Exhibit 2
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STOCK PURCHASE AGREEMENT
AMONG
BIO-PLEXUS, INC.
AND
THE PURCHASERS
LISTED ON EXHIBIT A HERETO
Dated as of July 18, 2001
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Table of Contents
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Page
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1. Issuance and Sale of Common Stock........................................1
1.1. Issuance, Purchase and Sale.....................................1
1.2. Closing.........................................................1
1.3. Conditions to Closing of the Purchasers;
Deliveries by the Reorganized
Company.........................................................2
1.4. Conditions to Closing of the Reorganized Company;
Deliveries by the
Purchasers......................................................3
2. Representations and Warranties...........................................3
2.1. Corporate Existence, Power and Authority; Subsidiaries..........3
2.2. Capitalization..................................................3
2.3. SEC Reports.....................................................4
2.4. Financial Statements............................................4
2.5. Effective Date; Winged Set......................................5
2.6. Tax Returns.....................................................5
2.7. Litigation......................................................5
2.8. Compliance with Other Agreements and Applicable Laws............5
2.9. Employee Benefits...............................................6
2.10. Environmental Compliance........................................6
2.11. Accuracy and Completeness of Information........................6
2.12. Survival of Warranties; Cumulative..............................7
2.13. Enforceability of Transaction Documents.........................7
2.14. Nature of Business..............................................7
2.15. Bankruptcy Court Orders.........................................7
3. Indemnification..........................................................7
4. Interpretation...........................................................8
4.1. Definitions.....................................................8
4.2. Other Definitional Provisions..................................11
5. Miscellaneous...........................................................12
5.1. Invalidity of Provision........................................12
5.2. Remedies.......................................................12
5.3. Entire Agreement; Effectiveness................................12
5.4. Counterparts...................................................12
5.5. Notices and Other Communications...............................12
5.6. Amendments.....................................................13
5.7. Successors and Assigns.........................................13
5.8. Expenses.......................................................14
5.9. Transfer of Common Stock......................................14
5.10. GOVERNING LAW..................................................14
5.11. Submission to Jurisdiction.....................................15
5.12. Service of Process.............................................15
5.13. Waiver of Jury Trial...........................................15
5.14. Signatures.....................................................15
5.15. Further Assurances.............................................15
THIS STOCK PURCHASE AGREEMENT, dated as of July 18, 2001 (this
"Agreement"), is made among BIO-PLEXUS, INC., a Delaware corporation (the
"Reorganized Company"), and the purchasers listed on Exhibit A hereto (each
such party, a "Purchaser" and, collectively, the "Purchasers").
WHEREAS, on April 4, 2001, Bio-Plexus, Inc., a Connecticut
corporation (the "Company"), filed a voluntary petition (Case No. 01-21079)
(the "Case") under chapter 11 of the United States Bankruptcy Code, as in
effect on that date (the "Bankruptcy Code"), with the United States
Bankruptcy Court for the District of Connecticut, Hartford Division (the
"Bankruptcy Court");
WHEREAS, on June 12, 2001 the Company's First Amended Plan of
Reorganization, dated June 12, 2001 (the "Plan"), was confirmed by the
order of the Bankruptcy Court pursuant to Section 1129 of the Bankruptcy
Code (the "Confirmation Order");
WHEREAS, pursuant to Article V, P. D of the Plan, on the
Effective Date (as defined in the Plan), the Company was reincorporated as
a Delaware corporation by means of a merger by and between the Company and
the Reorganized Company, a newly created wholly owned subsidiary of the
Company;
WHEREAS, Article V, P. B of the Plan and the Confirmation Order
provide that, immediately following the Effective Date, the Reorganized
Company shall issue to the Purchasers 1,314,060 shares of common stock (the
"Shares"), par value $.001 per share, of the Reorganized Company (the
"Common Stock") pursuant to a private placement for a purchase price of
$3,000,000; and
WHEREAS, the Purchasers and the Reorganized Company desire to
provide for such purchase and sale and to establish various rights and
obligations in connection therewith.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties and agreements herein set forth, the parties
hereto agree as follows:
1. Issuance and Sale of Common Stock.
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1.1. Issuance, Purchase and Sale. Upon the terms and subject to
the conditions set forth in the Plan and this Agreement, the Reorganized
Company is issuing and selling to each Purchaser, and each Purchaser is
purchasing from the Reorganized Company, the number of Shares set forth
opposite such Purchaser's name on Exhibit A hereto at a purchase price of
$2.283 per Share.
