Exhibit 4
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REGISTRATION RIGHTS AGREEMENT
AMONG
BIO-PLEXUS, INC.
AND
THE STOCKHOLDERS
LISTED ON EXHIBIT A HERETO
Dated as of July 18, 2001
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THIS REGISTRATION RIGHTS AGREEMENT, dated as of July 18, 2001, is
made among Bio-Plexus, Inc., a Delaware corporation (the "Reorganized
Company"), and the stockholders of the Reorganized Company listed on
Exhibit A hereto (the "Stockholders").
WHEREAS, on April 4, 2001, Bio-Plexus, Inc. a Connecticut
corporation (the "Company"), filed a voluntary petition (Case No. 01-21079)
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;
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, pursuant to Article IV, P. E of the Plan, on the
Effective Date, the Reorganized Company issued to the Stockholders
8,501,224 shares of Common Stock (as defined below);
WHEREAS, Article V, P. B of the Plan provides that, immediately
following the Effective Date, the Reorganized Company shall issue to the
Stockholders 1,314,060 shares of Common Stock;
WHEREAS, if any of the Stockholders desire to sell shares of
Common Stock, it may be necessary to register such shares under the
Securities Act (as defined below); and
WHEREAS, as part of, and as consideration for, its consent to the
Plan and the acquisition of shares of Common Stock by the Stockholders from
the Reorganized Company on the date hereof and from time to time hereafter,
the Reorganized Company hereby grants to the Stockholders certain
registration and other rights with respect to their shares of Common Stock
as more fully set forth herein.
Accordingly, the parties hereto agree as follows:
1. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Certificate of Incorporation" means the Certificate of
Incorporation of the Reorganized Company, as it may be amended or restated
hereafter from time to time.
"Commission" means the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
"Common Stock" means any shares of common stock, par value $.001
per share, of the Reorganized Company, now or hereafter authorized to be
issued, and any and all securities of any kind whatsoever of the
Reorganized Company which may be exchanged for or converted into Common
Stock (including, without limitation the Warrant Stock), any and all
securities of any kind whatsoever of the Reorganized Company which may be
issued on or after the date hereof in respect of, in exchange for, or upon
conversion of shares of Common Stock pursuant to a merger, consolidation,
stock split, stock dividend, recapitalization of the Reorganized Company or
otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Exchange Act shall include a
reference to the comparable section, if any, of any such similar federal
statute.
"Other Investor" means each Person who, at the time of any
registration of Common Stock hereunder, has the right under a stockholder's
agreement or stock option agreement with the Reorganized Company or any
subsidiary thereof to participate in any public offering in which all or a
portion of the shares of Common Stock owned by the Stockholders are
registered under the Securities Act.
"Person" means a corporation, an association, a partnership, an
organization, a business, a trust, an individual, or any other entity or
organization, including a government or political subdivision or an
instrumentality or agency thereof.
"Registrable Securities" means (i) any shares of Common Stock
owned by the Stockholders, (ii) any shares of Common Stock issuable upon
the conversion of any securities held by the Stockholders convertible into
Common Stock, (iii) any shares of Common Stock held pursuant to the terms
of a stockholder's agreement or issuable upon exercise of an option
pursuant to the terms of a stock option agreement, as the case may be,
between any Other Investor and the Reorganized Company or any subsidiary
thereof, which agreement gives such Other Investor the right to participate
proportionately with the Stockholders in a public offering with respect to
such shares, and (iv) any Common Stock issued with respect to the Common
Stock referred to in clauses (i), (ii) or (iii) by way of a stock dividend,
stock split or reverse stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or otherwise. As to any
particular Registrable Securities, such securities shall cease to be
Registrable Securities (a) when a registration statement with respect to
the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (b) when such securities shall
have been otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the
Reorganized Company and subsequent public distribution of them shall not
require registration of them under the Securities Act, or (c) when such
securities shall have been sold as permitted by, and in compliance with,
the Securities Act. Any certificate evidencing the Registrable Securities
shall bear a legend stating that the securities have not been registered
under the Securities Act and setting forth or referring to the restrictions
on transferability and sale of the securities.
