAS, prior to Closing PLC, PLC Sub and ▇▇▇▇▇▇▇
Lifesciences LLC shall enter into a Manufacturing License Agreement,
substantially in the form attached hereto as EXHIBIT C (the "Manufacturing
License Agreement");
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 agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"accredited investor" shall have the meaning set forth in
Section 3.1(b) below.
"Beneficially Owns" shall have the meaning set forth in the
Shareholders Agreement.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day when banks in the city of New York, New York are authorized by
law to be closed.
"Closing" shall have the meaning set forth in Section 2.2(a)
below.
"Closing Date" shall have the meaning set forth in Section
2.2(a) below.
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"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Confidentiality Agreement" shall have the meaning set forth
in Section 4.2(b) below.
"Damages" shall have the meaning set forth in Section 7.1
below.
"Dispute" shall have the meaning set forth in Section 8.2
below.
"Distribution Agreement" shall have the meaning set forth in
the Recitals.
"Environmental Claim" shall have the meaning set forth in
Section 3.2(k) below.
"Environmental Laws" shall have the meaning set forth in
Section 3.2(k) below.
"Escalation Notice" shall have the meaning set forth in
Section 8.2 below.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC thereunder.
"FDA" shall have the meaning set forth in Section 3.2(s)
below.
"GAAP" shall have the meaning set forth in Section 3.2(f)
below.
"Indemnified Party" shall have the meaning set forth in
Section 7.1 below.
"Liens" shall have the meaning set forth in Section 3.2(b)
below.
"Manufacturing License Agreement" shall have the meaning set
forth in the Recitals.
"Material Contract" shall have the meaning set forth in
Section 3.2(e) below.
"Person" shall mean any individual, partnership, corporation,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or agency or political
subdivision thereof, or other entity.
"PLC Balance Sheet Date" shall have the meaning set forth in
Section 3.2(g) below.
"PLC Common Shares" shall have the meaning set forth in the
Recitals.
"PLC Intellectual Property" shall have the meaning set forth
in Section 3.2(n) below.
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"PLC Material Adverse Effect" shall have the meaning set forth
in Section 3.2(a) below.
"PLC Reports" shall have the meaning set forth in Section
3.2(f) below.
"PLC Subsidiaries" shall have the meaning set forth in Section
3.2(b) below.
"Purchase Price" shall mean Four Million Dollars ($4,000,000).
Unless otherwise indicated, all references to "dollars" or "$" shall mean the
lawful currency of the United States.
"SEC" shall have the meaning set forth in Section 3.2(f)
below.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the SEC thereunder.
"Shareholders Agreement" shall have the meaning set forth in
the Recitals.
"Shares" shall have the meaning set forth in the Recitals.
"Taxes" shall mean all Canadian and United States federal,
state, provincial, territorial, local and foreign taxes, assessments, levies,
duties, imports or similar charges (whether imposed directly or through
withholding), including any interest, additions to tax or penalties applicable
thereto.
"Tax Returns" shall mean all Canadian and United States
federal, state, provincial, territorial, local and foreign tax returns,
declarations, statements, reports, schedules, forms and information returns
relating to Taxes, including any amendments thereof.
"Transactions" shall mean the transactions contemplated by the
Transaction Agreements.
"Transaction Agreements" shall mean this Agreement, the
Shareholders Agreement, the Distribution Agreement, the Warrants and the
Manufacturing Licensing Agreement.
"Voting Debt" means bonds, debentures, notes or other
indebtedness having general voting rights (or convertible into securities having
such rights).
"Warrant Shares" means the PLC Common Shares issuable upon
exercise of the Warrants.
"Warrant" shall have the meaning set forth in Sections 2.1
below.
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ARTICLE II
SALE AND PURCHASE
SECTION 2.1 AGREEMENT TO SELL AND TO PURCHASE. On the Closing
Date, upon the terms and subject to the conditions set forth in this Agreement
and in reliance on the representations and warranties contained herein and other
actions being taken by Purchaser and PLC hereunder at the Closing described in
Section 2.2 hereof, PLC shall issue and sell to Purchaser, and Purchaser shall
purchase and accept from PLC, the Shares and a warrant exercisable for one
million (1,000,000) PLC Common Shares for a period of three years with a per
share exercise price of $1.50, a warrant exercisable for one million (1,000,000)
PLC Common Shares for a period of four years with a per share exercise price of
$2.50, and a warrant exercisable for one million (1,000,000) PLC Common Shares
for a period of five years with a per share exercise price of $3.50 (each
warrant shall be in the form attached hereto as EXHIBIT D and shall collectively
be referred to herein as the "Warrants"), for the Purchase Price, payable in
immediately available funds. The terms and provisions contained in the Warrants
shall constitute, and are hereby expressly made, a part of this Agreement and,
to the extent applicable, PLC and Purchaser, by their execution and delivery of
this Agreement, expressly agree to such terms and provisions and to be bound
thereby.
SECTION 2.2 CLOSING.
(a) The consummation of the transactions contemplated under
this Agreement (the "Closing") shall take place at the offices of ▇▇▇▇ and ▇▇▇▇
LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as the
parties hereto shall mutually agree, at 10:00 a.m. (local time) on the Business
Day that the conditions set forth in Article V shall have been satisfied or
waived, or such other time and date upon which the parties hereto may agree (the
"Closing Date").