1.2. Closing. The closing of the transactions contemplated hereby
(the "Closing") will take place simultaneously with the execution hereof at
the offices of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the date of the Closing is referred to as
the "Closing Date").
1.3. Conditions to Closing of the Purchasers; Deliveries by the
Reorganized Company. Each Purchaser's obligation to purchase its Shares at
the Closing is subject to the fulfillment or waiver as of the Closing Date,
as applicable, of the following conditions:
(i) on the Closing Date, the Reorganized Company shall have
delivered to each Purchaser a stock certificate or stock
certificates representing the number of Shares set forth on
Exhibit A to be purchased by each such Purchaser registered in
the name of such Purchaser (or their respective nominees),
together with any other documents that are necessary to issue to
each Purchaser good and valid title to its respective Shares;
(ii) prior to or at the Closing, the Reorganized Company and
the Purchasers shall have executed and delivered the Registration
Rights Agreement attached as Exhibit B hereto;
(iii) on the Closing Date, the Reorganized Company shall
have delivered to the Purchasers reimbursement of the Purchasers'
costs and expenses (including the reasonable fees and expenses of
their counsel, Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx) incurred
in connection with the transactions contemplated by the
Transaction Documents to be paid as set forth in Section 1.4;
(iv) (A) the Effective Date (as defined in the Plan) shall
have occurred on or before June 30, 2001, (B) the commercial
launch of the Winged Set shall have occurred, (C) no material
development shall have occurred that affects the Reorganized
Company's ability to maintain the commercial viability of the
Winged Set following launch, (D) the Reorganized Company shall
have produced no less than 50,000 units of commercial sale
quality inventory of Winged Sets that have been shipped or are
ready for shipment, and (E) the Purchasers shall have received a
certificate from the chief executive officer of the Reorganized
Company, dated as of the Closing Date, attesting to (A), (B),
(C), and (D);
(v) no temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent
jurisdiction or other legal restraint or prohibition preventing
the consummation of the transactions contemplated by the
Transaction Documents shall be in effect, nor shall any
proceeding by any Governmental Authority seeking any of the
foregoing be pending;
(vi) the Confirmation Order shall have been entered by the
Bankruptcy Court and such order shall be in full force and effect
and not stayed and shall have become a Final Order;
(vii) the Reorganized Company shall have complied in full
with the notice and other requirements of the Bankruptcy Code and
any applicable Bankruptcy Rule or requirement of the Bankruptcy
Court with respect to the Confirmation Order in a manner
acceptable to Purchasers and their counsel;
(viii) there shall not be pending or threatened against
Purchaser, the Company, the Reorganized Company or any Affiliate
of any of them any litigation arising out of or relating to the
Case, the Plan, the Confirmation Order or any of the transactions
contemplated by the Transaction Documents; and
(ix) the Reorganized Company shall have delivered to each
Purchaser such other instruments and documents as reasonably
requested by each Purchaser.
1.4. Conditions to Closing of the Reorganized Company; Deliveries
by the Purchasers. At the Closing, each Purchaser shall have delivered to
the Reorganized Company, or to such other parties as otherwise set forth
below, an amount in cash equal to the amount set forth opposite such
Purchaser's name in Exhibit A hereto, less (x) its costs and expenses
(including the fees and expenses of its counsel, Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx, which amounts shall be wire transferred by the
Purchasers, on behalf of the Reorganized Company, in immediately available
funds to one or more accounts designated by such parties on or prior to the
date hereof) and (y) the amount, without duplication, of such Purchaser's
pro-rata portion of any of the Reorganized Company's outstanding
indebtedness for borrowings pursuant to the DIP Facility (as defined in the
Plan) as of the close of business on the Closing Date, including accrued
and unpaid interest thereon through such date and unpaid legal fees and
expenses owed pursuant to the DIP Facility.
2. Representations and Warranties. The Reorganized Company hereby
represents and warrants to Purchasers the following (which shall survive
the execution and delivery of this Agreement):
2.1. Corporate Existence, Power and Authority; Subsidiaries. The
Reorganized Company is a corporation duly organized and in good standing
under the laws of the state of Delaware and is duly qualified as a foreign
corporation and in good standing in all states or other jurisdictions where
the nature and extent of the business transacted by it or the ownership of
assets makes such qualification necessary, except for those jurisdictions
in which the failure to so qualify has not had and could not reasonably be
expected to have a Material Adverse Effect. After giving effect to the
Confirmation Order, the execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the transactions
contemplated hereunder and thereunder are all within the Reorganized
Company's corporate powers, have been duly authorized and are not in
contravention of law or the terms of the Reorganized Company's certificate
of incorporation, by-laws, or other organizational documentation, or any
indenture, agreement or undertaking to which the Reorganized Company is a
party or by which the Reorganized Company or its property is bound. After
giving effect to the Confirmation Order, this Agreement and the
Registration Rights Agreement constitute legal, valid and binding
obligations of the Reorganized Company enforceable in accordance with their
respective terms. The Reorganized Company has no Subsidiaries.
