1
Exhibit 99.4
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
NOTE: TO THE EXTENT ANY OF THE REPRESENTATIONS AND WARRANTIES OF THE
SELLERS PURSUANT TO THE ASSET PURCHASE AGREEMENT (THE
"AGREEMENT") CALL FOR DISCLOSURE OF MATTERS WHICH ARE
SUBSTANTIALLY DUPLICATIVE OF MATTERS REQUIRED TO BE DISCLOSED
BY SELLERS PURSUANT TO OTHER REPRESENTATIONS AND WARRANTIES
UNDER THE AGREEMENT, DISCLOSURE ON ONE SCHEDULE HERETO OF SUCH
A MATTER WITH REASONABLE PARTICULARITY SHALL BE DEEMED TO
CONSTITUTE DISCLOSURE OF THAT PARTICULAR MATTER ON THE
SCHEDULE WHICH CORRESPONDS TO THE OTHER REPRESENTATION OR
WARRANTY.
2
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 1.1(a)(i) Purchased Products
SCHEDULE 1.1(a)(iii) Net Optix Inventory List
SCHEDULE 1.1(a)(iv) Purchased Tangible Personal Property
SCHEDULE 1.1(a)(vi) Purchased Intellectual Property
SCHEDULE 1.1(a)(ix) Purchased Contracts, Licenses,
Commitments, Personal Property Leases,
Purchase Orders, Sales Orders, and Other
Agreements
SCHEDULE 3.1(a) Gross Margin Shortfall
SCHEDULE 3.3(a)(i) Methodology for Modification of
Valuation of Seller's Inventories, Net
Receivables and GmbH Assets and
Liabilities
SCHEDULE 3.4 Statement of Allocation of Purchase
Price
SCHEDULE 5.1 Organization; Good Standing;
Qualification and Power
SCHEDULE 5.2 Equity Investments
SCHEDULE 5.3 Convertible Securities or Options, Etc.
of Leisegang GmbH
SCHEDULE 5.4(b) Contravention of Contracts
SCHEDULE 5.4(c) Consents and Approvals Required
SCHEDULE 5.5(a) Seller SEC Reports
SCHEDULE 5.5(e) Financial Statements
SCHEDULE 5.7 Undisclosed Liabilities
SCHEDULE 5.8 Changes Since June 30, 1999
SCHEDULE 5.9(a) Payment of Taxes and Filing Tax Returns
SCHEDULE 5.9(b) Taxpayer Identification Numbers
SCHEDULE 5.9(c) Tax Investigations and Audits
SCHEDULE 5.10(a) Title to Assets, Properties and Rights
and Related Matters
SCHEDULE 5.10(b) Encumbered Property
SCHEDULE 5.11(a) Intellectual Property Rights
SCHEDULE 5.11(b) Applications and Other Actions With
Respect to Intellectual Property Rights
SCHEDULE 5.12 Contracts
SCHEDULE 5.13 Litigation
SCHEDULE 5.14 Compliance; Governmental Authorizations
SCHEDULE 5.15(a) FDA Compliance
SCHEDULE 5.15(b) FDA Exceptions
SCHEDULE 5.16(a) Insurance Policies
SCHEDULE 5.16(b) Insurance Exceptions
SCHEDULE 5.17(a) Labor Relations: Employees
3
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.17(b) List of Employees and Severance Amounts
SCHEDULE 5.18(a) Company Employee Plans
SCHEDULE 5.18(b) ERISA Compliance
SCHEDULE 5.19(a) Environmental Proceedings
SCHEDULE 5.19(b) Environmental Matters
SCHEDULE 5.19(c) Properties
SCHEDULE 5.20 Broker or Finder Fees
SCHEDULE 5.21 Accounts & Notes Receivable
SCHEDULE 5.22 Accounts & Notes Payable
SCHEDULE 5.24 Inventories
SCHEDULE 5.25 Suppliers, Consultants & Vendors
SCHEDULE 5.26 Delinquent Customer Accounts
SCHEDULE 5.27(a) Facilities
SCHEDULE 5.27(b) Galenica Title Commitments
SCHEDULE 5.28 Year 2000
SCHEDULE 7.10(a)(iii) GmbH Terminated Employees
EXHIBIT A Form of ▇▇▇▇ of Sale of the U.S. Sellers
EXHIBIT B Form of ▇▇▇▇ of Sale of Galenica
EXHIBIT C Form of Escrow Agreement
EXHIBIT D Form of Opinion of counsel to the Sellers - Closing
EXHIBIT E Form of Opinion of counsel to the Sellers - Delaware Law
EXHIBIT F Form of Opinion of counsel to Galenica
EXHIBIT G Form of Opinion of counsel to Leisegang GmbH
EXHIBIT H Form of Non-Competition Agreement
EXHIBIT I Form of Opinion of Counsel to the Purchaser
4
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 1.1(a)(i)
PURCHASED PRODUCTS
1. Colposcopes
2. Fetal Monitors
3. Diagnostic Instruments
4. Vaginal Specula
5. Pregnancy Testing Kits
6. Anoscopes
7. Gyne-Lite
8. PAP smear Kits
9. Electro Surgical Devices
10. Cryosurgery Instruments
11. 5:1 Tubing Connectors
12. Amniotomes
13. External Clamps
The specific model identification information for the products listed in items
1-13 is attached hereto.
5
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 1.1(a)(iii)
NET OPTIX INVENTORY LIST
See Attached List
6
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 1.1(a)(iv)
PURCHASED TANGIBLE PERSONAL PROPERTY
▇. ▇▇▇▇▇▇▇▇▇
See attached report which includes all purchased tangible personal
property relating to the Subleased Premises and all purchased tangible personal
property of the Non-Subleased Premises and which are connected with employees of
Leisegang hired at the Closing by Buyer.
B. GALENICA
See attached report dated December 8, 1999
C. NETOPTIX
See attached report dated December 8, 1999
7
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 1.1(a)(vi)
PURCHASED INTELLECTUAL PROPERTY
A. NETOPTIX
Patents
None
Registered Trademarks
SANI-SCOPE: Registration (U.S.) #2205687, Registration (Canada) #190,582
For: Medical apparatus, namely a disposable plastic anoscope.
SANI-SPEC: Registration (Canada) #191,656
For: Vaginal specula for diagnostic examinations. This trademark was
assigned by ▇. ▇. ▇▇▇▇, Inc. in July to Galileo Corporation on
July 23, 1997; however, the US Patent and Trademark Office does
not have a record of the assignment. NetOptix is currently in
the process of addressing this matter to ensure that the
trademark is properly registered to NetOptix.
Unregistered Trademarks
SPEC LIGHT
For: Illumination devise for Sani-Scope vaginal specula.
▇. ▇▇▇▇▇▇▇▇▇
Patents
None
Registered Trademarks
None
8
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 1.1(a)(vi) (CONT.)
Unregistered Trademarks
Leisegang
Lap Lite
OS Finder Set
LMS-9000 Smart System
Smart Valve
System III
Spec Light
Registered Website
▇▇▇▇▇▇▇▇▇.▇▇▇
C. GALENICA
Patents
None
Registered Trademarks
GYNE-LITE: Registration (U.S.) #74-311219
For: Adjustable light for medical examination purposes.
Tradenames
Galenica is registered to do business under the following names:
Galenicare Concepts Inc.
