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Exhibit 10.36
Form of Rollover Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of _________________,
(this "Registration Rights Agreement"), by and among BIO-PLEXUS, INC., a
Connecticut corporation (the "Company"), [APPALOOSA INVESTMENT LIMITED
PARTNERSHIP I, L.P., PALOMINO FUND LTD. and TERSK, LLC] (collectively, the
"Purchasers").
1. Background. The Company and the Purchasers have entered into a
Convertible Note Purchase Agreement, dated as of __________________, (as
amended, supplemented, amended and restated, restructured or otherwise
modified from time to time, the "Convertible Note Purchase Agreement")
whereby the Purchasers purchased from the Company (i) Zero Coupon Secured
Convertible Notes due _____________ issued by the Company in the aggregate
principal amount of $16,750,000 (the "Notes") and (ii) an aggregate of
250,000 shares (the "Shares") of Common Stock, no par value, of the Company
(the "Common Stock"). The execution and delivery of this Registration
Rights Agreement is required by Section [1.4vii] of the Convertible Note
Purchase Agreement.
2. Definitions. Capitalized terms used but not defined herein shall
have the respective meanings given to them in the Convertible Note Purchase
Agreement. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
"Commission" means the Securities and Exchange Commission.
"Incidental Registration" is defined in Section 3.2.
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"NASDAQ" is defined in Section 3.3(j).
"Participating Holders" means the holders of Registrable
Securities participating in the particular registration.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Section 3, including, without
limitation, all registration, filing and applicable fees of the Commission,
stock exchange or NASD registration and filing fees and all listing fees
and fees with respect to the inclusion of securities in NASDAQ (as defined
in Section 3.3(j)), all fees and expenses of complying with state
securities or blue sky laws (including fees and disbursements of counsel to
the underwriters or the Participating Holders 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 Company
and of its independent public accountants including the expenses of "cold
comfort" letters required by or incident to such registration, all fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, all transfer taxes, and the reasonable fees and expenses of one
counsel to the Participating Holders (selected by the Requisite Percentage
of Participating Holders); provided, however, that Registration Expenses
shall exclude and the Participating Holders shall pay underwriters' fees
and underwriting discounts and commissions in respect of the Registrable
Securities being registered.
"Registrable Securities" mean (i) the Notes, (ii) the Shares,
(iii) the shares of Common Stock issuable upon exercise of the Warrants and
(iv) any other additional shares of Common Stock the Purchasers may
otherwise acquire. 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 under the Securities Act
shall have been delivered by the Company and subsequent public distribution
of them shall not require registration of them under the Securities Act,
(c) when such securities are sold pursuant to Rule 144 (or similar rule
adopted by the Commission) under the Securities Act, or (d) when such
securities cease to be outstanding.
"Requested Registration" is defined in Section 3.1(a).
"Requisite Percentage of Participating Holders" means
Participating Holders of Registrable Securities who hold a majority of the
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Registrable Securities that are then being held by all Participating Holders.
"Warrants" means the $3 Warrants, the $5 Warrants and the $7
Warrants.
3. Registration Under Securities Act, etc.
3.1 Requested Registrations.
(a) Request for Registration. Subject to the limitations
imposed by Sections 3.1(c), at any time and from time to time, one or more
holders of Registrable Securities shall have the right to require the
Company to file a registration statement under the Securities Act covering
all or any part of their respective Registrable Securities, by delivering a
written request therefor to the Company specifying the number and amount of
Registrable Securities and the intended method of distribution thereof. Any
such request pursuant to this Section 3.1(a) is referred to herein as a
"Requested Registration." The Company shall give prompt written notice of
each Requested Registration to all other holders of record of Registrable
Securities, and thereupon the Company shall use its best efforts to effect
the registration under the Securities Act so as to permit promptly the
sale, in accordance with the intended method of distribution, of the
Registrable Securities which the Company has been so requested to register
in the Requested Registration and all other Registrable Securities which
the Company has been requested to register by the holders thereof by
written request given to the Company within 30 days after the giving of
such written notice by the Company.