2.2. Capitalization. The authorized capital stock of the
Reorganized Company consists of (i) 25,000,000 shares of Common Stock, of
which, as of the date hereof, 10,001,440 shares were issued and
outstanding, 1,111,271 shares were reserved for issuance upon the exercise
of outstanding stock options pursuant to the Company's option plans, and
1,314,060 shares were reserved for issuance upon the exercise of the
outstanding warrants, and (ii) 5,000,000 shares of Preferred Stock, no par
value (the "Preferred Stock"), of which, as of the date hereof, no shares
were issued and outstanding. All of the outstanding shares of Common Stock
are validly issued and are fully paid and nonassessable. Except as set
forth on Schedule 2.2 hereto no class of capital stock of the Reorganized
Company is entitled to preemptive rights. Except as set forth on Schedule
2.2 hereto, there are no outstanding options, warrants, subscription
rights, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, shares of any class of capital stock
of the Reorganized Company, or agreements, by which the Reorganized Company
is or may become bound to issue additional shares of its capital stock or
options, warrants or other rights to purchase or acquire any shares of its
capital stock. Except as set forth on Schedule 2.2 hereto, no warrants,
bonds, debentures, notes or other indebtedness or other securities having
the right to vote (or convertible into or exercisable for securities having
the right to vote) on any matters on which stockholders of the Reorganized
Company may vote were issued or outstanding. Except as set forth on
Schedule 2.2 hereto or as contemplated by the Transaction Documents, the
Reorganized Company is not a party to, and, to the Reorganized Company's
best knowledge, there is, and immediately after the Closing, there will be,
no agreement, restriction or encumbrance (such as a preemptive or similar
right of first refusal, right of first offer, proxy, voting agreement,
voting trust, registration rights agreement, shareholders' agreement, etc.,
whether or not the Reorganized Company is a party thereto) with respect to
the purchase, sale or voting of any shares of capital stock of the
Reorganized Company (whether outstanding or issuable upon conversion,
exchange or exercise of outstanding securities) or other securities of the
Reorganized Company pursuant to any provision of law, its certificate of
incorporation or by-laws, any agreement or otherwise. Except as set forth
on Schedule 2.2 hereto or as contemplated by the Transaction Documents, no
Person has the right to nominate or elect one or more directors of the
Reorganized Company. Immediately following the transactions contemplated
hereby, the Reorganized Company's capitalization will be as set forth on
Schedule 2.2 hereto. The Reorganized Company has not declared or paid any
dividend or made any other distribution of cash, stock or other property to
its stockholders since January 1, 1996.
2.3. SEC Reports. Other than as set forth on Schedule 2.3 hereto,
the Reorganized Company has timely filed all proxy statements, reports and
other documents required to be filed by it under the Exchange Act and made
available to the Purchasers complete copies of all annual reports,
quarterly reports, proxy statements and other reports filed by the
Reorganized Company under the Exchange Act, each as filed with the
Securities and Exchange Commission (collectively, the "SEC Reports"). Each
SEC Report was on the date of its filing, in compliance in all material
respects with the requirements of its respective report form and the
Exchange Act and did not, on the date of filing, contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
2.4. Financial Statements. The financial statements of the
Reorganized Company (including any related schedules and/or notes) included
in the SEC Reports, have been prepared in accordance with GAAP consistently
followed throughout the periods involved (except as may be indicated in the
notes thereto) and fairly present in accordance with GAAP the financial
condition, results of operations, cash flows and changes in stockholders'
equity of the Reorganized Company as of the respective dates thereof and
for the respective periods then ended (in each case subject, as to interim
statements, to the absence of footnotes and as permitted by Form 10-Q and
subject to changes resulting from year-end adjustments, none of which are
material in amount or effect). Except as disclosed in the SEC Reports, the
Reorganized Company has no liability or obligation (whether accrued,
absolute, contingent, unliquidated or otherwise, whether known or unknown,
whether due or to become due and regardless of when asserted), except (i)
liabilities and obligations in the respective amounts reflected or reserved
against in the audited balance sheet of the Reorganized Company as of
December 31, 2000 or (ii) liabilities and obligations incurred in the
ordinary course of business since December 31, 2000 which individually or
in the aggregate would not reasonably be expected to have a Material
Adverse Effect.
