Exhibit 2
STOCK PURCHASE AGREEMENT, dated as of May 24, 2002, by and between Appaloosa
Management L.P., on behalf of Appaloosa Investment Limited Partnership I
("AILP") and Palomino Fund Ltd ("Palomino"), for which it acts as investment
adviser (collectively, the Seller"), and ComVest Venture Partners, L.P. (the
"Buyer").
In consideration of the mutual agreements hereinafter set forth, the
parties hereto agree as follows:
1. The Seller agrees to sell, and the Buyer hereby purchases, 9,840,285
shares (4,929,717 from AILP and 4,910,568 from Palomino) of common stock and
warrants to purchase 1,314,060 shares (700,394 from AILP and 613,666 from
Palomino) of common stock having an exercise price of $2.28 (collectively, the
"Securities") issued by Bio-Plexus, Inc. (the "Company"), a Delaware
corporation, against payment of $5,000,000 (five million dollars). The Seller
shall deliver to the Buyer certificates representing the Securities together
with stock powers duly endorsed in blank. The Seller, to the extent necessary,
shall cause the Company to instruct its transfer agent to transfer the
Securities as directed by the Buyer. Payment will be made against delivery of
the above described certificates and stock powers.
2. The Seller represents and warrants that it owns the Securities free and
clear of any and all liens, security interests, claims or other encumbrances.
This Agreement has been duly authorized and validly authorized by the Seller.
This Agreement has been duly executed and delivered by the Seller and this
Agreement constitutes a valid binding agreement enforceable in accordance with
its terms.
3. The Buyer, together with any person designated by it as a Buyer
hereunder who confirms in writing the representations set forth in this
paragraph 3 and paragraph 5 hereof, each represents that (a) it is an accredited
investor within the meaning of Regulation D under the Securities Act of 1933, as
amended (the "Act"), (b) it is a sophisticated investor, invests regularly in
securities and has sufficient knowledge and information about the Company, the
Securities and other matters relevant thereto to make an informed decision about
the purchase of the Securities; (c) Seller may have information that constitutes
"material non-public information" within the meaning of the Act and the
Securities Exchange Act of 1934, as amended, with respect to the Securities, the
Company and other matters relevant thereto that Seller has not shared with the
Buyer; and (d) it has made a decision to buy the Securities from the Seller at
the agreed-upon price independently of any information that the Seller may have
regarding the Company, the Securities and any other matters relevant thereto and
has not relied on any representation, warranty or omission made by the Seller;
and (e) Seller shall have no liability to Buyer with respect to any information
held by Seller. Buyer further acknowledges that Seller is entering into this
transaction with Buyer in reliance upon statements made by Buyer in this
Agreement.
4. The Buyer covenants and agrees, that for a period of three years, and
provided that during such period it (and/or its affiliates) owns at least 10% of
the outstanding Common Stock of the Company or otherwise controls the Company,
it will not take any action to cause the Company to either (a) terminate or fail
to renew the Company's existing directors and officers insurance policy (unless
a tail policy is obtained for the same duration), or (b) amend its charter or
by-laws (collectively, the "Constituent Documents") in any way that amends the
indemnification or exculpation provisions of the Constituent Documents.
5. The parties acknowledge that the consideration given for the sale and
purchase of the Securities may differ both in kind and amount from any payments
or distributions which the Buyer may ultimately receive with respect to the
Securities, and neither the Buyer nor any person designated after the date
hereof as a Buyer shall have any recourse to Seller for any deficiency or loss.
6. The Seller recognizes that the Buyer may, within ten business days
following the date hereof, designate one of more additional persons or entities
to purchase a portion of the Securities, which persons shall be deemed "Buyers"
under this Agreement, provided each such person or entity shall acknowledge (by
counter execution of this Agreement) to the Seller its obligations under Section
3 and 5 above as a Buyer.
7. Each of the parties is fully aware that, with regard to the sale and
purchase of the Securities, the other party is relying upon the truth and
accuracy of the representations, warranties and acknowledgments by the other
party hereto.
8. Transmission by telefax of an executed counterpart of the Agreement
shall be deemed to constitute due delivery of such counterpart, and all
counterparts taken together shall constitute one Agreement. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of New York, without regard to any conflict of laws provisions thereof.
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IN WITNESS WHEREOF the parties have executed this Agreement by a duly
authorized representative.
APPALOOSA MANAGEMENT L.P.,
on behalf of
Appaloosa Investment Limited Partnership I
Palomino Fund Limited
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
COMVEST VENTURE PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President and Managing Director
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