(b) Registration of Other Securities. Whenever the Company
shall effect a registration pursuant to this Section 3.1 in connection with
an underwritten offering by one or more Participating Holders of
Registrable Securities, no securities other than Registrable Securities
shall be included among the securities covered by such registration unless
(i) such inclusion is pursuant to and subject to the terms of the
applicable underwriting agreement or arrangements and (ii) in the opinion
of the underwriter, the inclusion of such securities will not have a
material adverse effect on the offering (including, without limitation, on
the pricing of the offering). If the offering is not an underwritten
offering, there is no limitation on the inclusion of other securities
therein.
(c) Limitations on Requested Registrations; Expenses. The
rights of holders of Registrable Securities to request Requested
Registrations pursuant to Section 3.1(a) are subject to the following
limitations: (i) the Company shall not be obligated to effect a Requested
Registration having an aggregate anticipated offering price of less than
U.S. $1,000,000 unless such offering shall cover all remaining
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Registrable Securities; (ii) the Company shall not be obligated to effect a
Requested Registration within six months after the effective date of any other
registration of securities (other than pursuant to a registration on Form S-8 or
any successor or similar form which is then in effect); and (iii) the Company
will pay all Registration Expenses only in connection with the first three
Requested Registrations of Registrable Securities pursuant to this Section 3.1
that have become effective under the Securities Act.
(d) Registration Statement Form. Registrations under this
Section 3.1 shall be on Form S-1, Form S-3 or any successor forms, if
permitted, or such appropriate registration form of the Commission as shall
be selected by the Company and as shall be reasonably acceptable to the
Requisite Percentage of Participating Holders. The Company agrees to
include in any such registration statement all information which, in the
opinion of counsel to the Participating Holders and counsel to the Company,
is required to be included.
(e) Effective Registration Statement. A registration
requested pursuant to this Section 3.1 shall not be deemed to have been
effected (including for purposes of paragraph (c) of this Section 3.1) (i)
unless a registration statement with respect thereto has become effective
and has been kept continuously effective for a period of at least 180 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 Entity or court for any reason not
attributable to the Participating Holders 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, other than by reason of a failure
on the part of the Participating Holders.
(f) Selection of Underwriters. The managing underwriter or
underwriters of each underwritten offering of the Registrable Securities
registered under this Section 3.1 shall be selected by the Requisite
Percentage of Participating Holders (and shall be reasonably acceptable to
the Company).
(g) Cutbacks in Requested Registration. If the managing
underwriter of any underwritten offering shall advise the Company in
writing (with a copy to each Participating Holder) that, in its opinion,
the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering within a price range
acceptable to the Requisite Percentage of Participating Holders, the
Company will include in such registration, to the extent of the number
which the Company is so advised can be sold in such offering, Registrable
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Securities requested to be included in such registration, pro rata among
the Participating Holders requesting such registration in accordance with
the Registrable Securities held by each such Participating Holder so
requested to be registered, and any securities of the Company and other
investors included in such registration pursuant to Section 3.1(b) shall be
reduced proportionately.
(h) Postponement. The Company shall be entitled once in any
six-month period to postpone for a reasonable period of time (but not
exceeding 90 days) the filing of any registration statement required to be
prepared and filed by it pursuant to this Section 3.1 if the Board of
Directors of the Company determines, in its reasonable judgment, that such
registration and offering would interfere with any financing, corporate
reorganization or other material transaction or development involving the
Company or any subsidiary or would require premature disclosure thereof,
and promptly gives the holders of Registrable Securities requesting
registration thereof pursuant to this Section 3.1 written notice of such
determination, containing a statement of the reasons for such postponement
and an approximation of the anticipated delay. If the Company shall so
postpone the filing of a registration statement, the Participating Holders
representing the Requisite Percentage of Participating Holders shall have
the right to withdraw the request for registration by giving written notice
to the Company within 20 days after receipt of the notice of postponement
and, in the event of such withdrawal, such request shall not be counted
toward the number of Requested Registrations (including for purposes of
paragraph (c) of this Section 3.1).
(i) Holder's Right to Withdraw. The Requisite Percentage of
Participating Holders shall have the right to withdraw the request for
registration pursuant to Section 3.1 at any time by giving written notice
to the Company of its request to withdraw and such request shall not be
counted toward the number of Requested Registrations (including for
purposes of paragraph (c) of this Section 3.1).