2.5. Effective Date; Winged Set. The commercial launch of the
Winged Set has occurred and there has not been a material development or
event that could affect the Reorganized Company's ability to maintain the
commercial viability of the Winged Set. The Reorganized Company has
produced no less than 50,000 units of commercial sale quality inventory of
Winged Sets that are ready for shipment.
2.6. Tax Returns. The Reorganized Company has filed, or caused to
be filed, in a timely manner all tax returns, reports and declarations
which are required to be filed by it (without requests for extension except
as previously disclosed in writing to the Purchasers). All information in
such tax returns, reports and declarations is complete and accurate in all
material respects. The Reorganized Company has paid or caused to be paid
all taxes due and payable or claimed due and payable in any assessment
received by it, except (a) certain taxes with respect to periods prior to
the Petition Date and (b) taxes the validity of which are being contested
in good faith by appropriate proceedings diligently pursued and available
to the Reorganized Company and with respect to which adequate reserves have
been set aside on its books. Adequate provision has been made for the
payment of all accrued and unpaid federal, state, county, local, foreign
and other taxes whether or not yet due and payable and whether or not
disputed.
2.7. Litigation. Except as set forth in the SEC Reports, there is
no present investigation by any Governmental Authority pending, or to the
best of the Reorganized Company's knowledge threatened, against or
affecting the Reorganized Company, its assets or business and there is no
action, suit, proceeding or claim by any Person pending, or to the best of
the Reorganized Company's knowledge threatened, against or affecting the
Reorganized Company or its assets or goodwill, or against or affecting any
transactions contemplated by the Transaction Documents, which has resulted,
or if adversely determined against the Reorganized Company could reasonably
be expected to result, in any Material Adverse Effect.
2.8. Compliance with Other Agreements and Applicable Laws. Other
than as set forth on Schedule 2.8 hereto, the Reorganized Company is not in
default under, or in violation of any of the terms of, any agreement,
contract, instrument, lease or other commitment to which it is a party or
by which it or any of its assets are bound (except for defaults or
violations which have resulted from any rejection by the Reorganized
Company of any such agreement, contract, instrument, lease, or commitment
pursuant to or in accordance with the Bankruptcy Code and as approved or
confirmed by the Bankruptcy Court in the Case) and the Reorganized Company
is in compliance with all applicable provisions of laws, rules,
regulations, licenses, permits, approvals and orders of any foreign,
federal, state or local governmental authority.
2.9. Employee Benefits. Neither the Reorganized Company nor any
of its ERISA Affiliates has any liability, contingent or otherwise, with
respect to any "employee pension benefit plan" subject to ERISA.
2.10. Environmental Compliance. (a) The Reorganized Company has
not generated, used, stored, treated, transported, manufactured, handled,
produced or disposed of any Hazardous Materials, on or off its premises
(whether or not owned by it) in any manner which at any time violates any
applicable Environmental Law or any license, permit, certificate, approval
or similar authorization thereunder, where such violation has had or could
reasonably be expected to have a Material Adverse Effect. The operations of
the Reorganized Company comply in all material respects with all
Environmental Laws and all licenses, permits, certificates, approvals and
similar authorizations thereunder.
(b) There has been no investigation, proceeding, complaint,
order, directive, claim, citation or notice by any Governmental Authority
or any other person nor is any pending, or to the best of the Reorganized
Company's knowledge threatened, with respect to any non-compliance with or
violation of the requirements of any Environmental Law by the Reorganized
Company or the release, spill or discharge, threatened or actual, of any
Hazardous Material or the generation, use, storage, treatment,
transportation, manufacture, handling, production or disposal of any
Hazardous Materials or any other environmental, health or safety matter,
which affects the Reorganized Company or its business, operations or assets
or any properties at which the Reorganized Company has transported, stored
or disposed of any Hazardous Materials.
(c) The Reorganized Company has no material liability (contingent
or otherwise) in connection with a release, spill or discharge, threatened
or actual, of any Hazardous Materials or the generation, use, storage,
treatment, transportation, manufacture, handling, production or disposal of
any Hazardous Materials.
(d) The Reorganized Company has all licenses, permits,
certificates, approvals or similar authorizations required to be obtained
or filed in connection with the operations of the Reorganized Company under
any Environmental Law and all of such licenses, permits, certificates,
approvals or similar authorizations are valid and in full force and effect.
