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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 2
BIOFIELD CORPORATION
- ----------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.001 PER SHARE
- ----------------------------------------------------------------------
(Title of Class of Securities)
090591108
------------------------------------------------
(CUSIP Number)
DAVID J. GREENWALD, ESQ.
GOLDMAN, SACHS & CO.
85 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 902-1000
------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
OCTOBER 17, 1997
------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check
the following box .
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class
of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
SCHEDULE 13D
CUSIP No. 090591108 Page 2 of 28 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
THE GOLDMAN SACHS GROUP, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF-OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 5,833
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 2,160,793
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 5,833
10 SHARED DISPOSITIVE POWER
2,160,793
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,166,626
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.6%
14 TYPE OF REPORTING PERSON*
HC-PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
CUSIP No. 090591108 Page 3 of 28 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
GOLDMAN, SACHS & CO.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF-OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [X]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 2,160,793
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 0
10 SHARED DISPOSITIVE POWER
2,160,793
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,160,793
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.5%
14 TYPE OF REPORTING PERSON*
BD-PN-IA
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
CUSIP No. 090591108 Page 4 of 28 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
GS CAPITAL PARTNERS, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 1,944,720
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 0
10 SHARED DISPOSITIVE POWER
1,944,720
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,944,720
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.0%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
SCHEDULE 13D
CUSIP No. 090591108 Page 5 of 28 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
GS ADVISORS, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 1,944,720
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 0
10 SHARED DISPOSITIVE POWER
1,944,720
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,944,720
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.0%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
AMENDMENT NO. 2 TO SCHEDULE 13D
RELATING TO THE COMMON STOCK OF
BIOFIELD CORP.
GS Capital Partners, L.P. ("GSCP"), GS Advisors, L.P. ("GS
Advisors, L.P."), Goldman Sachs & Co. ("Goldman Sachs") and The
Goldman Sachs Group, L.P. ("GS Group" and, together with GSCP, GS
Advisors, L.P. and Goldman Sachs, the "Filing Persons")* hereby amend
the statement on Schedule 13D (as amended, the "Schedule 13D"), dated
March 19, 1996, as amended by Amendment No. 1 to Schedule 13D, dated
June 30, 1996, filed with respect to the common stock, par value $.001
per share (the "Common Stock"), of Biofield Corp., a Delaware
corporation (the "Company"). Unless otherwise indicated, all
capitalized terms not otherwise defined herein shall have the same
meanings as those set forth in the Schedule 13D.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 is hereby amended and restated in its entirety as
follows:
This Statement is being filed by GS Capital Partners, L.P.
("GSCP"), GS Advisors, L.P. ("GS Advisors, L.P."), Goldman, Sachs &
Co. ("Goldman Sachs") and The Goldman Sachs Group, L.P. ("GS Group"
and, together with Goldman Sachs, GS Advisors, L.P., and GSCP, the
"Filing Persons").*
[FN]
* Neither the present filing nor anything contained herein shall be
construed as an admission that any Filing Person constitutes a
"person" for any purpose other than Section 13(d) of the
Securities Exchange Act of 1934.
</FN>
As of the date hereof, Goldman Sachs and GS Group may be
deemed for purposes of this statement to beneficially own 2,160,793
shares of Common Stock through certain limited partnerships including
GSCP (together, the "Limited Partnerships"), of which affiliates of
Goldman Sachs and GS Group are the general partner or the managing
general partner. In addition, as of June 30, 1997, GS Group may be
deemed to beneficially own 5,833 shares of Common Stock issuable upon
exercise of options granted pursuant to the Company's Stock Option
Plan for Non-Employee Directors. Goldman Sachs and GS Group each
disclaim beneficial ownership of shares of Common Stock beneficially
owned by the Limited Partnerships to the extent of partnership
interests in the Limited Partnerships held by persons other than
Goldman Sachs, GS Group or their affiliates.
GSCP, a Delaware limited partnership, was formed for the
purpose of investing in equity and equity-related securities primarily
acquired or issued in leveraged acquisitions, reorganizations and
other private equity transactions. GS Advisors, a Delaware limited
partnership, is the sole general partner of GSCP. Goldman Sachs, a New
York limited partnership, is an investment banking firm and a member
of the New York Stock Exchange, Inc. ("NYSE") and other national
exchanges. Goldman Sachs also serves as the investment manager for
GSCP. GS Group, one of the general partners of Goldman Sachs, owns a
99% interest in Goldman Sachs. GS Group is a Delaware limited
partnership and holding partnership that (directly and indirectly
through subsidiaries or affiliated companies or both) is a leading
investment banking organization. The other general partner of Goldman
Sachs is The Goldman, Sachs & Co. L.L.C., a Delaware limited liability
company ("GS L.L.C.") which is wholly-owned by GS Group, and The
Goldman Sachs Corporation, a Delaware corporation ("GS Corp."). GS
Corp. is the sole general partner of GS Group. The principal business
address of each Filing Person, GS L.L.C. and GS Corp., is 85 Broad
Street, New York, NY 10004.
