Exhibit 10. 4


 


Confidential Materials omitted and filed
separately with the

Securities and Exchange Commission. 
Asterisks denote omissions.


 


FIRST AMENDMENT TO DISTRIBUTION AGREEMENT


 


This FIRST AMENDMENT TO DISTRIBUTION AGREEMENT, is made and entered into
as of February 24, 2004 (this “Amendment”), by and among Edwards
Lifesciences LLC, a Delaware limited liability company (“Edwards”), PLC Systems
Inc., a Yukon Territory corporation (“PLC Parent”), and PLC Medical Systems,
Inc., a Delaware corporation (“PLC”).  Certain capitalized terms used herein have the
meanings ascribed to them in the Agreement (defined below).


 


RECITALS


 


WHEREAS, the parties hereto have previously entered into a Distribution
Agreement, dated as of January 9, 2001, by and among Edwards, PLC Parent
and PLC (the “Agreement”); and


 


WHEREAS, the parties hereto desire to amend certain provisions of the
Agreement pursuant to Section 11.11 thereof.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


1.                                       AMENDMENT
OF AGREEMENT.  The Agreement is hereby
amended as follows:


 


1.1.                              Section 7.1(a) of
the Agreement is hereby amended and restated in its entirety to read as
follows:


 


“Edwards shall purchase the TMR Disposable Kits from PLC at 36.5% of
the Average End User Price.  The
“Average End User Price” shall mean the average of the actual sales price for
each TMR Disposable Kit sold during a calendar quarter.  Edwards shall calculate the Average End User
Price and deliver such calculation to PLC within 15 days after the end of each
quarter.”


 


1.2.                              The first sentence of
Section 7.1(b) of the Agreement is hereby amended and restated in its
entirety to read as follows:


 

















 


“PLC shall bill TMR Disposable Kits to Edwards on a preliminary basis
at 36.5% of the Estimated End User Price.”


 


1.3                                 Section 8.1 of
the Agreement is hereby deleted in its entirety and restated to read as
follows:


 


“Term and Renewal.  This Agreement shall commence on the date
hereof (the “Effective Date”) and shall continue for the enforceable life of
the last to expire of the United States patents held by PLC related to the
Products.”


 


2.                                       PAYMENT
OF CONSIDERATION FOR AMENDMENT.  In
consideration of the amendments to the Agreement contained in Section 1
above, concurrently with execution of this Amendment, Edwards will pay to PLC
the sum of four million five hundred thirty-three thousand three hundred
thirty-three dollars ($4,533,333) by wire transfer of immediately available and
non-refundable funds.


 


3.                                       MISCELLANEOUS.


 


3.1                                 Governing Law.  This Amendment 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).


 


3.2                                 Counterparts.  This Amendment 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 amendment, it being
understood that the parties need not sign the same counterpart.


 


3.3                                 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.


 


3.4                                 Ratification and
Reaffirmation.  Except as otherwise
expressly provided herein, the Agreement remains in full force and effect
unamended, and all of the terms and provisions of the Agreement, as modified by
this Amendment, are hereby ratified and reaffirmed by Edwards, PLC Parent and
PLC.  All references to the Agreement
contained in the Agreement shall mean the Agreement as modified hereby.


 


2

















 


IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered, all as of the date first set forth above.


 


	
   

  	
  EDWARDS LIFESCIENCES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/John H. Kehl, Jr.

  	
   

  
	
   

  	
  Name:

  	
  John H. Kehl, Jr.

  
	
   

  	
  Title:

  	
  Corporate Vice President,

  Strategy and Business Development

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PLC SYSTEMS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/James G. Thomasch

  	
   

  
	
   

  	
  Name:

  	
  James G. Thomasch

  
	
   

  	
  Title:

  	
  Senior Vice President &

  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PLC MEDICAL SYSTEMS INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/James G. Thomasch

  	
   

  
	
   

  	
  Name:

  	
  James G. Thomasch

  
	
   

  	
  Title:

  	
  Senior Vice President &

  Chief Financial Officer

  
							



 


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