2.11. Accuracy and Completeness of Information. All information
furnished by or on behalf of the Reorganized Company in writing to the
Purchasers in connection with this Agreement or the Registration Rights
Agreement or any transaction contemplated hereby or thereby, including,
without limitation, all information on the Schedules attached hereto, is
true and correct in all material respects on the date as of which such
information is dated or certified and does not omit any material fact
necessary in order to make such information not misleading. No event or
circumstance has occurred which has had or could reasonably be expected to
have a Material Adverse Effect, which has not been fully and accurately
disclosed to the Purchasers in writing.
2.12. Survival of Warranties; Cumulative. All representations and
warranties contained in this Agreement shall survive the execution and
delivery of this Agreement and shall be conclusively presumed to have been
relied on by the Purchasers regardless of any investigation made or
information possessed by the Purchasers. The representations and warranties
set forth herein shall be cumulative and in addition to any other
representations or warranties which the Reorganized Company shall now or
hereafter give, or cause to be given, to the Purchasers.
2.13. Enforceability of Transaction Documents. This Agreement is,
and the Registration Rights Agreement when delivered hereunder will be, a
legal, valid and binding obligation of the Reorganized Company, enforceable
against the Reorganized Company in accordance with its terms.
2.14. Nature of Business. The Reorganized Company is primarily
engaged in the business of designing, manufacturing and marketing blood
collection needles, needle holders and needle disposal containers.
2.15. Bankruptcy Court Orders. The Confirmation Order is in full
force and effect, and has become a Final Order.
3. Indemnification. (a) The Purchasers and their respective
directors, officers, employees, affiliates, partners, shareholders, counsel
and agents and any affiliate of any of the foregoing (an "Indemnified
Party," collectively, the "Indemnified Parties") shall be indemnified and
held harmless by the Reorganized Company from and against and in respect of
any and all losses, costs, fines, liabilities, claims, penalties, damages
and expenses (including reasonable legal fees and expenses incurred in the
investigation and defense of claims and actions) (each, a "Loss", and
collectively, "Losses") resulting from, in connection with or arising out
of:
(i) any breach of any representation or warranty made by the
Reorganized Company in this Agreement, and any breach of any
covenant or agreement made by the Reorganized Company in this
Agreement;
(ii) except as otherwise provided in the Transaction
Documents, any amounts paid or payable by the Purchasers for any
costs, expenses or fees of attorneys, accountants, other
representatives, financial advisors or brokers related to the
transactions contemplated by the Transaction Documents;
(iii) any investigation, litigation or other proceeding
brought or threatened relating to, or otherwise arising out of,
the execution of the Agreement or the Registration Rights
Agreement, or the transactions contemplated hereby or thereby;
(iv) all Environmental Liabilities and Costs arising from or
in connection with the past, present or future operations of the
Reorganized Company involving any damage to real or personal
property or natural resources or harm or injury alleged to have
resulted from any Release of Hazardous Materials on, upon or into
such property;
(v) any costs or liabilities incurred in connection with the
investigation, removal, cleanup and/or remediation of any
Hazardous Materials present or arising out of the operations of
any facility of the Reorganized Company;
(vi) any costs or liabilities incurred in connection with
any Environmental Lien; or
(vii) any action, suit or proceeding relating to any of the
foregoing.
(b) With respect to each claim subject to this Section 3 , the
Indemnified Party shall give prompt written notice to the Reorganized
Company of the claim, specifying in reasonable detail the nature of the
claim and a reasonable estimate of the amount of Losses attributable
thereto; provided that failure to give such notice promptly shall not
relieve or limit the obligations of the Reorganized Company except to the
extent the Reorganized Company is materially prejudiced thereby. With
respect to each third-party claim subject to this Section 3 (a "Third-Party
Claim"), the Reorganized Company, at its sole cost and expense, may, upon
notice to the Indemnified Party within fifteen (15) days after the
Reorganized Company receives notice of the Third-Party Claim, assume the
defense of the Third-Party Claim. The Reorganized Company shall not consent
to a settlement of, or the entry of any judgment arising from, any
Third-Party Claim, unless the Indemnified Party consents thereto, which
consent shall not be unreasonably withheld. The Indemnified Party shall be
entitled to participate in the defense of any Third-Party Claim, the
defense of which is assumed by the Reorganized Company, with its own
counsel and at its own expense. The parties shall cooperate in the defense
of any Third-Party Claim and the relevant records of each party shall be
made available on a timely basis.
4. Interpretation.
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4.1. Definitions. For purposes of this Agreement (including
Schedules and Exhibits hereto), the terms defined in this Agreement shall
have the respective meanings specified in the Preamble hereof; in addition,
the following terms shall have the following meanings:
"Affiliate" shall have the respective meanings ascribed to such
term in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act. "Affiliate" shall also include partners of a Person. Notwithstanding
the foregoing, "Affiliate" shall not include the limited partners of any
Purchaser or any limited partners of a limited partner of any Purchaser.