Concepts Galenicare Inc.
Galenica is registered in New Brunswick to do business under the name
Galenica Inc.
Logos
See attached logo.
9
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 1.1(a)(ix)
PURCHASED CONTRACTS, LICENSES, COMMITMENTS,
PERSONAL PROPERTY LEASES, PURCHASE ORDERS,
SALES ORDERS, AND OTHER AGREEMENTS
▇. ▇▇▇▇▇▇▇▇▇
1. Leisegang report of purchase orders dated December 8, 1999 attached
hereto.
2. Leisegang report of sales orders dated December 8, 1999 attached
hereto.
3. Leisegang report of service order contracts dated December 8, 1999
attached hereto.
4. Distribution Agreement between Leisegang and Physicians Sales
and Service, Inc., dated February 2, 1998 as amended by Amendment
No. 1 dated March 1, 1999.
5. Agreement between Direct Medical Equipment & Supplies, Inc.
and Leisegang, dated November 23, 1993.
6. Capital Equipment Supplier Agreement between Novation, LLC and
Leisegang dated March 31, 1999.
7. Contract between Leisegang and Shared Services Health Care
dated May 26, 1995, as amended on May 22, 1997, January 14,
1999 and November 10, 1999.
8. Contract between Leisegang and Department of Veterans Affairs dated
June 1, 1999.
9. Distribution Agreement between Leisegang and Midwest Medical
Supply Co., L.L.C. dated August 19, 1999.
10. Distribution Agreement between Leisegang and General Medical
Corporation dated March 21, 1997.
B. GALENICA
1. Employment Agreement between 3421899 Canada, Inc. and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ dated February 1, 1998.
2. Employment Agreement between 3421899 Canada, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇
dated February 1, 1998.
3. Lease between Gestion ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and 3421899 Canada Inc.
dated February 1, 1998.
4. Private Label Agreement between General Medical Corporation and
Galenica dated January 1, 1992.
10
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
5. Private Label Agreement between Miami Medical and Galenica dated
September 1, 1997.
6. Group Credit Newcourt Leasing Contract dated December 4, 1998.
7. Capital lease between Mont-Blanc Inc. and Plastiques Medisma Inc.
dated July 10, 1997.
8. Service contract between Xertec Inc. and Galenica dated September
1, 1997.
9. Private Label Agreement between "Alliance" Purchasing Group,
as Buyer and Galenica, as Seller, dated May 1, 1997.
10. Loan Agreement dated July 3, 1996 between Development Bank of
Canada, as lender, and Plastiques Medisma Inc., as borrower
and deed of movable hypothec dated July 3, 1996 between the
same parties.
11. Loan and Immovable hypothec dated February 9, 1995 between
Caisse Populaire de St-Liboire, as lender, and Plastiques
Medisma Inc., as borrower.
12. Employment Agreement between Galenica and ▇▇▇▇▇▇▇ ▇▇▇▇▇ dated
January 11, 2000.
13. Prime Alliance Agreement between McKesson General Medical and
Galenica dated March 2, 1999.
14. Distribution Agreement between Galenica and ▇▇▇▇▇▇▇▇▇ General
Medical dated April 14, 1985.
11
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 3.1(a)
GROSS MARGIN SHORTFALL
See Purchaser's attached
Amended and Restated Schedule dated January 31, 2000
12
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 3.3(a)(i)
METHODOLOGY FOR MODIFICATION OF VALUATION OF SELLERS' INVENTORIES,
NET RECEIVABLES AND GMBH ASSETS AND LIABILITIES
See Purchaser's attached
Amended and Restated Schedule dated January 31, 2000
13
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 3.4
STATEMENT OF ALLOCATION OF PURCHASE PRICE
See Purchaser's attached
Amended and Restated Schedule dated January 31, 2000
14
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.1
ORGANIZATION; GOOD STANDING; QUALIFICATION AND POWER
A. Jurisdictions of Incorporation:
NetOptix is a Delaware corporation.
Leisegang is a Florida corporation.
Galenica was constituted under the Canada Business Corporation Act and
was continued under the New Brunswick Business Corporations Act on
February 4, 1998
Leisegang GMBH is a company organized under the laws of Germany.
B. Jurisdictions in which Sellers are not Qualified to do Business:
1. None, as to NetOptix, Galenica and Leisegang GmbH
2. Certain sales personnel who are employees of Leisegang reside
in states other than Florida and California and maintain
demonstration and other inventory at their home office
locations. Leisegang files tax returns in some of these
states, but has not qualified to do business in such states.
C. Jurisdictions in which NetOptix is Qualified to do Business:
Massachusetts
D. Jurisdictions in which Galenica is Qualified to do Business:
Quebec, New Brunswick
E. Jurisdictions in which Leisegang is Qualified to do Business:
Florida, California
F. Jurisdictions in which Leisegang GMBH is Qualified to do Business:
Germany
15
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.2
EQUITY INVESTMENTS
Leisegang GMBH has no subsidiaries nor any equity interests in any other person
or entity.
16
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.3
CONVERTIBLE SECURITIES OR OPTIONS, ETC. OF LEISEGANG GMBH
None
17
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.4(b)
CONTRAVENTION OF CONTRACTS
See Required Consents listed on Schedule 5.4(c)
18
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.4(c)
CONSENTS AND APPROVALS REQUIRED
THIRD PARTY CONSENTS:
▇. ▇▇▇▇▇▇▇▇▇
1. Consent of Deutsche Financial Services for the release of any encumbrances
of Purchased Assets pursuant to the existing credit agreements between
NetOptix and such lender.
2. Consent of Catexor Limited Partnership-I to permit Purchaser to sublease a
portion of the space leased by Leisegang located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, pursuant to the Commercial Lease dated August 26,
1993, between Catexor Limited Partnership-I and Leisegang, as amended.
3. Capital Equipment Supplier Agreement between Novation, LLC and Leisegang
dated March 31, 1999.
4. Contract between Leisegang and Department of Veterans Affairs dated June 1,
1999. [To be obtained after Closing]
B. GALENICA
CONTRACTS
1. Consent required under Private Label Agreement between General
Medical Corporation and Galenica dated January 1, 1992
2. Consent required under Distribution Agreement between
Leisegang and General Medical Corporation dated March 21, 1997.
3. Consent required under Prime Alliance Agreement between
McKesson General Medical and Galenica dated March 2, 1999.
4. Consent required under Distribution Agreement between
Galenica and ▇▇▇▇▇▇▇▇▇ General Medical dated April 14, 1985.
5. Consent required under Private Label Agreement between Miami
Medical and Galenica dated September 1, 1997
19
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
6. Consent required under Loan Agreement dated July 3, 1996
between Development Bank of Canada, as lender, and Plastiques
Medisma Inc., as borrower and deed of movable hypothec dated
July 3, 1996 between the same parties.
7. Consent required under Loan and Immovable hypothec dated
February 9, 1995 between Caisse populaire de St-Liboire, as
lender, and Plastiques Medisma Inc., as borrower.
8. Consent required under lease between Gestion ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Inc. and 3421899 Canada Inc., dated February 1, 1998.
C. GMBH
According to Section 5 of the Articles of Association of Leisegang GmbH,
the consent of NetOptix, GmbH's sole Shareholder, is required to transfer the
Shares.
20
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.5(a)
SELLER SEC REPORTS
None.
