-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, K10+OLdiRRCEB8EmbpNbVig2Qmmwpc4Ufo/OHSaP/HkPjVmJjGgvGdwydQEwf9ca J7BHT4V8Qh7KlivT8sxNXg== 0000895345-97-000469.txt : 19971229 0000895345-97-000469.hdr.sgml : 19971229 ACCESSION NUMBER: 0000895345-97-000469 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19971224 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BIOFIELD CORP \DE\ CENTRAL INDEX KEY: 0001007018 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 133703450 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-45809 FILM NUMBER: 97744299 BUSINESS ADDRESS: STREET 1: 1225 NORTHMEADOW PARKWAY STREET 2: STE 120 CITY: ROSWELL STATE: GA ZIP: 30076 BUSINESS PHONE: 7707408180 MAIL ADDRESS: STREET 1: 1225 NORTHMEADOW PKWY STREET 2: SUITE 120 CITY: ROSWELL STATE: GA ZIP: 30076 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP LP CENTRAL INDEX KEY: 0000904571 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 133501777 STATE OF INCORPORATION: NY FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 85 BROAD ST CITY: NEW YORK STATE: NY ZIP: 10004 BUSINESS PHONE: 2129021000 MAIL ADDRESS: STREET 1: 85 BROAD STREET CITY: NEW YORK STATE: NY ZIP: 10004 SC 13D/A 1 ---------------------- OMB APPROVAL ------------------------ OMB Number: 3235-0145 Expires:October 31, 1997 Estimated average burden hours per form. . .14.90 ------------------------ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 AMENDMENT NO. 4 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) DECEMBER 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 55 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-00 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 9,166 BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH 2,246,131 REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 9,166 10 SHARED DISPOSITIVE POWER 2,246,131 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,255,297 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.5% 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 55 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* 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 2,246,131 REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0 10 SHARED DISPOSITIVE POWER 2,246,131 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,246,131 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.4% 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 55 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 2,021,523 REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0 10 SHARED DISPOSITIVE POWER 2,021,523 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,021,523 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20.2% 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 55 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 2,021,523 REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0 10 SHARED DISPOSITIVE POWER 2,021,523 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES* 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20.2% 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. 4 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")(FN*) 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, as amended by Amendment No. 2 to Schedule 13D dated October 17, 1997, and as amended by Amendment No. 3 to Schedule 13D dated October 9, 1997 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 by deleting Schedule II-B thereto and substituting Schedule II-B hereto in lieu thereof. ITEM 3. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATIONS. --------------------------------------------------- Item 3 is hereby amended by deleting the third paragraph of such item in its entirety and substituting the following in lieu thereof. Pursuant to a Subscription Agreement, dated as of December 17, 1997 (the "Subscription Agreement"), by and among the Company and GSCP, on behalf of the Limited Partnerships, on December 17, 1997, the Limited Partnerships purchased 730,157 shares of Common Stock from the Company in a private placement (the "Offering"). The total consideration for the purchase of Common Stock in the Offering was $2,300,000. A copy of the Subscription Agreement is filed as Exhibit 7 and incorporated herein by reference. * 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. In connection with the Offering, the Company offered to exchange its outstanding warrants to purchase up to 1,785,994 shares of Common Stock for 730,651 shares of Common Stock (the "Warrant Exchange"). Pursuant to a Warrant Exchange Agreement, dated as of December 17, 1997 (the "Warrant Exchange Agreement") by and among the Company and each of the Limited Partnerships, on December 17, 1997, the Limited Partnerships acquired 444,510 shares of Common Stock from the Company in exchange for Warrants to purchase 1,089,329 shares of Common Stock. All of the Warrants held by the Limited Partnerships were exchanged for shares of Common Stock in the Warrant Exchange. A copy of the form of the Warrant Exchange Agreement is attached as Exhibit 8 and incorporated herein by reference. The funds used by the Limited Partnerships to purchase the Securities Units and the Common Stock as described above were obtained from capital contributions by the Limited Partnerships' respective partners and from the Limited Partnerships' available funds. The Warrants exchanged by the Limited Partnerships in the Warrant Exchange were obtained by the Limited Partnerships on March 3, 1995 pursuant to the Purchase Agreement. ITEM 4. PURPOSE OF TRANSACTION. ---------------------- Item 4 is hereby amended by deleting the second to last paragraph and inserting the following in lieu thereof. As further described in Item 6, the Limited Partnerships intend to register all of the shares of Common Stock received by them in the Offering in a shelf registration statement on Form S-3 to be filed by the Company in accordance with the terms of the Offering Registration Rights Agreement (as defined below), covering resales of the shares of Common Stock issued by the Company in the Offering. 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 further described in Item 3, on December 17, 1997, the Limited Partnerships (i) purchased 730,157 shares of Common Stock in the Offering and (ii) exchanged Warrants to purchase 1,089,329 for 444,510 shares of Common Stock. As a result, on December 17, 1997 (after giving effect to the Offering and the Warrant Exchange), GSCP beneficially owned 2,021,523 shares of Common Stock and no Warrants. The Company has informed the Filing Persons that as of December 17, 1997, after giving effect to the Offering and the Warrant Exchange, 10,029,609 shares of Common Stock were outstanding and warrants to purchase 396,762 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 outstanding Warrants and none of the Directors Options (as hereinafter defined) are exercised) represent approximately 20.2% of the outstanding shares of Common Stock. Assuming that all of the outstanding Warrants are exercised, GSCP would own approximately 19.4% 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 2,246,131 shares of Common Stock. Such number of shares of Common Stock (assuming that none of the outstanding Warrants and none of the Directors Options are exercised) represent approximately 22.4% of the outstanding shares of Common Stock. Assuming that all of the