"Bankruptcy Rules" shall mean the Federal Rules of Bankruptcy
Procedure, as amended from time to time.
"Business Day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
"Closing" shall have the meaning ascribed thereto in Section 1.2.
"Closing Date" shall have the meaning ascribed thereto in Section
1.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and any successor statute of similar import, and regulations thereunder, in
each case as in effect from time to time.
"Environmental Law" shall mean all federal, state and local laws,
statutes, ordinances and regulations, now or hereafter in effect relating
to the regulation and protection of human health, safety, the environment
and natural resources. Environmental Laws include but are not limited to
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C.ss.9601 et seq.) ("CERCLA"); the Hazardous
Material Transportation Act, as amended (49 U.S.C.ss.180 et seq.); the
Resource Conservation and Recovery Act, as amended (42 U.S.C.ss.6901 et
seq.) ("RCRA"); the Toxic Substance Control Act, as amended (15
U.S.C.ss.2601 et seq.); the Clean Air Act, as amended (42 U.S.C.ss.7401 et
seq.); the Federal Water Pollution Control Act, as amended (33
U.S.C.ss.1251 et seq.); and their state and local counterparts or
equivalents.
"Environmental Liabilities and Costs" shall mean all liabilities,
monetary obligations, Remedial Actions, losses, damages, punitive damages,
consequential damages, treble damages, costs and expenses (including all
reasonable fees, disbursements and expenses of counsel, expert and
consulting and costs of investigation and feasibility studies), fines,
penalties, sanctions and interest incurred as a result of any claim or
demand by any Governmental Authority or any third party, and which relate
to any environmental condition or a Release of Hazardous Materials from or
onto (i) any property presently or formerly owned by the Reorganized
Company or (ii) any facility which received Hazardous Materials generated
by the Reorganized Company.
"Environmental Lien" shall mean any lien in favor of any
Governmental Authority or any other Person for Environmental Liabilities
and Costs.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" shall mean any (i) corporation which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Reorganized Company, (ii) partnership or
other trade or business (whether or not incorporated) under common control
(within the meaning of Section 414(c) of the Code) with the Reorganized
Company, or (iii) member of the same affiliated service group (within the
meaning of Section 414(m) of the Code) as the Reorganized Company, any
corporation described in clause (i) above or any partnership or trade or
business described in clause (ii) above.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of
the Securities and Exchange Commission promulgated thereunder, all as the
same shall be in effect at the time. Reference to a particular section of
the Securities Exchange Act of 1934, as amended, shall include reference to
the comparable section, if any, of any such successor federal statute.
"Final Order" shall mean an order of the Bankruptcy Court as to
which (a) the time to appeal or petition for certiorari has expired and as
to which no appeal, petition for certiorari or other proceeding for
reargument or rehearing shall then be pending, or (b) in the event that an
appeal, writ of certiorari or reargument or rehearing thereof has been
sought and is pending, such order of the Bankruptcy Court shall have been
affirmed by the highest court to which the order was appealed or certiorari
reargument or rehearing has been denied, and the time to take any further
appeal, petition for certiorari, or move for reargument or rehearing shall
have expired.
"GAAP" shall mean generally accepted accounting principles as
such principles shall be in effect in the United States at the relevant
date.
"Governmental Authority" shall mean any nation or government, any
federal, state, city, town, municipality, county, local or other political
subdivision thereof or thereto and any department, commission, board,
bureau, instrumentality, agency or other entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Hazardous Materials" shall mean (i) any element, compound or
chemical that is defined, listed or otherwise classified as a solid waste
contaminant, pollutant, toxic pollutant, hazardous substance, extremely
hazardous substance, toxic substance, hazardous waste, or special waste
under any Environmental Law; (ii) petroleum and its refined fractions;
(iii) any dielectric fluids containing more than 50 parts per
polychlorinated biphenyls; (iv) any flammable, explosive or radioactive
materials; and (v) any other materials used or stored by the Reorganized
Company, building, components (including but not limited to asbestos
containing materials) and manufactured products containing Hazardous
Materials.
"Indemnified Parties" shall have the meaning given such term in
Section 3 hereof.
"Material Adverse Effect" shall mean a material adverse effect
upon the Reorganized Company's assets, property, prospects, or condition,
financial or otherwise.