3.2 Incidental Registration.
(a) Incidental Registration. If, at any time, the Company
proposes or is required to register any of its securities under the
Securities Act (other than pursuant to registrations on such form or
similar form(s) solely for registration of securities in connection with an
employee benefit plan or dividend reinvestment plan) (an "Incidental
Registration"), the Company will give prompt written notice to all holders
of record of Registrable Securities of its intention to so register its
securities and of such holders' rights under this Section 3.2. Upon the
written request of any holder of Registrable Securities made within 20 days
following the receipt of any such written notice (which request shall
specify the maximum number of Registrable Securities intended to be
disposed of by such holder and the intended method of distribution
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thereof), the Company will use its best efforts to effect the registration
under the Securities Act of all Registrable Securities which the Company
has been so requested to register by the holders thereof together with any
other securities the Company is obligated to register pursuant to
incidental registration rights of other security holders of the Company. No
registration effected under this Section 3.2 shall relieve the Company of
its obligation to effect any Requested Registration under Section 3.1.
(b) Abandonment or Delay. If, at any time after the Company
has 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 Company shall determine not to
register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination and its reasons
therefor to all holders of record of Registrable Securities 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 Company to pay the
Registration Expenses in connection therewith), without prejudice, however,
to the rights of any holder or holders of Registrable Securities entitled
to do so to request that such registration be effected as a registration
under Section 3.1, 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.
(c) Holder's Right to Withdraw. Each holder of Registrable
Securities shall have the right to withdraw its request for inclusion of
its Registrable Securities in any registration statement pursuant to this
Section 3.2 at any time by giving written notice to the Company of its
request to withdraw.
(d) Unlimited Number of Registrations; Expenses. There is no
limitation on the number of Incidental Registrations which the Company is
obligated to effect pursuant to this Section 3.2. The Company will pay all
Registration Expenses in connection with any registration of Registrable
Securities requested pursuant to this Section 3.2.
(e) Underwriters' Cutback in Incidental Registrations. If
the managing underwriter of any underwritten offering shall inform the
Company by letter of its belief that the number of Registrable Securities
requested to be included in such registration would materially adversely
affect such offering, then the Company will include in such registration,
first, the securities proposed by the Company to be sold for its own
account, and, second, the Registrable Securities and all other securities
of the Company to be included in such registration to the extent of the
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number and type which the Company is so advised can be sold in (or during
the time of) such offering, pro rata among the Participating Holders and
such other holders requesting such registration in accordance with the
Registrable Securities held by each Participating Holder and each such
other holder so requested to be registered.
3.3 Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 3.1
or 3.2 hereof, the Company will 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 Company shall furnish
such documents to the Participating Holders, their counsel, and
each underwriter, if any, participating in the offering of the
Registrable Securities and its counsel; and provided, further,
however, that the 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 each Participating Holder 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, provided, that
such period need not exceed 180 days;
(c) furnish, without charge, to each Participating Holder
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
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other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as such Participating Holder 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 Participating Holders 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 such Participating
Holders to consummate the disposition in such jurisdictions of
the securities to be sold by such Participating Holders, except
that the 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 or foreign governmental
agencies or authorities as may be necessary in the opinion of
counsel to the Company and counsel to the Participating Holders
to consummate the disposition of such Registrable Securities;
(f) furnish to each Participating Holder 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 outside counsel (or inside counsel if
satisfactory to each underwriter) for the Company, and
(ii) a "comfort" letter signed by the independent
public accountants who have certified the 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
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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 Requisite Percentage of Participating Holders, or the
underwriters, may reasonably request;
(g) promptly notify each Participating Holder 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
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 any Participating Holder, promptly
prepare and furnish to it 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
Company contemplated by Section 3.4(a) hereof cease to be true
and correct;
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(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 each such
Participating Holder 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 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) use its best efforts to cause all Registrable Securities
covered by such registration statement to be listed on a national
securities exchange or to secure designation of all such
Registrable Securities on the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ") "Small Cap
Market";
(k) deliver promptly to counsel to the Participating Holders
and each underwriter, if any, participating in the offering of
the Registrable Securities, copies of all correspondence between
the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its
staff with respect to such registration statement;
(1) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the registration
statement;
(m) if required, 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 Company's businesses) in their marketing
of Registrable Securities.
