EX-99 9 ex99-5.txt EXHIBIT 99.5 EXHIBIT 99.5 NOTE B 28 February 2002 1 Payment of the Principal Amount We promise to pay the Principal Amount on the Payment Date against presentation of this NOTE to the order of Biocompatibles International plc (registered number 2703724) ("PLC") in sterling, in immediately available funds at such location as PLC shall designate. 2 Interest We also promise to pay interest on the Principal Amount outstanding from time to time, in sterling at the location referred to above at the rate of 5% per annum (after as well as before judgment). Interest will be payable monthly in advance with the first payment being due on 28 February 2002 for the period from 28 February 2002 to 31 March 2002 (inclusive) and thereafter interest will be payable on the first day of each month. Interest will accrue from day to day and is calculated on the basis of the actual number of days in the calendar month and a year of 365 days. 3 Acceleration Prior to the Payment Date, we will repay the whole of the Principal Amount together with any accrued interest on receipt of a written demand from PLC following the occurrence of an Enforcement Event which has not been waived by PLC or remedied. 4 Prepayment 4.1 We may repay the whole of the Principal Amount together with any accrued interest at any time prior to the Payment Date provided that we give you not less than 3 Business Days written notice of the proposed date for prepayment. 4.2 In the event that payment under this NOTE is made prior to the Payment Date, no refund of any interest accrued and/or paid will be made. 4.3 Notwithstanding the Payment Date, PLC acknowledges that we intend to repay the Principal Amount on 15 May 2002. 5 Rights are personal Our rights under this NOTE shall be personal only, and shall not be capable of transfer whether by assignment or otherwise, in whole or in part and any such purported transfer shall be void and of no effect. 6 Payment on a Business Day If payment under this NOTE would otherwise be due on a date which is not a Business Day, such payment shall be made on the next day which is a Business Day. 7 Governing Law and Jurisdiction 7.1 This NOTE will be governed by and construed in accordance with English law. 7.2 Each of the parties to this NOTE irrevocably agree that the courts of England are to have non-exclusive jurisdiction to settle any disputes which may arise out of or in connection with this NOTE and that, accordingly, any legal action or proceedings arising out of or in connection with this NOTE ("Proceedings") may be brought in those courts and each of the parties to this NOTE irrevocably submits to the jurisdiction of those courts. 7.3 This consent and submission to jurisdiction is for the benefit of PLC only and nothing in this NOTE shall limit PLC's right to take Proceedings against us in any other court of competent jurisdiction nor shall the taking of Proceedings in one or more jurisdictions preclude PLC from taking Proceedings in any other jurisdiction, whether concurrently or not. 7.4 We irrevocably waive any objection which we may at any time have to the laying of the venue of any Proceedings in any court referred to in this NOTE and any claim that any such Proceedings have been brought in an inconvenient forum. 7.5 7.5.1 We irrevocably appoint the Company Secretary of Aspect Vision Holdings Limited, Unit 2, South Point, Hamble, Southampton, Hampshire, England SO41 4RF to receive, for us and on our behalf, service of process in any proceedings in England. Such service shall be deemed completed on delivery to the process agent. If for any reason the process agent ceases to be able to act as such or no longer has an address in England which has been communicated to PLC, the we irrevocably agree to appoint a substitute process agent acceptable to PLC, and to deliver to PLC a copy of the new agent's acceptance of that appointment, within 30 days. 7.5.2 We irrevocably consent to any process in any proceedings anywhere being served by mailing a copy by registered or certified prepaid airmail post to us. Such service shall become effective 30 days after mailing. 7.5.3 Nothing shall affect the right to serve process in any other manner permitted by law.] 8 Definitions In this NOTE, words have the following meanings: "Business Day" means a day (other than a Saturday or Sunday) on which commercial banks are open for business in London. "Charges" means: (a) the Share Charge and Assignment dated on or about 28 February 2002 between Aspect Vision Holdings Limited and PLC in respect of shares in Hydron Limited; (b) the Pledge Agreement dated on or about 28 February 2002 between The Cooper Companies, Inc and PLC in respect of shares in Biocompatibles Eyecare Inc; (c) the Deed of Trust, Security Agreement, Fixture Filing and Assignment of Rents and Leases dated on or about 28 February 2002 between Biocompatibles Eyecare Inc, Independent Trustees, Inc as trustee and PLC in respect of the production facility of Biocompatibles Eyecare Inc in Norfolk, Virginia, USA; and (d) the General Security Agreement dated on or about 28 February 2002 between Biocompatibles Eyecare Inc and PLC in respect of inventory and receivables. "Enforcement Event" has the meaning given to that term in any of the Charges. "Payment Date" means 15 November 2002. "Principal Amount" means 'L'20,137,000 as adjusted from time to time pursuant to the Repayment Deed and the Share Sale Agreement. "Repayment Deed" means the deed of repayment dated on or about the date of this NOTE between inter alios PLC, Aspect Vision Holdings Limited and The Cooper Companies, Inc. "Share Sale Agreement" means the International Share Sale Agreement dated 15 January 2002 between PLC, Aspect Vision Holdings Limited and The Cooper Companies, Inc. SIGNED as a DEED For and on behalf of THE COOPER COMPANIES, INC /s/ CAROL R. KAUFMAN .................................. Authorised Signatory SIGNED as a DEED by BIOCOMPATIBLES INTERNATIONAL PLC acting by /s/ CRISPIN SIMON Name: CRISPIN SIMON ................................... Position: CEO/PRESIDENT (Signature of Director) Name: Position: ................................... (Signature of Director/Secretary)