(b) At the Closing:
(i) Purchaser shall deliver:
(A) against delivery of a certificate or
certificates representing the Shares and the Warrants, an
amount equal to the Purchase Price via wire transfer of
immediately available funds to the bank account that PLC
shall have designated at least three Business Days prior to
the Closing Date; and
(B) the other documents required by Article
V hereof.
(ii) PLC shall deliver or cause to be delivered to
Purchaser:
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(A) against payment of the Purchase Price
therefore, a certificate or certificates representing the
Shares, which shall be in definitive form and registered in
the name of Purchaser or its nominee or designee and in a
single certificate or in such other denominations as
Purchaser has requested and the Warrants, duly executed by
an authorized officer of PLC;
(B) opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Yukon Territory external counsel to PLC, and ▇▇▇▇ and ▇▇▇▇
LLP, U.S. external counsel to PLC, dated as of the Closing
Date, covering, in the aggregate, the matters set forth on
EXHIBIT E;
(C) certificates of the Secretary of PLC and PLC
Sub in form and substance reasonably satisfactory to
Purchaser;
(D) resolutions of the Board of Directors of PLC
and PLC Sub, certified by the Secretary of PLC and PLC Sub,
respectively, in full force and effect on such date,
authorizing the execution, delivery and performance of the
Transaction Agreements, and the other documents to which
they are parties and the consummation of the transactions
contemplated hereby and thereby, including the issuance of
the Shares and Warrants pursuant to this Agreement;
(E) a certificate of status for PLC dated the
Closing Date, issued by Corporate Affairs, Department of
Justice (Yukon Territory), a certificate of good standing
for PLC Sub dated the Closing Date, issued by the Secretary
of State of the State of Delaware and a certificate of
qualification to do business in the Commonwealth of
Massachusetts for PLC Sub dated the Closing Date;
(F) a certified copy of the articles of PLC and
the certificate of incorporation of PLC Sub; and
(G) the other documents required by Article V
hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to PLC and PLC Sub as
follows:
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(a) AUTHORITY. The execution and delivery of the Transaction
Agreements, and the performance by Purchaser of its obligations hereunder and
thereunder, have been duly authorized by all necessary action on the part of
Purchaser. This Agreement has been duly executed and delivered by Purchaser and,
at the Closing, the other Transaction Agreements shall be duly executed and
delivered by Purchaser and, assuming the due execution and delivery hereof and
thereof by PLC, this Agreement constitutes and, at the Closing, the other
Transaction Agreements shall constitute valid and binding obligations of
Purchaser, enforceable against Purchaser in accordance with their respective
terms, except as such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity (regardless
of whether such enforcement is sought in a proceeding in equity or at law).
(b) PURCHASE FOR INVESTMENT. Purchaser is acquiring the Shares
and Warrants hereunder for investment (for its own account or for accounts over
which it exercises investment control), and not with a view to, or for offer or
sale in connection with, any distribution thereof, which would be in violation
of the Securities Act of 1933, as amended (the "Securities Act"), or any
applicable state securities law. Purchaser fully understands the limitations on
transfer described above; and (ii) is an "accredited investor" as such term is
defined in Rule 501(a) of Regulation D under the Securities Act.
(c) BROKERS, FINDERS, ETC. Purchaser is not subject to any
valid claim of any broker, investment banker, finder or other intermediary in
connection with the transactions contemplated by this Agreement.
(d) EXPERIENCE. Purchaser has carefully reviewed the
representations concerning PLC contained in this Agreement, has made detailed
inquiry concerning PLC, its business and its personnel; the officers of PLC have
been made available to the Purchaser and have answered to Purchaser's
satisfaction all inquiries made by Purchaser; and Purchaser has sufficient
knowledge and experience in finance and business that it is capable of
evaluating the risks and merits of its investment in PLC and Purchaser is able
financially to bear the risks thereof.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF PLC AND PLC SUB.
PLC and PLC Sub jointly and severally hereby represent and
warrant to Purchaser as follows:
(a) ORGANIZATION AND STANDING. Except as set forth on Schedule
3.2(a), PLC and each of the PLC Subsidiaries are corporations duly organized,
validly existing and in good standing under the laws of the jurisdiction set
forth opposite its name on Schedule 3.2(a), (ii) has all requisite power and
authority to own, lease or operate the assets it now owns, leases or operates
and (iii) is duly qualified or licensed to do business in each jurisdiction in
which the ownership or use of its assets or conduct of its business requires it
to be so qualified, in each case except for such failures that would not
reasonably be expected, individually or in the aggregate, to result in (i) a
material adverse
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effect on the business, operations, prospects, properties, assets or condition
(financial or otherwise) of PLC and the PLC Subsidiaries (as defined herein),
taken as a whole or (ii) a material impairment of the ability of PLC or PLC Sub
to perform their respective obligations under this Agreement or any of the other
Transaction Agreements (each, a "PLC Material Adverse Effect").
(b) SUBSIDIARIES. The only direct or indirect subsidiaries of
PLC are set forth on Schedule 3.2(b) (the "PLC Subsidiaries"). Except as set
forth on Schedule 3.2(b), PLC does not own, directly or indirectly, any of the
capital stock or other equity securities of any other Person. All of the issued
and outstanding shares of capital stock of the PLC Subsidiaries have been duly
authorized, are validly issued, are fully paid and non-assessable, and are owned
by PLC free and clear of all liens, pledges and encumbrances (collectively,
"Liens"). PLC owns directly or indirectly all of the outstanding equity
interests in each PLC Subsidiary.
