FIRST AMENDMENT TO THE AGREEMENT OF PURCHASE AND SALE
This First Amendment to the Agreement of Purchase and Sale, dated
as of December 29,1998 (this "Amendment"), by and between Bayer Corporation,
an Indiana corporation ("Bayer"), and Serologicals Corporation, a Delaware
corporation ("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Bayer and Purchaser are parties to the Agreement of
Purchase and Sale, dated as of November 30, 1998 (the "Purchase Agreement");
WHEREAS, pursuant to the Purchase Agreement, Bayer shall sell to
Purchaser, and Purchaser shall purchase from Bayer, the Assets;
WHEREAS, Bayer has represented to Purchaser that the Assets
include all assets which are reasonably necessary for the conduct of the
Business as currently conducted;
WHEREAS, certain Assets required to conduct the Business will not
be transferred to Purchaser at the Closing but shall remain in the
possession of certain Bayer foreign affiliates until such Assets may be
properly transferred to Purchaser;
WHEREAS, Purchaser shall not be required to pay the full Purchase
Price to Bayer at Closing until Bayer shall properly transfer all of the
Assets to Bayer; and
WHEREAS, the parties set forth below have agreed to amending the
Purchase Agreement.
NOW THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained herein, and upon the terms
and subject to the conditions hereinafter set forth, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties do
hereby agree as follows:
1. Definitions. Any capitalized term used herein
and not defined shall have the respective meaning ascribed to it
in the Purchase Agreement, which is hereby incorporated herein.
2. Purchase Price and Payment. Notwithstanding
Section 2.4 of the Purchase Agreement, the amount payable as the
Purchase Price by Purchaser to Bayer at the Closing shall be
$27,500,000. Upon transfer by Bayer of all of Bayer's right,
title and interest in and to the Inventory and accounts
receivable held by Bayer's foreign affiliates and included within
the Assets (the "Foreign Assets") to Purchaser pursuant to duly
executed instruments of transfer and assignment in form and
substance reasonably satisfactory to Purchaser, sufficient to
vest in Purchaser the interests in the Foreign Assets, Purchaser
shall pay $1,500,000 to Bayer by wire transfer in immediately
available funds to the account of Bayer previously specified to
Purchaser by Bayer. Notwithstanding anything contained herein to
the contrary, Bayer shall not be required to transfer the Foreign
Assets on the Closing Date.
3. Purchase Agreement. Except as set forth in this
Amendment, all other terms and conditions of the Purchase
Agreement shall remain unchanged and in full force and effect.
4. Counterparts. This Amendment may be executed in
one or more counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall constitute the
same instrument.
5. Title Insurance Policy. The amount of $9,000,000
set forth in Section 8.5 of the Sales Agreement is hereby deleted
and replaced with the amount of $5,000,000.
6. Headings. The headings of the paragraphs herein
are included solely for convenience of reference and shall not
control the meaning or interpretation of any provision of this
Amendment.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed on its behalf as of the date first above written.
BAYER CORPORATION:
By: /s/ W. Xxxxxxx Xxxxxx
-------------------------
W. Xxxxxxx Xxxxxx
Senior Vice President
SEROLOGICALS CORPORATION:
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxx
Vice President, Finance
and Administration
and Chief Financial Officer