"Registration Expenses" means all expenses incident to the
registration and disposition of the Registrable Securities pursuant to
Section 2 hereof, including, without limitation, all registration, filing
and applicable national securities exchange fees, all fees and expenses of
complying with state securities or blue sky laws (including fees and
disbursements of counsel to the underwriters or the Stockholders and the
Other Investors in connection with "blue sky" qualification of the
Registrable Securities and determination of their eligibility for
investment under the laws of the various jurisdictions), all word
processing, duplicating and printing expenses, all messenger and delivery
expenses, the fees and disbursements of counsel for the Reorganized Company
and of its independent public accountants, including the expenses of "cold
comfort" letters or any special audits required by, or incident to, such
registration, all fees and disbursements of underwriters (other than
underwriting discounts and commissions), all transfer taxes, and the fees
and expenses of counsel to the Stockholders and the Other Investors;
provided, however, that Registration Expenses shall exclude, and the
Stockholders and the Other Investors shall pay, underwriting discounts and
commissions in respect of the Registrable Securities being registered.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
References to a particular section of the Securities Act shall include a
reference to the comparable section, if any, of any such similar Federal
statute.
"Warrant Stock" shall mean the shares of Common Stock purchased
by the holders of the warrants issued to the Stockholders in connection
with the Plan.
2. Registration Under Securities Act, etc.
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2.1 Registration on Request.
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(a) Request. At any time or from time to time, the
Stockholders, individually or jointly, shall have the right to require the
Reorganized Company to effect the registration under the Securities Act of
all or part of the Registrable Securities, by delivering a written request
therefor to the Reorganized Company specifying the number of shares of
Registrable Securities and the intended method of distribution. The
Reorganized Company shall, (i) as expeditiously as possible (but in any
event within 120 days of receipt of a written request), use its best
efforts to effect the registration under the Securities Act (including by
means of a shelf registration pursuant to Rule 415 under the Securities Act
if so requested in such request and if the Reorganized Company is then
eligible to use such a registration) of the Registrable Securities which
the Reorganized Company has been so requested to register by the
Stockholders, for distribution in accordance with the intended method of
distribution set forth in the written request delivered by the
Stockholders, and (ii) if requested by the Stockholders, obtain
acceleration of the effective date of the registration statement relating
to such registration.
(b) Registration of Other Securities. Whenever the
Reorganized Company shall effect a registration pursuant to this Section
2.1 in connection with an underwritten offering by any Stockholder and any
Other Investors of Registrable Securities, no securities other than
Registrable Securities shall be included among the securities covered by
such registration unless the Stockholder or Stockholders so registering
Registrable Securities (the "Registering Stockholders") shall have
consented in writing to the inclusion therein of such other securities,
which consent may be subject to terms and conditions determined by the
Registering Stockholders in their sole discretion.
(c) Registration Statement Form. Registrations under
this Section 2.1 shall be on such appropriate registration form of the
Commission as shall be selected by the Reorganized Company and as shall be
reasonably acceptable to the Registering Stockholders. The Reorganized
Company agrees to include in any such registration statement all
information which, in the opinion of counsel to the Registering
Stockholders and counsel to the Reorganized Company, is necessary or
desirable to be included therein.
(d) Expenses. The Reorganized Company shall pay all
Registration Expenses in connection with any registration requested
pursuant to this Section 2.1.
(e) Effective Registration Statement. A registration
requested pursuant to this Section 2.1 shall not be deemed to have been
effected (including for purposes of paragraph (h) of this Section 2.1) (i)
unless a registration statement with respect thereto has become effective
and has been kept continuously effective for a period of at least 120 days
(or such shorter period which shall terminate when all the Registrable
Securities covered by such registration statement have been sold pursuant
thereto), (ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement
of the Commission or other governmental agency or court for any reason not
attributable to the Registering Stockholders and has not thereafter become
effective, or (iii) if the conditions to closing specified in the
underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived.
(f) Selection of Underwriters. The underwriters of each
underwritten offering of the Registrable Securities to be registered shall
be selected by the Registering Stockholders.
(g) Right to Withdraw. If the managing underwriter of
any underwritten offering shall advise the Registering Stockholders that
the Registrable Securities covered by the registration statement cannot be
sold in such offering within a price range acceptable to the Registering
Stockholders, then the Registering Stockholders shall have the right to
notify the Reorganized Company in writing that they have determined that
the registration statement be abandoned or withdrawn, in which event the
Reorganized Company shall abandon or withdraw such registration statement.
In the event of such abandonment or withdrawal, such request shall not be
counted for purposes of the requests for registration to which the
Stockholders are entitled pursuant to this Section 2.1.
(h) Limitations on Registration on Request. The
Stockholders shall be entitled to require the Reorganized Company to
effect, and the Reorganized Company shall be required to effect, six (6)
registrations in the aggregate pursuant to this Section 2.1.