21
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.5(e)
FINANCIAL STATEMENTS
See footnotes to Financial Statements.
22
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.7
UNDISCLOSED LIABILITIES
1. See Schedule 5.12. The Sellers have ongoing liabilities and obligations
under the contracts and agreements listed on such Schedule.
2. See Schedule 5.13. Potential Claims are listed on Schedule 5.13.
3. See Schedule 5.1. Leisegang may have liabilities with respect to
qualifying as a foreign corporation in certain states.
23
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.8
CHANGES SINCE JUNE 30, 1999
1. See Schedule 5.12 for contracts entered into since June 30, 1999.
2. See Schedule 5.13 for claims asserted since June 30, 1999.
3. In July 1999, NetOptix sold its Scientific Detector Products Division.
As a result of the sale, the operations in the Sturbridge Facility were
downsized and the manufacturing operations relating to the
Euro-surgical units and Cryosurgery guns were transferred to the
Florida Facility.
4. In September 1999, NetOptix entered into a credit arrangement with
Deutsche Financial Services Corporation for a credit facility totaling
$25 million.
5. In July 1999, W. ▇▇▇ ▇▇▇▇▇▇ resigned as President and CEO of Leisegang
and an officer and director of the other Sellers. In July 1999, ▇▇▇▇
▇▇▇▇▇▇ was engaged as President and CEO of Leisegang pursuant to an
Employment Agreement dated July 6, 1999.
6. During 1999, the Business has been affected by the departure or
termination of a number of sales personnel, representatives and others.
The impact, if any, of such departures is uncertain.
7. Sales of the Business have been relatively flat for some period of time
and the Business is believed to have experienced losses for the most
recent fiscal year.
8. During 1999, NetOptix has entered into a number of arrangements with
Andlinger & Company, Inc. and its Affiliates, which are unrelated to
the Business.
9. In recent weeks, there has been an effort to unionize or otherwise
organize the workforce at Galenica; an application for union
certification with respect to Galenica's employees was filed on
September 22, 1999.
10. On or about December 9, 1999, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, comptroller of
Galenica, gave his resignation, which became effective December 31,
1999. He was replaced by ▇▇▇▇▇▇▇ ▇▇▇▇▇.
11. Leisegang has undertaken a program to reduce obsolete, excess and
long-supply inventory through discount sales to brokers or other
middlemen or return to the manufacturers, which program is continuing.
24
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
12. Leisegang maintains a substantial reserve on it books (reflected in the
Latest SEC Reports) for damaged, obsolete, excess and long-supply
inventory.
13. Capital expenditures for leasehold improvements at the Florida
Facility, and at the locations of the Foreign Subsidiaries, have been
incurred or committed since June 30, 1999, with an aggregate cost of
less than $50,000.
14. As of April, 1999, some employees at GmbH have been working 26 hours
per week instead of 35 hours per week and some employees have been
working 20 hours per week instead of 35 hours per week.
15. At the beginning of 1999, Leisegang significantly reduced its orders
from GmbH by approximately 75% of the orders from the prior year.
16. GmbH has entered into several new employment contracts which provide
that overtime be included in such employees' salaries. The applicable
collective bargaining agreements only permit an employee to work a
maximum of 35 hours per week. Therefore, those agreements may be
invalid with regard to terms of these agreements relating to this
issue.
17. On or about October, 1999, Galenica sold a division that manufactured
furniture. This division accounted for approximately 1% of Galenica's
total sales.
25
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.9(a)
PAYMENT OF TAXES AND FILING TAX RETURNS
See Schedule 5.9(c)
26
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.9(b)
TAXPAYER IDENTIFICATION NUMBERS
NetOptix ▇▇-▇▇▇▇▇▇▇
Leisegang ▇▇-▇▇▇▇▇▇▇
Galenica Canadian Federal: 142277995RC
Quebec Provincial: 9-ZZBB-8618-7
GmbH 428/709
27
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.9(c)
TAX INVESTIGATIONS AND AUDITS
NETOPTIX
None.
LEISEGANG
1. Florida Department of Revenue Sales/Use Tax Audit for 1996 regarding
classification of demonstration equipment and pursuant to which Seller
adjusted its accounting methods (pursuant to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Internal Revenue Code of 1986, as amended).
2. Leisegang had an outstanding state tax lien which was entered against
Leisegang by the Revenue Recovery Department of the Attorney General's
Office in the State of Ohio on July 27, 1995 in the amount of $3,206.
This amount has been paid and Leisegang is in the process of recording
the release.
GALENICA
None.
LEISEGANG GMBH
The tax return for 1998 has not been filed.
28
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.10(a)
TITLE TO ASSETS, PROPERTIES AND RIGHTS AND RELATED MATTERS
The sales employees and representatives of Leisegang maintain demonstration
units of inventory at their own locations, which has an aggregate standard cost
on the book of Sellers of approximately $750,000. The demonstration inventory
referred to herein and the location thereof is attached hereto.
29
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.10(b)
ENCUMBERED PROPERTY
NETOPTIX/LEISEGANG
1. Pursuant to the Loan and Security Agreement dated September 30, 1999 among
NetOptix and certain of its subsidiaries and the Pledge Agreement dated
September 30, 1999 executed by NetOptix in favor of Deutsche Financial
Services Corporation (the "Loan Agreements"), 100% of the issued and
outstanding capital stock of Leisegang was pledged as collateral to
Deutsche Financial Services Corporation and Deutsche Financial Services
Corporation has a lien on all personal property of Leisegang.
2. Pursuant to the Conditional Assignment and Patent Security Agreement dated
September 30, 1999 ("Patent Security Agreement") and the Conditional
Assignment and Trademark Severability Agreement dated September 30, 1999,
each in favor of Deutsche Financial Services Corporation, NetOptix assigned
its world-wide right, title and interest in certain trademarks owned by
NetOptix including SANI-SCOPE, SANI-SPEC and SPEC LIGHT and certain patents
listed on Schedule A of the Patent Security Agreement.
GALENICA
1. Pursuant to a deed of hypothec dated May 20th, 1994 executed by Plastiques
Medisma Inc. in favour of Banque Federale Developpement and published at the
St-Hyacinthe Land Registry under number 290432, the property situated at ▇▇,
▇▇▇▇ ▇▇-▇▇▇▇▇▇▇, ▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇▇ was hypothecated for total sum of
$150,000.00. The outstanding balance is zero (to be released post closing).
2. Pursuant to a deed of hypothec dated January 7, 1996 executed by Plastiques
Medisma Inc. in favour of Caisse Populaire de Saint-Liboire and published at
the St-Hyacinthe Land Registry under number 300241, the property situated at
▇▇, ▇▇▇▇ ▇▇-▇▇▇▇▇▇▇, ▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇▇ was hypothecated for a total sum of
CN$100,000.00. The outstanding balance is approximately CN$55,000.
3. Pursuant to an agreement dated July 3, 1996, Plastiques Medisma Inc. granted
a conventional hypothec without delivery, published at the Quebec Registry
of Personal and Movable Real Rights under number ▇▇-▇▇▇▇▇▇▇-▇▇▇▇, on ten
pieces of equipment ("presses a injection") in favour of Banque de
Developpement du Canada, for a total sum of CN$75,000.00. The outstanding
balance is of approximately CN$28,000.
4. Servitudes published at the St-Hyacinthe Land Registry under number 236298
and 241861.