The name, business address, present principal occupation or
employment and citizenship of each director of GS Corp. and GS L.L.C.
and of each member of the executive committees of GS Corp., GS L.L.C.,
GS Group and Goldman Sachs are set forth in Schedule I hereto and are
incorporated herein by reference. The name, business address, present
principal occupation or employment and citizenship of each director
and each executive officer of GS Advisors, Inc., a Delaware
corporation that is the sole general partner of GS Advisors, are set
forth in Schedule II hereto and are incorporated herein by reference.
During the last five years, none of the Filing Persons, or,
to the knowledge of each of the Filing Persons, any of the persons
listed on Schedule I or II hereto, (i) has been convicted in a
criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) except as set forth in Schedule III hereto, has
been a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding was
or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to,
federal or state securities laws, or finding any violation with
respect to such laws.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is hereby amended by adding the following paragraph
immediately prior to the last paragraph:
As further described in item 6, the Company is considering
issuing shares of Common Stock in a private placement (the "Offering")
and the Limited Partnerships have committed to purchase shares of
Common Stock in that Offering. Additionally, in connection with and
subject to the consummation of the Offering, the Company will be
seeking to exchange its outstanding warrants to purchase up to
1,785,994 shares of Common Stock for 730,651 shares of Common Stock.
In connection with such exchange, the Limited Partnerships intend to
exchange all of their 1,089,329 Warrants for approximately 445,000
shares of Common Stock.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5(a) is hereby amended and restated in its entirety as
follows:
(a) As described in Item 3, the Limited Partnerships
purchased Securities Units consisting of an aggregate of 1,777,778
shares of Series C Preferred Stock, 888,891 Series D Warrants and
888,887 Adjustable Warrants pursuant to the Purchase Agreement and
200,000 shares of Common Stock in the IPO. The Company effected a
2.04-for-one reverse stock split as of February 26, 1996. Upon the
completion of the IPO: (i) each share of Series C Preferred Stock
automatically converted into 0.4902 shares of Common Stock and (ii)
each Warrant automatically became exercisable for 0.4902 shares of
Common Stock. Under the Purchase Agreement, the Limited Partnerships
had the right, upon the occurrence of certain events, to receive
warrants to purchase an aggregate of 217,865 shares of Common Stock at
an exercise price of $9.18 per share (the "Additional Adjustable
Warrants", and the term "Adjustable Warrants" includes such Additional
Adjustable Warrants). One of those events occurred on June 30, 1996,
and accordingly, the Limited Partnerships acquired the 217,865
Additional Adjustable Warrants as of that date. As a result, as of
June 30, 1996, GSCP beneficially owned 964,320 shares of Common Stock,
Series D Warrants to purchase 392,160 shares of Common Stock at an
exercise price of $12.24 per share and Adjustable Warrants to purchase
588,240 shares of Common Stock at an exercise price of $9.18 per
share. In its Form 10-Q for the quarterly period ended June 30, 1997,
the Company disclosed that 6,493,300 shares of Common Stock were
outstanding. Based on that number of outstanding shares, the number of
shares owned by GSCP (assuming that none of the Warrants held by the
Limited Partnerships and none of the Directors Options (as hereinafter
defined) are exercised) represent approximately 14.9% of the
outstanding shares of Common Stock. The Company has also informed us
that the Filing Persons of September 10, 1997 owned 1,971,692
outstanding warrants to purchase Common Stock. Assuming GSCP exercises
all of its Warrants, but that no other Warrants are exercised, GSCP
would own approximately 26.0% of the outstanding shares of Common
Stock. Assuming that all of the outstanding Warrants are exercised
(including the Warrants owned by GSCP), GSCP would own approximately
22.9% of the outstanding shares of Common Stock.
Goldman Sachs may be deemed to hold through the Limited
Partnerships, for purposes of this Statement, the beneficial ownership
of 1,071,464 shares of Common Stock, Series D Warrants to purchase
435,733 shares of Common Stock at an exercise price of $12.24 per
share and Adjustable Warrants to purchase 653,596 shares of Common
Stock at an exercise price of $9.18 per share. Such number of shares
of Common Stock (assuming that none of the Warrants held by the
Limited Partnerships and none of the Directors Options are exercised)
represent approximately 16.5% of the outstanding shares of Common
Stock. Assuming that the Limited Partnerships exercise all of their
Warrants, but that no other Warrants are exercised, Goldman Sachs
would beneficially own approximately 28.5% of the outstanding shares
of Common Stock. Assuming that all of the outstanding Warrants are
exercised (including the Warrants owned by the Limited Partnerships),
Goldman Sachs would beneficially own approximately 25.5% of the
outstanding shares of Common Stock.