(c) AUTHORITY. The execution and delivery of the Transaction
Agreements, the performance by PLC of its obligations hereunder and thereunder
and the authorization, issuance, sale and delivery of the Warrant Shares
issuable upon exercise of the Warrants, have been duly authorized by all
necessary action on the part of PLC. This Agreement has been duly executed and
delivered by PLC and, at the Closing, the other Transaction Agreements shall be
duly executed and delivered and, assuming the due execution and delivery hereof
and thereof by Purchaser, this Agreement constitutes and, at the Closing, the
other Transaction Agreements shall constitute valid and binding obligations of
PLC, enforceable against PLC in accordance with their respective terms, except
as such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity (regardless
of whether such enforcement is sought in a proceeding in equity or at law).
(d) CAPITAL STOCK.
(i) The capitalization of PLC is as set forth on Schedule
3.2(d) and there are no shares of PLC authorized, issued or outstanding other
than as set forth on Schedule 3.2(d)(i). All the outstanding shares of capital
stock of PLC have been duly authorized, are validly issued and are fully paid
and non-assessable and have not been issued in violation of, and are not subject
to, any preemptive rights. The Shares, when issued and delivered in accordance
with the terms hereof and after payment of the Purchase Price therefor, will be
duly authorized, validly issued and fully paid and non-assessable. The Warrant
Shares purchasable by Purchaser under the Warrants, when issued, sold and
delivered in accordance with the terms of this Agreement and the Warrants for
the consideration expressed herein and therein, will be duly authorized, validly
issued, fully paid and non-assessable and will be free of restrictions on
transfer, other than applicable securities laws.
(ii) Except as set forth in Schedule 3.2(d)(ii), there
are no existing options, warrants, calls, preemptive rights, Voting Debt or
subscriptions or other rights,
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agreements, arrangements or commitments of any character, relating to the issued
or unissued capital stock of PLC obligating PLC to issue, transfer or sell or
cause to be issued, transferred or sold any shares or Voting Debt of, or other
equity interest in, PLC or securities convertible into or exchangeable for such
shares or equity interests, or obligating PLC to grant, extend or enter into any
such option, warrant, call, subscription or other right, agreement, arrangement
or commitment.
(iii) There are no outstanding contractual obligations of
PLC to repurchase, redeem or otherwise acquire any shares of capital stock of
PLC, or to provide funds to make any investment (in the form of a loan, capital
contribution or otherwise) in any other entity.
(iv) Except as set forth in Section 3.2(d)(iv), there are
no voting trusts or other agreements, or understandings to which PLC is a party
or of which PLC has knowledge with respect to the voting of the capital stock of
PLC.
(e) CONSENTS; NO CONFLICT. Except as set forth on Schedule
3.2(e), the execution and delivery of the Transaction Agreements and the
consummation of the Transactions will not require the consent of any party to
any material contract, lease, agreement, mortgage or indenture ("Material
Contract") to which PLC or any PLC Subsidiary, or any of their respective
affiliates, is a party or by which any of them is bound. Except as set forth on
Schedule 3.2(e), no consent, approval, order or authorization of, or the
registration, declaration or filing with, any governmental authority is required
with respect to the execution and delivery of the Transaction Agreements or the
consummation of the Transactions, other than such consents, approvals, orders,
authorizations, registrations, declarations or filings the failure of which to
be obtained or made individually or in the aggregate would not reasonably be
expected to result in a PLC Material Adverse Effect. Except as set forth on
Schedule 3.2(e), assuming the consents, approvals, orders, authorizations,
registrations, declarations and filings contemplated by the immediately
preceding sentence are obtained or made, the execution, delivery and performance
by PLC of this Agreement will not (i) violate any law applicable to PLC or any
PLC Subsidiary or any of their respective affiliates (other than violations that
individually or in the aggregate would not reasonably be expected to result in a
PLC Material Adverse Effect), (ii) result in a breach or violation of any
provision of, or constitute a default under, any such Material Contract or (iii)
conflict with any provision of the articles or by-laws of PLC or any PLC
Subsidiary.
(f) SEC REPORTS AND FINANCIAL STATEMENTS. Except as set forth
on Schedule 3.2(f), each form, report, schedule, registration statement,
definitive proxy statement or other document filed by PLC with the Securities
and Exchange Commission (the "SEC") since January 1, 1996 (as such documents
have since the time of their filing been amended, the "PLC Reports"), which
include all the documents (other than preliminary proxy materials) that PLC was
required to file with the SEC since such date, as of their respective dates,
complied in all material respects with the requirements of the Securities Act or
the Exchange Act, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such PLC Reports. None of the PLC Reports contained
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any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
for such statements, if any, as have been modified by subsequent filings prior
to the date hereof. The financial statements of PLC included in such reports
comply as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with accounting principles
generally accepted in the United States applied on a consistent basis ("GAAP")
during the periods involved (except as may be indicated in the notes thereto or,
in the case of the unaudited statements, as permitted by the Securities Act or
the Exchange Act) and fairly present (subject in the case of the unaudited
statements to normal, recurring audit adjustments) the consolidated financial
position of PLC and the PLC Subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended.
(g) NO UNDISCLOSED LIABILITIES. As of the date hereof, neither
PLC nor any PLC Subsidiary has any liabilities of a nature required by GAAP to
be reflected on a balance sheet or in notes thereto, except (i) as set forth or
reflected in the PLC Reports (or described in the notes thereto), (ii) as
disclosed in Schedule 3.2(g), or (iii) for liabilities incurred in the ordinary
course of business since the date of the last audited balance sheet filed with
the SEC (the "PLC Balance Sheet Date").
