EXHIBIT 1
FIRST AMENDMENT TO THE 7.5 % SECURED NOTE
FIRST AMENDMENT, dated as of December 30, 1999 (this "First
Amendment"), to the 7.5% Secured Note (the "Note") issued by Bio-Plexus,
Inc. (the "Company") to Appaloosa Investment Limited Partnership I (the
"Holder") on October 21, 1999.
W I T N E S S E T H:
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WHEREAS, the Company has issued the Note to the Holder;
WHEREAS, the Company wishes to induce the Holder to make
additional loans to the Company pursuant to the 15% Secured Note (as
defined herein), and in furtherance thereof the Company and the Holder have
agreed to amend the Note, subject to the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein, the Company and the Holder hereby agree as
follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms which are defined in the Note are used herein as therein defined.
2. Amendment to Note.
(a) Subsection 1.4 of the Note is amended by deleting the first
sentence thereof in its entirety and substituting in lieu therefor the
following:
The unpaid principal balance of this Note outstanding at any
time shall accrue interest at a rate per annum equal to (i)
from October 21, 1999 to the date preceding the date hereof,
7.5% and (ii) from the date hereof, 12%, in each case
including during the pendency of any bankruptcy or similar
proceeding, whether or not a claim for post-petition
interest is allowed as a claim in any such bankruptcy or
proceeding.
(b) Subsection 1.5 of the Note is amended by deleting the
percentage at the end of the first sentence thereof and substituting in
lieu therefor the following:
15% (including during the pendency of any bankruptcy or
similar proceeding, whether or not a claim for post-petition
interest is allowed as a claim in any such bankruptcy or
proceeding)
(c) Subsection 3.2 of the Note is amended by adding the letter
"(a)" before the first sentence thereof and adding the following new
subsection (b):
(b) The Board of Directors has taken all necessary action so
that no "fair price," "moratorium," "control share
acquisition," "interested holder" or other similar
anti-takeover statute or regulation (including, without
limitation, Sections 33-840 through 33-845 of the
Connecticut Business Corporation Act) or any applicable
anti-takeover provision in the Company's Certificate of
Incorporation or By-Laws is applicable to the transactions
contemplated by the Transaction Documents. To the knowledge
of the Company, no other state takeover statute is
applicable to the transactions contemplated by the
Transaction Documents.
(d) Subsection 4.4 of the Note is amended by (i) deleting the
date at the end of the first clause of the first sentence thereof and
substituting in lieu therefor "February 28, 2000" and (ii) deleting the
period at the end of the first sentence thereof and substituting in lieu
therefor the following:
; provided, however, that the Company shall adjourn the
Company Meeting from time to time until all of the
conditions set forth in Section 6.2 are satisfied or waived
(other than those conditions that by their nature are to be
satisfied on the Rollover Date), such that the Company
Meeting shall take place on the same day as the Rollover
Date in accordance with Section 6.1.
(e) A new subsection 4.13 is added to the end of subsection 4.12:
4.13 Security. The Secured Obligations have been, and will
continue to be, secured by the Collateral, subject to the
terms and conditions of the Collateral Documentation.
(f) Subsection 5.1(d) of the Note is amended by deleting all
references therein to "December 31, 1999" and substituting in lieu therefor
"February 28, 2000".
(g) Subsection 6.1 of the Note is amended by deleting the first
sentence thereof in its entirety and substituting in lieu therefor the
following:
On the same day that the stockholders' approval referred to
in Section 4.4 has been obtained (the "Rollover Date"),
subject to Section 6.2, the Company and the Purchasers shall
enter into (i) the Convertible Note Purchase Agreement
attached as an exhibit to the Proxy Statement (the
"Convertible Note Purchase Agreement"), (ii) warrants to
purchase 1,500,000 shares of Common Stock at an exercise
price of $7 attached as an exhibit to the Proxy Statement
(the "Rollover Warrant"), (iii) the Registration Rights
Agreement attached as an exhibit to the Proxy Statement (the
"Rollover Registration Rights Agreement") and (iv) the
Convertible Note Security Agreement attached as an exhibit
to the Proxy Statement (the "Convertible Note Security
Agreement"); provided, however, that if a Governmental
Entity shall determine that any of the transactions
contemplated by the Rollover Transactions violate any
applicable rules or regulations of such Governmental Entity,
the Holder shall, at the Holder's sole discretion, either
(i) abandon the Rollover Transactions or (ii) modify the
structure of the Rollover Transactions in a manner to comply
with such rule or regulation.
