EXHIBIT 4
FIRST AMENDMENT TO
ASSET PURCHASE AGREEMENT
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT, dated as of April 30, 2001
(the "FIRST AMENDMENT"), by and among ESC MEDICAL SYSTEMS, LTD., a corporation
organized under the laws of the State of Israel ("PARENT"), ENERGY SYSTEMS
HOLDINGS INC., a Delaware corporation (the "BUYER," and collectively with Parent
"BUYER GROUP"), and COHERENT, INC., a Delaware corporation ("SELLER").
Capitalized terms used and not otherwise defined in this First Amendment shall
have the meaning provided for such terms in the Asset Purchase Agreement.
WHEREAS, Parent, Buyer and Seller have entered into an Asset Purchase
Agreement, dated as of February 25, 2001 (the "ASSET PURCHASE AGREEMENT");
WHEREAS, the consummation of the transactions contemplated by the Asset
Purchase Agreement with respect to the operation of the Business by Seller and
its Subsidiaries in Japan and China is subject to regulatory approvals and other
requirements in such jurisdictions which may not be obtained prior to the
expected Closing Date;
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Asset Purchase Agreement that the transactions contemplated
by all Ancillary Agreements relating to the transfers of the Assets by Non-U.S.
Companies be consummated simultaneously with or immediately prior to the
Closing; and
WHEREAS, the parties desire to consummate to the fullest extent
possible the transactions contemplated by the Asset Purchase Agreement on the
earliest possible date and provide each of Seller and Buyer Group with economic
and business benefits substantially comparable to those which would have been
available to each of Seller and Buyer Group if such transactions had been fully
consummated.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, intending to be legally bound hereby,
the parties agree as follows:
1. The Asset Purchase Agreement is hereby amended to add a new
Section 1.10 to read in its entirety as follows:
"Section 1.10 DELAYED CLOSINGS
(a) Buyer Group and Seller acknowledge that,
notwithstanding anything contained herein to the contrary, the transfer,
conveyance and delivery of the Japanese Regulatory Assets shall not occur on the
Closing Date and shall not be a condition to the Closing. The parties will
continue to use their reasonable best efforts to consummate and to cause their
respective subsidiaries to consummate the transfer of the Japanese Regulatory
Assets pursuant to the Asset Purchase Agreement, attached hereto as EXHIBIT A
(the "Japan Asset Purchase Agreement"), to occur as promptly as practicable
following the Closing.
(b) Buyer Group and Seller acknowledge that,
notwithstanding anything contained herein to the contrary, the transfer,
conveyance and delivery of the Local Transferred Assets (as defined in the Asset
Purchase Agreement attached hereto as EXHIBIT B (the "China Asset Purchase
Agreement")) shall not occur on the Closing Date and shall not be a condition to
the Closing. The parties will continue to use their reasonable best efforts to
consummate and to cause their subsidiaries to consummate the transfer of the
Local Transferred Assets to occur as promptly as practicable following the
Closing pursuant to the terms of contemplated by the China Asset Purchase
Agreement.
(c) The provisions of Section 1.6 shall be applied on a
basis as if all the closings referred to in the preceding subsections (a) and
(b) above had occurred simultaneously with the Closing. Similarly, the number of
shares of Parent Stock to be sold to Seller at the Closing shall be determined
as if all of the closings referred to in the preceding subsections (a) and (b)
had occurred simultaneously with the Closing."
2. All obligations of Seller pursuant to and in accordance with
the following Sections of the Asset Purchase Agreement shall remain in full
force and effect until the closing of the sale of the Assets contemplated by the
China Asset Purchase Agreement and the Japan Asset Purchase Agreement: Section
5.1 (Conduct of Business), Section 5.2 (Access to Information), Section 5.3
(Consents and Approvals), Section 5.4 (Reasonable Efforts), Section 5.7
(Transfers Not Effected as of Closing), Section 5.8 (Retention), Section 5.9
(Prohibition on Solicitation and Hiring), Section 5.10 (No Negotiation) and
Section 5.17 (Further Actions).
3. The Asset Purchase Agreement is hereby amended to add a new
Section 1.11 to read in its entirety as follows:
"Section 1.11 STOCK TRANSFER
(a) Buyer Group and Seller acknowledge that
notwithstanding anything contained herein to the contrary, Seller will transfer,
assign, convey and deliver to Laser Industries Ltd all the outstanding shares of
stock of (i) Coherent Star Medical Japan, Inc. (the "Star Stock") and (ii)
Coherent Medical Mexico S.A. de C.V. (the "Mexican Stock") pursuant to and in
accordance with the Stock Purchase Agreements attached hereto as EXHIBIT C and
EXHIBIT D, respectively. The Star Stock and the Mexican Stock will for all
purposes related to this Agreement, be deemed an Asset.
(b) With respect to Coherent Star Medical Japan, Inc. and
Coherent Medical Mexico S.A. de C.V., Seller agrees to indemnify and hold
harmless Buyer Group from and against any and all liabilities for Taxes arising
in respect of taxable periods ending on or before the Closing or, with respect
to taxable periods that begin before but end after the Closing, any Taxes
attributable to the portion of such taxable period that begins before and ends
on the Closing."
4. Section 6.1(f) of the Asset Purchase Agreement is hereby
amended in its entirety to read as follows:
"(f) The transactions contemplated by each of the Ancillary
Agreements relating to the transfer of the Assets by Non-U.S.
Companies, other than with respect to the China Asset Purchase
Agreement and the Japan Asset Purchase Agreement, shall be or have been
consummated simultaneously with or immediately prior to the Closing."
5. Section 6.1 of the Asset Purchase Agreement is hereby amended
to include a new Section 6.1 (g) to read in its entirety as follows:
"(g) Each of Parent and the relevant Parent Subsidiaries and
Seller and the Relevant Subsidiaries of Seller shall have executed and
delivered the Japan Asset Purchase Agreement in the form attached
hereto as EXHIBIT A and the China Asset Purchase Agreement in the form
attached as EXHIBIT B and any attachments and Exhibits thereto".
6. Section 9.7 of the Asset Purchase Agreement shall be amended
to include the following:
"(i) As used in this Agreement, "JAPANESE REGULATORY ASSETS"
shall have the meaning set forth in the Japan Purchase Agreement.
7. Seller and Buyer Group agree that, notwithstanding anything to
the contrary set forth in any Non-U.S. Agreement with respect to Transfer Taxes
(including but not limited to VAT), as between Seller and Buyer Group, the
provisions of Section 7.6 of the Asset Purchase Agreement will prevail.
8. The Asset Purchase Agreement is hereby amended to add a new
Section 5.26 to read in its entirety as follows:
"Section 5.26. Consumption Tax Covenant
On or before December 31, 2001, Buyer shall register as, and make an
election to become, a consumption tax payer in Japan.
9. Except as specifically amended in this First Amendment, the
Asset Purchase Agreement shall remain in full force and effect as originally
constituted and the undersigned shall remain obligated pursuant to the terms
thereunder.
10. This First Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York (regardless of the laws that
might otherwise govern under applicable principles of conflict of laws thereof)
as to all matters, including but not limited to matters of validity,
construction, effect, performance and remedies.
11. This First Amendment may be executed simultaneously in
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this First Amendment to be
executed as of the date first written above.
ESC MEDICAL SYSTEMS, LTD.
By /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Executive Officer
ENERGY SYSTEMS HOLDINGS INC.
By /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Director
COHERENT, INC.
By /s/ Xxxxxxx Couillaud
------------------------------------------
Name: Xxxxxxx Couillaud
Title: President and Chief Executive Officer