(i) Postponement. The Reorganized Company shall be
entitled once in any six-month period to postpone for a reasonable period
of time (but not exceeding 90 days) (the "Postponement Period") the filing
of any registration statement required to be prepared and filed by it
pursuant to this Section 2.1 if the Reorganized Company determines, in its
reasonable judgment, that such registration and offering would materially
interfere with any material financing, corporate reorganization or other
material transaction involving the Reorganized Company or any subsidiary,
or would require premature disclosure thereof, and promptly gives the
Registering Stockholders written notice of such determination, containing a
general statement of the reasons for such postponement and an approximation
of the anticipated delay. If the Reorganized Company shall so postpone the
filing of a registration statement, the Stockholders shall have the right
to withdraw the request for registration by giving written notice to the
Reorganized Company at any time and, in the event of such withdrawal, such
request shall not be counted for purposes of the requests for registration
to which the Stockholders are entitled pursuant to this Section 2.1.
2.2 Incidental Registration.
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(a) Right to Include Registrable Securities. If the
Reorganized Company at any time proposes to register any of its securities
under the Securities Act by registration on Form X-0, X-0 or S-3 or any
successor or similar form(s) (except registrations on any such Form or
similar form(s) solely for registration of securities in connection with an
employee benefit plan or dividend reinvestment plan or a merger or
consolidation), whether or not for sale for its own account, it will each
such time give prompt written notice to each of the Stockholders of its
intention to do so and of the Stockholders' rights under this Section 2.2.
Upon the written request of any of the Stockholders (which request shall
specify the maximum number of Registrable Securities intended to be
disposed of by the Stockholders), made as promptly as practicable and in
any event within 30 days after the receipt of any such notice (15 days if
the Reorganized Company states in such written notice or gives telephonic
notice to the Stockholders, with written confirmation to follow promptly
thereafter, stating that (i) such registration will be on Form S-3 and (ii)
such shorter period of time is required because of a planned filing date),
the Reorganized Company shall use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which
the Reorganized Company has been so requested to register by the
Stockholders; provided, however, that if, at any time after giving written
notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Reorganized Company shall determine for any reason not to
register or to delay registration of such securities, the Reorganized
Company shall give written notice of such determination and its reasons
therefor to the Stockholders and (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from any
obligation of the Reorganized Company to pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of the
Stockholders to request that such registration be effected as a
registration under Section 2.1 and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such other
securities. No registration effected under this Section 2.2 shall relieve
the Reorganized Company of its obligation to effect any registration upon
request under Section 2.1. The Reorganized Company will pay all
Registration Expenses in connection with any registration of Registrable
Securities requested pursuant to this Section 2.2.
(b) Right to Withdraw. The Stockholders shall have the
right to withdraw their request for inclusion of its Registrable Securities
in any registration statement pursuant to this Section 2.2 at any time
prior to the execution of an underwriting agreement with respect thereto by
giving written notice to the Reorganized Company of its request to
withdraw.
(c) Priority in Incidental Registrations. If the
managing underwriter of any underwritten offering shall inform the
Reorganized Company by letter of its belief that the number of Registrable
Securities requested to be included in such registration, when added to the
number of other securities to be offered in such registration, would
materially adversely affect such offering, then the Reorganized Company
shall include in such registration, to the extent of the number and type
which the Reorganized Company is so advised can be sold in (or during the
time of) such offering without so materially adversely affecting such
offering (the "Section 2.2 Sale Amount"), (i) all of the securities
proposed by the Reorganized Company to be sold for its own account; (ii)
thereafter, to the extent the Section 2.2 Sale Amount is not exceeded, the
Registrable Securities requested by the Stockholders to be included in such
registration pursuant to Section 2.2(a) (including Registrable Securities
held by Other Investors); and (iii) thereafter, to the extent the Section
2.2 Sale Amount is not exceeded, any other securities of the Reorganized
Company requested to be included in such registration by any holder
thereof, including, in the case where such registration is to be effected
as a result of the exercise by a holder of the Reorganized Company's
securities of such holder's right to cause such securities to be so
registered, the securities of such holder.
(d) Plan of Distribution. Any participation by holders
of Registrable Securities in a registration by the Reorganized Company
shall be in accordance with the Reorganized Company's plan of distribution,
provided that the Registering Stockholders shall have the right to select
the co-managing underwriter.