On June 20, 1996, a managing director of Goldman Sachs in
his capacity as GSCP's designee to the Board of Directors, received
options to purchase 10,000 shares of Common Stock pursuant to the
Company's 1996 Stock Option Plan for Non-Employee Directors (the
"Non-Employee Director Stock Plan") at an exercise price of $11.00 per
share (the "Initial Directors Options"). In addition, on June 5, 1997,
such managing director received options to purchase an additional
2,500 shares of Common Stock under the Non-Employee Directors Stock
Plan at an exercise price of $4.50 per share (the "Additional
Directors Options" and together with the Initial Directors Options,
the "Directors Options"). Such managing director has an agreement with
GS Group pursuant to which he holds these Directors Options for the
benefit of GS Group. None of the Directors Options has been exercised.
GS Group may be deemed to hold through the Limited
Partnerships, for purposes of this Statement, the beneficial ownership
of 1,071,464 shares of Common Stock, Series D Warrants to purchase
435,733 shares of Common Stock at an exercise price of $12.24 per
share and Adjustable Warrants to purchase 653,596 shares of Common
Stock at an exercise price of $9.18 per share. GS Group may also be
deemed to beneficially own Initial Directors Options to purchase 3,333
shares of Common Stock at an exercise price of $11.00 per share and
Additional Directors Options to purchase 2,500 shares of Common Stock
at an exercise price of $4.50 per share. Such number of shares of
Common Stock (assuming that none of the Warrants held by the Limited
Partnerships and none of the Directors Options are exercised)
represent approximately 16.5% of the outstanding shares of Common
Stock. Assuming that the Limited Partnerships exercise all of their
Warrants, but that no other Warrants are exercised, and all of the
5,833 Directors Options beneficially owned by GS Group are exercised,
GS Group would beneficially own approximately 28.6% of the outstanding
shares of Common Stock (approximately 28.6% assuming all of the 12,500
Directors Options are exercised). Assuming that all of the outstanding
Warrants are exercised (including the Warrants owned by the Limited
Partnerships) and all of the 5,833 Directors Options beneficially
owned by GS Group are exercised, GS Group would beneficially own
approximately 25.6% of the outstanding shares of Common Stock
(approximately 25.6% assuming all of the 12,500 Directors Options are
exercised).
As described in Item 4, under the Purchase Agreement the
Other Investors have agreed to vote all of the shares of Common Stock
of the Company owned by them for the election of GSCP's nominee for
Board Member. Based on the information contained in the registration
statement relating to the IPO in March of 1996 and assuming that the
Other Investors continue to hold all of the Securities Units acquired
pursuant to the Purchase Agreement and do not otherwise beneficially
own any shares of Common Stock, then, as of December 31, 1996, the
Other Investors own in the aggregate approximately 2,644,563 shares of
Common Stock (approximately 40.7% of the outstanding shares of Common
Stock) and 696,677 Warrants (including 139,327 Additional Adjustable
Warrants acquired by the Other Investors as of June 30, 1996).
Assuming that the Other Investors exercise all of their Warrants, but
that no other Warrants are exercised, the Other Investors would
beneficially own approximately 46.5% of the outstanding shares of
Common Stock. Assuming that all of the outstanding Warrants are
exercised (including the Warrants owned by the Limited Partnerships
and Other Investors), the Other Investors would own approximately
39.5% of the outstanding shares of Common Stock. The foregoing
information relating to the Other Investors is contained in the
registration statement relating to the IPO, and the Filing Persons
have no information regarding the current holding of the Other
Investors.
None of the Filing Persons, and to the knowledge of each of
the Filing Persons, none of the Limited Partnerships that is not a
Filing Person, beneficially owns any shares of Common Stock other than
as set forth herein.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended by adding the following paragraph
after the paragraph with the heading "Lock-up":
Options. The Initial Directors Options, which were deemed
granted as of January 29, 1996, were granted pursuant to a Stock
Option Letter Agreement for Non-Employee Directors, dated June 20,
1996 (the "Option Agreement"). The Initial Directors Options vest in
three equal installments on the first, second and third anniversaries
of the date of grant. Accordingly, options to purchase 3,333 shares of
Common Stock are currently exercisable. The Initial Directors Options
expire on the earlier of the tenth anniversary of the date of grant or
one year from cessation of service as a director.
The Additional Directors Options were granted on June 5,
1997 and are currently vested. The Additional Directors Options expire
on the earlier of the tenth anniversary of the date of grant or one
year from cessation of service as a director. A copy of the Option
Agreement and the Non-Employee Director Stock Plan is attached as
Exhibit (6).
