Exhibit 10.20.1


 


ADDENDUM TO 

AMENDED AND RESTATED DISTRIBUTION AGREEMENT


 


This ADDENDUM TO AMENDED AND
RESTATED DISTRIBUTION AGREEMENT (this “Addendum”), is
made effective and entered into as of November 5, 2010 (the “Effective Date”), by and among Novadaq Technologies Inc., a
Canadian corporation (“Novadaq Parent”),
Novadaq Corp., a Delaware corporation (“Novadaq”),
which is a wholly owned subsidiary of Novadaq Parent, PLC Systems Inc., a Yukon
Territory corporation (“PLC Parent”),
and PLC Medical Systems, Inc., a Delaware corporation (“PLC”), which is a wholly owned subsidiary of PLC Parent.


 


WHEREAS, Novadaq Parent,
Novadaq and PLC Parent and PLC are parties to the AMENDED AND RESTATED
DISTRIBUTION AGREEMENT (the “Agreement”),
dated as of March 20, 2007 (the “Distribution Agreement”);
and


 


WHEREAS, Novadaq, PLC and
PLC Parent have entered into that certain Asset Purchase Agreement concurrent
with the execution of this Addendum for the purchase and sale of PLC’s assets
pertaining to its TMR (transmyocardial revascularization) business (the “Asset Purchase 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:


 


1.             Full Payment of Novadaq
Obligations.  Novadaq,
Novadaq Parent, PLC Parent and PLC hereby acknowledge and agree that full
payment by Novadaq of all amounts due PLC Parent or PLC shall be paid at
Closing. This payment shall include (a) all outstanding accounts payable
properly billed to Novadaq by PLC prior to the Closing, (b) all sums due
and owing to PLC under the Distribution Agreement as of the Closing, including
normal prior monthly true-up payments still outstanding as of the Closing and (c) all
final sums due and owing to PLC pursuant to a final interim true-up, which
shall account for all activities from the date of the last normal month end
true-up performed and the Closing date (the “Final
True-up Payment”). The parties agree that the Final True-up Payment
will be calculated in accordance with the normal month-end true up accounting
practice that has historically been followed by the parties. PLC Parent and PLC
acknowledge and agree upon receipt of payment of all these amounts, Novadaq
shall be deemed to have been paid up in full.


 


2.             Special Purchase Order.  Novadaq has submitted to PLC, and PLC hereby
acknowledges acceptance of Purchase Order No 3925, (the “Special PO”) for six hundred (600) TMR
Disposable Kits at the per unit price of $110, none of which shall be subject
to the true-up provisions set forth in Section 7.1 of the Distribution
Agreement except to the extent that Paragraph 3 or Paragraph 4 below applies.  A copy of the Special PO is attached as Appendix
A to this Addendum.  PLC hereby
acknowledges receipt from Novadaq of payment in the amount


 

















 


of Sixty Six Thousand
Dollars ($66,000) as payment in connection with the Special PO.  For clarity, unless the conditions set forth
in either Paragraph 3 or 4 apply, the net amount payable by Novadaq to PLC for
the six hundred (600) TMR Disposable Kits purchased under the Special PO shall
be Sixty Six Thousand Dollars ($66,000). 
One hundred and fifty (150) of the TMR Disposable Kits ordered under the
Special PO shall be delivered as soon as reasonably practicable after the
Effective Date and the remaining four hundred and fifty (450) of the TMR
Disposable Kits shall be delivered on the Closing date of the Asset Purchase
Agreement.


 