2.3 Registration Procedures. If and whenever the Reorganized
Company is required to use its best efforts to effect the registration of
any Registrable Securities under the Securities Act as provided in Sections
2.1 and 2.2 hereof, the Reorganized Company shall as expeditiously as
possible:
(a) prepare and file with the Commission as soon as
practicable the requisite registration statement to effect such
registration (and shall include all financial statements required
by the Commission to be filed therewith) and thereafter use its
best efforts to cause such registration statement to become
effective; provided, however, that before filing such
registration statement (including all exhibits) or any amendment
or supplement thereto or comparable statements under securities
or blue sky laws of any jurisdiction, the Reorganized Company
shall furnish such documents to the Registering Stockholders and
each underwriter, if any, participating in the offering of the
Registrable Securities and their respective counsel, which
documents will be subject to the review and comments of the
Registering Stockholders, each underwriter and their respective
counsel; and provided, further, however, that the Reorganized
Company may discontinue any registration of its securities which
are not Registrable Securities at any time prior to the effective
date of the registration statement relating thereto;
(b) notify the Registering Stockholders of the Commission's
requests for amending or supplementing the registration statement
and the prospectus, and prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition
of all Registrable Securities covered by such registration
statement for such period as shall be required for the
disposition of all of such Registrable Securities in accordance
with the intended method of distribution thereof; provided, that
except with respect to any such registration statement filed
pursuant to Rule 415 under the Securities Act, such period need
not exceed 120 days;
(c) furnish, without charge, to the Registering Stockholders
and each underwriter such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of
copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as the Registering
Stockholders and such underwriters may reasonably request;
(d) use its best efforts (i) to register or qualify all
Registrable Securities and other securities covered by such
registration statement under such securities or blue sky laws of
such States of the United States of America where an exemption is
not available and as the Registering Stockholders or any managing
underwriter shall reasonably request, (ii) to keep such
registration or qualification in effect for so long as such
registration statement remains in effect, and (iii) to take any
other action which may be reasonably necessary or advisable to
enable the Registering Stockholders to consummate the disposition
in such jurisdictions of the securities to be sold by the
Registering Stockholders, except that the Reorganized Company
shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subsection
(d) be obligated to be so qualified or to consent to general
service of process in any such jurisdiction;
(e) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the
Reorganized Company and counsel to the Registering Stockholders
to consummate the disposition of such Registrable Securities;
(f) furnish to the Registering Stockholders and each
underwriter, if any, participating in the offering of the
securities covered by such registration statement, a signed
counterpart of (i) an opinion of counsel for the Reorganized
Company, and (ii) a "comfort" letter signed by the independent
public accountants who have certified the Reorganized Company's
financial statements included or incorporated by reference in
such registration statement, covering substantially the same
matters with respect to such registration statement (and the
prospectus included therein) and, in the case of the accountants'
comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' comfort letters delivered
to the underwriters in underwritten public offerings of
securities (and dated the dates such opinions and comfort letters
are customarily dated) and, in the case of the legal opinion,
such other legal matters, and, in the case of the accountants'
comfort letter, such other financial matters, as the Registering
Stockholders, or the underwriters, may reasonably request;
(g) promptly notify the Registering Stockholders and each
managing underwriter, if any, participating in the offering of
the securities covered by such registration statement (i) when
such registration statement, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or
post-effective amendment to such registration statement has been
filed, and, with respect to such registration statement or any
post-effective amendment, when the same has become effective;
(ii) of any request by the Commission for amendments or
supplements to such registration statement or the prospectus
related thereto or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation of
any proceedings for that purpose; (iv) of the receipt by the
Reorganized Company of any notification with respect to the
suspension of the qualification of any of the Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such
purpose; (v) at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery
that, or upon the happening of any event as a result of which,
the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, in the
light of the circumstances under which they were made, and in the
case of this clause (v), at the request of the Registering
Stockholders promptly prepare and furnish to the Registering
Stockholders and each managing underwriter, if any, participating
in the offering of the Registrable Securities, a reasonable
number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered
to the purchasers of such securities, such prospectus shall not
include an 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 not misleading in the light of the
circumstances under which they were made; and (vi) at any time
when the representations and warranties of the Reorganized
Company contemplated by Section 2.4(a) or (b) hereof cease to be
true and correct;
(h) otherwise comply with all applicable rules and
regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the
first full calendar month after the effective date of such
registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule
158 promulgated thereunder, and promptly furnish to the
Registering Stockholders a copy of any amendment or supplement to
such registration statement or prospectus;
(i) provide and cause to be maintained a transfer agent and
registrar (which, in each case, may be the Reorganized Company)
for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date
of such registration;
(j) (i) use its best efforts to cause all Registrable
Securities covered by such registration statement to be listed on
the principal securities exchange on which similar securities
issued by the Reorganized Company are then listed (if any), if
the listing of such Registrable Securities is then permitted
under the rules of such exchange, or (ii) if no similar
securities are then so listed, use its best efforts to (x) cause
all such Registrable Securities to be listed on a national
securities exchange or (y) failing that, secure designation of
all such Registrable Securities as a NASDAQ "national market
system security" within the meaning of Rule 11Aa2-1 of the
Commission or (z) failing that, to secure NASDAQ authorization
for such shares and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register
as such with respect to such shares with the National Association
of Securities Dealers, Inc.;
(k) deliver promptly to counsel to the Registering
Stockholders and each underwriter, if any, participating in the
offering of the Registrable Securities, copies of all
correspondence between the Commission and the Reorganized
Company, its counsel or auditors and all memoranda relating to
discussions with the Commission or its staff with respect to such
registration statement;
(l) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable Securities,
no later than the effective date of the registration statement;
and
(n) make available its employees and personnel and otherwise
provide reasonable assistance to the underwriters (taking into
account the needs of the Reorganized Company's business) in their
marketing of Registrable Securities.
