AMENDMENT TO
PLAN AND AGREEMENT OF MERGER
THIS AMENDMENT TO PLAN AND AGREEMENT OF MERGER (the "Amendment"),
dated as of the 13th day of December, 2001, is by and among Serologicals
Corporation, a Delaware corporation ("Serologicals"); Intergen Company L.P., a
Delaware limited partnership ("Intergen"); Serocor Incorporated, a Delaware
corporation ("Sub"); and Intergen Investors L.P., a Delaware limited
partnership (the "General Partner").
WITNESSETH:
WHEREAS, Serologicals, Intergen, Sub and General Partner are parties
to that certain Plan and Agreement of Merger dated as of November 5, 2001 (the
"Merger Agreement"), as supplemented by that certain letter agreement dated
November 5, 2001 (the "Side Letter"), pursuant to which Intergen will be merged
with and into Sub, with Sub being the surviving entity; and
WHEREAS, the parties desire to amend the Merger Agreement as set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and covenants contained herein, and on the terms and subject to the
conditions herein set forth, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein, shall have the meanings assigned to them in the Merger
Agreement.
2. AMENDMENT TO SECTION 2.7 OF THE MERGER AGREEMENT. Section 2.7
of the Merger Agreement is hereby amended to read, in its entirety, as follows:
In determining the amounts realized by Intergen and
Serologicals' cost basis in the assets of Intergen being
acquired pursuant to the Merger, and for all purposes under
Section 1060 of the Code, the parties shall use the agreed
upon fair market values of such assets as determined by Ernst
& Young (the "Accounting Firm") provided that the fair market
value of the assets and liabilities of Intergen
Biomanufacturing Corporation determined by the Accounting
Firm shall not exceed US $2,000,000. Such determination shall
be made in a manner that the Accounting Firm deems
appropriate, based on the professional judgment of the
Accounting Firm, and shall be final and binding on each of
the parties hereto. The cost of the Accounting Firm shall be
borne by Serologicals. Serologicals shall send to the General
Partner the final determination promptly following its
completion by the Accounting Firm.
3. AMENDMENT TO SECTION 2.9 OF THE MERGER AGREEMENT. The
reference to "Cdn $16,418,141" in Section 2.9 of the Merger Agreement shall be
amended to read "Cdn $17,184,101."
4. DELETION OF SECTION 8.15 OF THE MERGER AGREEMENT. Section
8.15 of the Merger Agreement is hereby deleted.
5. NO OTHER AMENDMENT. Except as expressly provided in this
Amendment, the Merger Agreement and the Side Letter are, and shall continue to
be, in full force and effect in accordance with their terms, without amendment
thereto, and are, in all respects, ratified and confirmed.
6. MISCELLANEOUS.
6.1. 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.
6.2. Headings. The headings of the sections and
paragraphs of this Amendment are inserted for convenience only and shall not be
deemed to constitute part of this Amendment or to affect the construction
hereof.
6.3. Governing Law; Construction. This Amendment shall be
construed in accordance with and governed by the laws of the State of Delaware
without giving effect to the principles of conflicts of law thereof. No
provision of this Amendment or any related document shall be construed against
or interpreted to the disadvantage of any party hereto by any court or other
governmental or judicial authority by reason of such party's having or being
deemed to have structured or drafted such provision.
6.4. Severability. In the event that any provision hereof
would, under applicable law, be invalid or unenforceable in any respect, such
provision shall be construed by modifying or limiting it so as to be valid and
enforceable to the maximum extent compatible with, and permissible under,
applicable law. The invalidity or unenforceability of any provision of this
Amendment shall not affect the validity or enforceability of any other
provision of this Amendment which shall remain in full force and effect.
REMINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE FOLLOWS.
-2-
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to Plan and Agreement of Merger to be executed on its behalf on the
date indicated.
SEROLOGICALS CORPORATION INTERGEN COMPANY L.P.
By: Intergen Investors L.P., its
General Partner
/s/ Xxxxx X. Xxxx By: Intergen, Inc., its
--------------------------------- general partner
By: Xxxxx X. Xxxx
Title: President and Chief
Executive Officer
/s/ Xxxxxxx X. XxXxxxxx
----------------------------------
By: Xxxxxxx X. XxXxxxxx
SEROCOR INCORPORATED Title: Vice President
/s/ Xxxxx X. Xxxx
---------------------------------
By: Xxxxx X. Xxxx
Title: President
INTERGEN INVESTORS L.P., as the
General Partner
By: Intergen, Inc., its
general partner
/s/ Xxxxxxx X. XxXxxxxx
----------------------------------
By: Xxxxxxx X. XxXxxxxx
Title: Vice President