5. Pursuant to the Loan Agreements, 65% of the issued and outstanding capital
stock of Galenica was pledged as collateral to Deutsche Financial Services
Corporation.
LEISEGANG GMBH
30
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
None.
31
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.11(a)
INTELLECTUAL PROPERTY RIGHTS
OWNED:
See Schedule 1.1(a)(vi) for intellectual property rights owned by NetOptix,
Leisegang and Galenica.
GMBH
A. PATENTS REGISTERED IN GERMANY:
1. Patent No. 4202669 C 2
Patent-holder: Leisegang Feinmechanik Optik
GmbH & Co. KG
Description: Micromanipulator
The patent will expire on January 28, 2012. The fees are fully
paid.
2. Patent No. 3221804 C 2
Patent-holder: Leisegang Feinmechanik Optik
GmbH & Co. KG
Description: Illumination of optical equipment
for close-up use.
This patent has expired.
3. Patent No. 19525107.5-51
Patent-holder: Leisegang Feinmechanik Optik
GmbH & Co. KG
Description: Patent for a camera designed for
colposcope photography.
This patent is now registered under No. 19525107 C 2. The
fifth annual fee was due on June 30, 1999 and has not been
paid; however, the fee can be paid but will probably include a
penalty charge which must be paid according to the time limit
set by the Patent Authority. To the best of GmbH's knowledge
this time limit has not been set. On the condition that the
annual fees will be paid the patent will expire on June 29,
2015.
32
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
B. PATENTS REGISTERED IN THE UNITED STATES:
1. Patent No. 4652103
Patent-holder: Leisegang Feinmechanik Optik
GmbH & Co. KG
Description: Colposcope with photographic
equipment.
This patent has expired.
C. TRADEMARKS:
1. Leisegang
Trademark holder: Leisegang Feinmechanik Optik
GmbH & Co. KG
The fees for extension of the trademarks have been paid. The
trademark will expire on June 30, 2005.
2. Leisegang Foto-Optik Feinmechanik
Trademark holder: Leisegang Feinmechanik Optik
GmbH & Co. KG
The trademark will expire on June 30, 2005.
3. Leisegang Hanoskop
Trademark holder: Leisegang Feinmechanik Optik
GmbH & Co. KG
The trademark will expire on December 21, 2001.
D. REGISTERED WEBSITE
▇▇▇▇▇▇▇▇▇.▇▇
LICENSES
See Schedule 5.12
33
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
CONFIDENTIALITY PROTECTION
The Sellers take reasonable and customary precautions to safeguard their
confidential information.
34
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.11(b)
APPLICATIONS AND OTHER ACTIONS
WITH RESPECT TO INTELLECTUAL PROPERTY RIGHTS
See Schedule 5.11(a)
35
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.12
CONTRACTS
▇. ▇▇▇▇▇▇▇▇▇
1. Loan and Security Agreement among NetOptix and certain of its subsidiaries
and Deutsche Financial Services Corporation dated September 30, 1999.
2. Stock and Pledge Agreement dated September 30, 1999 executed by NetOptix in
favor of Deutsche Financial Services Corporation.
3. U.S. Equipment Acquisition Note in the amount of $10,000,000 dated September
30, 1999. (Deutsche Financial Services Corporation is the Holder and
Leisegang is one of the Makers.)
4. German Equipment Acquisition Note dated September 30, 1999.
5. Revolving Credit Note in the amount of $12,000,000 dated September 30, 1999.
(Deutsche Financial Services Corporation is the Holder and Leisegang is one
of the Makers.)
6. Conditional Assignment and Patent Security Agreement dated September 30,
1999 in favor of Deutsche Financial Services Corporation.
7. Conditional Assignment and Trademark Severability Agreement dated September
30, 1999 in favor of Deutsche Financial Services Corporation.
8. Commercial Lease dated August 26, 1993, between Catexor Limited
Partnership-I and Leisegang, as amended by the First Addendum to Lease
Agreement dated August 8, 1976, the Second Addendum to Lease dated March 13,
1997, the Third Addendum to Lease Agreement dated December 31, 1998 and
Certificate of Lease and Rent Commencement dated July 1, 1999.
9. Director and Officer Insurance Policy
10. List of Insurance Policies
11. Leisegang report of purchase orders dated December 8, 1999 attached hereto
12. Leisegang report of sales orders dated December 8, 1999 attached hereto
13. Leisegang report of service order contracts dated December 8, 1999 attached
hereto
14. Leisegang Products/Completed Operations Liability Insurance dated May 28,
1999
15. Employment Agreement between Leisegang and ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. dated July 6,
1999
36
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
16. Independent Sales Representative Agreements (written), as follows:
NAME DATE TERRITORY
---- ---- ---------
D. Bullinton October 1, 1999 NC, SC
▇. ▇▇▇▇▇▇ October 1, 1999 IL, ND, IN, WI
R. Fair October 1, 1999 CO
▇. ▇▇▇▇▇▇▇▇▇ October 1, 1999 TX, LA
▇. ▇▇▇▇ October 1, 1999 OH, PA
▇. ▇▇▇▇▇▇▇▇ October 1, 1999 NY
17. Oral arrangements with the following persons as sales representatives of
Leisegang for the following territories:
NAME TERRITORY
---- ---------
▇. ▇▇▇▇▇▇ ▇▇, ▇▇, ▇▇, ▇▇
▇. ▇▇▇▇▇ S.W. TX, NM
▇. ▇▇▇ New York City, NJ, N.E. PA
▇. ▇▇▇▇▇▇ Central TX, AR
B. ▇▇▇▇▇▇ AZ, Las Vegas
▇. ▇▇▇▇▇▇▇ WA, OR
▇. ▇▇▇▇▇▇▇▇ MN, SD, ND
▇. ▇▇▇▇▇ Northern CA, NV
These oral arrangements are terminable upon reasonable notice.
18. Distribution Agreement between Leisegang and ▇▇▇▇▇▇▇ ▇▇▇ dated July 1, 1999.
19. Distribution Agreement between Leisegang and Physicians Sales and Service,
Inc., dated February 2, 1998 as amended by Amendment No. 1 dated March 1,
1999.
20. Private Label Distribution Agreement between Pie Medical Equipment B.V. and
Leisegang dated May 7, 1999.
21. Agreement between Direct Medical Equipment & Supplies, Inc. and Leisegang,
dated November 23, 1993.
22. Capital Equipment Supplier Agreement between Novation, LLC and Leisegang
dated March 31, 1999.
23. Contract between Leisegang and Shared Services Health Care dated May 26,
1995, as amended on May 22, 1997, January 14, 1999 and November 10, 1999.
24. Contract between Leisegang and Department of Veterans Affairs dated June 1,
1999.
37
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
25. Distribution Agreement between Leisegang and Midwest Medical Supply Co.,
L.L.C. dated August 19, 1999.
26. Consulting and Settlement Agreement and Full and Final Release by and
between W. ▇▇▇ ▇▇▇▇▇▇ and Galileo Corporation dated July 6, 1999.
27. Distribution Agreement between Leisegang and General Medical Corporation
dated March 21, 1997.
B. GALENICA
1. See Contracts listed in Schedule 1.1(a)(ix).
2. Lombard Canada Pharmaceutical and Biotechnology General Liability Policy
dated September 15, 1999.
