AMENDMENT NO. 1
TO
STOCK PURCHASE AGREEMENT
This Amendment No. 1 (this "Amendment") to the Stock Purchase Agreement
dated as of December 29, 2004 (the "Purchase Agreement") among Franklin Capital
Corporation, a Delaware corporation (currently, Patient Safety Technologies,
Inc.) (the "Purchaser"), and the shareholders of Digicorp, a Utah corporation
(the "Company"), set forth in Section A of the signature page thereto (the
"Principal Shareholders"), and the shareholders of the Company set forth in
Section B of the signature page thereto (the "Other Shareholders"), is dated
December 28, 2005.
WITNESSETH:
WHEREAS, on or about December 30, 2004, the Purchaser, the Principal
Shareholders and the Other Shareholders entered into the Purchase Agreement, a
copy of which is attached hereto as Exhibit A;
WHEREAS, simultaneously with the execution of this Amendment, the parties
are entering into an Assignment Agreement (the "Assignment"), whereby the
Purchaser is assigning part of its obligations pursuant to the Purchase
Agreement, as amended by this Amendment, to Xxxx Xxxxxxx ("Xxxxxxx"); and
WHEREAS, the parties now desire to amend the Purchase Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of and for the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Purchase Agreement is hereby
amended as follows:
1. All capitalized terms not defined herein shall have the meanings
ascribed to such terms in the Purchase Agreement.
2. Section 1.1 of the Purchase Agreement is hereby amended to be and read
as follows:
"1.1 Sale and Purchase of Shares.
Upon the terms and subject to the conditions contained herein,
on the Closing Date each Seller shall sell, assign, transfer, convey and
deliver to the Purchaser, and the Purchaser shall purchase from each
Seller, the Shares of such Seller set forth opposite such Seller's name in
the column entitled "Shares Sold on Signing of Agreement" on Schedule A
hereto. Each Seller with Shares set forth opposite such Seller's name in
the column entitled "Shares To Be Registered" further agrees to sell the
Shares in such column upon effectiveness of the Registration Statement (as
hereafter defined) (the "Registration Date"). The purchase and sale of the
Shares pursuant to this Agreement shall be effective as of the close of
business on December 29, 2004 (the "Effective Time"), except for the
Registrable Shares, which shall be sold effective as of the Registration
Date."
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3. Section 2.1 of the Purchase Agreement is hereby amended to be and read
as follows:
"2.1 Amount of Purchase Price.
The purchase price for the Shares shall be an amount equal to
(a) $0.135 per share for all Sellers selling 80% of their Total Shares, in
the amounts set forth on Schedule A(1) hereto, and (b) $0.145 per share
for all Sellers selling 100% of their Total Shares, in the amounts set
forth on Schedule A(2) hereto (the "Purchase Price"). The purchase price
for the Registrable Shares shall be $0.135 per share if the Registration
Date is within six months from the date hereof and shall be $0.145 if the
Registration Date is after six months from the date hereof."
4. The closing and the sale and purchase of the Registrable Shares
provided for in Section 1.1 shall take place at the offices of Sichenzia Xxxx
Xxxxxxxx Xxxxxxx LLP located at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (or at such other place as the parties may designate in writing) as of the
Registration Date.
5. Section 3.2(a) of the Purchase Agreement, which is set forth below in
its entirety, is hereby deleted.
"(a) At the election of the Sellers or the Purchaser on or after
December 31, 2004, if the Closing shall not have occurred by the close of
business on such date, provided that the terminating party is not in default of
any of its obligations hereunder;"
6. The parties hereto hereby acknowledge that the Registrable Shares may
not be purchased and sold until the sale of such Registrable Shares is
registered pursuant to an effective Registration Statement. Accordingly, solely
as applicable to the Registrable Shares, the parties hereto hereby waive Section
3.2(c) of the Purchase Agreement.
7. Section 6.7(b) of the Purchase Agreement, which is set forth below in
its entirety, is hereby deleted.
"(b) If, and to the extent, such Registration Statement is not
declared effective by the SEC within one year from the Effective Date, the
Purchaser shall cause the Company to redeem the Registrable Shares at a
rate of $0.145 per share."