"Person" shall mean an individual, corporation, partnership,
limited liability company, limited liability partnership, trust,
unincorporated association, joint venture, joint-stock company, government
(including political subdivisions), Governmental Authority or agency, or
any other entity.
"Petition Date" shall mean the date of the commencement of the
Case (i.e., April 4, 2001).
"Release" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration of a Hazardous Material into the indoor or outdoor environment or
onto or from any property presently or formerly owned or operated by the
Reorganized Company, or at any disposed facility that received Hazardous
Materials generated by the Reorganized Company including the movement of
Hazardous Materials through or in the air, soil, surface water, groundwater
or property.
"Remedial Action" shall mean all actions necessary to monitor,
assess, evaluate, investigate, clean up, remove or treat any Release or
threatened Release of Hazardous Material or to prevent, mitigate or
minimize any Release or threatened Release so that the Release or
threatened Release does not migrate or endanger or threaten to endanger
public health or welfare or the environment.
"SEC Reports" shall have the meaning ascribed thereto in Section
2.3.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any successor federal statute, and the rules and regulations of
the Securities Exchange Commission promulgated thereunder, all as the same
shall be in effect at the time. Reference to a particular section of the
Securities Act of 1933, as amended, shall include reference to the
comparable section, if any, of any successor federal statute.
"Subsidiary" shall mean, with respect to any Person, any
corporation, limited or general partnership, limited liability company,
limited liability partnership, trust, association or other business entity
of which an aggregate of 30% or more of the outstanding stock or other
interests entitled to vote in the election of the board of directors of
such corporation (irrespective of whether, at the time, stock of any other
class or classes of such corporation shall have or might have voting power
by reason of the happening of any contingency), managers, trustees or other
controlling persons, or an equivalent controlling interest therein, of such
Person is, at the time, directly or indirectly, owned or controlled by such
Person and/or one or more Subsidiaries of such Person.
"Transaction Documents" shall mean this Agreement and the
Registration Rights Agreement.
"Winged Set" shall have the meaning given such term in the
Reorganized Company's Disclosure Statement for Plan of Reorganization,
dated April 4, 2001, as may be amended from time to time with the consent
of the Purchasers.
4.2. Other Definitional Provisions. (a) The words "hereof,"
"herein" and "hereunder" and other words of similar import when used in
this Agreement shall refer to this Agreement and the Schedules and Exhibits
hereto as a whole and not to any particular part of subdivision thereof,
and Section references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms, and the
works of either gender shall include the other gender where appropriate.
5. Miscellaneous.
-------------
5.1. Invalidity of Provision. The invalidity or unenforceability
of any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction. If any restriction or provision
of this Agreement is held unreasonable, unlawful or unenforceable in any
respect, such restriction or provision shall be interpreted, revised or
applied in a manner that renders it lawful and enforceable to the fullest
extent possible under law.
5.2. Remedies. The parties hereto agree that money damages or
other remedy at law would not be sufficient or adequate remedy for any
breach or violation of, or a default under, this Agreement by them and
that, in addition to all other remedies available to them, each of them
shall be entitled to an injunction restraining such breach, violation or
default or threatened breach, violation or default and to any other
equitable relief, including without limitation specific performance,
without bond or other security being required. In any action or proceeding
brought to enforce any provision of this Agreement, the successful party
shall be entitled to recover reasonable attorneys' fees in addition to its
costs and expenses and any other available remedy.
5.3. Entire Agreement; Effectiveness. This Agreement constitutes
the entire agreement, and supersedes all prior agreements and
understandings, oral and written, between the parties hereto with respect
to the subject matter hereof.
5.4. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been
signed by each party and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
5.5. Notices and Other Communications. All notices, consents,
requests, instructions, approvals, and other communications provided for
herein shall be deemed given, if in writing and delivered personally, by
telecopy or sent by registered mail, postage prepaid, when delivered to:
The Reorganized Company, to:
000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
With a copy to:
Xxxx and Xxxxx, P.C.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
The Purchasers, to
Appaloosa Management, L.P.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxx
Fax: (000) 000-0000
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address as any party may, from time to time, designate in
a written notice given in a like manner.
5.6. Amendments. This Agreement may be amended as to the
Purchasers, and their respective successors and assigns, and the
Reorganized Company may take any action herein prohibited, or omit to
perform any act required to be performed by it, if the Reorganized Company
shall obtain the written consent of the Purchasers. This Agreement may not
be waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party or parties against whom
enforcement of any waiver, change, modification or discharge is sought or
by parties with the right to consent to such waiver, change, modification
or discharge on behalf of such party.
