Exhibit 99.1(b)
EXECUTION COPY
AMENDMENT AND JOINDER AGREEMENT
THIS AMENDMENT AND JOINDER AGREEMENT (the "Agreement") is made and entered
into as of July 16, 2004 (the "Effective Date"), by and among NEWPORT
CORPORATION, a Nevada corporation ("Newport"), BIRCH NANTUCKET HOLDING COMPANY,
LLC, a Delaware limited liability company wholly-owned by Newport ("Buyer"),
THERMO ELECTRON CORPORATION, a Delaware corporation ("Parent"), SPECTRA-PHYSICS,
INC., a Delaware corporation and a direct wholly-owned subsidiary of Parent
("SP"), LIFE SCIENCES INTERNATIONAL, INC., a Pennsylvania corporation and an
indirect wholly-owned subsidiary of Parent ("LSI"), LIFE SCIENCES INTERNATIONAL
LIMITED, a company organized under the laws of England and Wales and an indirect
wholly-owned subsidiary of Parent ("LSL"), (Parent, SP, LSI, and LSL are each
referred to as a "Seller" and collectively as the "Sellers") and NEWPORT LTD., a
company organized under the laws of England and a wholly-owned subsidiary of
Newport ("NL"). Newport, Buyer, NL and the Sellers are sometimes referred to
hereafter individually as a "Party" and collectively as the "Parties." All terms
not defined herein shall have the meanings set forth in that certain Stock
Purchase Agreement dated May 28, 2004 by and among Sellers, Newport and Buyer
(the "Stock Purchase Agreement").
WHEREAS, pursuant to the Stock Purchase Agreement Buyer shall, upon the
satisfaction or waiver of certain conditions in the Stock Purchase Agreement,
acquire all of the Shares from Parent, LSI and LSL;
WHEREAS, pursuant to Section 1.2 of the Stock Purchase Agreement, Newport
has the right to substitute one or more wholly-owned subsidiaries for Buyer to
act as the acquiring entity for the outstanding shares of capital stock of SP,
SPF, SPUK, HAL and/or SP Rochester, each of which comprise a portion of the
Shares, and Newport desires to have NL, rather than Buyer, act as the acquiring
entity with respect to the outstanding shares of capital stock of SPUK (the
"SPUK Shares") and the outstanding shares of capital stock of HAL (the "HAL
Shares"), pursuant to the terms and conditions of the Stock Purchase Agreement;
WHEREAS, the Form of Sale and Purchase Agreement relating to the sale of
Spectra-Physics GmbH ("SP-GmbH") attached as EXHIBIT C to the Stock Purchase
Agreement (the "German Stock Purchase Agreement") contemplates that the shares
of SP-GmbH be acquired by Newport GmbH, but Newport desires that such shares be
acquired by Micro-Controle S.A.; and
WHEREAS, Section 1.1 of the Stock Purchase Agreement provides that the
European Subsidiaries shall be acquired directly by the Newport European
Subsidiaries and the Form of Sale and Purchase Agreement relating to the sale of
Spectra-Physics B.V. ("SP-BV") attached as EXHIBIT C to the Stock Purchase
Agreement (the "Dutch Stock Purchase Agreement") contemplates that the shares of
SP-BV be acquired by Newport B.V., but Newport desires that such shares of SP-BV
be acquired indirectly via Buyer's acquisition of Spectra-Physics, Inc.
NOW, THEREFORE, in consideration of the mutual promises and agreements of
the parties herein contained, the parties hereby agree as follows:
1. Purchase and Sale of SPUK and HAL.
1.1 SPUK Shares. NL, rather than Buyer, shall purchase the SPUK
Shares from Sellers at the Closing, upon the terms and conditions set forth in
the Stock Purchase Agreement. As consideration for the transfer of the SPUK
Shares, NL, rather than Buyer, shall pay to Sellers at the Closing an aggregate
of Two Million Eight Hundred Eighty Two Thousand Eight Hundred Seventy Dollars
($2,882,870), which amount shall comprise a portion of the total Cash
Consideration under the Stock Purchase Agreement.