8. As consideration (the "Consideration") for entering into this
Amendment, upon deposit of the Registrable Shares into escrow in accordance with
the Escrow Agreement attached hereto as Exhibit C: (a) Xxxxxxx shall deliver one
hundred forty-five thousand dollars and three cents ($145,000.03) to the holders
of Registrable Shares set forth on the signature page hereto (the "Registrable
Shareholders"); and (b) the Purchaser shall deliver thirty-two thousand four
hundred eighty dollars and three cents ($32,480.03) to the Registrable
Shareholders. The Consideration shall constitute a loan to the Registrable
Shareholders which shall not be repayable until such time that the Registrable
Shares are delivered to Xxxxxxx and the Purchaser as contemplated pursuant to
the terms of the Assigment. The Consideration shall be paid by Xxxxxxx and the
Purchaser in accordance with Schedule I hereto.
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9. Upon Execution of this Amendment: (a) the Registrable Shareholders
shall deliver to Xxxxxxx and the Purchaser promissory notes, in the form
attached hereto as Exhibit B (the "Notes"), in accordance with Schedule I; and
(b) the Registrable Shareholders shall deposit the Registrable Shares into
escrow in accordance with the Escrow Agreement attached hereto as Exhibit C. On
the Registration Date, the Consideration shall be applied against payment of the
purchase price for the Registrable Shares, at which time the Notes shall be
cancelled and the Registrable Shares shall be delivered to Xxxxxxx and the
Purchaser.
10. The Company hereby agrees that if it does not register the resale of
the Registrable Shares as required pursuant to Section 4 of the Assignment on or
before June 30, 2005, then the Company shall redeem the Registrable Shares from
the Registrable Shareholders at a price of $0.145 per share (the "Redemption
Price") and the Company shall thereupon sell an aggregate of 1,224,000 shares of
the Company's common stock at a price of $0.145 per share (the "Redemption Share
Purchase Price") to Xxxxxxx and the Purchaser in accordance with the Allocation
of Registrable Shares described in Schedule I. Upon such redemption and sale,
the Consideration described in Section 8 hereof shall constitute the Redemption
Price paid by the Company to the Registrable Shareholders and also the
Redemption Share Purchase Price paid by Xxxxxxx and the Purchaser to the
Company, and the Notes shall automatically be cancelled.
11. (a) This Amendment shall be construed and interpreted in accordance
with the laws of the State of California without giving effect to the conflict
of laws rules thereof or the actual domiciles of the parties.
(b) Except as amended hereby, the terms and provisions of the Purchase
Agreement shall remain in full force and effect, and the Purchase Agreement is
in all respects ratified and confirmed. On and after the date of this Amendment,
each reference in the Purchase Agreement to the "Agreement," "hereinafter,"
"herein," "hereinafter," "hereunder," "hereof," or words of like import shall
mean and be a reference to the Purchase Agreement as amended by this Amendment.
(c) This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original and all of which taken together shall
constitute a single Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
to the Purchase Agreement as of the date first stated above.
PURCHASER:
PATIENT SAFETY TECHNOLOGIES, INC.
