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EXHIBIT 10.54
STOCK PURCHASE AGREEMENT
AMONG
BIO-PLEXUS, INC.
AND
THE PURCHASERS
LISTED ON EXHIBIT A HERETO
Dated as of July ___, 2001
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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............................................................. 13
5.9. Transfer of Common Stock............................................ 14
5.10. GOVERNING LAW........................................................ 14
5.11. Submission to Jurisdiction........................................... 14
5.12. Service of Process................................................... 15
5.13. Waiver of Jury Trial................................................. 15
5.14. Signatures........................................................... 15
5.15. Further Assurances................................................... 15
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THIS STOCK PURCHASE AGREEMENT, dated as of July ___, 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, Section 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, Section 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.
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").
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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;
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(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
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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
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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
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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
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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;
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(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.
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.
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"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. Section 9601 et seq.) ("CERCLA"); the Hazardous Material
Transportation Act, as amended (49 U.S.C. Section 180 et seq.); the Resource
Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.)
("RCRA"); the Toxic Substance Control Act, as amended (15 U.S.C. Section 2601 et
seq.); the Clean Air Act, as amended (42 U.S.C. Section 7401 et seq.); the
Federal Water Pollution Control Act, as amended (33 U.S.C. Section 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)
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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.
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"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.
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(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
15
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
16
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.
17
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.
18
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:
-------------------------------------------------
Name:
Title:
APPALOOSA INVESTMENT LIMITED PARTNERSHIP I
By: Appaloosa Management L.P., its General Partner
By: Appaloosa Partners Inc., its General Partner
By:
-------------------------------------------------
Name:
Title:
PALOMINO FUND LTD.
By: Appaloosa Management L.P., its Investment Adviser
By: Appaloosa Partners Inc., its General Partner
By:
-------------------------------------------------
Name:
Title:
19
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
20
Exhibit B
Form of Registration Rights Agreement
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