1
Exhibit 99.5
EXECUTION COPY
AMENDMENT NO. 1
TO
STOCK AND ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1 (this "Amendment No. 1"), dated as of January
28, 2000, to the Purchase Agreement referred to below among the parties to the
Purchase Agreement: THE COOPER COMPANIES, INC., a Delaware corporation
("Parent"), COOPERSURGICAL ACQUISITION CORP., a Delaware corporation (the
"Purchaser"), NETOPTIX CORPORATION, a Delaware corporation ("NetOptix"),
LEISEGANG MEDICAL, INC., a Florida corporation ("Leisegang"), GALENICA INC.,
company continued under the laws of the Province of New Brunswick, Canada
("Galenica"), and LEISEGANG FEINMECHANIK-OPTIK GMBH, a company organized under
the laws of Germany ("Leisegang GmbH").
RECITALS
A. The parties to this Amendment No. 1 are all of the parties
to a Stock and Asset Purchase Agreement dated as of December 14, 1999 (the
"Purchase Agreement").
B. Section 12.1 of the Purchase Agreement provides that the
parties have the right to amend the Purchase Agreement pursuant to an instrument
signed by each of the parties thereto.
C. Each of the parties desires to amend the Purchase Agreement
as set forth in this Amendment No. 1.
ACCORDINGLY, in consideration of the premises and the mutual
representations hereinafter set forth, the parties hereby agree as follows:
1. All capitalized terms used but not defined herein shall
have the meanings given to them in the Purchase Agreement.
2. Recital A. of the Purchase Agreement is hereby amended and
restated as follows:
" NetOptix is the record and beneficial owner of all five
shares of capital stock, collectively having a par value of DM
50,000.00, of Leisegang GmbH (collectively, the "Share")."
3. Section 1.1(a) of the Purchase Agreement is hereby amended
by deleting subsection (iii) in its entirety and by substituting in place
thereof the following:
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"(iii) all inventory, raw materials, components,
work-in-progress, finished products, packaging materials and stores and
supplies existing as of the Closing relating to the Products and the
Business including any of the foregoing (A) located on, or normally
located on but temporarily removed from, or in transit to, the
Facilities or (B) furnished to any supplier, subcontractor or other
Person in connection with the manufacture, sale or servicing of any
Product, (C) which are in transit to customers and (D) the items of
inventory of NetOptix (the "NetOptix Inventory") listed on SCHEDULE
1.1(a)(iii), which items shall also be deemed Products (all of the
foregoing in this subsection 1.1(a)(iii) are collectively called, the
"Inventory");
4. Section 1.5 of the Purchase Agreement is hereby amended by adding to
the end of such section the following:
"and (c) enforcing at the request and expense of the Purchaser for the benefit
of the Purchaser any and all rights of NetOptix Corporation in paragraph 6 of
the Consulting and Settlement Agreement and Full and Final Release, dated as of
July 6, 1999, by and between Kip Speyer and NetOptix Corporation (previously
known as Galileo Corporation), to the extent enforceable."
5. Section 2.1(c) of the Purchase Agreement is hereby amended and
restated as follows:
"(c) an aggregate of up to $60,000 of the liabilities under
the registered mortgage (the "Canadian Mortgage") on the Canadian Manufacturing
Facility in favor of the Caisse Populaire de St. Liboire;"
6. Sections 3.3(a),(b) and (c) of the Purchase Agreement are hereby
amended and restated all follows:
"(a) Preparation of Closing Statements.
(i) As of the Closing, NetOptix shall (A) take a physical
inventory ("Physical Inventory") of all the Inventory and of the
inventory owned by Leisegang GmbH (collectively, the "Sellers'
Inventory") in a manner to be agreed upon by NetOptix and the Purchaser
(which may be observed by the Purchaser), (B) prepare a written
statement which sets forth the value as of the Closing of the Sellers'
Inventory and the Net Receivables for each Asset Seller (the "Inventory
and Receivables Statement") and (C) prepare a statement which sets
forth the value as of the Closing of the assets and liabilities of
Leisegang GmbH (the "Statement of Assets and Liabilities"). NetOptix
shall deliver to the Purchaser within sixty (60) days of Closing the
Inventory and Receivables Statement and the Statement of Assets and
Liabilities.