3. Le Groupe Commerce Compagnie d'assurance document dated June 3, 1999.
4. Confirmation D'Assurance from ▇▇▇▇▇▇▇▇▇ Assurances dated as of September 2,
1999 (renewing, inter alia, item 2).
5. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ "Assurance de la Responsabilite Civile des Entreprises" dated
as of September 8, 1999.
6. Starline Letter Agreement dated September 9, 1999.
7. Imco Letter Agreement dated October 7, 1999.
8. Exclusive Sales Agreement for Himgro S.A. Galenica dated December 29, 1996.
9. Independent Sales Representative Agreements with following persons, dated as
follows:
10. Agreements with the following persons as sales representatives of Galenica
for the following territories:
NAME TERRITORY
▇▇▇▇▇▇ Associates, Inc. G.M.C. Accounts
▇▇▇▇▇▇ ▇▇▇▇▇▇ Associates NY, NJ, PA
Kare Medical Sales CA from Mexican border to
Bakersfield, CA
▇▇▇▇▇▇▇▇ International AL, LA, Southern MS
L.H.C. ▇▇▇▇▇▇▇▇ Health Care CA from Fresno, CA north to the
CA/OR border and the City of Reno,
NV
▇▇▇▇▇ Medical Assoc., Inc. FL
New Med Associates, Inc. CT, RI, ME, MA, NH, VT
▇▇▇ ▇▇▇▇▇▇▇ IL, WI
38
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
These arrangements provide for a sales commission percentage for collected sales
based on the product sold and are terminable upon reasonable notice.
11. Non-Qualified Stock Option Agreement between Galileo and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
dated March 25, 1998.
12. Non-Qualified Stock Option Agreement between Galileo and ▇▇▇▇▇▇ ▇▇▇▇▇ dated
April 6, 1998.
13. Share Purchase Agreement between Galenica Inc. (formerly known as 3421899
Canada Inc.) as purchaser and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and others as vendors, dated
February 1, 1998, concerning all of the shares of Les Entreprises Galenica
Inc., Polyject Inc., Les Concepts Galenicare Inc.
14. Indemnity Agreement between Galenica Inc. (formerly known as 3421899 Canada
Inc.) in favour of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ on February 1, 1999.
15. Indemnity Agreement between Galenica Inc. (formerly known as 3421899 Canada
Inc.) in favour of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated February 1, 1998.
16. Indemnity Agreement granted by Galenica Inc. (formerly known as 3421899
Canada Inc.) in favour of ▇▇▇▇▇ ▇▇▇▇▇ on February 1, 1998.
17. Memorandum of Agreement dated February 1, 1998 pursuant to which Les
Entreprises Galenica Inc. is being wound up in Galenica Inc. (formerly known
as 3421899 Canada Inc.)
18. Memorandum of Agreement dated February 1, 1998 pursuant to which Concept
Galenicare Inc. is being wound up on Galenica Inc. (formerly known as
3421899 Canada Inc.)
C. GMBH
A. Loan Agreements:
1. Loan agreement between Leisegang GmbH and Galileo dated
October 15, 1997.
2. Loan Agreement between Leisegang GmbH and NetOptix dated
December 9, 1998.
3. Loan agreement between Leisegang GmbH and
Industries-Kreditbank AG, Deutsche Industriebank, dated July
16, 1991.
39
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
4. Loan agreement between Leisegang and JBS Medical Sales
(Poland), dated January 11, 1999 in connection with a loan
to JBS Medical Sales (Poland) in the amount of DM 5.000.
B. Insurance Contracts:
1. Fire insurance with HDI-Haftpflichtverband der
deutschen Industrie V.a.G. dated December 21, 1998.
2. Business insurance with HDI-Haftpflichtverband der
deutschen Industrie V.a.G. dated December 21, 1998.
3. Combined fire and business insurance with
HDI-Haftpflichtverband der deutschen Industrie V.a.G.
dated December 21, 1998.
4. Insurance for machinery with Generali Versicherungs
AG.
5. Security pension insurance with Condor-Versicherung
for the following employees:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (No. 0095 227-05)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ (No. 0095 227-04)
▇▇▇▇▇▇▇▇▇ Cybinski (No. 0095 227-02)
6. Direct insurance (Life Insurance) for ▇▇. ▇▇▇▇▇▇▇▇▇▇
with Colonia Company (No. ▇▇▇▇▇▇▇▇▇▇).
7. Direct insurance (Life Insurance) for Mr. Cybinski
with ▇▇▇▇▇▇▇ Concern Lebensversicherungs AG (No.
21515665).
8. Life insurance for ▇▇. ▇▇▇▇▇▇▇▇ with Allianz
Lebensversicherungs AG.
9. Life and injury insurance for Mr. Prove with
Karlsruher Versicherungen dated September 10, 1990.
10. Life insurance for ▇▇. ▇▇▇▇▇▇▇▇▇▇ with ▇▇▇▇▇▇▇▇▇
Nationalversicherungs AG (No. 200106020861).
C. Employment Agreements:
1. Attached is a list of all employees as of December 3,
1999. All employees have either written or oral
agreements. The relevant collective bargaining
agreement is applicable to these agreements except
for ▇▇. ▇▇▇▇▇▇▇▇▇▇.
2. Agreement of Service between the Leisegang GmbH and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (managing director) dated October
9, 1997.
3. See Schedule 5.17.
40
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
D. Distributorship Agreements:
1. Agreements with foreign distributors entered into since
October, 1997:
* Kowloon (July 8, 1998)
* Belgrade, Yugoslavia (March 27,/April 17, 1998)
* ▇▇▇▇▇, ▇▇▇▇▇ (▇▇▇▇▇▇ ▇▇, ▇▇▇▇/▇▇▇▇ 6, 1990)
* Kuala Lumpur, Malaysia (August 18/August 27, 1998)
* Casablanca, Marocco (July 22, 1998)
* Gdansk, Poland (January 14, 1990)
* Cluj-Napoca, Rumania (March 25, 1998)
* Taipei, Taiwan (July 16, 1998)
* Bangkok, Thailand (August 28, 1998/September 22, 1998)
* Prague, Czech Republic (November 20, 1998)
* Tunisia (May 12, 1998)
GmbH also has agreements with a number of other
foreign distributors which are on the attached list.
Some of these distributors may not be active.
2. German customers or distributors:
The customers and distributors listed on the attached
Schedule and for which the word "AGB" in the last
column is listed are contracts based on the attached
standard terms and conditions. These customers and
distributors are active. Any customer listed that
wants to order products from GmbH is asked to execute
an agreement with the attached standard terms. GmbH
has no indication that any of its customers would not
sign the standard terms as attached.
E. Purchase Agreements:
Leisegang GmbH places its orders on demand.
Therefore, there are no long-term purchase
agreements.
F. Software License Agreements:
aa) License Agreement with ICS Systemhaus, license no.
40021633 regarding server and software dated September
28, 1999.
bb) License for different components of Comet-software,
distributed by ICS Systemhaus.
cc) Agreement on the delivery and use of software between
Leisegang GmbH and ICS Systemhaus dated June 14, 1999.