3.             If Shareholders’ Approval Not
Obtained or if Dissenters’ Rights Are Exercised.  In the event that the Asset Purchase
Agreement and the transactions contemplated thereby do not close or otherwise
complete as a consequence of (a) PLC and PLC Parent having failed to
obtain the requisite approval of each company’s respective shareholders or (b) holders
of PLC Parent shares (other than shares held by officers and directors of PLC
Parent and any affiliate of any officer or director) with a fair market value
of at least $200,000 (as measured based upon the closing price of PLC Parent’s
common stock reported on the OTC Bulletin Board on the last business day
immediately prior to the PLC Parent Shareholders’ Meeting (as defined in the
Asset Purchase Agreement)) and who are entitled to vote at the PLC Parent
Shareholders’ Meeting having exercised their rights to dissent/object at or
prior to the PLC Parent Shareholders’ Meeting under Section 193 of the
Yukon Business Corporations Act, as amended (which dissension or objection has
not been legally withdrawn by the time of the stockholder vote), then the
true-up provisions in Section 7.1 of the Distribution Agreement shall
apply to four hundred and fifty (450) of the six hundred (600) TMR Disposable
Kits supplied under the Special PO with credit allowance for the One Hundred
and Ten Dollars ($110) for each which Novadaq has paid.  Novadaq shall have the right to request
delivery of these four hundred and fifty (450) TMR Disposable Kits at on a schedule
determined in its reasonable discretion but not later than twelve (12) months
after the Effective Date.  For clarity,
the remaining one hundred and fifty (150) TMR Disposable Kits in the Special PO
shall remain the fully paid-up property of Novadaq and exempt from the true-up
provisions in Section 7.1 of the Distribution Agreement.


 


4.             If Novadaq Customer Demand Depletes
TMR Kit Inventory. In the event that Novadaq’s on-hand inventory of TMR
kits as of the Effective Date, including an additional 75 TMR Disposable Kits
recently ordered by Novadaq and to be delivered by PLC shortly after the
Effective Date, is depleted down to zero kits anytime prior to the Closing
date, then Novadaq shall be permitted to ship some or all of the 150 TMR
Disposable Kits ordered on the Special PO to meet end-user customer demand.
However, in this event, the number of TMR Disposable Kits shipped out by
Novadaq prior to Closing from the lot of 150 TMR Disposable Kits shall be
subject to the true-up provisions in Section 7.1 of the Distribution
Agreement with credit allowance for the One Hundred and Ten Dollars ($110), and
PLC’s requirement to deliver 600 TMR Disposable Kits at Closing shall be
correspondingly reduced by the same number of TMR Disposable Kits shipped from
the lot of 150 TMR Disposable Kits prior to the Closing date.


 


5.             Regulatory Authorizations.  All TMR Disposable Kits
purchased by Novadaq under the New PO and Special PO shall be deemed to have
been duly approved and authorized for distribution and sale by Novadaq and use
by customers and end-users in the United States under the FDA’s premarket
approval (“PMA”) for such products
held by PLC and/or PLC Parent and corresponding approvals and/or certifications
applicable in markets outside of the


 


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United States.


 


6.             Other Provisions.  Except as expressly amended by this Addendum,
the Distribution Agreement shall remain in full force and effect as presently
written, and the rights, duties, liabilities and obligations of the parties
thereto, as presently constituted, will continue in full effect.  This Addendum and it Exhibits, together with
the Distribution Agreement and its Schedules, (a) constitute the entire
agreement between the parties with respect to the subject matter contained
therein, and together, supersede and replace any and all prior and
contemporaneous understandings, arrangements and agreements, whether oral or
written, with respect to the subject matter; and (b) shall be binding upon
and shall inure to the benefit of each of the parties hereto and their
respective successors and permitted assigns. Any capitalized term not otherwise
defined in this Addendum shall have the meaning specified in the Asset Purchase
Agreement or the Distribution Agreement. 
This Addendum may be executed in one or more counterparts (including fax
and emailed PDF counterparts), each of which shall be deemed an original and
all of which taken together shall be deemed to be one and the same instrument.


 


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IN WITNESS WHEREOF, the parties
hereto have executed this Addendum as of the date first above written.


 


 


	
   

  	
  PLC
  SYSTEMS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James G. Thomasch

  
	
   

  	
   

  	
  Name:

  	
  James G. Thomasch

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  PLC MEDICAL
  SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James G. Thomasch

  
	
   

  	
   

  	
  Name:

  	
  James G. Thomasch

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  NOVADAQ
  TECHNOLOGIES INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen Purcell

  
	
   

  	
   

  	
  Name:

  	
  Stephen Purcell

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  NOVADAQ
  CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen Purcell

  
	
   

  	
   

  	
  Name:

  	
  Stephen Purcell

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  



 


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