Private Placement. The Company is considering issuing shares
of Common Stock in a private placement (the "Offering"), and the
Limited Partnerships have committed to invest (i) $1 million in the
Offering if at least $6 million is invested in the Offering by other
investors, (ii) $1.5 million in the Offering if at least $7 million is
invested in the Offering by other investors and (iii) $2 million in
the Offering if at least $8 million is invested in the Offering by
other investors. The shares of Common Stock to be issued in the
Offering would be restricted securities. However, the Company has
indicated that it would file as soon as reasonably practicable after
the closing of the Offering, a registration statement on Form S-3
covering resales of such shares and to maintain the effectiveness of
such registration statement with respect to an investor until the
securities registered therein by such investor are sold or are
eligible to be sold pursuant to Rule 144(k). The Company and the
holders of Common Stock would enter into "lock-up" agreements in
connection with the consummation of the Offering that would restrict
the holders' ability to sell such shares.
Warrant Exchange. Concurrent with, and subject to, the
completion of the Offering, the Company plans to exchange its
outstanding Warrants to purchase up to 1,785,994 shares of Common
Stock for 730,651 shares of Common Stock. In connection with such
exchange, the Limited Partnerships intend to exchange all of their
1,089,329 Warrants for approximately 445,000 shares of Common Stock.
The shares of Common Stock to be issued in connection with the Warrant
exchange (i) would be restricted securities but would be entitled to
registration rights under the Registration Rights Agreement and (ii)
would be subject to "lock-up" restrictions to be entered into upon
consummation of the Offering.
Item 6 is further amended by deleting the second to last
paragraph and inserting the following in lieu thereof:
The foregoing descriptions of the Purchase Agreement, the
letter from the Company to GSCP, dated March 18, 1996, the
Registration Rights Agreement, the Lock-up Agreement, the Option
Agreement and the Non-Employee Director Stock Plan in this Statement
are qualified in their entirety by reference to the Purchase
Agreement, such letter, the Registration Rights Agreement, the Lock-up
Agreement, the Option Agreement and the Non-Employee Director Stock
Plan, copies of which are filed as Exhibits (1), (2), (3), (4), and
(5), respectively, and are incorporated by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 is hereby amended and restated in its entirety as
follows:
(1) Preferred Stock and Warrant Purchase Agreement by and among
the Company and the purchasers of Securities Units, dated as
of March 3, 1995, as amended (incorporated herein by
reference to Exhibits 10.10 and 10.11 to the Company's
Registration Statement on Form S-1 No. 333-0796)
(2) Letter from the Company to GSCP, dated March 18, 1996
(3) Registration Rights Agreement by and among the Company and
the purchasers of Securities Units, dated as of March 3,
1995, as amended (incorporated herein by reference to
Exhibits 10.12 and 10.13 to the Company's Registration
Statement on Form S-1 No. 333-0796)
(4) Lock-up Agreement
(5) Stock Option Letter Agreement for Non-Employee Directors;
Biofield Corp. 1996 Stock Option Plan for Non-Employee
Directors
(6) Joint Filing Agreement
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
October 17, 1997
GOLDMAN, SACHS & CO.
By: /s/ Richard A. Friedman
---------------------------------------
Name: Richard A. Friedman
Title: Managing Director
THE GOLDMAN SACHS GROUP, L.P.
By: The Goldman Sachs Corporation,
its general partner
By: /s/ Richard A. Friedman
---------------------------------------
Name: Richard A. Friedman
Title: Executive Vice President
GS ADVISORS, L.P.
By: GS Advisors, Inc., its general partner
By: /s/ Richard A. Friedman
---------------------------------------
Name: Richard A. Friedman
Title: President
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By: /s/ Richard A. Friedman
---------------------------------------
Name: Richard A. Friedman
Title: President
SCHEDULE I
The name of each director of The Goldman Sachs Corporation
and The Goldman, Sachs & Co. L.L.C. and of each member of the
executive committees of The Goldman Sachs Corporation, The Goldman
Sachs & Co. L.L.C., The Goldman Sachs Group, L.P. and Goldman, Sachs &
Co. is set forth below. The business address of each person listed
below except John A. Thain and John L. Thornton is 85 Broad Street,
New York, NY 10004. The business address of John A. Thain and John L.
Thornton is 133 Fleet Street, London EC4A 2BB, England. Each person is
a citizen of the United States of America. The present principal
occupation or employment of each of the listed persons is as a
managing director of Goldman, Sachs & Co. or another Goldman Sachs
operating entity and as a member of the executive committee.
Jon Z. Corzine
Henry M. Paulson, Jr.
Roy J. Zuckerberg
Robert J. Hurst
John A. Thain
John L. Thornton
SCHEDULE II
The name, position and present principal occupation of each
director and executive officer of GS Advisors, Inc., the sole general
partner of GS Advisors, L.P., which is the sole general partner of GS
Capital Partners, L.P., are set forth below.
The business address for all the executive officers and
directors listed below except Henry Cornell is 85 Broad Street, New
York, New York 10004. The business address of Henry Cornell is 3
Garden Road, Hong Kong.
All executive officers and directors listed below are United
States citizens.