The Reorganized Company may require the Registering Stockholders to furnish
the Reorganized Company such information regarding the Registering
Stockholders and the distribution of the Registrable Securities as the
Reorganized Company may from time to time reasonably request in writing.
The Stockholders agree that upon receipt of any notice from the
Reorganized Company of the happening of any event of the kind described in
paragraph (g)(iii) or (v) of this Section 2.3, each of the Registering
Stockholders will, to the extent appropriate, discontinue its disposition
of Registrable Securities pursuant to the registration statement relating
to such Registrable Securities until, in the case of paragraph (g)(v) of
this Section 2.3, its receipt of the copies of the supplemented or amended
prospectus contemplated by paragraph (g)(v) of this Section 2.3 and, if so
directed by the Reorganized Company, will deliver to the Reorganized
Company (at the Reorganized Company's expense) all copies, other than
permanent file copies, then in its possession, of the prospectus relating
to such Registrable Securities current at the time of receipt of such
notice. If the disposition by the Registering Stockholders of their
securities is discontinued pursuant to the foregoing sentence, the
Reorganized Company shall extend the period of effectiveness of the
registration statement by the number of days during the period from and
including the date of the giving of notice to and including the date when
the Registering Stockholders shall have received copies of the supplemented
or amended prospectus contemplated by paragraph (g)(v) of this Section 2.3;
and, if the Reorganized Company shall not so extend such period, the
Registering Stockholders' request pursuant to which such registration
statement was filed shall not be counted for purposes of the requests for
registration to which the Stockholders are entitled pursuant to Section 2.1
hereof.
2.4 Underwritten Offerings.
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(a) Requested Underwritten Offerings. If requested by
the underwriters for any underwritten offering by the Registering
Stockholders (and any Other Investors) pursuant to a registration requested
under Section 2.1, the Reorganized Company shall enter into a customary
underwriting agreement with a managing underwriter or underwriters selected
by the Registering Stockholders. Such underwriting agreement shall be
satisfactory in form and substance to the Registering Stockholders and
shall contain such representations and warranties by, and such other
agreements on the part of, the Reorganized Company and such other terms as
are generally prevailing in agreements of that type, including, without
limitation, customary provisions relating to indemnification and
contribution. The Registering Stockholders shall be parties to such
underwriting agreement and may, at their option, require that any or all of
the representations and warranties by, and the other agreements on the part
of, the Reorganized Company to and for the benefit of such underwriters
shall also be made to and for the benefit of the Registering Stockholders
and that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to
the obligations of the Registering Stockholders. None of the Registering
Stockholders shall be required to make any representations or warranties to
or agreements with the Reorganized Company or the underwriters other than
representations, warranties or agreements regarding such Registering
Stockholder, its ownership of and title to the Registrable Securities, and
its intended method of distribution; and any liability of any Registering
Stockholder to any underwriter or other person under such underwriting
agreement shall be limited to liability arising from breach of its
representations and warranties and shall be limited to an amount equal to
the proceeds (net of expenses and underwriting discounts and commissions)
that it derives from such registration.
(b) Incidental Underwritten Offerings. In the case of a
registration pursuant to Section 2.2 hereof, if the Reorganized Company
shall have determined to enter into any underwriting agreements in
connection therewith, all of the Registrable Securities to be included in
such registration shall be subject to such underwriting agreements. The
Registering Stockholders may, at their option, require that any or all of
the representations and warranties by, and the other agreements on the part
of, the Reorganized Company to and for the benefit of such underwriters
shall also be made to and for the benefit of the Registering Stockholders
and that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to
the obligations of the Registering Stockholders. None of the Registering
Stockholders shall be required to make any representations or warranties to
or agreements with the Reorganized Company or the underwriters other than
representations, warranties or agreements regarding such Registering
Stockholder, its ownership of and title to the Registrable Securities, and
its intended method of distribution; and any liability of any Registering
Stockholder to any underwriter or other Person under such underwriting
agreement shall be limited to liability arising from breach of its
representations and warranties and shall be limited to an amount equal to
the proceeds (net of expenses and underwriting discounts and commissions)
that it derives from such registration.