(h) ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the PLC
Balance Sheet Date, there has been no loss, occurrence or event that, after
taking into account any insurance recoveries payable in respect thereof, would
reasonably be expected to result in a PLC Material Adverse Effect.
(i) COMPLIANCE WITH APPLICABLE LAWS. Since the PLC Balance
Sheet Date, PLC and the PLC Subsidiaries have complied in all material respects
with all statutes, laws, regulations and ordinances applicable to them, except
where the failure to so comply would not reasonably be expected to result in a
PLC Material Adverse Effect.
(j) LITIGATION; DECREES. Except as set forth on Schedule
3.2(j) or in the PLC Reports, as of the date hereof (i) there is no suit, action
or proceeding pending or, to the knowledge of PLC and each PLC Subsidiary,
threatened against PLC or any PLC Subsidiary in any federal, state, provincial
or local court or agency that seeks (A) more than $100,000 in damages, or (B)
any material injunctive relief, and neither PLC nor any PLC Subsidiary has
received any written notice that any such suit, action or proceeding is
threatened and (ii) neither PLC nor any PLC Subsidiary is in default under any
judgment, order or decree of any governmental authority applicable to it, except
for any such default which would not reasonably be expected to result in a PLC
Material Adverse Effect.
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(k) ENVIRONMENTAL MATTERS.
(i) Except as set forth in the PLC Reports, neither PLC
nor any PLC Subsidiary is the owner of any interest in real property.
(ii) PLC and the PLC Subsidiaries are in material
compliance with all federal, state, provincial, territorial, local and foreign
laws and regulations relating to pollution, regulation of hazardous or toxic
substances, materials or wastes, or protection of human health or the
environment (together, "Environmental Laws"), and there are no circumstances
that may prevent or interfere with such compliance in the future.
(iii) There has been no claim, action, cause of action,
investigation or other notice or communication (written or oral) (together,
"Environmental Claim") by any person or entity against PLC or the PLC
Subsidiaries alleging potential liability under, or violations of, any
Environmental Law.
(iv) To the knowledge of PLC and each PLC Subsidiary,
there are no past or present actions, activities, circumstances, conditions,
events or incidents that could form the basis of any Environmental Claim against
PLC or the PLC Subsidiaries (or any entity or person for whom they may be
liable).
(l) GOVERNMENT REGULATIONS. PLC is not subject to regulation
under the Investment Company Act of 1940, as amended, the Public Utility Holding
Company Act of 1935, as amended, the Federal Power Act, the Interstate Commerce
Act or any federal or state statute or regulation limiting its ability to incur
or assume indebtedness for borrowed money.
(m) TAXES.
(i) Except as set forth on Schedule 3.2(m), each of PLC
and the PLC Subsidiaries has duly filed on a timely basis all Tax Returns
required to be filed by it and has paid all Taxes due and payable by it. All
such Tax Returns properly reflect and do not in any material respect understate
the income, taxable income or the liability for Taxes. Without limiting the
generality of the foregoing, each of PLC and the PLC Subsidiaries is in
compliance with all registration, timely reporting and remittance (including
remittance of installments) obligations in respect of all such Taxes. Neither
PLC nor any of the PLC Subsidiaries has incurred any undisclosed liability for
Taxes in excess of the amounts reserved therefore in their respective books and
records. Neither PLC nor any of the PLC Subsidiaries has incurred any liability
for Taxes other than Taxes directly arising from the operation of its business
in the ordinary course.
(ii) There are no actions, suits, proceedings,
investigations or claims pending or threatened against PLC or any of the PLC
Subsidiaries in respect of Taxes, nor are any material matters under discussion
with any governmental authority relating to Taxes asserted by any such
authority, and there are no agreements, waivers or other arrangements providing
for an extension of time with respect to the filing of any
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Tax Return by, or payment of any Taxes, governmental charge or deficiency
against, PLC or any of the PLC Subsidiaries.
(iii) Each of PLC and the PLC Subsidiaries has withheld
from each payment made to any of its past or present employees, officers or
directors, and to any non-resident of Canada, the amount of all applicable Taxes
and other deductions required to be withheld therefrom and has paid the same to
the proper tax or other receiving officers within the time required under any
applicable legislation.
(iv) Each of PLC and the PLC Subsidiaries has remitted to
the appropriate tax authority when required by law to do so all amounts
collected by it on account of goods and services or other sales or use taxes.
(n) INTELLECTUAL PROPERTY. Schedule 3.2(n) sets forth a
complete and accurate list of all of the United States and foreign patents,
trademarks and/or applications therefore, and all service marks and trade names
that are owned, possessed or held by PLC and used exclusively in the conduct of
its business as presently conducted (the "PLC Intellectual Property"). Each of
PLC and the PLC Subsidiaries owns or has valid rights to use the "PLC
Intellectual Property", necessary for its business as presently conducted or as
presently proposed to be conducted. Except as set forth in Section 3.2(n), there
are no existing, or, to the knowledge of PLC and each PLC Subsidiary,
threatened, claims (i) based on the use by each of PLC or each PLC Subsidiary of
the PLC Intellectual Property material to its business, or (ii) challenging the
ownership of, each of PLC and each PLC Subsidiary of the PLC Intellectual
Property material to its business. Except as set forth on Schedule 3.2(n),
neither PLC nor any PLC Subsidiary has any knowledge of any infringing use of
any PLC Intellectual Property by any other Person.