1.2 HAL Shares. NL, rather than Buyer, shall purchase the HAL Shares
from Sellers at the Closing, upon the terms and conditions set forth in the
Stock Purchase Agreement. As consideration for the transfer of the HAL Shares,
NL, rather than Buyer, shall pay to Sellers at the Closing an aggregate of One
Thousand Dollars ($1,000), which amount shall comprise a portion of the total
Cash Consideration under the Stock Purchase Agreement.
2. Purchase and Sale of Spectra-Physics GmbH and Spectra-Physics Lasers
B.V.
2.1 Spectra-Physics GmbH. The outstanding shares of SP-GmbH shall not
be acquired by Newport GmbH as contemplated by the German Stock Purchase
Agreement, but shall instead be acquired by Micro-Controle S.A. on the same
terms set forth in the German Stock Purchase Agreement. The parties shall
substitute Micro-Controle S.A. for Newport GmbH as the "Purchaser" under such
agreement.
2.2 Spectra-Physics Lasers B.V. The outstanding shares of
Spectra-Physics Lasers B.V. shall not be acquired by Newport B.V. (a Newport
European Subsidiary) as contemplated by the Dutch Stock Purchase Agreement (and
the Stock Purchase Agreement), but shall instead remain an asset of
Spectra-Physics, Inc. as of the Closing. Schedule 1 to the Stock Purchase
Agreement is hereby amended to delete "Spectra-Physics B.V." therefrom; and, as
a result of such deletion, the Parties acknowledge and agree that (a) SP-BV
shall no longer be included in the definition of "European Subsidiaries", (b)
the shares of SP-B.V. shall no longer be included in the definition of "European
Shares", and (c) that the Dutch Stock Purchase Agreement shall not be deemed to
be a "European Stock Purchase Agreement" and, as such, shall not be entered into
pursuant to the Stock Purchase Agreement.
3. Amendment and Joinder. Pursuant to Section 1.2 of the Stock Purchase
Agreement, and subject to the terms stated in this Agreement, each of the
Parties hereby agrees that NL shall be a party to the Stock Purchase Agreement
with respect to NL's purchase of the SPUK Shares and the HAL Shares, and that,
pursuant to Section 1.2 of the Stock Purchase Agreement, references to "Buyer"
in the Stock Purchase Agreement shall refer to Buyer and NL with respect to the
purchase and sale of the SPUK Shares and the HAL Shares; provided, however, that
notwithstanding anything to the contrary herein or in the Stock Purchase
Agreement, all such references to "Buyer" in the Stock Purchase Agreement shall
not include NL with respect to Sections 2.1(c), 5.2, 5.13 of the Stock Purchase
Agreement.
4. Effect of Amendment and Joinder. The provisions of this Agreement are
hereby incorporated into and made part of the Stock Purchase Agreement. Except
as amended by this Agreement, all of the provisions of the Stock Purchase
Agreement shall continue in full force and effect. The Parties hereby agree that
the Stock Purchase Agreement may not be further modified or amended except by a
written agreement signed by the Parties hereto.
[signatures follow on next page]
IN WITNESS WHEREOF, the Parties have signed this Amendment and Joinder
Agreement as of the date first written above.
NEWPORT CORPORATION, THERMO ELECTRON CORPORATION,
a Nevada corporation a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxx-Xxxxxxx
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Its: Vice President and Its: Vice President and
General Counsel Chief Financial Officer
BIRCH NANTUCKET HOLDING COMPANY, LLC, SPECTRA-PHYSICS, INC.,
a Delaware limited liability company a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxx Xxxxxxxxx
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Its: Vice President and Its: Chief Executive Officer
General Counsel
NEWPORT LTD. LIFE SCIENCES INTERNATIONAL,
A corporation organized under the laws of INC.,
England a Pennsylvania corporation
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxx-Xxxxxxx
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Its: Director Its: Vice President and
Chief Financial Officer
LIFE SCIENCES INTERNATIONAL
LIMITED,
a corporation organized under
the laws of England and Wales
By: /s/ Xxxxx Xxxxx
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Its: Director
