EXHIBIT 1
***CERTAIN CONFIDENTIAL MATERIAL CONTAINED IN THIS DOCUMENT HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO 17
C.F.R. SUBSECTION 200.80(b)(4), 200.83 and 240.24b-2.***
FIRST AMENDMENT TO CONVERTIBLE NOTE PURCHASE AGREEMENT
FIRST AMENDMENT, dated as of December 14, 2000 (this "First
Amendment"), to the Convertible Note Purchase Agreement, dated as of April
28, 2000 (the "Note Purchase Agreement"), by and among Bio-Plexus, Inc., a
Connecticut corporation (the "Company"), the Purchasers listed on Exhibit A
thereto, and Appaloosa Management L.P., as Collateral Agent.
WITNESSETH:
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WHEREAS, the Company has issued the Notes to the Purchasers; and
WHEREAS, in connection with the issuance of the Notes the Company
presented certain operating forecasts in the second revision to its Five
Year Business Plan, dated January 12, 2000 (the "Business Plan"), upon
which Appaloosa relied in setting financial covenants in the Note Purchase
Agreement; and
WHEREAS, Appaloosa subsequently agreed to suspend such financial
covenant requirements until December 31, 2000 to allow sufficient time for
the Company to hire a new chief executive officer and revise the Business
Plan; and
WHEREAS, the Company's revised Business Plan and the other projections
presented by the Company to Appaloosa since the Closing require that the
financial covenants set forth in the Note Purchase Agreement be revised to
more accurately reflect the revised Business Plan and projections; and
WHEREAS, the Company desires to amend the financial covenants in the
Note Purchase Agreement for the periods extending beyond December 31, 2000;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Company, the Purchasers, and the Collateral Agent
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
which are defined in the Note Purchase Agreement are used herein as therein
defined.
2. Amendment to the Note.
---------------------
(a) Subsection 6.15 of the Note Purchase Agreement is amended by
deleting the paragraph in its entirety and substituting in lieu therefor
the following:
The Company shall maintain the financial covenants specified in
Schedule 6.15.
(b) Schedule 6.15 of the Note Purchase Agreement is amended by
deleting the first two charts in their entirety and substituting in lieu
therefor the following charts:
Minimum (Maximum) Minimum (Maximum)
Operating Profit (Loss) Operating Profit (Loss)
Date for three-month period for twelve-month period
ending on date indicated ending on date indicated
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September 30, 1999 N/A N/A
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December 31, 1999 N/A N/A
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March 31, 2000 N/A N/A
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June 30, 2000 N/A N/A
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September 30, 2000 N/A N/A
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December 31, 2000 ($1,622,000) ($1,622,000)*
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March 31, 2001 ($1,391,000) ($3,013,000)**
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June 30, 2001 ($1,011,000) ($4,024,000)***
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September 30, 2001 ($764,000) ($4,788,000)
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December 31, 2001 ($150,000) ($3,316,000)
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March 31, 2002 $450,000 ($1,475,000)
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June 30, 2002 $550,000 $86,000
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September 30, 2002 $600,000 $1,450,000
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December 31, 2002 $600,000 $2,200,000
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March 31, 2003 $1,000,000 $2,750,000
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June 30, 2003 $1,250,000 $3,450,000
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September 30, 2003 $1,500,000 $4,350,000
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December 31, 2003 $1,650,000 $5,400,000
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March 31, 2004 and the $1,700,000 $6,500,000
last day of each calendar
quarter thereafter
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* Represents the trailing 3-month period.
** Represents the trailing 6-month period.
*** Represents the trailing 9-month period.
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Date Minimum Product Minimum Product
Sales Revenue for Sales Revenue for
three-month twelve-month
period ending on period ending on
the date indicated date indicated
----------------------------------------------------------
December 31, 1999 N/A N/A
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March 31, 2000 N/A N/A
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June 30, 2000 N/A N/A
----------------------------------------------------------
September 30, 2000 N/A N/A
----------------------------------------------------------
December 31, 2000 $1,141,000 $1,141,000*
----------------------------------------------------------
March 31, 2001 $1,227,000 $2,368,000**
----------------------------------------------------------
June 30, 2001 $1,884,000 $4,252,000***
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September 30, 2001 $2,352,000 $6,604,000
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December 31, 2001 $2,921,000 $8,384,000
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March 31, 2002 $4,000,000 $11,157,000
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June 30, 2002 $4,500,000 $13,773,000
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September 30, 2002 $5,000,000 $16,421,000
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December 31, 2002 $5,500,000 $19,000,000
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March 31, 2003 $6,000,000 $21,000,000
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June 30, 2003 $6,500,000 $23,000,000
----------------------------------------------------------
September 30, 2003 $7,000,000 $25,000,000
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December 31, 2003 $7,500,000 $27,000,000
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March 31, 2004 and $8,500,000 $32,500,000
the last day of
each calendar
quarter thereafter
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* Represents the trailing 3-month period.
