May 3, 2002
Appaloosa Management L.P.
00 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Re: Bio-Plexus, Inc
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Ladies and Gentlemen:
This Letter of Intent will confirm our mutual understanding regarding the
proposed sale, on the terms and subject to the conditions set forth below,
by Appaloosa Management L.P. (together with its affiliates and funds for
which Appaloosa acts as investment adviser collectively referred to as
"Appaloosa") to ComVest Venture Partners, L.P. ("Comvest"), directly or
through one or more of its affiliates or designees (ComVest, together with
such affiliates or designees, the "Buyer") of all shares of Common Stock
and warrants of Bio-Plexus, Inc. (the "Company") owned by Appaloosa
(collectively, the "Securities").
1. Purchase and Sale of the Securities. On the terms and subject to the
conditions set forth below, the Buyer shall purchase from Appaloosa,
and, Appaloosa shall sell to the Buyer, the Securities and, to the
extent permissible, any and all rights of Appaloosa under all
documents as may have been entered into by the Company and Appaloosa
in connection with the issuance of the Securities to Appaloosa. As of
the Closing Date (as defined below), the Securities shall consist of
9,815,284 shares of the Company's Common Stock and warrants to
purchase 1,314,060 shares of Common Stock having an exercise price of
$2.28 (the "Warrants"), which shall represent all of Appaloosa's
holdings in the Company.
2. Consideration. In consideration for the sale of the Securities to the
Buyer, the Buyer shall, against the delivery of certificates
representing the Shares and the Warrants, duly endorsed for transfer
pursuant to the Purchase Agreement (as defined below), pay to
Appaloosa in cash on the Closing Date the sum of $5,000,000 (the
"Purchase Price").
3. Closing Date. The execution of the Purchase Agreement and the closing
of the transactions contemplated thereby will occur as soon as is
practicable on the date (the "Closing Date"), no later than 15
business days from the execution of this Letter of Intent, on which
each of the parties is satisfied with the form and substance thereof
or such other date as is determined by mutual agreement of the Buyer
and Appaloosa.
4. Purchase Agreement. The purchase and sale will be made pursuant to a
mutually acceptable definitive purchase agreement to be negotiated and
executed by the Buyer and Appaloosa, which shall be substantially in
the form attached hereto (the "Purchase Agreement"). As soon as
reasonably practicable after the execution of this Letter of Intent,
the Buyer and Appaloosa shall commence the final negotiation of the
Purchase Agreement and the documents contemplated thereby. The
Purchase Agreement will include the terms contained in this Letter of
Intent and a representation (which shall be true and complete as of
the Closing Date) that (i) Appaloosa owns the Securities free and
clear of any and all liens, security interests, claims or other
encumbrances of any kind, (ii) other than the Shares and the Warrants,
Appaloosa does not own any securities of the Company, and (iii) the
Company does not have any obligations due and owing to Appaloosa other
than those relating to any Appaloosa Representative (as defined below)
who serves or has served as a member of the Company's Board of
Directors (each of whom shall resign as a director upon the closing),
and Appaloosa shall release the Company from any claims under any
agreements to which it is a party.
5. Conditions. The obligations of each of the parties hereto shall be
subject to fulfillment, among other things, of the following
conditions:
(a) The execution and delivery of the Purchase Agreement and stock
powers necessary to transfer the Securities to the Buyer; and
(b) The completion of Xxxxx's due diligence investigation of the
Company within 15 business days from the execution of this Letter
of Intent.
6. Expenses. The parties shall each bear their own expenses in connection
with the transactions set forth herein.
7. Ensure Closing. From and after execution of this Letter of Intent,
each of the parties hereto shall negotiate in good faith and use its
best efforts to ensure that the Purchase Agreement and the documents
contemplated thereby are signed and that the transactions contemplated
hereby shall be consummated within 15 business days from the execution
of this Letter of Intent.
8. No Shopping. From the date hereof until the earliest of (a) the date
that is 15 business days from the date hereof if the Purchase
Agreement is not executed by such date; and (b) the date on which the
parties shall have agreed in writing not to consummate the
transactions contemplated hereby, Appaloosa shall not, and shall cause
its agents, representatives, and any other person acting on its behalf
(each an "Appaloosa Representative") not to, directly or indirectly,
solicit, negotiate with respect to, facilitate, or accept any offers
for the purchase of, or the sale or transfer of the Securities or to a
sale or merger of the Company; provided, however, Appaloosa and any
Appaloosa Representative may, consistent with the exercise of their
fiduciary duties, negotiate, provide information, assist, and enter
into an agreement with respect to any unsolicited offers to purchase
the Securities or to a sale or merger of the Company. Notwithstanding
the foregoing proviso and the receipt of any such unsolicited
offer(s), Appaloosa shall either be required to consummate the sale of
the Securities to the Buyer as set forth herein or, in the event that
Appaloosa accepts such unsolicited offer based on its fiduciary
duties, pay to the Buyer any difference between the consideration
received by Appaloosa for the Securities and the Purchase Price (the
"Excess Consideration"); provided that Appaloosa shall have no
obligation to pay to Buyer any Excess Consideration unless Buyer
extends its commitment to buy the Securities and pay the Purchase
Price by extending the Closing Date as necessary to consummate the
sale of the Securities to another purchaser.
9. Publicity; Confidentiality. This Letter of Intent and its terms and
the transactions contemplated hereby shall be kept confidential until
the parties hereto mutually agree upon the language and timing of a
press release or until such time as one such party determines, based
upon the advice of counsel, that a public announcement is required by
law, in which case the parties hereto shall in good faith attempt to
agree on any public announcements or publicity statements with respect
thereto. If the transactions contemplated hereby are not consummated
for any reason, each party hereto shall return to the other, without
retaining a copy thereof, any confidential schedules, documents or
other written information obtained from the other in connection with
this Letter of Intent and the transactions contemplated hereby.
10. No Binding Obligation. Except with respect to paragraphs 6, 7, 8, 9,
and 11, which are intended to be binding on the parties, this Letter
of Intent is intended to serve only as an expression of the parties'
intent and not as a binding obligation to consummate the contemplated
transactions; any such obligation will be created only by the Purchase
Agreement (the provisions of which will supersede this and all other
understandings between the parties).
11. Governing Law. This Letter of Intent shall be governed by the internal
laws of the State of New York. Any legal proceedings with respect to
this Letter of Intent shall be brought exclusively in a federal or
state court located in Manhattan, New York.
12. Counterparts. This Letter of Intent may be executed in counterparts,
each of which shall be deemed to constitute an original but all of
which together shall constitute one and the same instrument.
If the foregoing terms and conditions are acceptable to you, please so
indicate by signing both of the enclosed copies of this letter where
indicated and returning one to the undersigned by Friday, May 3, 2002 at
5:00 p.m. (EST).
Very truly yours,
COMVEST VENTURE PARTNERS, L.P.
By:/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Managing Director
Xxxxxx to and Accepted as
of the 3rd day of May 2002
APPALOOSA MANAGEMENT L.P.
By:/s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