(o) STOCKHOLDER APPROVAL. No action is required to be taken by
the shareholders of PLC to approve the Transactions.
(p) BROKERS, FINDERS, ETC. Except as set forth on Schedule
3.2(p), PLC is not subject to any valid claim of any broker, investment banker,
finder or other intermediary in connection with the transactions contemplated by
this Agreement.
(q) LABOR MATTERS. PLC has no knowledge of any actionable
violation of any federal, state, provincial, territorial, local or foreign
statutory or common law relating to employment and employment practices,
discrimination in the hiring, promotion or pay of employees, nor any applicable
wage or hour laws, which, individually or in the aggregate, would result in a
PLC Material Adverse Effect. No employee of PLC Parent or any direct or indirect
subsidiary is represented by a labor organization, nor is PLC Parent or PLC
aware of any attempt or threat to organize any such employee for such purpose.
(r) PRIVATE OFFERING. Assuming the correctness of the
representations and warranties set forth in Section 3.1, the offer and sale of
the Shares and Warrants
11
hereunder is exempt from the registration and prospectus delivery requirements
of the Securities Act. In the case of each offer or sale of the Shares or
Warrants, no form of general solicitation or general advertising was used by PLC
and its representatives, including, but not limited to, advertisements,
articles, notices or other communications published in any newspaper, magazine
or similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising. Purchaser is the sole purchaser of the Shares and Warrants from the
Company. No securities have been issued and sold by the Company within the
six-month period immediately prior to the date hereof that would be integrated
with the sale of the Shares and Warrants hereunder pursuant to the Securities
Act.
(s) FDA MATTERS. PLC is in compliance with all statutes, rules
and regulations of the U.S. Food and Drug Administration or similar domestic
state authority (the "FDA") with respect to the manufacturing of all of its
products and the provision of all of its services, to the extent that the same
are applicable to PLC's business as it is currently conducted, other than as set
forth on Schedule 3.2(s), except for such violations as would not be reasonably
expected to have a PLC Material Adverse Effect. PLC adheres to "Good
Manufacturing Practices" as required by the FDA, except for such deviations as
would not be reasonably expected to have a Material Adverse Effect. PLC has all
requisite FDA permits, approvals or the like to conduct its business as it is
currently conducted and intended to be conducted. PLC has previously delivered
to Purchaser an index of all information concerning all Investigational Device
Applications required in connection with the conduct of PLC business as it is
currently conducted and has made all such information available to Purchaser.
There are no pending or threatened actions, proceedings or complaints by the
FDA, which would prohibit or impede the conduct of PLC's business as it is
currently conducted.
(t) EMPLOYEE BENEFITS. Each employee pension and benefit plan
established or maintained by PLC or any PLC Subsidiary is in compliance with all
applicable laws and PLC has no knowledge or any event or action which,
individually or in the aggregate, would result in a PLC Material Adverse Effect.
ARTICLE IV
COVENANTS
SECTION 4.1 CONDUCT OF BUSINESS OF PLC. From the date of this
Agreement through the Closing, PLC agrees that, except (i) as disclosed in
Schedule 4.1 hereof or (ii) as approved by Purchaser in writing:
(a) the business of PLC and PLC Sub shall be conducted
only in the ordinary and usual course consistent with past practice, and PLC
shall use its reasonable commercial efforts to preserve intact with respect to
itself and PLC Sub, the present business organization, to keep available the
services of their respective present officers
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and key employees, and preserve the goodwill of those having business
relationships with them;
(b) PLC shall not (i) amend its articles or by-laws; (ii)
split, combine or reclassify any shares of its outstanding capital stock; or
(iii) declare, set aside or pay any dividend or other distribution payable in
cash, stock or property; and
(c) PLC shall not authorize for issuance, issue or sell or
agree to issue or sell any shares of, or rights to acquire or instruments
convertible into any shares of, its capital stock, except for (i) the issuance
of PLC Common Shares (x) upon the exercise of PLC stock options or other rights
outstanding on the date of this Agreement and (y) upon the exercise of options
or other rights described in the immediately following clause, and (ii) the
issuance of options or other rights pursuant to employee benefit plans or
arrangements existing on the date of this Agreement in a manner consistent with
past practice.
SECTION 4.2 ACCESS TO INFORMATION.
(a) During the period prior to the Closing Date, PLC shall
afford to the representatives of Purchaser and counsel, accountants, financial
advisors and lenders, reasonable access during normal business hours during the
period prior to the Closing Date to all the properties, books, Material
Contracts and records of PLC and PLC Sub.
(b) Each of PLC and Purchaser acknowledges that the
information being provided hereunder is subject to the terms of a
confidentiality agreement between Purchaser and PLC, dated June 6, 2000 (the
"Confidentiality Agreement"), which terms are incorporated herein by reference.