41
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
G Other Contracts:
aa) Lease and protection contract between Leisegang GmbH,
Teleonorma Leipzig GmbH and
Electra-Versicherungs-Vermittlungs GmbH [date not
legible].
bb) Lease agreement between Leisegang GmbH and ▇▇▇▇▇▇▇ &
Partner Burovertriebs GmbH regarding Panasonic
Copysystem FP 7140 dated September 2, 1996.
cc) Lease agreement between Leisegang GmbH and ▇▇▇▇▇▇▇ &
Partner Burovertriebs GmbH regarding a Panasonic
Copydistribution System dated February 2, 1998.
dd) Contract between Leisegang GmbH and Lepkojus
Sondermull Recycling and Beseitigungs GmbH regarding
waste disposal dated June 16 and 17, 1992.
ee) Oral agreement with Ms. ▇▇. ▇▇▇▇▇▇▇▇▇▇ regarding the
medical supervision of employees according to German
Labor Law.
ff) Employment safety contract with ▇▇▇▇▇▇▇ Ingernieurburo
IBS dated October 11, 1999.
gg) Lease Agreement regarding the Berlin facility between
Georg and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in Gesellschaft burgerlichen
Rechts (Partnership under the German Civil Code) and
Leisegang GmbH dated October 7, 1997.
hh) Supply contract for electricity.
ii) Supply contract for water.
42
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.13
LITIGATION
1. Leisegang has a commercial dispute with COMEG Endoskopie ("Comeg") a
German supplier regarding duplicate purchase orders issued by Leisegang to Comeg
and Comeg's duplicate supply of hysteroscopes. The amount in dispute is less
than $88,000. The dispute has not been resolved or submitted to litigation as of
November 30, 1999.
2. Leisegang and its affiliates have a commercial dispute with
Acromatics of Lieminister, Massachusetts regarding certain molds and development
costs related to plastic injections molds used in the Sani-Spec product line.
The amount in dispute is less than $45,000. The dispute has not been resolved or
submitted to litigation as of November 30, 1999. The molds are located at the
Acromatics facility.
3. Leisegang has been informed pursuant to a letter dated June 16, 1996
(the "June 16 Letter") that it was infringing upon a patent in connection with
the distribution of a Particle Skin Resurfacing device for Derm Genesis, the
manufacturer of the product. The June 16 Letter has been rescinded and the
Company has not received any additional correspondence.
4. In November of 1998 four separate class action complaints were filed
by shareholders of NetOptix against NetOptix. In June of 1999 such complaints
were consolidated into one action (Civil Action No. 98-12129-RCL). NetOptix has
filed a Motion to Dismiss which has not been decided. The plaintiffs allege that
NetOptix, and two of its former officers, violated the federal securities laws
by knowingly making false or misleading statements concerning the company's
financial condition. The plaintiffs' claim that the disappointing financial
results for the third quarter of 1998, made public on July 23, 1998, resulted
from business difficulties which should have been disclosed, or otherwise acted
upon, sooner. [NOTE: Documents not provided to Purchaser.]
5. NetOptix was notified by a group of settling defendants in the PSC
Resources Superfund Site in September 1998 that it was among a group of alleged
contributors of hazardous substances which were eventually disposed of at the
Palmer, Massachusetts PSC Resources Superfund Site. NetOptix has not but expects
in the ordinary course to enter into a form of consent or settlement arrangement
regarding the Parent's alleged de minimis contribution to the hazardous
substances identified at such site. [NOTE: Documents not provided to Purchaser.]
6. Leisegang was informed by Mentor H/S Inc. ("Mentor") on December 22,
1998 that Leisegang was infringing on Mentor's Liposuction Procedure with
Ultrasonic Probe patent in connection with a product that Leisegang was
marketing and distributing for FibraSonics known as the "LM-2000 Ultrasonic
Aspiration System." Leisegang and FibraSonics denies that it is infringing.
Leisegang has not received subsequent correspondence from Mentor.
43
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
7. Leisegang has been informed that a former employee, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, has filed an age discrimination complaint with the Equal Employment
Opportunity Commission on November 1, 1999. Leisegang does not believe there is
any basis for this claim.
8. Leisegang received a Complaint on December 10, 1999 that it has been
named as a defendant in a lawsuit. The Plaintiff, Shevander ▇. ▇▇▇▇▇, alleges in
her complaint that due to ▇▇▇▇▇▇ Dekalb Hospital, d/b/a The ▇▇▇▇▇ Health System
and ▇▇▇▇▇ Memorial Hospital's ("▇▇▇▇▇") negligence in its maintenance and repair
of a laparoscope that was used during a surgical procedure, she sustained
injuries. Leisegang was the distributor of this product and not was not involved
in the manufacturing of it. It distributes approximately 10 of these
non-strategic units each year. According to a letter dated January 8, 2000 from
Leisegang's insurance carrier, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group, this case is in the
process of being assigned to counsel.
9. Leisegang received a letter dated January 12, 2000 from Osteometer
Meditech's counsel which claims that Leisegang is in breach of its distributor
agreement with Osteometer Meditech dated December 10, 1998, as amended on June
25, 1999, for failing to purchase a minimum amount of product. The Company does
not believe there is any basis for this claim.
10. GmbH brought a complaint in summary proceeding against Mr.
Blotschinski (JBS Medical Sales, Poland) who is a customer of GmbH who currently
owes GmbH approximately D32,972 in connection with a loan and goods received.
11. GmbH has the following outstanding labor disputes:
(a) Claim for protection from termination brought by ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ (pending, labor court Berlin, file no. 69.Ca.31680/99).
A mutual settlement for a severance payment of DM 18,000
was agreed upon in the session of the court on November 24, 1999.
(b) Claim for protection from termination brought by ▇▇▇▇▇
Mokke (pending, labor court Berlin, file no. 18.CA.32427/00).
The claim of ▇▇▇▇▇ Mokke has been settled by the severance
payment of DM 10,000.
12. GmbH has a claim against Promed Planungs-und
Einrichtungsgesellschaft mbH for monies owed. Promed Planungs-und
Einrichtungsgesellschaft mbH has filed for a petition in bankruptcy (local court
of Braunschweig, file no. 1205-0-27.N.9/97). The claim of Leisegang GmbH was
registered in the bankruptcy proceeding.
13. There are two pending lawsuits still appearing at the Quebec Court
Register against Galenica:
44
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
(a) Plaintiff: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
Defendants: Galenica Inc.
Date: November 14, 1997
Court Number: ▇▇▇-▇▇-▇▇▇▇▇▇-▇▇▇
Amount: $728.95
Nature: Account
Status: Last procedure:
Defendant's reply filed on ▇▇▇▇▇ ▇▇, ▇▇▇▇
(▇) Plaintiff: Memorissime Inc.
Defendants: Entreprises Galenica Inc. (a predecessor of
Galenica)
Date: March 17, 1989
Court Number: ▇▇▇-▇▇-▇▇▇▇▇▇-▇▇▇
Amount: $326.46
Nature: Account
Status: Last procedure:
Declaration filed on March 17, 1989
14. The following GmbH employees who have received notice of termination have
brought claims of protection from termination: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ Ramuszkat, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
45
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.14
COMPLIANCE; GOVERNMENTAL AUTHORIZATIONS
Violation:
See violations disclosed in the "Phase I - Environmental Site Assessment, Les
Plastiques Medisma, ▇▇ ▇▇▇▇, ▇▇-▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ by Technitrol Eco
Inc. on December 8, 1997 as updated on December 6, 1999.
Material Investigations:
None.