<TABLE>
<CAPTION>
Name Position Present Principal Occupation
- ---- -------- ----------------------------
<S> <C> <C>
Richard A. Friedman Director/President Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Director/Vice President Managing Director of Goldman, Sachs & Co.
Carla H. Skodinski Vice President/Secretary Vice President of Goldman, Sachs & Co.
Elizabeth S. Cogan Treasurer Vice President of Goldman, Sachs & Co.
Joseph H. Gleberman Director/ Vice President Managing Director of Goldman, Sachs & Co.
Henry Cornell Vice President Managing Director of Goldman, Sachs (Asia) L.L.C.
Barry S. Volpert Director/Vice President Managing Director of Goldman, Sachs & Co.
Eve M. Gerriets Vice President/Assistant Secretary Vice President of Goldman, Sachs & Co.
David J. Greenwald Assistant Secretary Vice President of Goldman, Sachs & Co.
C. Douglas Fuge Assistant Treasurer Managing Director of Goldman, Sachs & Co.
</TABLE>
SCHEDULE III
In settlement of Securities and Exchange Commission
Administrative Proceeding File No. 3-7646 In the Matter of the
Distribution of Securities Issued by Certain Government Sponsored
Enterprises, Goldman, Sachs & Co. (the "Firm"), along with numerous
other securities firms, without admitting or denying any of the
findings of the Securities and Exchange Commission (the "SEC")
consented to the entry of an Order, dated January 16, 1992. The SEC
found that the Firm, in connection with its participation in the
primary distributions of certain unsecured debt securities issued by
Government Sponsored Enterprises ("GSEs"), made and kept certain
records that did not accurately reflect the Firm's customers' orders
for GSEs' securities and/or offers, purchases or sales by the Firm of
the GSEs' securities effected by the Firm in violation of Section
17(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and 17 C.F.R. Sections 240.17a-3 and 240.17a-4.
The Firm was ordered to cease and desist from committing or
causing future violations of the aforementioned sections of the
Exchange Act in connection with any primary distributions of unsecured
debt securities issued by the GSEs, pay a civil money penalty to the
United States Treasury in the amount of $100,000 and maintain policies
and procedures reasonably designed to ensure the Firm's future
compliance with the aforementioned sections of the Exchange Act in
connection with any primary distributions of unsecured debt securities
issued by the GSEs.
In Securities and Exchange Commission Administrative
Proceeding File No. 3-8282 In the Matter of Goldman, Sachs & Co., the
Firm, without admitting or denying any of the SEC's allegations,
settled administrative proceedings involving alleged books and records
and supervisory violations relating to eleven trades of U.S. Treasury
securities in the secondary markets in 1985 and 1986. The SEC alleged
that the Firm had failed to maintain certain records required pursuant
to Section 17(a) of the Exchange Act and had also failed to supervise
activities relating to the aforementioned trades in violation of
Section 15(b)(4)(E) of the Exchange Act.
The Firm was ordered to cease and desist from committing or
causing any violation of the aforementioned sections of the Exchange
Act, pay a civil money penalty to the SEC in the amount of $250,000
and establish policies and procedures reasonably designed to assure
compliance with Section 17(a) of the Exchange Act and Rules 17a-3 and
17a-4 thereunder.
INDEX OF EXHIBITS
(1) Preferred Stock and Warrant Purchase Agreement by and among
the Company and the purchasers of Securities Units, dated as
of March 3, 1995, as amended (incorporated herein by
reference to Exhibits 10.10 and 10.11 to the Company's
Registration Statement on Form S-1 No. 333-0796)
(2) Letter from the Company to GSCP, dated March 18, 1996
(3) Registration Rights Agreement by and among the Company and
the purchasers of Securities Units, dated as of March 3,
1995, as amended (incorporated herein by reference to
Exhibits 10.12 and 10.13 to the Company's Registration
Statement on Form S-1 No. 333-0796)
(4) Lock-up Agreement
(5) Stock Option Letter Agreement for Non-Employee Directors;
Biofield Corp. 1996 Stock Option Plan for Non-Employee
Directors
(6) Joint Filing Agreement
BIOFIELD CORP.
STOCK OPTION LETTER AGREEMENT FOR NON-EMPLOYEE DIRECTORS
TO: JOSEPH H. GLEBERMAN
Pursuant to the Biofield Corp. (the "Company") 1996 Stock
Option Plan for Non-Employee Directors (the "Plan") this Letter
Agreement represents the nonqualified option for the purchase of
10,000 shares (post 2.04 for one reverse stock split effective
February 26, 1996) of the Company's common stock, $.001 par value, at
a post-split exercise price of $11 per share (the "exercise price"). A
copy of the Plan is attached and the provisions thereof, including,
without limitation, those relating to withholding taxes, are
incorporated into this Agreement by reference.