SECTION 4.3 TRANSACTION AGREEMENTS; CONSENTS. Subject to the
terms and conditions hereof, each of Purchaser and PLC agree to use commercially
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable to consummate and
make effective as promptly as practicable the transactions contemplated by this
Agreement and to cooperate with each party hereto in connection with the
foregoing, including, without limitation, (a) the execution of the Transaction
Agreements and (b) using commercially reasonable efforts (i) to obtain all
necessary waivers, consents and approvals from other parties to Material
Contracts, (ii) to obtain all consents, approvals and authorizations that are
required to be obtained under any federal, state, local or foreign law or
regulations, (iii) to prevent the entry, enactment or promulgation of any
threatened or pending injunction or order that would adversely affect the
ability of the parties hereto to consummate the transactions contemplated
hereby, (iv) to lift or rescind any injunction or order adversely affecting the
ability of the parties hereto to consummate the transactions contemplated hereby
and (v) to effect all necessary registrations and filings, and submissions of
information requested by governmental authorities.
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SECTION 4.4 AMEX LISTING. PLC shall use its best efforts to
cause the Shares and Warrant Shares to be approved for listing on the American
Stock Exchange, subject to official notice of issuance, as promptly as
practicable after the date hereof, and in any event prior to the tenth day
following the Closing Date, and to cause the Shares and Warrant Shares to
continue to be listed to the American Stock Exchange and to prevent any
delisting of the PLC Common Shares from such exchange after the Closing Date.
SECTION 4.5 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, including, in the case of PLC, such acts,
instruments and documents as may be necessary or desirable to convey and
transfer to Purchaser the Shares and Warrants to be purchased hereunder.
SECTION 4.6 REQUIRED NOTICES. Between the date of this
Agreement and the Closing Date, PLC will notify Purchaser of any event of which
PLC obtains knowledge (i) which would reasonably be expected to result in a PLC
Material Adverse Effect (ii) which, if known as of the date hereof, would have
been required under this Agreement to be disclosed to Purchaser or (iii) which
constitutes notice from any third person alleging that the consent of such third
person is or may be required in connection with the Transactions, other than any
such third person listed on Schedule 3.2(e).
SECTION 4.7 NO GENERAL SOLICITATION. Neither PLC nor any of
its affiliates nor any Person acting on its or any of their behalf has engaged
or will engage, in connection with the offering of the Shares and Warrants, in
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act.
FDA CORRESPONDENCE. To the extent permitted by law, PLC shall
provide reasonable access to copies of all communications between PLC and the
FDA from January 1, 1998 through the date hereof relating to the Products (as
defined in the Distribution Agreement).
SECTION 4.8 EMPLOYEE COMPENSATION. PLC shall provide as
promptly as possible after the date hereof and, in any event, prior to the tenth
day following the Closing Date, the (i) salaries, wages, commissions, bonuses,
benefits and any other compensation in the prior two years; (ii) retention
programs; and (iii) hire date for the employees set forth on Schedule 3.3 of the
Distribution Agreement.
SECTION 4.9 GOOD STANDING AND QUALIFICATION. PLC Sub shall and
PLC shall cause PLC Sub to be duly organized, validly existing and in good
standing in the State of Delaware and duly qualified or licensed to business
under the laws of the Commonwealth of Massachusetts prior to the Closing.
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ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PLC. The
obligation of PLC to issue the Shares and Warrants shall be subject to the
satisfaction or waiver on the Closing Date of the following conditions
precedent:
(a) NO INJUNCTIONS OR RESTRAINTS. No temporary restraining
order or preliminary or permanent injunction of any court or administrative
agency of competent jurisdiction prohibiting the transactions contemplated by
this Agreement shall be in effect. No pending or threatened litigation (i)
involving any challenge to, or seeking damages or other relief with respect to
the Transactions or (ii) that may have the effect of preventing, delaying,
making illegal, or otherwise interfering with any of the Transactions shall be
in effect.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Purchaser set forth in this Agreement (i) which are qualified by
materiality shall be true and correct in all respects or (ii) which are not so
qualified shall be true and correct in all material respects, in each case, as
of the Closing Date with the same effect as though made on and as of the Closing
Date.
(c) PERFORMANCE OF OBLIGATIONS OF PURCHASER. Purchaser shall
have performed in all material respects its obligations under this Agreement on
or prior to the Closing Date.
(d) CERTIFICATE. Purchaser shall have delivered to PLC a
certificate, dated the Closing Date and signed by a duly authorized executive
officer, to the effect that the conditions set forth in Section 5.1(b) and (c)
have been satisfied.
(e) TRANSACTION AGREEMENTS. Purchaser shall have entered into
each of the Transaction Agreements.
SECTION 5.2 CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION.
The obligation of Purchaser to consummate the transactions contemplated
hereunder is subject to the satisfaction or waiver on the Closing Date of each
of the following conditions precedent:
(a) NO INJUNCTIONS OR RESTRAINTS; NO PENDING OR THREATENED
LITIGATION. No temporary restraining order or preliminary or permanent
injunction of any court or administrative agency of competent jurisdiction
prohibiting the consummation of the Transactions shall be in effect. No pending
or threatened litigation (i) involving any challenge to, or seeking damages or
other relief with respect to the Transactions or (ii) that may have the effect
of preventing, delaying, making illegal, or otherwise interfering with any of
the Transactions shall be in effect.
15
(b) CONSENTS. All consents, approvals and waivers from third
parties and governmental authorities and other parties set forth on Schedule
3.2(e) shall have been obtained, except where the failure to obtain any such
consent, approval or waiver would not reasonably be expected to result in a PLC
Material Adverse Effect.
(c) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of PLC and PLC Sub set forth in this Agreement (i) which are
qualified by materiality shall be true and correct in all respects or (ii) which
are not so qualified shall be true and correct in all material respects, in each
case, as of the Closing Date with the same effect as though made on and as of
the Closing Date and without giving effect to notifications made pursuant to
Section 4.6.