(FORMERLY, FRANKLIN CAPITAL CORPORATION)
By: /s/ Xxxxxx "Xxxx" Xxxx III
------------------------------------
Xxxxxx "Xxxx" Xxxx III
Chairman and Chief Executive Officer
HOLDERS OF REGISTRABLE SHARES:
/s/ Xxx X. Xxxxxx
----------------------------------------
Xxx X. Xxxxxx
Registrable Shares Owned: 304,500
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Registrable Shares Owned: 328,550
VERNAL WESTERN DRILLING
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Registrable Shares Owned: 500,000
/s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx
Registrable Shares Owned: 18,200
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
Registrable Shares Owned: 18,200
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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/s/ Xxxxxx Xxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxx
Registrable Shares Owned: 54,550
ACKNOWLEDGED AND AGREED:
/s/ Xxxx Xxxxxxx
----------------------------------------
Xxxx Xxxxxxx
DIGICORP
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
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Schedule I
Allocation of Consideration and Notes
Xxxx Xxxxxxx:
Holder of Number of Consideration
Registrable Registrable and Notes
Shares Shares to be Delivered
----------- ----------- ---------------
Xxx X. Xxxxxx 248,775 $ 36,072.38
Vernal Western Drilling 408,497 $ 59,232.07
Xxxxx X. Xxxxxx 268,423 $ 38,921.34
Xxxxxx Xxxxxx 14,869 $ 2,156.01
Xxxxx X. Xxxxxxx 14,869 $ 2,156.01
Xxxxxx Xxxxxxxx 44,567 $ 6,462.22
----------- ---------------
Total 1,000,000 $ 145,000.03
=========== ===============
Patient Safety Technologies, Inc.:
Holder of Number of Consideration
Registrable Registrable and Notes
Shares Shares to be Delivered
----------- ----------- ---------------
Xxx X. Xxxxxx 55,725 $ 8,080.13
Vernal Western Drilling 91,503 $ 13,267.94
Xxxxx X. Xxxxxx 60,127 $ 8,718.42
Xxxxxx Xxxxxx 3,331 $ 483.00
Xxxxx X. Xxxxxxx 3,331 $ 483.00
Xxxxxx Xxxxxxxx 9,983 $ 1,447.54
----------- ---------------
Total 224,000 $ 32,480.03
=========== ===============
Exhibit A
Stock Purchase Agreement
Exhibit B
Form of Promissory Note
$____________ [CITY], [STATE]
__________, 2005
FOR VALUE RECEIVED, ____________________ (the "Maker"),
[individually/a __________ corporation] with [his/its] principal
[residence/office] located at ________________________________________, hereby
promises to pay [Xxxx Xxxxxxx/Patient Safety Technologies, Inc.] (the "Payee"),
[an individual/a Delaware corporation] with an address at
________________________________________, the principal sum of
_________________________ dollars and __________ cents ($____________) in lawful
money of the United States on the Registration Date (as defined in that certain
Stock Purchase Agreement dated as of December 29, 2004 by and among Franklin
Capital Corporation (currently, Patient Safety Technologies, Inc.) and the
Sellers identified on the signature page thereto) (the "Maturity Date"). No
interest shall accrue on the principal amount of this Note.
Upon redemption of the Registrable Shares (defined in that certain
Stock Purchase Agreement dated as of December 29, 2004 (the "Purchase
Agreement") among Franklin Capital Corporation, a Delaware corporation
(currently, Patient Safety Technologies, Inc.), and the shareholders of
Digicorp, a Utah corporation (the "Company"), set forth in Section A of the
signature page thereto, and the shareholders of the Company set forth in Section
B of the signature page thereto) pursuant to Amendment No. 1 to the Purchase
Agreement, this Note shall be automatically cancelled and all obligations
hereunder shall be deemed null and void.
This Note may not be changed, modified or terminated orally, but
only by an agreement in writing, signed by the party to be charged. The Maker
hereby authorizes the Payee to complete this Note and any particulars relating
thereto according to the terms of the indebtedness evidenced hereby.
In the event of any litigation with respect to the obligations
evidenced by this Note, the Maker waives the right to a trial by jury and all
rights of set-off and rights to interpose permissive counterclaims and
cross-claims. This Note shall be governed by and construed in accordance with
the laws of the State of California and shall be binding upon the successors,
assigns, heirs, administrators and executors of the Maker and inure to the
benefit of the Payee, [his/its] successors, endorsees, assigns, heirs,
administrators and executors.
The Maker hereby irrevocably consents to the jurisdiction of the
state and federal courts located in the County of Los Angeles, California in
connection with any action or proceeding arising out of or relating to this
Note. If any term or provision of this Note shall be held invalid, illegal or
unenforceable, the validity of all other terms and provisions hereof shall in no
way be affected thereby.
B-1
[__________________________]
By:_______________________________
Name:_____________________________
Title:____________________________
ATTEST:
___________________________
B-2
Exhibit C
Escrow Agreement
