EXECUTION COPY
FIRST AMENDMENT TO THE STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO THE STOCK PURCHASE AGREEMENT, dated as of
January 15, 2004 (this "First Amendment"), is made and entered into by and among
Gradipore Limited, a corporation organized under the laws of the Commonwealth of
Australia ("Buyer Parent") and Gradipore, Inc., a Delaware corporation and a
direct, wholly owned subsidiary of Buyer Parent ("Buyer"), Gradipore Plasma
Holdings, Inc., a Delaware corporation and assignee of Buyer ("GPH"),
Serologicals Finance Company, a Delaware corporation ("Seller"), and
Serologicals Corporation, a Delaware corporation and parent of Seller ("Seller
Parent") and together with Seller, each a "Holder" and collectively, the
"Holders"). Seller, Seller Parent, Buyer and Buyer Parent are sometimes
individually referred to herein as a "Party" and collectively as the "Parties."
WITNESSETH:
WHEREAS, pursuant to the terms of that certain Stock Purchase
Agreement, dated as of December 19, 2003 (the "Stock Purchase Agreement"),
Seller has agreed to sell to Buyer, and Buyer has agreed to purchase from
Seller, all of the issued and outstanding shares of capital stock of
Serologicals Specialty Biologics, Inc., a Delaware corporation and a wholly
owned subsidiary of Seller ("SSBI"); and
WHEREAS, the Parties wish to amend the Stock Purchase Agreement as set
forth in this First Amendment.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the Parties agree as
follows:
1. The Exhibits to Stock Purchase Agreement are hereby amended as
follows:
a. The form of Promissory Note attached as Exhibit A to
the Stock Purchase Agreement is hereby replaced in its entirety with the
Promissory Note in the form attached hereto as Exhibit A, as Exhibit A to the
Stock Purchase Agreement for all purposes under and pursuant to the Stock
Purchase Agreement.
b. The form of Short Term Promissory Note attached as
Exhibit B to the Stock Purchase Agreement is hereby replaced in its entirety
with the Short Term Promissory Note in the form attached hereto as Exhibit B, as
Exhibit B to the Stock Purchase Agreement for all purposes under and pursuant to
the Stock Purchase Agreement.
c. The form of Security Agreement attached as Exhibit F
to the Stock Purchase Agreement is hereby replaced in its entirety with the
Security Agreement in the form attached hereto as Exhibit C, as Exhibit F to the
Stock Purchase Agreement for all purposes under and pursuant to the Stock
Purchase Agreement.
d. The form of Stock Pledge Agreement attached as
Exhibit G to the Stock Purchase Agreement is hereby deleted in its entirety
along with all references thereto in the Stock Purchase Agreement.
e. The form of legal opinion of Xxxxxxxx Xxxxxxxxx PC
attached hereto as Exhibit D, shall be Exhibit G to the Stock Purchase
Agreement.
f. The form of closing statement attached hereto as
Exhibit E, shall be Exhibit H to the Stock Purchase Agreement.
2. The reference to "Allegheny Biologics, Inc., a Pennsylvania
corporation" in the recitals of the Stock Purchase Agreement is hereby amended
to read "Allegheny Biologicals, Inc., a Pennsylvania corporation".
3. Section 2.2(b) of the Stock Purchase Agreement is hereby
amended to read in its entirety as follows:
"(b) Buyer shall deliver to the Seller a promissory note (the
"Promissory Note") in the form attached hereto as Exhibit A and in an
estimated amount (the "Estimated Note Amount") equal to the sum of (i)
the book value of the Inventory of the Business on the Effective Date
or the Closing Date, whichever is applicable pursuant to Section 2.3,
(ii) the accounts receivable of the Business on the Effective Date or
the Closing Date, whichever is applicable pursuant to Section 2.3 and
(iii) $196,320.00 (the "Payroll Amount") as such amount may be adjusted
pursuant to the provisions of the Promissory Note; and"
4. Section 2.3 of the Stock Purchase Agreement is amended by
adding the following sentence at the end:
"Seller and Buyer shall execute and deliver a settlement statement,
substantially in the form attached hereto as Exhibit H, reconciling the
working capital of the Business on the Closing Date and the Effective
Date, the cash collected and paid with respect to the Business during
the period between the Effective Date and the Closing Date (the
"Settlement Statement"). The Party owing money to the other as a result
of the operation of the Business between the Effective Date and the
Closing Date shall make such payment in immediately available funds
simultaneously with the Closing."
5. Section 7.1 of the Stock Purchase Agreement is hereby amended
by adding subsection (g) thereto which shall read as follows:
"(g) Legal Opinion. The executed legal opinion of Xxxxxxxx Ingersoll PC
shall be delivered in the form and substance as set forth on Exhibit
G."
6. Sections 8.1(d) and 8.2(e) of the Stock Purchase Agreement are
hereby deleted in their entirety.
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7. Section 9.3(c) of the Stock Purchase Agreement is hereby
amended to read in its entirety as follows:
"(c) The limitations on Holders' indemnification obligations
set forth in Section 9.3(a) and Section 9.3(b) shall not apply to any
Purchaser Loss of the type described in Section 9.2(e) or 9.2(d)."
8. Section 9.4(d) of the Stock Purchase Agreement is hereby
amended to read in its entirety as follows:
"the operations of the Business following the Effective Date and/or the
use by the Purchasers of the name 'Serologicals' following the
Effective Date."
9. Section 9.5 of the Stock Purchase Agreement is hereby amended
by adding subsection (c) thereto which shall read as follows:
"(c) The limitations on Purchasers' indemnification
obligations set forth in Section 9.5(a) and Section 9.5(b) shall not
apply to any Holder Loss of the type described in Section 9.4(e) or
Section 9.4(f)."
10. Pursuant to Section 11.3 of the Stock Purchase Agreement,
Buyer hereby assigns its rights and obligations under the Stock Purchase
Agreement to Gradipore Plasma Holdings, Inc., a Delaware corporation ("GPH"),
and GPH hereby assumes and agrees to fully perform, pay and observe each and
every obligation of Buyer under the Stock Purchase Agreement.
11. Schedule 3.5 to the Stock Purchase Agreement is hereby amended
by adding Schedule 3.5(1) in the form attached hereto as Exhibit F.
12. Schedule 5.8 to the Stock Purchase Agreement is hereby
replaced in its entirety with Schedule 5.8 attached hereto as Exhibit G.
13. Except as expressly amended by this First Amendment, the
terms, conditions, covenants, agreements, representations and warranties
contained in the Stock Purchase Agreement shall remain unaffected hereby and
shall continue in full force and effect.
14. This First Amendment may be executed in counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement.
[SIGNATURES FOLLOW ON NEXT PAGE.]
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IN WITNESS WHEREOF, the Parties have caused this First Amendment to the
Stock Purchase Agreement to be executed as of the date first above written.
SEROLOGICALS CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial Officer
SEROLOGICALS FINANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
GRADIPORE LIMITED
By: /s/ Xx. X. X. Xxxx
---------------------------------
Name: Xx. X. X. Xxxx
Title: Managing Director/CEO
GRADIPORE, INC.
By: /s/ Xx. X. X. Xxxx
---------------------------------
Name: Xx. X. X. Xxxx
Title: Director
GRADIPORE PLASMA HOLDINGS, INC.
By: /s/ Xx. X. X. Xxxx
---------------------------------
Name: Xx. X. X. Xxxx
Title: President