The Company may require each Participating Holder as to the Registrable
Securities of whom any registration is being effected to furnish the
Company such information regarding such holder and the distribution of such
securities as the Company may from time to time reasonably request in
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writing.
Each holder of Registrable Securities agrees that upon receipt of
any notice from the Company of the happening of any event of the kind
described in subsection (g) (iii) or (v) of this Section 3.3, the
Participating Holder will forthwith discontinue such holder's disposition
of Registrable Securities pursuant to the registration statement relating
to such Registrable Securities until, in the case of subsection (g)(iii) of
this Section 3.3, such stop order is removed or proceedings therefor
terminated, and, in the case of subsection (g)(v) of this Section 3.3, such
holder's receipt of the copies of the supplemented or amended prospectus
contemplated by subsection (g)(v) of this Section 3.3 and, if so directed
by the Company, will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such holder's possession,
of the prospectus relating to such Registrable Securities current at the
time of receipt of such notice.
3.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by Participating Holders
pursuant to a registration requested under Section 3.1, the Company will
use its best efforts to enter into an underwriting agreement with such
underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to the Company, each such holder and the
underwriters and to contain such representations and warranties by the
Company and such other terms as are generally prevailing in agreements of
that type, including, without limitation, indemnities to the effect and to
the extent provided in Section 3.6 hereof. The Participating Holders will
cooperate with the Company in the negotiation of the underwriting agreement
and will give consideration to the reasonable suggestions of the Company
regarding the form thereof. The Participating Holders 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 Company to and for the benefit of such underwriters shall
also be made to and for the benefit of the Participating Holders 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 Participating Holders. No Participating Holder shall
be required to make any representations or warranties to or agreements with
the Company or the underwriters other than representations, warranties or
agreements regarding such holder, such holder's ownership of and title
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to the Registrable Securities, such holder's intended method of distribution and
any other representations required by law, and any liability of the
Participating Holder to any underwriter or other person under such underwriting
agreement shall be limited to liability arising from misstatements in or
omissions from its representations and warranties and shall be limited to an
amount equal to the net proceeds that the Participating Holder derives from such
registration.
(b) Incidental Underwritten Offerings. If the Company
proposes to register any of its securities under the Securities Act as
contemplated by Section 3.2 hereof and such securities are to be
distributed by or through one or more underwriters, the Company will, if
requested by any Participating Holder, use its best efforts to arrange for
such underwriters to include all the Registrable Securities to be offered
and sold by such Participating Holder among the securities of the Company
to be distributed by such underwriters. The Participating Holders shall be
parties to the underwriting agreement between the Company and such
underwriters 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 Company to and for the benefit of such underwriters shall also be made
to and for the benefit of such Participating Holders 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 such
Participating Holders. No Participating Holder shall be required to make
any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such holder, such holder's ownership of and title to the Registrable
Securities, such holder's intended method of distribution and any other
representations required by law, and any liability of the Participating
Holder to any underwriter or other person under such underwriting agreement
shall be limited to liability arising from misstatements in or omissions
from its representations and warranties and shall be limited to an amount
equal to the net proceeds that the Participating Holder derives from such
registration.
3.5 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the Participating Holders,
their underwriters, if any, and their respective counsel and accountants the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and, to the
extent practicable, 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 Company with
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its officers and employees and the independent public accountants who have
certified its financial statements as shall be necessary, in the opinion of such
holders' and such underwriters' respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
3.6 Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless, to the fullest
extent permitting by law, each Participating Holder, its directors,
officers, partners, attorneys, agents and affiliates or general and limited
partners (and the directors, officers, employees, stockholders and
affiliates thereof), 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 Participating Holder or any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages, or liabilities, joint or several (or actions or
proceedings, whether commenced or threatened) to which such Participating
Holder 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 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,
together with the documents incorporated by reference therein, or 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, and the Company
will reimburse such Participating Holder and each such director, officer,
partner, agent or affiliate, or general or limited partner, 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 Company shall not be
liable in any such case 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
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supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by or on
behalf of such Participating Holder or underwriter, as the case may be,
specifically stating that it is for use in the preparation thereof; and
provided, further, that the 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 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 such Participating Holder or any such director, officer,
partner, attorney, agent or affiliate or controlling Person and shall
survive the transfer of such securities by such Participating Holder.