Permits:
1. Boca Raton Occupational License for Leisegang
2. State of Florida, Palm Beach County Occupational License
3. Business License for GmbH dated May 21, 1959.
4. Galenica Medical Device Establishment License from Health Canada,
License No. 450 expires on December 31, 2000
5. Annual FDA Registration of Device Establishment for GmbH dated December
3, 1999, Registration No. 9611604
6. Environmental certificate for authorization of Medisma from the
Minister for Environment and Fauna of Quebec dated May 2, 1995 and its
modification of November 17, 1995, as assigned to Galenica on April 27,
1998, P-7610-16-01-0469703.
7. Environmental certificate of authorization of Galenica from the
Minister of Environment and Fauna of Quebec dated April 27, 1998,
P-7610-16-01-0409704.
46
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.15(a)
FDA COMPLIANCE
Exceptions to Substantial Compliance:
None, except as noted on Schedule 5.15(b)
510K Clearance Letters:
See attached chart which includes product, corresponding 510K number or
exemption and listing number. Also attached are the 510K letters for the
products listed in the attached chart, except as noted on the chart. Some
products listed on the attached chart are not manufactured by LMI, Galenica or
GmbH. The Company believes these products all have 510k letters and is in the
process of obtaining these letters. The 510K letters will be forwarded to the
Purchaser as they are obtained.
Products Marketed Without Clearance:
Laser Micromanipulators
Video Endorscopy
Uterine Insufflator
Light Sources - Halogen
Light Cables
Dopplers
Sterilizers
Laser Instruments - 72 part numbers
Diagnostic Test Kits (Thyroid kit)
Laminaria Cervical Dilators (non Sterile)
47
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.15(b)
FDA EXCEPTIONS
Leisegang
1. See attached Quality System Implementation Plan
2. FDA 483 dated February 1, 1996 for the Florida Facility and subsequent
Leisegang responses.
3. Leisegang received a Med Watch report dated June 16, 1999 which was
reported by the Midwest Physician Group relating to a cryo surgical
unit. According to the report, a patient was burned by the unit because
the unit was improperly administered by the user.
4. Leisegang received a warning letter dated January 3, 2000 from the FDA
regarding the Alexandrite Laser Products. The Company has responded by
requesting a sixty day extension to provide the appropriate data to the
FDA.
Galenica
1. Galenica received a Med Watch report from Touro Infirmary relating to a
speculum that broke during a patient examination which Galenica
responded to in a letter dated November 11, 1999.
GmbH
1. GmbH received a Certificate of Compliance dated January 29, 1993 issued
by Underwriters Laboratories, Inc. under the Standard for Safety
Category, "Professional Medical and Dental Equipment, UL 544", for the
following samples: Photo Colposcopes Models 3B3, 3H3, 3L3, 3DF, 3DS,
3BD3, 3DLS, 3DLFS, 3DLFSW, 3DLFW, 3BDS, 3BDF, 3BDFS, 3BDFSW, 3DFS,
3BDFW, 3DFW, 3DLF, 1H3, 1B3, 1D3, 1DF, 1DS, 1DFS, 1DFW, 1DFSW.
2. GmbH received a Certificate of Compliance dated August 22, 1994 issued
by Underwriters Laboratories, Inc. under the Standard for Safety
Category, "Professional Medical and Dental Equipment, UL 544", for the
samples of Component Medical Equipment, Halogen Lamp Power Supplies,
Type GUL and CUL.
3. GbmH received a Certificate for Quality Management System Assurance,
Certificate Registration Number ▇▇▇▇▇-▇▇-▇▇ from Dekra Certification
Services valid through July 11, 2000.
48
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
4. As required by European law, GmbH has obtained the following
Declaration of Conformity for the following Colposcope models: 3DF,
3DFW, 3BDF, 3BDFW, 3MF, 3MFW, 3DLF, 3DLFW, 3MLF, 3MLFW, 3DFWR, 1D3,
1H3, 2D3, 2H3, 3B3, 3BD3, 3DL3, 3D3, 3M, 3L3, 3H3, 3ML, 1DF, 1DFW, 2DF,
2DFW, and mini colposcope models 4.
5. GmbH is on import detention as to certain products that it markets
These products do have 510K clearance letters. The Company's FDA
consultant for the Sellers is in the process of investigating this
issue in order to remove GmbH from the import detention list.
49
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.16(a)
INSURANCE POLICIES
NOTE: All properties, assets and businesses of Leisegang and the Foreign
Subsidiaries are covered under consolidated insurance programs and
policies maintained by NetOptix, as to which no information is being
provided to Purchaser. Separate policies for Leisegang and the Foreign
Subsidiaries are as follows:
▇. ▇▇▇▇▇▇▇▇▇
1. Leisegang Products/Completed Operations Liability Insurance dated May
28, 1999.
B. GALENICA
1. Le Group Commerce Compagne d' assurance collective Policy dated
September 9, 1998 bearing no. 351-7878, and renewal letter from
▇▇▇▇▇▇▇▇▇ Assurances dated September 2, 1999.
2. Lombard Canada Pharmaceutical and Biotechnology General Liability
Policy dated September 15, 1999 and bearing number 9900900.
A. GMBH
See Insurance contracts listed on Schedule 5.12.
50
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.16(b)
INSURANCE EXCEPTIONS
None
51
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.17(a)
LABOR RELATIONS: EMPLOYEES
1. In recent weeks, there has been activity seeking to unionize or
otherwise organize the workers at the Canadian Facilities of Galenica,
an application for union certification with respect to Galenica's
employees was filed on September 22, 1999.
2. Galenica will be liable for the usual severance payments and other
amounts to its employees under Canadian and Quebec laws as well as
under the employment contracts, as the case may be, disclosed in
Schedule 5.12
3. See pending labor disputes of GmbH employees listed on Schedule 5.13.
4. Some of the GmbH employees are members of a labor union; however, the
Company does not know the names of these employees.
5. GmbH has entered into several new employment contracts which provide
that overtime be included in such employees' salaries. The applicable
collective bargaining agreements only permit an employee to work a
maximum of 35 hours per week. Therefore, these agreements may be
invalid with regard to the terms of these agreements relating to this
issue.
6. Pursuant to Section 7.10(a)(iii), GmbH has agreed to terminate nine
employees. As a result, GmbH may be liable for usual severance amount
to these employees and may be subject to claims by these employees from
protection of termination under German law. A proposal of termination
has been delivered to nine GmbH employees pursuant to the terms of
Section 7.10(a)(iii).
7. No other disclosures required.
52
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.17(b)
LIST OF EMPLOYEES AND SEVERANCE AMOUNTS
See separate letter from Leisegang to Purchaser dated December 14, 1999.
53
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.18(a)
COMPANY EMPLOYEE PLANS
A. NETOPTIX. NetOptix maintains a number of corporate benefit plans
which cover U.S.-based employees of NetOptix and its subsidiaries, including the
following.
1. 1991 Stock Option Plan. The following current employees of
Leisegang and the other Sellers have been granted options under
the 1991 Stock Option Plan:
Leisegang: ▇▇▇▇ ▇▇▇▇▇▇ - 50,000 shares
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - 7,500 shares
▇▇▇▇ ▇▇▇▇▇▇▇ - 200 shares
▇▇▇▇▇ Sizing -- 6,100 shares
▇▇▇▇ ▇▇▇▇▇ - 4,000 shares
▇▇▇▇▇ ▇▇▇▇▇▇ - 2,000 shares
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - 2,000 shares
Galenica: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - 10,000 shares
▇▇▇▇▇▇ ▇▇▇▇▇ - 10,000 shares
GmbH: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 5,000 shares
2. 401(k) Plan. Employees of Leisegang participate in the NetOptix
401(k) retirement plan.