The terms of the option are as set forth in the Plan and in
this Agreement. The most important of the terms set forth in the Plan
are summarized as follows:
Term. The term of the option is ten years from date of
grant, unless sooner terminated.
Exercise. During your lifetime only you can exercise the
option. The Plan also provides for exercise of the option by the
personal representative of your estate or the beneficiary thereof
following your death. You may use the Notice of Exercise in the form
attached to this Agreement when you exercise the option.
Payment for Shares. The option may be exercised by the
delivery of cash or bank certified or cashier's checks.
Termination. The option will terminate upon the earlier of
ten years from the Date of Grant or one year from cessation of service
as a Director.
Transfer of Option. The option is not transferable except by
will or by the applicable laws of descent and distribution or pursuant
to a qualified domestic relations order.
Vesting. The option is vested according to the following
schedule:
Period of Optionee's Continuous
Relationship With the Company or
Affiliate From the Date the Portion of Total Option
Option is Granted Which is Exercisable
-------------------------------- -----------------------
1 year 33%
2 years 33%
3 years 34%
Date of Grant. The date of grant of the option is as of
January 29, 1996.
YOUR PARTICULAR ATTENTION IS DIRECTED TO PARAGRAPH 5(d)(vi)
OF THE PLAN WHICH DESCRIBES CERTAIN IMPORTANT CONDITIONS RELATING TO
FEDERAL AND STATE SECURITIES LAWS THAT MUST BE SATISFIED BEFORE THE
OPTION CAN BE EXERCISED AND BEFORE THE COMPANY CAN ISSUE ANY SHARES TO
YOU. THE COMPANY HAS NO OBLIGATION TO REGISTER THE SHARES THAT WOULD
BE ISSUED UPON THE EXERCISE OF YOUR OPTION, AND IF IT NEVER REGISTERS
THE SHARES, YOU WILL NOT BE ABLE TO EXERCISE THE OPTION UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE. AT THE PRESENT TIME,
EXEMPTIONS FROM REGISTRATION UNDER FEDERAL AND STATE SECURITIES LAWS
ARE VERY LIMITED AND MIGHT BE UNAVAILABLE TO YOU PRIOR TO THE
EXPIRATION OF THE OPTION. CONSEQUENTLY, YOU MIGHT HAVE NO OPPORTUNITY
TO EXERCISE THE OPTION AND TO RECEIVE SHARES UPON SUCH EXERCISE. IN
ADDITION, YOU SHOULD CONSULT WITH YOUR TAX ADVISOR CONCERNING THE
RAMIFICATIONS TO YOU OF HOLDING OR EXERCISING YOUR OPTIONS OR HOLDING
OR SELLING THE SHARES UNDERLYING SUCH OPTIONS.
You understand that, during any period in which the shares
which may be acquired pursuant to your option are subject to the
provisions of Section 16 of the Securities Exchange Act of 1934, as
amended (and you yourself are also so subject), in order for your
transactions under the Plan to qualify for the exemption from Section
16(b) provided by Rule 16b-3, a total of six months must elapse
between the grant of the option and the sale of shares underlying the
option.
Please execute the Acceptance and Acknowledgment set forth
below on the enclosed copy of this Agreement and return it to the
undersigned.
Very truly yours,
Biofield Corp.
By: /s/ Michael R. Gavenchak
-----------------------------------
Name: Michael R. Gavenchak
Title: Executive Vice President
General Counsel
ACCEPTANCE AND ACKNOWLEDGMENT
I, a resident of the State of ____________, accept the stock
option described above granted under the Biofield Corp. 1996 Stock
Option Plan for Non-Employee Directors, and acknowledge receipt of a
copy of this Agreement, including a copy of the Plan. I have read and
understand the Plan, including the provisions of Paragraph 5(d)(vi)
thereof.
Dated:
-----------------
/s/ Joseph H. Gleberman
- ------------------------------------------ --------------------------
Taxpayer I.D. Number Signature
By his or her signature below, the spouse of the Optionee,
if such Optionee is legally married as of the date of such Optionee's
execution of this Agreement, acknowledges that he or she has read this
Agreement and the Plan and is familiar with the terms and provisions
thereof, and agrees to be bound by all the terms and conditions of
this Agreement and the Plan.
Dated:
-----------------
----------------------------
Spouse's Signature
----------------------------
Printed Name
NOTICE OF EXERCISE
The undersigned, pursuant to a nonqualified Stock Option Letter
Agreement for Non-Employee Directors (the "Agreement") between the
undersigned and Biofield Corp. (the "Company"), hereby irrevocably
elects to exercise purchase rights represented by the Agreement, and
to purchase thereunder shares (the "Shares") of the Company's common
stock, $.001 par value ("Common Stock"), covered by the Agreement and
herewith makes payment in full therefor.