(h) Subsection 6.2(b) of the Note is amended by:
(I) adding the following phrase after the word "continuing"
in clause (ii) thereof:
"under this Note and no Default (as defined in the 15%
Secured Note) shall have occurred and be continuing
under the 15% Secured Note";
(II) clause (iii) thereof shall be amended by adding the
following after the word "full":
"and the principal amount of the 15% Secured Note, plus
all accrued and unpaid interest on the 15% Secured
Note, shall have been repaid in full"; and
(III)deleting clause (iv) thereof in its entirety and
renumbering the original clause (v) to clause (iv) and
clause (vi) to clause (v).
(i) Subsection 6.4 of the Note is amended by deleting the
reference to "December 31, 1999" and substituting in lieu therefor
"February 28, 2000"
(j) Subsection 7.1 of the Note is amended by (i) adding the
following definitions in proper alphabetical order:
"15% Secured Note" means the 15% Secured Note in the initial
aggregate principal amount of $1,650,000 to be issued by the
Company to the Holder after the date hereof in accordance
with the terms of the side letter, dated the date hereof,
between the Company and the Holder, as such 15% Secured Note
may be amended from time to time.
"Note" shall mean this Note as amended hereby and from time
to time in accordance with its terms.
and (ii) the definitions of "$3 Warrants," "$5 Warrants," "Maturity Date,"
"Registration Rights Agreement," "Rollover Transactions," "Transaction
Documents" and "Warrants" are deleted in their entirety and substituting in
lieu therefor the following definitions:
"$3 Warrants" shall have the meaning ascribed thereto in
Section 2(e).
"$5 Warrants" shall have the meaning ascribed thereto in
Section 2(e).
"Maturity Date" shall mean the earlier of February 28, 2000
and the Rollover Date.
"Registration Rights Agreement" shall have the meaning
ascribed thereto in Section 6.4.
"Rollover Transactions" shall mean the transactions
contemplated by Section 6.1 of this Note.
"Transaction Documents" shall mean this Note, the 15%
Secured Note, the side letter, dated the date hereof,
between the Company and the Holder, the Security Agreement,
the Registration Rights Agreement, the warrants to be issued
to Affiliates of the Holder pursuant to section (c) of the
aforesaid side letter and the Warrants.
"Warrants" shall have the meaning ascribed thereto in
Section 2(e).
(k) Subsection 8.4 of the Note is amended by deleting it in its
entirety and substituting in lieu therefor the following:
8.4. Entire Agreement. The Transaction Documents (including
the Schedules and Exhibits thereto) contain the entire
understanding of the parties with respect to the
transactions contemplated hereby and thereby.
3. Representations and Warranties. The Company hereby confirms,
reaffirms and restates the representations and warranties set forth in
Section 3 of the Note. The Company represents and warrants that as of the
date hereof and, after giving effect to this First Amendment and the
transactions contemplated hereby, no Default or Event of Default has
occurred and is continuing.
4. Effectiveness. The First Amendment shall become effective as of the
date upon which the Holder receives the counterpart of this First Amendment
duly executed by the Company and a duly executed copy of the side letter,
dated the date hereof, between the Company and the Holder.
5. Continuing Effect of the Transaction Documents. This First
Amendment shall not constitute an amendment of any other provisions of the
Note or any other Transaction Documents not expressly referred to herein
and shall not be construed as a waiver or consent to any further or future
action on the part of the Company that would require a waiver or consent of
the Holder. Except as expressly amended hereby, the provisions of the Note
and the other Transaction Documents are and shall remain in full force and
effect.
6. Counterparts. This First Amendment may be executed by the parties
hereto in any number of separate counterparts, each of which shall be
deemed to be an original, and all of which taken together shall be deemed
to constitute one and the same instrument.
7. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and delivered by their respective proper and
duly authorized officers as of the day and year first above written.
BIO-PLEXUS, INC.
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title:
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
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Name: Xxxxx X. Xxxxx
Title: Vice President