2.5 Preparation; Reasonable Investigation. In connection
with the preparation and filing of each registration statement under the
Securities Act pursuant to this Agreement, the Reorganized Company will
give the Registering Stockholders, their underwriters, if any, and their
respective counsel, accountants and other representatives and agents the
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission,
and each amendment thereof or supplement thereto, and give each of them
such access to its books and records and such opportunities to discuss the
business of the Reorganized Company with its officers and employees and the
independent public accountants who have certified its financial statements,
and supply all other information reasonably requested by each of them, as
shall be necessary or appropriate, in the opinion of the Registering
Stockholders and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
2.6 Indemnification.
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(a) Indemnification by the Reorganized Company. The
Reorganized Company agrees that in the event of any registration of any
securities of the Reorganized Company under the Securities Act, the
Reorganized Company shall, and hereby does, indemnify and hold harmless
each Stockholder, its respective directors, officers, partners, agents and
affiliates and each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who
controls such Stockholder or any such underwriter within the meaning of the
Securities Act, against any losses, claims, damages, or liabilities, joint
or several, to which such Stockholder or any such director, officer,
partner, agent or affiliate or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities, joint or several (or actions or
proceedings, whether commenced or threatened, in respect thereof), arise
out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, (ii) any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, or (iii) any
violation by the Reorganized Company of any federal, state or common law
rule or regulation applicable to the Reorganized Company and relating to
action required of or inaction by the Reorganized Company in connection
with any such registration, and the Reorganized Company shall reimburse
such Stockholder and each such director, officer, partner, agent or
affiliate, underwriter and controlling Person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided
that the Reorganized Company shall not be liable in any such case to the
Stockholders or any such director, officer, partner, agent, affiliate, or
controlling person to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information
furnished to the Reorganized Company through an instrument duly executed by
or on behalf of the Stockholders, specifically stating that it is for use
in the preparation thereof; and provided, further, that the Reorganized
Company shall not be liable to any Person who participates as an
underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
(i) arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration
statement, any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the Reorganized Company through an
instrument duly executed by or on behalf of such Person or (ii) arises out
of such Person's failure to send or give a copy of the final prospectus, as
the same may be then supplemented or amended, to the Person asserting an
untrue statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale of Registrable
Securities to such Person if such statement or omission was corrected in
such final prospectus. Such indemnity shall remain in full force regardless
of any investigation made by or on behalf of any Stockholder or any such
director, officer, partner, agent, affiliate, underwriter or controlling
Person and shall survive the transfer of such securities by such
Stockholder.
(b) Indemnification by the Stockholders. As a condition
to including any Registrable Securities in any registration statement, the
Reorganized Company shall have received an undertaking reasonably
satisfactory to it from each Registering Stockholder so including any
Registrable Securities to indemnify and hold harmless (in the same manner
and to the same extent as set forth in paragraph (a) of this Section 2.6)
the Reorganized Company, and each director of the Reorganized Company, each
officer of the Reorganized Company and each other Person, if any, who
controls the Reorganized Company within the meaning of the Securities Act,
with respect to any statement or alleged statement in or omission or
alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or
any amendment or supplement thereto, but only to the extent such statement
or alleged statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the
Reorganized Company through an instrument duly executed by such Registering
Stockholder specifically stating that it is for use in the preparation of
such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement; provided, however, that the
liability of such indemnifying party under this Section 2.6(b) shall be
limited to the amount of proceeds (net of expenses and underwriting
discounts and commissions) received by such indemnifying party in the
offering giving rise to such liability. Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of
the Reorganized Company or any such director, officer or controlling Person
and shall survive the transfer of such securities by such Stockholder.
(c) Notices of Claims, etc. Promptly after receipt by
an indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in the preceding subsections of
this Section 2.6, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to
the latter of the commencement of such action or proceeding; provided,
however, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its obligations
under the preceding subsections of this Section 2.6, except to the extent
that the indemnifying party is actually prejudiced by such failure to give
notice, and shall not relieve the indemnifying party from any liability
which it may have to the indemnified party otherwise than under this
Section 2.6. In case any such action or proceeding is brought against an
indemnified party, the indemnifying party shall be entitled to participate
therein and, unless in the opinion of outside counsel to the indemnified
party a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, to assume the defense thereof,
jointly with any other indemnifying party similarly notified to the extent
that it may wish, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action or
proceeding include both the indemnified party and the indemnifying party
and if in the opinion of outside counsel to the indemnified party there may
be legal defenses available to such indemnified party and/or other
indemnified parties which are different from or in addition to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to defend such action or
proceeding on behalf of such indemnified party or parties, provided,
however, that the indemnifying party shall be obligated to pay for only one
counsel for all indemnified parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof and approval by the indemnified party of such counsel, the
indemnifying party shall not be liable to such indemnified party for any
legal expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation (unless the
first proviso in the preceding sentence shall be applicable). No
indemnifying party shall be liable for any settlement of any action or
proceeding effected without its written consent. No indemnifying party
shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim
or litigation.
