AMENDMENT NO. 1 TO
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
(this "Amendment"), dated as of October 15, 2004, is among Genesis Bioventures,
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Inc., a New York corporation ("Parent"); GBI Acquisition Corp., a Delaware
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corporation and a wholly owned subsidiary of Parent ("Acquisition Corp."); and
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Corgenix Medical Corporation, a Nevada corporation ("Target"), and amends that
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certain Amended and Restated Agreement and Plan of Merger dated as of May 21,
2004 among the parties hereto (the "Original Agreement").
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WHEREAS, the parties to the Original Agreement desire to amend the Original
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein made, and
other good and valuable consideration, receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1. Amendment and Restatement of Section 3.1 of the Original Agreement.
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Section 3.1 is hereby amended and restated to read in its entirety as follows:
"3.1 Merger Consideration.
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(a) The aggregate consideration payable by the PARENT in the
Merger to holders of shares of TARGET capital stock ("TARGET Capital
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Stock"), shall, subject to Section 3.1(b) hereof, consist of Fourteen
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Million (14,000,000) shares (the "Merger Shares") of the common stock,
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$0.0001 par value per share, of PARENT ("PARENT Common Stock").
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Immediately prior to the transactions contemplated hereunder, PARENT
shall have contributed the Merger Shares to the capital of ACQUISITION
CORP. for issuance upon the Closing.
(b) If, during the period beginning on the date first written
above and ending nine months immediately following the Closing (the
"Contingency Period"), PARENT Common Stock fails to trade at or above
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$0.53 per share for at least twelve (12) trading days in any
consecutive twenty (20) trading day period, then an additional Seven
Million (7,000,000) shares of PARENT Common Stock (the "Contingent
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Shares") shall be issued to those former holders of shares of TARGET
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Capital Stock who tendered shares to Parent at the Closing, with each
such former holder receiving Contingent Shares as per an exchange
ratio determined by dividing 7,000,000 by the full amount of all of
the issued and outstanding shares of TARGET Capital Stock immediately
prior to the Effective Time. If issued pursuant to this Section 3(b),
the Contingent Shares shall be issued within fifteen days following
the expiration of the Contingency Period. PARENT
shall have deposited the Contingent Shares with an escrow agent
mutually satisfactory to PARENT and TARGET prior to the Closing. At or
prior to the Closing, PARENT and TARGET shall execute and deliver an
escrow agreement to govern the terms upon which the Contingent Shares
shall be held in and, if applicable, released from, escrow."
2. Amendment of Section 6.3 of the Original Agreement. Section 6.3 is
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hereby amended and restated as follows:
"6.3 Approval of Stockholders. Both PARENT and TARGET shall take,
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as promptly as reasonably practicable, and prosecute with all due and
appropriate speed, such other steps reasonably necessary to obtain all
stockholder and regulatory approvals required for the consummation of
the Merger and the other transactions contemplated by this Agreement,
including specifically, in the case of PARENT, the filing of
applicable preliminary proxy materials with the SEC as promptly as
practicable and, in any case, by November 30, 2004, and the mailing of
definitive final proxy materials to stockholders as soon as
practicable and permissible in anticipation of meetings of the
shareholders of PARENT and TARGET to be held as promptly as
practicable and permissible but in any case, on or before February 28,
2005, or such later date as may be approved by the parties in the sole
discretion of each, for approval of the Merger and the other aforesaid
transactions."
3. Amendment of Section 9.13 of the Original Agreement. Section 9.13
is hereby amended by adding "(the "Takeout Financing")" immediately after
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"financing."
4. A new section 9.19 is hereby inserted, to read as follows:
"9.19 Dissenters. The number of Dissenting Shares shall not
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consist of more than twelve and one-half percent (12.5%) of the issued
and outstanding shares of TARGET Common Stock, excluding shares owned
by officers, directors, and Medical & Biological Laboratories Company,
Ltd."
5. Amendment of Section 10.1 of the Original Agreement. Section 10.1
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is hereby amended and restated as follows:
"10.1 Closing. Unless this Agreement shall have been terminated
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pursuant to the provisions of Article XIV hereof, the closing of the
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transactions contemplated by this Agreement (the "Closing") shall take
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place at the offices of PARENT 0X-0000 Xxxx Xxxxxx Xxx. Xxxxxx, XX,
Xxxxxx X0X 0X0, at 10:00 am, local time, on the date which is three
(3) business days after all conditions to closing have been satisfied
or are first capable of being satisfied, but in no event later than
February 28, 2005 unless otherwise mutually agreed by the parties to
this Agreement. The date on which the Closing occurs is referred to as
the "Closing Date." The Closing shall be deemed completed as of 12:01
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a.m. on the morning of the Closing Date."
6. Amendment of Section 14.1 of the Original Agreement. Section 14.1
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is hereby amended by replacing "July 30, 2004" with "February 28, 2005" in
subsection (b) thereof, and by adding the following new paragraphs:
"(e) by Corgenix (acting through its board of directors) if at
any time prior to November 30, 2004 Corgenix is not satisfied in its
sole discretion with the terms of the Takeout Financing or progress
made to complete the Takeout Financing; or
(f) by Corgenix (acting through its board of directors) if at any
time between the date hereof and November 30, 2004 there shall have
been any material adverse change in the financial condition of
Parent."
7. Authorization. This Amendment has been duly executed and delivered
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by each party hereto and constitutes a valid and binding obligation of each such
party, enforceable in accordance with its terms.
8. No Other Amendments. Except as expressly amended hereby, the
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provisions of the Original Agreement are and shall remain in full force and
effect.
9. Counterparts and Effectiveness. This Amendment may be executed in
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any number of counterparts and by different parties hereto in separate
counterparts, and delivered by means of facsimile transmission or otherwise,
each of which when so executed and delivered shall be deemed to be an original
and all of which when taken together shall constitute but one and the same
agreement. If any party hereto elects to execute and deliver a counterpart
signature page by means of facsimile transmission, it shall deliver an original
of such counterpart to each of the other parties hereto within ten days of the
date hereof, but in no event will the failure to do so affect in any way the
validity of the facsimile signature or its delivery.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
as of the date first written above.
GENESIS BIOVENTURES, INC.
By: /s/ E. Xxxx XxXxxxxxx
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Name: E. Xxxx XxXxxxxxx
Its: Chairman and CEO
GBI ACQUISITION CORP.
By: /s/ E. Xxxx XxXxxxxxx
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Name: E. Xxxx XxXxxxxxx
Its: Chairman and CEO
CORGENIX MEDICAL CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx, MD
Its: CEO