(b) Indemnification by the Participating Holders. As a
condition to including any Registrable Securities in any registration
statement, the Company shall have received an undertaking reasonably
satisfactory to it from the Participating Holders to indemnify and hold
harmless (in the same manner and to the same extent as set forth in
subsection (a) of this Section 3.6) the Company, each director and officer
of the Company, and each other Person, if any, who controls the 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 if such statement or alleged statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such
Participating Holder 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 3.6(b)
shall be limited to the amount of net proceeds 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 Company or any such director,
officer or controlling person and shall survive the transfer of such
securities by the Participating Holder.
(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
3.6, such indemnified party will, if a claim in respect thereof is to be
15
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 3.6, except to the extent that the indemnifying
party is materially 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 3.6. 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, further, 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 3.6 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 Company and the
Participating Holders which resulted in such loss, claim, damage or
16
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, in such proportion as shall be appropriate
to reflect not only the relative fault but also the relative benefits
received by the Company and the Participating Holders 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 3.6(d)
were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to above. 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 Participating Holders' obligations to contribute as
provided in this subsection (d) are several and not joint 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 Company) shall
be required to contribute any amount in excess of the net proceeds 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 3.6
(with appropriate modifications) shall be given by the Company and each
Participating Holder with respect to any required registration or other
qualification of securities under any federal or state law or regulation of
any governmental authority other than the Securities Act. The
indemnification agreements contained in this Section 3.6 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 Participating Holders.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 3.6 shall be made by periodic
payments of the amount thereof during the course of the investigation or
17
defense, as and when bills are received or expense, loss, damage or
liability is incurred.
3.7 Certain Rights of the Holder If Named in a Registration
Statement. If any statement contained in a registration statement under the
Securities Act or in any filing under the state securities laws of any
jurisdiction refers to any Participating Holder by name or otherwise as the
holder of any securities of the Company, then such Participating Holder
shall have the right to require (i) the insertion therein of language, in
form and substance satisfactory to such Participating Holder, to the effect
that the holding by such Participating Holder of such securities does not
necessarily make such Participating Holder a "controlling person" of the
Company within the meaning of the Securities Act and is not to be construed
as a recommendation by such Participating Holder of the investment quality
of the Company's debt or equity securities covered thereby and that such
holding does not imply that such Participating Holder will assist in
meeting any future financial requirements of the Company or (ii) in the
event that such reference to such Participating Holder by name or otherwise
is not, in the reasonable judgment of such Participating Holder as advised
by its counsel, required by the Securities Act or any of the rules and
regulations promulgated thereunder, or any state securities laws of any
jurisdiction, the deletion of the reference to such Participating Holder.
3.8 Unlegended Warrant Shares. In connection with the offering of
any Registrable Securities registered pursuant to this Article 3, the
Company shall (i) facilitate the timely preparation and delivery to
Participating Holders and the underwriters, if any, participating in such
offering, of unlegended Warrant Shares representing ownership of such
Registrable Securities being sold in such denominations and registered in
such names as requested by such Participating Holders 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.
3.9 Limitation on Sale or Distribution of Other Securities. The
Company hereby agrees that, if it shall previously have received a request
for registration pursuant to Section 3.1 or 3.2 hereof, and if such
previous registration shall not have been withdrawn or abandoned, (i) the
Company shall not effect any public or private offer, sale or other
distribution of its securities or effect any registration of any of its
equity securities under the Securities Act (subject to the provisions of
Section 3.2 hereof) (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 180 days (or such shorter period as the
Requisite Majority of Participating Holders shall agree) shall have elapsed
18
after the effective date of such previous registration (and the Company
shall so provide in any registration rights agreements hereafter entered
into with respect to any of its securities); and (ii) the Company shall use
its best efforts to cause each holder of its equity securities purchased
from the Company at any time after the date of this Agreement other than in
a public offering 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.