5.7. Successors and Assigns. All covenants and agreements
contained herein shall bind and inure to the benefit of the parties hereto
and their respective successors and assigns. Notwithstanding the foregoing,
this Agreement shall not be assignable by either party hereto (other than
by operation of law) without the prior written consent of the other party
hereto; provided, that a Purchaser may assign its rights and obligations
hereunder to any other Purchaser or to a purchaser of shares of Common
Stock held by it.
5.8. Expenses. The Reorganized Company agrees to pay to each
Purchaser all reasonable costs and expenses incurred by such Purchaser
relating to any future amendment or supplement to any of the Transaction
Documents (or any proposal by the Reorganized Company for such amendment or
supplement) whether or not consummated or any waiver or consent with
respect thereto (or any proposal for such waiver or consent) whether or not
consummated, and all costs and expenses of such Purchaser relating to the
enforcement of any of the Transaction Documents.
5.9. Transfer of Common Stock. Each Purchaser understands and
agrees that each Share or certificate representing the Shares shall bear
the following legend:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH LAWS.
The requirement that the foregoing legend be placed upon
certificates evidencing any such Shares, shall cease and terminate upon the
earliest of the following events: (i) when such Shares are transferred in a
public offering under the Securities Act, (ii) when such Shares are
transferred pursuant to Rule 144 under the Securities Act, or (iii) when
such Shares are transferred in any other transaction, if the Purchaser
delivers to the Reorganized Company an opinion of its counsel, which
counsel and opinion shall be reasonably satisfactory to the Reorganized
Company; or a "no-action" letter from the staff of the Securities Exchange
Commission; in either case, to the effect that such legend is no longer
necessary in order to protect the Reorganized Company against a violation
by it of the Securities Act upon any sale or other disposition of such
Shares without registration thereunder. Upon the occurrence of any event,
requiring the removal of legend hereunder, the Reorganized Company, upon
the surrender of certificates containing such legend, shall, at its own
expense, deliver to the holder of any such Shares as to which the
requirement for such legend shall have terminated, one or more new
certificates evidencing such Shares not bearing such legend.
5.10. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE
GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW
PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF
THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
5.11. Submission to Jurisdiction. If any litigation shall be
brought by any Purchaser in order to enforce any right or remedy under this
Agreement, the Reorganized Company hereby consents and will submit, and
will cause each of its Subsidiaries to submit, to the jurisdiction of any
state or federal court of competent jurisdiction sitting within the area
comprising the Southern District of New York on the date of this Agreement.
The Reorganized Company hereby irrevocably waives any objection, including,
but not limited to, any objection to the laying of venue or based on the
grounds of forum non conveniens, which it may now or hereafter have to the
bringing of any such litigation in such jurisdiction.
5.12. Service of Process. Nothing herein shall affect the right
of any Purchaser to serve process in any other manner permitted by law or
to commence legal proceedings or otherwise proceed against the Reorganized
Company in any other jurisdiction.
5.13. Waiver of Jury Trial. The Reorganized Company hereby waives
any right it may have to a trial by jury in respect of any action,
proceeding or litigation directly or indirectly arising out of, under or in
connection with, this Agreement.
5.14. Signatures. This Agreement shall be effective upon delivery
of original signature pages or facsimile copies thereof executed by each of
the parties hereto.
5.15. Further Assurances. Each party hereto agrees that it shall,
at the Reorganized Company's expense and upon the reasonable request of the
other party, duly execute and deliver, or cause to be duly executed and
delivered, to the other party such further instruments, agreements and
documents and do and cause to be done such further acts as may be necessary
or proper in the reasonable opinion of the other party to carry out more
effectively the provisions and purposes of the Transaction Documents.
IN WITNESS WHEREOF, the Reorganized Company and the Purchasers
have caused this Agreement to be executed and delivered by their respective
officers or partners thereunto duly authorized.
BIO-PLEXUS, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------------
Name: Xxxx X. Xxxx
Title: President and Chief Executive Officer
APPALOOSA INVESTMENT LIMITED PARTNERSHIP I
By: Appaloosa Management L.P., its General Partner
By: Appaloosa Partners Inc., its General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
PALOMINO FUND LTD.
By: Appaloosa Management L.P.,
its Investment Adviser
By: Appaloosa Partners Inc., its General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Exhibit A
---------
Aggregate
Purchaser No. of Shares Purchase Price
--------- ------------- --------------
Appaloosa Investment Limited
Partnership I 700,394 $ 1,599,000
Palomino Fund Ltd. 613,666 $ 1,401,000
Exhibit B
---------
Form of Registration Rights Agreement
-------------------------------------