1. If the sale of the Shares and the resale thereof has not,
prior to the date hereof, been registered pursuant to a registration
statement filed and declared effective under the Securities Act of
1933, as amended (the "Act"), the undersigned hereby agrees,
represents, and warrants that:
(a) the undersigned is acquiring the Shares for his or her
own account (and not for the account of others), for investment and
not with a view to the distribution or resale thereof;
(b) By virtue of his or her position, the undersigned has
access to the same kind of information which would be available in a
registration statement filed under the Act;
(c) the undersigned is a sophisticated investor;
(d) the undersigned understands that he or she may not sell
or otherwise dispose of the Shares in the absence of either (i) a
registration statement filed under the Act or (ii) an exemption from
the registration provisions thereof; and
(e) The certificates representing the Shares may contain a
legend to the effect of subsection (d) of this Section 1.
2. If the sale of the Shares and the resale thereof has been
registered pursuant to a registration statement filed and declared
effective under the Act, the undersigned hereby represents and
warrants that he or she has received the applicable prospectus and a
copy of the most recent annual report, as well as all other material
sent to stockholders generally.
3. The undersigned acknowledges that the number of shares of
Common Stock subject to the Agreement is hereafter reduced by the
number of shares of Common Stock represented by the Shares.
Very truly yours,
--------------------------------
(type name under signature line)
Social Security No.:
------------
Address:
------------------------
--------------------------------
BIOFIELD CORP.
1996 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
Adopted January 29, 1996
1. PURPOSE
The purpose of the Biofield Corp. 1996 Stock Option Plan for
Non-Employee Directors (the "Plan") is to promote the interests of
Biofield Corp. (the "Company") and its stockholders by increasing the
proprietary and vested interest of non-employee directors in the
growth and performance of the Company by granting such directors
options to purchase shares of Common Stock, par value $.001 per share
(the "Shares"), of the Company.
2. ADMINISTRATION
The Plan shall be administered by the Company's Board of
Directors (the "Board"). Subject to the provisions of the Plan, the
Board shall be authorized to interpret the Plan, to establish, amend,
and rescind any rules and regulations relating to the Plan and to make
all other determinations necessary or advisable for the administration
of the Plan; provided, however, that the Board shall have no
discretion with respect to the selection of directors to receive
options, the number of Shares subject to any such options, the
purchase price thereunder or the timing of grants of options under the
Plan. The determinations of the Board in the administration of the
Plan, as described herein, shall be final and conclusive. The
Secretary of the Company shall be authorized to implement the Plan in
accordance with its terms and to take such actions of a ministerial
nature as shall be necessary to effectuate the intent and purposes
thereof. The validity, construction and effect of the Plan and any
rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of Delaware.
It is the intention of the Company that the Plan comply in
all respects with Rule 16b-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), to the extent applicable, and
in all events the Plan shall be construed in favor of its meeting the
requirements of Rule 16b-3. If any Plan provision is later found not
to be in compliance with such Rule, such provision shall be deemed
null and void. From and after the date that the Company first
registers a class of equity securities under Section 12 of the
Exchange Act, no director subject to Section 16 of the Exchange Act
may sell shares received upon the exercise of an option during the six
month period immediately following the grant of the option.
3. ELIGIBILITY
The class of individuals eligible to receive grants of
options under the Plan shall be directors of the Company who are not
employees of the Company or its affiliates and who have not, within
one year immediately preceding the determination of such director's
eligibility, received any award under any other plan of the Company or
its affiliates that entitles the participants therein to acquire
stock, stock options or stock appreciation rights of the Company or
its affiliates (other than any other plan under which participants'
entitlements are governed by provisions meeting the requirements of
Rule 16b-3(c)(2)(ii) promulgated under the Securities Exchange Act of
1934) ("Eligible Directors"). Any holder of an option granted
hereunder shall hereinafter be referred to as a "Participant."
4. SHARES SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 6, an aggregate
of 306,000 Shares shall be available for issuance upon the exercise of
options granted under the Plan. The Shares deliverable upon the
exercise of options may be made available from authorized but unissued
Shares or treasury Shares. If any option granted under the Plan shall
terminate for any reason without having been exercised, the Shares
subject to, but not delivered under, such option shall be available
for other options.
5. GRANT, TERMS AND CONDITIONS OF OPTIONS
(a) Effective January 29, 1996, subject to approval of the
Plan by the stockholders of the Company, each Eligible Director has
been granted an option hereunder to purchase 20,400 Shares. The
options granted to such Eligible Directors shall be subject to vesting
in three equal annual installments on the first three anniversary
dates of the date of grant; provided, that only whole shares may be
issued pursuant to the exercise of any option.
(b) Upon first election or appointment to the Board, each
newly elected Eligible Director will be granted an option to purchase
20,400 Shares. Any such options granted to newly elected Eligible
Directors shall be subject to vesting in three equal annual
installments on the first three anniversary dates of the election of
such Eligible Director to the Board; provided, that only whole shares
may be issued pursuant to the exercise of any option.