(d) PERFORMANCE OF OBLIGATIONS OF PLC. PLC and PLC Sub shall
have performed in all material respects its obligations under this Agreement on
or prior to the Closing Date and shall have performed their respective
obligations under Section 4.10.
(e) CERTIFICATE. PLC shall have delivered to Purchaser a
certificate, dated the Closing Date and signed by a duly authorized executive
officer of PLC and PLC Sub, to the effect that the conditions set forth in
Section 5.2(b), (c) and (d) have been satisfied.
(f) TRANSACTION AGREEMENTS. PLC shall have entered into each
of the Transaction Agreements to which it is a party and PLC Sub shall have
entered into each of the Transaction Agreements to which it is a party.
(g) LISTING. PLC shall have filed an application for listing
the Shares and Warrant Shares on the American Stock Exchange.
ARTICLE VI
TERMINATION
SECTION 6.1 TERMINATION. This Agreement may be terminated at
any time prior to the Closing.
(a) by mutual written consent of PLC and Purchaser;
(b) by either PLC or Purchaser, if
(i) any governmental entity shall have issued an order,
decree or ruling or taken any other action (which order, decree, ruling or other
action the parties hereto shall use their reasonable best efforts to lift),
which permanently restrains, enjoins or otherwise prohibits the consummation of
the Transactions and such order, decree, ruling or other action shall have
become final and non-appealable; or
16
(ii) the Transactions shall not have been consummated
before January 15, 2001 (unless the failure to consummate the Transactions by
such date shall be due to the action or failure to act of the party seeking to
terminate); or
(c) by PLC or Purchaser, if the other party shall have
breached any of its representations or warranties if such representation or
warranty is qualified by materiality or breached in any material respect if not
so qualified, or breached a covenant in any material respect contained in this
Agreement, and which breach cannot be or has not been cured within thirty (30)
days after the giving of written notice by PLC or Purchaser, as the case may be;
SECTION 6.2 EFFECT OF TERMINATION. In the event of the
termination of this Agreement by any party hereto pursuant to the terms of this
Agreement, written notice thereof shall forthwith be given to the other party or
parties specifying the provision hereof pursuant to which such termination is
made, and the Transactions shall be deemed abandoned and this Agreement shall
forthwith become void, without liability on the part of any party hereto, except
as provided in this Section 6.2, Sections 8.1, 8.3, 8.13 and 8.14, and except
that nothing herein shall relieve any party from liability for any breach of
this Agreement.
ARTICLE VII
SURVIVAL; INDEMNIFICATION
SECTION 7.1 INDEMNIFICATION. PLC and PLC Sub (jointly and
severally) shall indemnify and hold harmless Purchaser and its employees,
directors, agents, advisors and affiliates (collectively, the "Indemnified
Parties"), in each case, from and against any and all costs or expenses
(including, without limitation, reasonable attorneys' fees, and the reasonable
out-of-pocket expenses of testifying and preparing for testimony and responding
to document and other information requests, whether or not a party to such
litigation), judgments, fines, losses, claims (whether or not meritorious) and
damages (collectively, "Damages"), as incurred, to the extent they relate to,
arise out of or are the result of any breach or alleged breach of any
representation, warranty, covenant or agreement. The remedies provided in this
Section 7.1 will not be exclusive of or limit any other remedies that may be
available to the Indemnified Parties.
SECTION 7.2 SURVIVAL. The covenants and agreements contained
herein shall survive until performed or for such shorter period as provided
herein with respect thereto and the representations and warranties contained in
or made pursuant to this Agreement shall survive for a period of fifteen months
after the Closing Date; PROVIDED, HOWEVER that the representation and warranty
set forth in Section 3.2(d) shall not expire and that the representations and
warranties set forth in Section 3.2(k) and (m) shall survive until 60 days after
the expiration of the statute of limitations applicable thereto. The right to
indemnification, payment of Damages or other remedy based on
17
such representations and warranties, will not be affected by any investigation
conducted with respect to, or any knowledge acquired (or capable of being
acquired) at any time, whether before or after the execution and delivery of
this Agreement or the Closing Date, with respect to the accuracy or inaccuracy
of or compliance with, any such representation, warranty, covenant, or
obligation. The waiver of any condition based on the accuracy of any
representation or warranty will not affect the right to indemnification, payment
of Damages, or other remedy based on such representations, warranties,
covenants, and obligations.
SECTION 7.3 CLAIMS.
(a) If an Indemnified Party intends to seek indemnification
pursuant to this Article VII, such Indemnified Party shall promptly notify PLC,
in writing, of such claim describing such claim in reasonable detail, PROVIDED
that the failure to provide such notice shall not affect the obligations of PLC
unless and only to the extent it is actually prejudiced thereby. In the event
that such claim involves a claim by a third party against an Indemnified Party,
PLC shall have 30 days after receipt of such notice to decide whether it will
undertake, conduct and control, through counsel of its own choosing (but
reasonably acceptable to the Indemnified Party) and at its own expense, the
settlement or defense thereof unless (i) PLC is also a party to the proceeding
and the Indemnified Party determines in good faith that joint representation
would be inappropriate or (ii) PLC fails to provide reasonable assurance to the
Indemnified Party of its financial capacity to defend such proceeding, and
provide indemnification with respect thereto, and if it so decides, the
Indemnified Party shall cooperate with it in connection therewith, PROVIDED that
the Indemnified Party may participate in such settlement or defense through
counsel chosen by it, and PROVIDED FURTHER that the fees and expenses of such
counsel shall be borne by the Indemnified Party. PLC shall not, without the
written consent of the Indemnified Party (which consent shall not be
unreasonably withheld, conditioned or delayed), settle or compromise any action.