(d) Contribution. If the indemnification provided for
in this Section 2.6 shall for any reason be held by a court to be
unavailable to an indemnified party under subsection (a) or (b) hereof in
respect of any loss, claim, damage or liability, or any action in respect
thereof, then, in lieu of the amount paid or payable under subsection (a)
or (b) hereof, the indemnified party and the indemnifying party under
subsection (a) or (b) hereof shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating the same), (i) in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand, and the indemnified party on the other,
which resulted in such loss, claim, damage or liability, or action in
respect thereof, with respect to the statements or omissions which resulted
in such loss, claim, damage or liability, or action in respect thereof, as
well as any other relevant equitable considerations, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law
or if the allocation provided in this clause (ii) provides a greater amount
to the indemnified party than clause (i) above, in such proportion as shall
be appropriate to reflect not only the relative fault but also the relative
benefits received by the indemnifying party and the indemnified party from
the offering of the securities covered by such registration statement as
well as any other relevant equitable considerations. The parties hereto
agree that it would not be just and equitable if contributions pursuant to
this Section 2.6(d) were to be determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to in the preceding sentence of this Section
2.6(d). No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Registering Stockholders' obligations to contribute
as provided in this subsection (d) are several and not joint and shall be
in proportion to the relative value of their respective Registrable
Securities covered by such registration statement. In addition, no Person
shall be obligated to contribute hereunder any amounts in payment for any
settlement of any action or claim effected without such Person's consent,
which consent shall not be unreasonably withheld. Notwithstanding anything
in this subsection (d) to the contrary, no indemnifying party (other than
the Reorganized Company) shall be required to contribute any amount in
excess of the proceeds (net of expenses and underwriting discounts and
commissions) received by such party from the sale of the Registrable
Securities in the offering to which the losses, claims, damages or
liabilities of the indemnified parties relate.
(e) Other Indemnification. Indemnification and
contribution similar to that specified in the preceding subsections of this
Section 2.6 (with appropriate modifications) shall be given by the
Reorganized Company and the Registering Stockholders with respect to any
required registration or other qualification of securities under any
federal, state or blue sky law or regulation of any governmental authority
other than the Securities Act. The indemnification agreements contained in
this Section 2.6 shall be in addition to any other rights to
indemnification or contribution which any indemnified party may have
pursuant to law or contract and shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of any
indemnified party and shall survive the transfer of any of the Registrable
Securities by any of the Stockholders.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 2.6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or
liability is incurred.
2.7 Unlegended Certificates. In connection with the offering
of any Registrable Securities registered pursuant to this Section 2, the
Reorganized Company shall (i) facilitate the timely preparation and
delivery to the Stockholders, the Other Investors and the underwriters, if
any, participating in such offering, of unlegended certificates
representing ownership of such Registrable Securities being sold in such
denominations and registered in such names as requested by the
Stockholders, the Other Investors or such underwriters and (ii) instruct
any transfer agent and registrar of such Registrable Securities to release
any stop transfer orders with respect to any such Registrable Securities.
2.8 Limitation on Sale of Securities. The Reorganized
Company hereby agrees that if it shall previously have received a request
for registration pursuant to Section 2.1 or 2.2 hereof, and if such
previous registration shall not have been withdrawn or abandoned, (i) the
Reorganized Company shall not effect any public or private offer, sale or
distribution of its securities or effect any registration of any of its
equity securities under the Securities Act (other than a registration on
Form S-8 or any successor or similar form which is then in effect), whether
or not for sale for its own account, until a period of 90 days (or such
shorter period as the Registering Stockholders shall be advised by their
managing underwriter) shall have elapsed from the effective date of such
previous registration, and the Reorganized Company shall so provide in any
registration rights agreements hereafter entered into with respect to any
of its securities; and (ii) the Reorganized Company shall use its best
efforts to cause each holder of its equity securities purchased from the
Reorganized Company at any time after the date of this Agreement to agree
not to effect any public sale or distribution of any such securities during
such period, including a sale pursuant to Rule 144 under the Securities
Act.
2.9 No Required Sale. Nothing in this Agreement shall be
deemed to create an independent obligation on the part of any of the
Stockholders to sell any Registrable Securities pursuant to any effective
registration statement.