3.10 No Required Sale. Nothing in this Agreement shall be deemed
to create an independent obligation on the part of any Participating Holder
to sell any Registrable Securities pursuant to any effective registration
statement.
4. Rule 144. The 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 any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
5. Amendments and Waivers. This Agreement may be amended with the
consent of (i) the Company and (ii) the holders of at least 51% in
aggregate principal amount of the Registrable Securities. The Company may
take any action herein prohibited, or omit to perform any act herein
required to be performed by it, in each case only if the Company shall have
obtained the written consent to such action or omission to act, of holders
of at least 51% in aggregate principal amount of the outstanding
Registrable Securities. Each holder of any Registrable Securities at the
time or thereafter outstanding shall be bound by any consent authorized by
this Section 5, whether or not such Registrable Securities shall have been
marked to indicate such consent.
6. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Company (accompanied by a written acknowledgment of, and consent to, such
election by such nominee), be treated as the holder of such Registrable
Securities for purposes of any request or other action by any holder or
holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable
Securities held by any holder or holders of Registrable Securities
19
contemplated by this Agreement. If the beneficial owner of any Registrable
Securities so elects to be treated as the holder of such Registrable
Securities, the Company may require assurances reasonably satisfactory to
it of such owner's beneficial ownership of such Registrable Securities.
7. Notices. All communications provided for hereunder shall be
personally delivered or sent by telecopier (and confirmed by telephone) or
by a reputable overnight courier, and shall be addressed as follows:
(a) if to any of the Purchasers, addressed to it at such address
as it shall have furnished to the Company in writing;
(b) if to any other holder of Registrable Securities, at the
address that such holder shall have furnished to the Company in writing,
or, until any such other holder so furnishes to the Company an address,
then to and at the address of the last holder of such Registrable
Securities who has furnished an address to the Company; or
(c) if to the Company, addressed to it in the manner set forth in
the Convertible Note Purchase Agreement, or at such other address as the
Company shall have furnished to each holder of Registrable Securities at
the time outstanding.
8. Assignment. 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. This Agreement may not be assigned by the
Company. This Agreement and/or the registration and other rights contained
herein (including these assignment rights) may be assigned by the
Purchasers to any one or more transferees or distributees of all or part of
such Purchaser's Registrable Securities. A holder of Registrable Securities
shall be permitted, in connection with a transfer or disposition of
Registrable Securities, to impose conditions or constraints on the ability
of the transferee, as a holder of Registrable Securities, to request a
registration pursuant to Section 3.1 and shall provide the Company with
copies of such conditions or constraints and the identity of such
transferees.
9. Remedies. Each holder of Registrable Securities, in addition to
being entitled to exercise all rights provided herein or granted by law,
including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to waive
the defense in any action for specific performance that a remedy at law
would be adequate. 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.
20
10. No Inconsistent Agreements. The 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 holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. Except as set forth on Schedule 10(a) hereto, the
Company has not previously entered into any agreement with respect to its
securities granting any registration rights to any Person other than the
registration rights granted pursuant to this Agreement. Except as set forth
on Schedule 10(b) hereto, the rights granted to the holders of Registrable
Securities hereunder do not in any way conflict with and are not
inconsistent with any other agreements to which the Company is a party or
by which it is bound. The 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) to the Purchasers, then the terms and conditions of this
Agreement shall immediately be deemed to have been amended without further
action by the Company or any of the holders of Registrable Securities so
that such holders 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 limit or otherwise affect the meaning hereof.
12. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
This Agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the State of New
York, without regard to the conflicts of laws 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 New York, 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). 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 New York, 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. The 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,
21
under or in connection with, this Agreement.
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.
22
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
BIO-PLEXUS, INC.
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
APPALOOSA INVESTMENT LIMITED
PARTNERSHIP I, L.P.
By: Appaloosa Management, L.P., its
General Partner
By: Appaloosa Partners Inc., its General
Partner
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
TERSK LLC
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
PALOMINO FUND LTD.
By: Appaloosa Management, L.P.,
its Investment Advisor
By: Appaloosa Partners Inc.,
its General Partner
By:
--------------------------------
Name:
--------------------------
Title:
--------------------------