** Represents the trailing 6-month period.
*** Represents the trailing 9-month period.
(c) Subsection 6.20 of the Note Purchase Agreement is amended by
deleting clause (e) thereof in its entirety and substituting in lieu
therefor:
(e) upon any Holder's request from time to time, such other
information (including financial statements, monthly
computation of profit and loss, and any other computations)
relating to the performance of the provisions of this
Agreement and the affairs of the Company and any of its
Subsidiaries.
(d) Subsection 6.33 of the Note Purchase Agreement is amended by
adding the following text after the final sentence thereof:
The Company shall not materially alter or embark upon (other
than preliminary non-binding discussions) any new strategic
initiatives as a part of its business plan or otherwise,
which strategic initiatives shall include, but not be
limited to, joint ventures, strategic alliances, licensing
agreements, acquisitions, and partnerships of any kind
(other than distribution, supply and other similar
agreements entered into in the ordinary course of business
on commercially reasonable terms), without the express
consent of the Collateral Agent.
(e) Schedule 6.34 of the Note Purchase Agreement is amended by
adding the following text after the final sentence thereof:
Performance Covenants for the Development and Sale of Winged
Sets for Blood Collection:
The Company shall meet the following milestones on the
dates set forth below with respect to its Winged Set
for Blood Collection product:
(i) Complete installation and start-up of a pilot production
line by [REDACTED];
(ii) Produce a minimum [REDACTED] units of pre-launch Winged Set
product samples on the pilot production line by [REDACTED];
(iii) Complete installation and start-up of an automated
production line by [REDACTED]; and
(iv) Begin commercial sale of the Winged Set product by
[REDACTED] and have shipped a minimum of [REDACTED] units of
the Winged Set product for commercial sale (which excludes
any sale to an Affiliate or to any other Person on a
non-arms length basis) by [REDACTED].
(f) Subsection 11.1 of the Note Purchase Agreement is amended by
deleting the definition of "Product Sales Revenues" in its entirety and
substituting in lieu therefor the following definition:
"Product Sales Revenues" shall mean all revenues generated
by the Company from the sale of medical products
manufactured by the Company (excluding, for the avoidance of
doubt, any equipment or other machinery sold or licensed to
any Person for the manufacture of any such medical products)
calculated in accordance with GAAP.
3. Representations and Warranties. The Company represents and
warrants that the representations and warranties set forth in Section 2 of
the Note Purchase Agreement are true and complete on and as of the date
hereof as if made on the date hereof (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of
such specific date). The Company represents and warrants that as of the
date hereof and, after giving effect to this First Amendment and the
transactions contemplated hereby, no Default or Event of Default has
occurred and is continuing. The Company represents that the execution and
delivery of this First Amendment by the Company and the performance by it
of the transactions contemplated hereby have been duly authorized by all
requisite corporate proceedings on the part of the Company.
4. Effectiveness. The First Amendment shall become effective as
of the date upon which the Collateral Agent receives the counterpart of
this First Amendment duly executed by the Company.
5. Continuing Effect of the Transaction Documents. This First
Amendment shall not constitute an amendment of any other provisions of the
Note Purchase Agreement or any other Transaction Documents not expressly
referred to herein and shall not be construed as a waiver or consent to any
further or future action on the part of the Company that would require a
waiver or consent of the Purchasers. Except as expressly amended hereby,
the provisions of the Note Purchase Agreement and the other Transaction
Documents are and shall remain in full force and effect. In the event there
is any conflict between the terms of the Note Purchase Agreement and any
other Transaction Document, the terms of the Note Purchase Agreement shall
govern.
6. Counterparts. This First Amendment may be executed by the
parties hereto in any number of separate counterparts, each of which shall
be deemed to be an original, and all of which taken together shall be
deemed to constitute one and the same instrument.
7. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and delivered by their respective proper and
duly authorized officers as of the day and year first above written.
BIO-PLEXUS, INC.
By: /s/ John S. Metz
-----------------------------------
Name: John S. Metz
Title: President & CEO
APPALOOSA MANAGEMENT L.P.,
as Collateral Agent
By: Appaloosa Partners Inc.,
its General Partner
By: /s/ James E. Bolin
-----------------------------------
Name: James E. Bolin
Title: Vice President
APPALOOSA INVESTMENT LIMITED
PARTNERSHIP I
By: Appaloosa Management L.P.,
its General Partner
By: Appaloosa Partners Inc.,
its General Partner
By: /s/ James E. Bolin
-----------------------------------
Name: James E. Bolin
Title: Vice President
PALOMINO FUND LTD.
By: Appaloosa Management L.P.
its Investment Advisor
By: Appaloosa Partners Inc.
its General Partner
By: /s/ James E. Bolin
-----------------------------------
Name: James E. Bolin
Title: Vice President
TERSK LLC
By: Appaloosa Management L.P.
its Investment Advisor
By: Appaloosa Partners Inc.
its General Partner
By: /s/ James E. Bolin
-----------------------------------
Name: James E. Bolin
Title: Vice President