(ii) The Sellers' Inventory and Net Receivables and the assets
and liabilities of Leisegang GmbH on the Statement of Assets and
Liabilities shall be
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determined in accordance with GAAP, each as modified in accordance with
the methodology set forth on SCHEDULE 3.3(a)(i) and as follows:
(A) Liabilities in the Leisegang GmbH Statement of Assets and
Liabilities shall reflect all Liabilities with respect to the
employee terminations required by SECTION 7.10 that have not been
fully paid by the Sellers by the Closing Date;
(B) all intercompany Receivables and other assets and all
intercompany Liabilities shall be eliminated or released; and
(C) No Sales Return Liability shall be accrued on the
Statement of Assets and Liabilities.
(iii) "Net Receivables" means the sum of trade accounts receivable
as of the Closing included in the Purchased Assets and on the Statement
of Assets and Liabilities (determined in accordance with GAAP) minus,
in each case, reserves for doubtful trade accounts receivable (such
reserves to be calculated in accordance with GAAP based on the
historical experience of each Seller).
(b) Review of the Closing Statements.
Promptly after the Inventory and Net Receivables Statement and the
Statement of Assets and Liabilities (collectively, the "Closing Statements") are
delivered to the Purchaser pursuant to SECTION 3.3(a), the Purchaser shall
conduct an examination of the Closing Statements. NetOptix shall give the
Purchaser and its Representatives timely and reasonable access to such of
NetOptix's working papers, documents, financial information and other
information used in the preparation of the Closing Statements as the Purchaser
reasonably deems necessary or desirable in connection with such examination. The
Purchaser shall complete its examination of the Closing Statements during the
Examination Period. The "Examination Period" shall commence upon delivery by
NetOptix to the Purchaser of the Closing Statements and end on the earliest of
(i) thirty (30) days after such delivery, (ii) the date the Purchaser delivers a
Closing Statement Objection Notice to NetOptix and (iii) the date the Purchaser
notifies NetOptix that the Purchaser accepts the Closing Statements. The Closing
Statements as prepared by NetOptix and examined by the Purchaser shall be
conclusive and binding on the parties hereto for purposes of this Agreement,
subject to the resolution of any disputes in accordance with SECTION 3.3(c).
(c) Disputes.
The Purchaser may object to the Closing Statements during the
Examination Period by providing NetOptix a written notice describing in
reasonable detail the Purchaser's objections to any item or valuation on the
Closing Statements (an "Objection Notice"). The Purchaser's failure to deliver
an Objection Notice to NetOptix within thirty (30) days after NetOptix's
delivery of the Closing Statements to NetOptix shall constitute the Purchaser's
binding acceptance of such statements and all matters identified therein. If
NetOptix and the Purchaser fail to resolve any objection described
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on an Objection Notice within ten (10) days after the date the Objection Notice
is delivered to NetOptix, then, at the request of either NetOptix or the
Purchaser, they shall meet in an attempt to resolve an objection described on
the Objection Notice and reach a written agreement (the "Settlement Agreement").
If the parties enter into a Settlement Agreement, the Closing Statements shall
be deemed to be as agreed therein. If the parties are unable to resolve the
objection described on the Objection Notice within twenty (20) days after
receipt by NetOptix of such Objection Notice, then NetOptix and the Purchaser
shall select an independent accounting firm of recognized national standing (or,
if the parties cannot agree upon a selection, they shall select such accounting
firm by lot from among the five largest accounting firms in the United States)
which shall resolve such objection as promptly as possible. The accounting firm
selected shall not at the time of selection be performing services for either
the Purchaser or any Seller. A decision by the independent accounting firm as to
the resolution of such objection shall be (absent an agreement of the parties
regarding an error that is manifest) conclusive and binding upon the parties for
purposes of this Agreement (the "Accountant's Determination"). The Accountant's
Determination shall be (1) in writing, (2) made in accordance with GAAP as
modified by the standards provided for in this Agreement for the Closing
Statements and (3) nonappealable and incontestable by NetOptix and the Purchaser
and each of their respective Affiliates and successors and not subject to
collateral attack for any reason. All fees and costs payable to the independent
accounting firm referred to in this SECTION 3.3(c) shall be borne one-half by
the Purchaser and one-half by the Asset Sellers."
7. The introductory sentence of Section 8.1(k) of the Purchase
Agreement is hereby amended by restating such sentence as follows:
"Each of the following certificates (or comparable documents
in the case of Leisegang GmbH and Galenica) shall have been executed
and/or delivered, as the case may be, by the Person who or which is the
subject thereof:"
8. The introductory sentence of Section 8.2(j) of the Purchase
Agreement is hereby amended by restating the introductory sentence as follows:
"Each of the following certificates (or comparable documents
in the case of the Parent's subsidiary designated by the Purchaser to
purchase the Canadian Purchased Assets pursuant to Section 1.1(e))
shall have been executed and/or delivered, as the case may be, by the
Person who or which is the subject thereof:"
9. Sections 9.1(a)(viii) and 11.4 of the Purchase Agreement are hereby
deleted in their entirety.