▇. ▇▇▇▇▇▇▇▇▇. Leisegang maintains the following benefit plans for its
employees, in addition to participants in the NetOptix Stock Option and 401(k)
Plans:
1. Medical, Prescription, Dental
2. Life Insurance
3. Employee Stock Purchase Plan
C. GALENICA. The only benefit plan is a Group Insurance Plan offered by
SSQ Vie (to which Galenica itself is not a party) that covers medication,
paramedical services, life and short-term disability. Direct labor employees pay
75% of the premiums and administrative employees pay 50% of premiums. The
employee has the option of joining this plan.
▇. ▇▇▇▇▇▇▇▇▇ GMBH. There are no employee benefits other than certain
benefits received by the following employees:
54
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
TYPE EMPLOYEE
---- --------
Security Pension Insurance ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Cybinski
Direct Insurance ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Cybinski
Life Insurance Mr. Backash
Life and Injury Insurance Mr. Prove
Injury Insurance ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
55
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.18(b)
ERISA COMPLIANCE
None.
56
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.19(a)
ENVIRONMENTAL PROCEEDINGS
A. NETOPTIX
1. Information concerning the Massachusetts Facility of NetOptix
has been excluded.
▇. ▇▇▇▇▇▇▇▇▇
None
C. GALENICA
1. See matters listed in Phase I Environmental Site Assessment
Report for Les Plastiques Medisma, ▇▇ ▇▇▇▇, ▇▇-▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ dated December 8, 1997 by Technitrol Eco Inc.
as updated on December 6, 1999.
▇. ▇▇▇▇▇▇▇▇▇ GMBH
None.
57
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.19(b)
ENVIRONMENTAL MATTERS
A. NETOPTIX
1. See Schedule 5.13
2. Other information concerning the Massachusetts Facility of
NetOptix has been excluded.
▇. ▇▇▇▇▇▇▇▇▇
None
C. GALENICA
1. See Report referenced in Schedule 5.19(a)
▇. ▇▇▇▇▇▇▇▇▇ GMBH
1. By letter dated January 6, 1999, the environmental agency of
the Brzirksunt Chalottenburg confirmed that the noise emitted
by the machinery used does not exceed permissible noise levels.
58
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.19(c)
PROPERTIES
A. NETOPTIX
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ [NOTE: Information concerning environmental
matters at the Massachusetts Facility has been excluded.]
▇. ▇▇▇▇▇▇▇▇▇
Suite Nos. 150, 160, 250 and 265 located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
Suite Nos. 110 and 116 located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Leisegang as Lessee)
C. GALENICA
80 rang St-Edouard, St. Liboire, Province of Quebec, Canada
Note: See Report referenced on Schedule 5.19(a)
▇. ▇▇▇▇▇▇▇▇▇ GMBH
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, D-10625, Berlin, Germany
59
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.20
BROKER OR FINDER FEES
Andlinger & Co., Inc. and/or one of its Affiliates will receive an investment
banking fee with respect to the transactions contemplated by this Agreement.
60
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.21
ACCOUNTS & NOTES RECEIVABLE
1. Receivables valid and enforceable - No disclosures required.
2. Delinquencies - See Accounts Receivable Aging Report for Leisegang as
of November 30, 1999, previously delivered to Purchaser.
3. See Accounts Receivable Aging Report for Galenica as of December 8,
1999, Pepinieres Bonsai, which owes approximately $2700 to Galenica,
has sought the protection of the Bankruptcy Act (Canada) and/or the
Creditors Arrangement Act and/or other similar legislation.
4. See Accounts Receivable Aging Report for GmbH dated as of December 3,
1999 attached hereto. (Accounts receivable for accounts below DM 400
are not listed.)
61
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.22
ACCOUNTS & NOTES PAYABLE
1. See attached list of accounts and notes payable for GmbH dated
December 3, 1999 attached hereto.
62
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.24
INVENTORIES
1. The NetOptix Inventory contains a number of items which may be
obsolete, based on standards applicable to the current markets of the Sellers,
but which may be salable in other markets. Such NetOptix Inventory also contains
quantities of items which may be considered excess or long supply, based on the
historical market usage of such items.
2. The Inventories contain quantities of certain items of the Products
which may be considered excess or long supply based on historical market usage
of such items. Any such excess or long supply items will be valued on the
closing Statements in accordance with Section 3.3.
3. NetOptix maintains a substantial reserve on its books, as reflected
in the Latest Seller SEC Report, for obsolete, excess and long supply
inventories.
4. The NetOptix Inventory and the Inventories may contain defective
items. NetOptix maintains a reserve on its books, as reflected in the Latest
Seller SEC Report, for defective inventories.
5. The Inventories contain items of demonstration products in the
possession of sales employees and sales representatives, which may be sold to
customers at a discounted price. Such demonstration items will be valued on the
Closing Statements in accordance with Section 3.3.
63
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.25
SUPPLIERS, CONSULTANTS & VENDORS
▇. ▇▇▇▇▇▇▇▇▇
See Schedule 5.13 with respect to the commercial dispute with Comeg.
B. GALENICA
None
▇. ▇▇▇▇▇▇▇▇▇ GMBH
None.
64
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.26
DELINQUENT CUSTOMER ACCOUNTS
1. See Schedule 5.21 for an aging of accounts receivable.
2. See Schedule 5.13 for a description of claims GmbH has brought
against Mr. Blotschinski (JBS Medical Sales).
3. The following is a list of GmbH customers and the amounts owned
by each customer which the management of GmbH feel are not
likely to be paid:
Name Amount Due
Promed Plan DM 7.126,44
Shin ▇▇▇ ▇▇ 20.251,91
IEM DM 63.654,11
MHW GmbH DM 8.515,28
MHW NB DM 100.32
▇▇▇▇▇▇▇ ▇▇ 2.875,78
4. No other disclosures required.
65
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.27(a)
FACILITIES
A. NETOPTIX
None except Massachusetts Facility
▇. ▇▇▇▇▇▇▇▇▇
Location: Suite Nos. 150, 160, 250 and 265 located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ and Suite Nos. 110 and 116 located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Owner: Catexor Limited Partnership - I
Lessee: Leisegang
C. GALENICA
1. Location: ▇▇ ▇▇▇▇ ▇▇-▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇
Owner: Galenica
2. Location: 12,805 rue du Parc, in the City of Mirabel, Province
of Quebec, Canada
Owner: Gestion ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
▇. ▇▇▇▇▇▇▇▇▇ GMBH
Location: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Owner: Georg and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Lessee: Leisegang GmbH
66
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.27(b)
GALENICA TITLE COMMITMENTS
See attached Title Commitment
67
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 5.28
YEAR 2000
None
68
STOCK AND ASSET PURCHASE AGREEMENT
AMENDED AND RESTATED SCHEDULES DATED JANUARY 31, 2000
SCHEDULE 7.10(a)(iii)
GmbH TERMINATED EMPLOYEES
See separate letter from GmbH to Purchaser dated January 21, 2000.