If PLC does not notify the Indemnified Party within 30 days after the receipt of
notice of a claim of indemnity hereunder that it elects to undertake the defense
thereof, the Indemnified Party shall have the right to contest, settle or
compromise the claim but shall not pay or settle any such claim without the
consent of PLC (which consent shall not be unreasonably withheld, conditioned or
delayed).
(b) Purchaser and PLC shall cooperate fully in all aspects of
any investigation, defense, pre-trial activities, trial, compromise, settlement
or discharge of any claim in respect of which indemnity is sought pursuant to
Article VII, including, but not limited to, by providing the other party with
reasonable access to employees and officers (including as witnesses) and other
information.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 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 8.2 ESCALATION. The parties will attempt in good faith
to resolve expeditiously any dispute, claim or controversy arising out of or
relating to the Transaction Agreements (the "Dispute") promptly by negotiations
between executives who have authority to settle the controversy and who are at a
higher level of management than the persons with direct responsibility for the
administration of the respective Transaction Agreement. Either party may give
the other party written notice (the "Escalation Notice") of any Dispute not
resolved in the normal course of business. Within 15 days after delivery of the
Escalation Notice, the receiving party shall submit to the other a written
response. The Escalation Notice and the response thereto shall include (a) a
statement of each party's position and a summary of arguments supporting that
position, and (b) the name and title of the executive who will represent that
party and of any other person who will accompany the executive. Within 30 days
after delivery of the Escalation Notice, the executives of both parties shall
meet at a mutually acceptable time and place, and thereafter as often as they
reasonably deem necessary, to attempt to resolve the Dispute. All reasonable
requests for information made by one party to the other will be honored. All
negotiations pursuant to this clause are confidential and shall be treated as
compromise and settlement negotiations for purposes of applicable rules of
evidence. The parties shall attempt to resolve any Dispute pursuant to the
procedure set forth in this Section 8.2 for a period up to 90 days from the date
of delivery of the Escalation Notice before resorting to judicial process;
PROVIDED, HOWEVER, nothing contained in this Section 8.2 shall prevent either
party from resorting to judicial process if injunctive or other equitable relief
from a court is necessary to prevent serious and irreparable injury to one party
or to others. The use of the procedure set forth in this Section 8.2 will not be
construed under the doctrine of laches, waiver or estoppel to affect adversely
either party's right to assert any claim or defense.
SECTION 8.3 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 the Transaction Agreements 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 the Transaction Agreements; (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.
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SECTION 8.4 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 8.4 (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 8.4 (or in accordance with the
latest unrevoked written direction from such party), provided the appropriate
confirmation is received.
To PLC or PLC Sub:
PLC Systems Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Purchaser:
▇▇▇▇▇▇▇ Lifesciences Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Associate General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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SECTION 8.5 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 8.6 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 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 8.7 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 8.8 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES.
This Agreement and the other Transaction Agreements, including all exhibits
hereto and thereto, by and between Purchaser 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 8.8.
21
SECTION 8.9 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 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 8.10 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 Purchaser, as the
case may be, which may be withheld in its sole discretion except that Purchaser
may assign all its rights and obligations to (a) the acquirer of all or
substantially all of the assets of Purchaser including an acquisition through
merger; (b) any subsidiary or affiliate of Purchaser and (c) the transferee of
any of the Shares or Warrants who, after giving effect to the transfer
Beneficially Owns at least 5% of the PLC Common Shares then outstanding on a
fully diluted basis. Any attempted assignment or delegation of rights, duties or
obligations hereunder in contravention hereof shall be void and of no effect.
SECTION 8.11 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.
SECTION 8.12 EXHIBITS. Each of the exhibits referred to herein
and attached hereto is an integral part of this Agreement and is incorporated
herein by reference.
SECTION 8.13 EXPENSES. Except as otherwise provided in this
Agreement, each party to this Agreement shall bear its respective expenses
incurred in connection with the preparation, execution, and performance of this
Agreement and the transactions contemplated hereby, including all fees and
expenses of agents, representations, counsel and accountants.
SECTION 8.14 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS.
Purchaser and PLC agree that, prior to the Closing, no public release or
announcement relating to
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the Transactions shall be issued by any party without the prior written consent
(which consent shall not be unreasonably withheld) of the other party, except as
such release or announcement may be required by law. Purchaser and PLC agree
that, prior to the Closing, no disclosure (other than a public release or
announcement pursuant to the previous sentence) of the terms or provisions of
the Transaction Agreements shall be made without the prior written consent
(which consent shall not be unreasonably withheld) of the other party, except to
representatives, advisors, counsel, and lenders to the parties hereto who
acknowledge the confidentiality hereof, and except as required by law. All
public releases or announcements relating to the Transactions after the Closing
shall be made only if mutually agreed upon by PLC and Purchaser, except as such
release or announcement may be required by law.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PLC SYSTEMS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO and President
PLC MEDICAL SYSTEMS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO and President
▇▇▇▇▇▇▇ LIFESCIENCES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Corporate Vice President
Business Development and
Strategy