10. Section 11.7 of the Purchase Agreement is hereby amended and
restated as follows:
"Immediately after the Closing, each of Leisegang and Galenica
shall take all steps necessary to change its corporate name to a name
sufficiently dissimilar from its current name so that the Purchaser
immediately may commence use of
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the Leisegang and Galenica names and, in the reasonable judgment of the
Purchaser, there will be no confusion of the public. "
11. The definition of "Sublease" in Section 12.14 of the Purchase
Agreement is hereby amended and restated as follows:
""Sublease" means collectively sublease agreements under which
Leisegang subleases to the Purchaser (i) Suites 150 and 265 located at
6401 Congress Avenue, Boca Raton, Florida, for the period from the
Closing Date until October 31, 2002, and (ii) Suites 110 and 116
located at 6421 Congress Avenue, Boca Raton, Florida, for the period
ending six months from the Closing Date, in each case on the same terms
and conditions and the same costs as such suites are leased to
Leisegang under the Florida Facility Lease."
12. Schedule 3.3(a)(i) to the Purchase Agreement is hereby amended by
adding to the end of such schedule the following:
"D. NETOPTIX INVENTORY. The NetOptix Inventory shall be valued
for purposes of the Closing Statements in accordance with the
provisions of Sections A and B of this Schedule 3.3(a)(i); provided,
that notwithstanding the provisions of Sections A and B of this
Schedule 3.3(a)(i), for purposes of the Closing Statements (x) raw
material and work in process included in the NetOptix Inventory shall
have zero value, (y) the value of the NetOptix Inventory once
calculated according to Sections A and B and this Section D, shall be
then divided by 2, and (z) in no case shall the aggregate value of all
of the NetOptix Inventory exceed $500,000.
E. CURRENCY EXCHANGE. In calculating the value of items on the
Closing Statements, any values of items provided in other than U.S.
Dollars shall be converted to a value denominated in U.S. currency at
the conversion rate published by The Wall Street Journal in New York
City on the Closing Date."
13. Section 3.4(a) of the Purchase Agreement is hereby amended and
restated as follows:
"(a) $1,750,000 of the Purchase Price shall be allocated to
the Share."
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14. Schedule 3.4 to the Purchase Agreement is hereby amended and
restated as follows:
ALLOCATION OF PURCHASE PRICE
Stock of Leisegang GMBH $ 1,750,000
Canadian Assets:
Trade Receivables 400,000
Inventory 400,000
PP&E
Land 19,000
Building 365,000
Equipment 316,000
Intangibles 1,500,000
Subtotal Canadian Assets 3,000,000
Leisegang Florida Assets:
Trade Receivables 2,000,000
Inventory 1,950,000
PP&E 450,000
Intangibles 1,350,000
Subtotal Florida Assets 5,750,000
Total $10,500,000
15. The Purchase Agreement, as amended by this Amendment No. 1, shall
remain in full force and effect in accordance with its terms.
16. This Amendment No. 1 may be executed in several counterparts, each
of which shall constitute an original and all of which, when taken together,
shall constitute one agreement.
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IN WITNESS WHEREOF, the parties to this Amendment No. 1 have caused
this Amendment No. 1 to be executed and delivered as of the date first set forth
above.
THE PURCHASER:
COOPERSURGICAL ACQUISITION CORP.
By:/s/Nicholas J. Pichotta
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Name: Nicholas J. Pichotta
Title: President
THE PARENT HEREBY CONFIRMS ITS GUARANTEE, AS PRIMARY AND
NOT AS SECONDARY OBLIGOR OF ALL OBLIGATIONS OF THE
PURCHASER UNDER THE PURCHASE AGREEMENT:
THE COOPER COMPANIES, INC.
By:/s/Robert S. Weiss
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Name: Robert S. Weiss
Title: Vice President
THE SELLERS:
NETOPTIX CORPORATION
By:/s/Thomas J. Mathews
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Thomas J. Mathews
Authorized Signatory
LEISEGANG MEDICAL, INC.
By:/s/John D. Barlow
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John D. Barlow
Authorized Signatory
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GALENICA INC.
By:/s/Charles E. Ball
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Charles E. Ball
Authorized Signatory
LEISEGANG FEINMECHANIK-OPTIK GMBH
By:/s/Charles E. Ball
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Charles E. Ball
Authorized Signatory