3. Rule 144. The Reorganized Company shall take all actions
reasonably necessary to enable holders of Registrable Securities to sell
such securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144, or (b) any similar
rule or regulation hereafter adopted by the Commission including, without
limiting the generality of the foregoing, filing on a timely basis all
reports required to be filed by the Exchange Act. Upon the request of a
Stockholder, the Reorganized Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
4. Amendments and Waivers. This Agreement may be amended,
modified or supplemented only by written agreement of the party against
whom enforcement of such amendment, modification or supplement is sought.
5. Other Investors. The parties hereto acknowledge and agree that
no Other Investor has any right to request registration of the Common Stock
held by such Other Investor or to participate in any registration of
securities by the Reorganized Company, other than in accordance with the
terms of the stockholder's agreement or option agreement, as the case may
be, between such Other Investor and the Reorganized Company or any of its
subsidiaries, pursuant to which such Other Investor generally may have the
right or obligation to participate in any public offering in which all or a
portion of the shares of Common Stock owned by the Stockholders are
registered under the Securities Act.
6. Adjustments. In the event of any change in the capitalization
of the Reorganized Company as a result of any stock split, stock dividend,
reverse split, combination, recapitalization, merger, consolidation, or
otherwise, the provisions of this Agreement shall be appropriately
adjusted. The Reorganized Company agrees that it shall not effect or permit
to occur any combination or subdivision of shares which would adversely
affect the ability of the Stockholders or the Other Investors to include
any Registrable Securities in any registration contemplated by this
Agreement or the marketability of such Registrable Securities in any such
registration. The Reorganized Company agrees that it will take all
reasonable steps necessary to effect a combination or subdivision of shares
if in the reasonable judgment of the Stockholders such combination or
subdivision would enhance the marketability of the Registrable Securities.
7. Notice. All notices and other communications hereunder shall
be in writing and, unless otherwise provided herein, shall be deemed to
have been given when received by the party to whom such notice is to be
given at its address set forth below, or such other address for the party
as shall be specified by notice given pursuant hereto:
(a) If to any of the Stockholders, to it:
c/o Appaloosa Management, L.P.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxx
With a copy to:
Fried, Frank, Harris, Xxxxxxx
& Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
(b) If to the Reorganized Company, to it at:
Bio-Plexus, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
With a copy to:
Xxxx and Xxxxx, P.C.
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
8. Assignment; Third Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns; provided,
however, that the Other Investors shall have no rights under this
Agreement. This Agreement may not be assigned by the Reorganized Company,
without the prior written consent of the Stockholders. Any Stockholder may,
at its election, at any time or from time to time, assign its rights under
this Agreement, in whole or in part, to any purchaser of shares of Common
Stock held by it.
9. 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 (including the indemnification provisions
thereof), the successful party shall be entitled to recover reasonable
attorneys' fees in addition to its costs and expenses and any other
available remedy.
10. No Inconsistent Agreements. The Reorganized Company will not,
on or after the date of this Agreement, enter into any agreement with
respect to its securities which is inconsistent with the rights granted to
the Stockholders in this Agreement or otherwise conflicts with the
provisions hereof. The Reorganized Company has not previously entered into
any agreement with respect to its securities granting any registration
rights to any Person. The rights granted to the Stockholders hereunder do
not in any way conflict with and are not inconsistent with any other
agreements to which the Reorganized Company is a party or by which it is
bound. The Reorganized Company further agrees that if any other
registration rights agreement entered into after the date of this Agreement
with respect to any of its securities contains terms which are more
favorable to, or less restrictive on, the other party thereto than the
terms and conditions contained in this Agreement are (insofar as they are
applicable) with respect to the Stockholders, then the terms and conditions
of this Agreement shall immediately be deemed to have been amended without
further action by the Reorganized Company or the Stockholders so that the
Stockholders shall be entitled to the benefit of any such more favorable or
less restrictive terms or conditions.
11. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only
and shall not control or otherwise affect the meaning hereof.
12. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights and obligations of the parties hereto
shall be governed by, the laws of the State of New York, without giving
effect to the conflicts of law principles thereof. Each of the parties
hereto hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of New York and the
United States of America located in the County of New York for any action
or proceeding arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any action or
proceeding relating thereto except in such courts), and further agrees that
service of any process, summons, notice or document by U.S. registered mail
to its respective address set forth in Section 7 hereof shall be effective
service of process for any action or proceeding brought against it in any
such court. Each of the parties hereto hereby irrevocably and
unconditionally waives any objection to the laying of venue of any action
or proceeding arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of New York or the United
States of America located in the County of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
14. 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.
15. Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all further acts and things and shall
execute and deliver all other agreements, certificates, instruments, and
documents as any other party hereto reasonably may request in order to
carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
16. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers 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
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Stockholders
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Appaloosa Investment Limited Partnership I
Palomino Fund Ltd.