(c) Immediately following each Annual Stockholders Meeting,
commencing with the meeting following the close of fiscal year 1996,
each Eligible Director, other than an Eligible Director first elected
to the Board within the 12 months immediately preceding and including
such meeting, will be granted an option to purchase 5,100 Shares as of
the date of such meeting.
(d) The options granted will be nonstatutory stock options
not intended to qualify under Section 422 of the Internal Revenue Code
of 1986, as amended (the "Internal Revenue Code"), and shall have the
following terms and conditions:
(i) PRICE. The purchase price per Share deliverable upon the
exercise of each option shall be 100% of the Fair Market Value
per Share on the date the option is granted. For purposes of this
Plan, Fair Market Value shall be the closing sales price as
reported on the NASDAQ National Market on the date in question,
or, if the Shares shall not have traded on such date, the closing
sales price on the first date prior thereto on which the Shares
were so traded.
(ii) PAYMENT. Payment of the purchase price shall be made in
full at the time the notice of exercise of the option is
delivered to the Company and shall be in cash, bank certified or
cashier's check for the Shares being purchased.
(iii) EXERCISABILITY AND TERMS OF OPTIONS. Subject to any
vesting requirements, options shall be exercisable in whole or in
part at all times during the period beginning on the date of
grant until the earlier of ten years from the date of grant and
the expiration of the one year period provided in paragraph (iv)
below.
(iv) TERMINATION OF SERVICE AS ELIGIBLE DIRECTOR. Upon
termination of a Participant's service as a Director for any
reason, all outstanding options which have become vested as of
the date of termination shall be exercisable in whole or in part
for a period of one year from the date upon which the Participant
ceases to be a Director, provided that in no event shall the
options be exercisable beyond the period provided for in
paragraph (iii) above.
(v) NONTRANSFERABILITY OF OPTIONS. No option may be
assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Participant otherwise than by will
or the laws of descent and distribution, and during the lifetime
of the Participant to whom an option is granted it may be
exercised only by the Participant or by the Participant's
guardian or legal representative. Notwithstanding the foregoing,
options may be transferred pursuant to a qualified domestic
relations order.
(vi) LISTING AND REGISTRATION. Each option shall be subject
to the requirement that if at any time the Board shall determine,
in its discretion, that the listing, registration or
qualification of the Shares subject to such option upon any
securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with,
the granting of such option or the issue or purchase of Shares
thereunder, no such option may be exercised in whole or in part
unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any
condition not acceptable to the Board.
(vii) OPTION AGREEMENT. Each option granted hereunder shall
be evidenced by an agreement with the Company which shall contain
the terms and provisions set forth herein and shall otherwise be
consistent with the provisions of the Plan.
6. ADJUSTMENT OF AND CHANGES IN SHARES
In the event of a stock split, stock dividend, subdivision
or combination of the Shares or other change in corporate structure
affecting the Shares, the number of Shares authorized by the Plan
shall be increased or decreased proportionately, as the case may be,
and the number of Shares subject to any outstanding option shall be
increased or decreased proportionately, as the case may be, with
appropriate corresponding adjustment in the purchase price per Share
thereunder.
7. NO RIGHTS OF STOCKHOLDERS
Neither a Participant nor a Participant's legal
representative shall be, or have any of the rights and privileges of,
a shareholder of the Company in respect of any Shares purchasable upon
the exercise of any option, in whole or in part, unless and until
certificates for such Shares shall have been issued.
8. PLAN AMENDMENTS
The Plan may be amended by the Board, as it shall deem
advisable or to conform to any change in any law or regulation
applicable thereto; provided, that the Board may not, without the
authorization and approval of stockholders of the Company: (i)
increase the number of Shares which may be purchased pursuant to
options hereunder, either individually or in the aggregate, except as
permitted by Section 6, (ii) change the requirement of Section 5(d)
that option grants be priced at Fair Market Value, except as permitted
by Section 6, (iii) modify in any respect the class of individuals who
constitute Eligible Directors or (iv) materially increase the benefits
accruing to Participants hereunder. The provisions of Sections 3
and/or 5 may not be amended more often than once every six months,
other than to comport with changes in the Internal Revenue Code, the
Employee Retirement Income Security Act, or the rules under either
such statute.
9. EFFECTIVE DATE AND DURATION OF PLAN
The Plan shall become effective upon adoption by the Board
so long as it is approved by the holders of a majority of the
Company's outstanding shares of voting capital stock at any time
within 12 months before or after the adoption of the Plan by the
Board. Unless sooner terminated by the Board, the Plan shall terminate
ten years from the earlier of (a) the date on which the Plan is
adopted by the Board or (b) the date on which the Plan is approved by
the stockholders of the Company. No option may be granted after such
termination or during any suspension of the Plan. The amendment or
termination of the Plan shall not, without the consent of the option
holder, alter or impair any rights or obligations under any option
theretofore granted under the Plan.