outstanding Warrants are exercised, Goldman Sachs would beneficially own approximately 21.5% 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 $4.69 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. Of the 12,500 Directors Options issued to the GSCP designee to the Board of Directors, 9,166 of such options are currently exercisable or will be exercisable within 60 days of the date hereof. GS Group may be deemed to hold through the Limited Partnerships, for purposes of this Statement, the beneficial ownership of 2,246,131 shares of Common Stock. GS Group may also be deemed to beneficially own Initial Directors Options to purchase 6,666 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 $4.69 per share. Such number of shares of Common Stock (assuming that none of the outstanding Warrants and none of the Directors Options are exercised) represent approximately 22.4% of the outstanding shares of Common Stock. Assuming that none of the outstanding Warrants are exercised, and all of the 9,166 Directors Options beneficially owned by GS Group are exercised, GS Group would beneficially own approximately 22.5% of the outstanding shares of Common Stock (approximately 22.5% assuming all of the 12,500 Directors Options are exercised). Assuming that all of the outstanding Warrants are exercised and all of the 9,166 Directors Options beneficially owned by GS Group are exercised, GS Group would beneficially own approximately 21.6% of the outstanding shares of Common Stock (approximately 21.6% 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. The Filing Persons have no information regarding the current holdings 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 or any of the persons listed on Schedule I or Schedule II-A or II-B hereto, beneficially owns any shares of Common Stock other than as set forth herein. Item 5(b) is hereby amended and restated in its entirety as follows: (b) Except with respect to the shares of Common Stock issuable upon exercise of the Directors Options, as to which GS Group has the sole power to vote and to dispose of such shares of Common Stock, each Filing Person shares the power to vote or direct the vote and to dispose or to direct the disposition of shares of Common Stock beneficially owned by such Filing Person as indicated in pages 2 through 5 above. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. ------------------------------------------------------------- Item 6 is hereby amended by deleting the paragraph with the heading "Options", the paragraph with the heading "Private Placement", the paragraph with the heading "Warrant Exchange", and the paragraph following such paragraph and inserting the following in lieu thereof: 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 January 29, 1996. The Initial Directors Options vest in three equal installments on the first, second and third anniversaries of the date of grant and are immediately exercisable upon vesting. Accordingly, options to purchase 6,666 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 pursuant to a Stock Option Letter Agreement for Non-Employee Directors, dated June 5, 1997 (the option agreements relating to the Initial Directors Options and the Additional Directors Options, collectively the "Option Agreement"). The Additional Directors Options are currently vested and are currently exercisable. 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 5 and incorporated herein by reference. Private Placement. As described above, on December 17, 1997, the Company consummated the private placement of 2,867,670 shares of Common Stock. Pursuant to the Subscription Agreement, the Limited Partnerships purchased 730,157 shares of Common Stock for an aggregate purchase price of $2.3 million. The shares of Common Stock purchased by the Limited Partnership in the Offering are restricted securities. In connection with the Offering, the Company and the purchasers in the Offering (including the Limited Partnerships) entered into a registration rights agreement, a copy of which is filed as Exhibit 9 hereto, and incorporated herein by reference (the "Offering Registration Rights Agreement"). Under the Offering Registration Rights Agreement, the Company is obligated to file as soon as reasonably practicable after the closing of the Offering, a registration statement on Form S-3 covering resales of shares of Common Stock sold in the Offering and to maintain the effectiveness of such registration statement with respect to each investor until the securities registered therein by such investor are sold or are eligible to be sold pursuant to Rule 144(k) or are sold in compliance with Rule 144. In accordance with the terms of the Offering Registration Rights Agreement, the Limited Partnerships have the right to "piggyback" all of the shares of Common Stock purchased under the Purchase Agreement (including the shares of Common Stock issued in the Warrant Exchange) in the contemplated S-3 Registration. The Limited Partnerships intend to register in the S-3 Registration only the shares of Common Stock purchased by them in the Offering and do not intend to register any other shares of Common Stock held by them in such registration. In connection with the Offering, each of the Limited Partnerships entered into a "lock-up" agreement, a copy of the form agreement executed by the Limited Partnerships is attached as Exhibit 11 and incorporated herein by reference (each an "Offering Lock-Up Agreement"). Under the Offering Lock-Up Agreement, the Limited Partnerships have agreed that they will not, without the prior written consent of the underwriters, offer, sell or otherwise dispose of any shares of Common Stock or other securities exchangeable for or convertible into shares of Common Stock, options or warrants to acquire shares of Common Stock or securities exchangeable for or convertible into shares of Common Stock owned by them until the earlier of (a) the 90th day after the date on which the Securities and Exchange Commission declares effective the Form S-3 registration statement registering for resale the Common Stock purchased by the investors in the Offering or (b) December 17, 1998. Warrant Exchange. Concurrent with the completion of the Offering, the Company offered 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 exchanged all of their 1,089,329 Warrants for 444,510 shares of Common Stock. The shares of Common Stock issued to the Limited Partnership in connection with the Warrant Exchange are restricted securities but are entitled to registration rights under the Registration Rights Agreement. In connection with the Warrant Exchange, the Company and the Limited Partnerships entered into an amendment (the "Registration Rights Amendment") to the Registration Rights Agreement to clarify that the shares of Common Stock received by the Limited Partnerships in the Warrant Exchange are entitled to the rights and benefits of the Registration Rights Agreement. A copy of such amendment is attached as Exhibit 10 and incorporated herein by reference. In connection with the Warrant Exchange, each of the Limited Partnerships also entered into a "lock-up" agreement (the "Warrant Exchange Lock-Up Agreement"). A form of the Warrant Exchange Lock-Up Agreement is attached as Exhibit 12 and incorporated herein by reference. Under the Warrant Exchange Lock-Up Agreement, the Limited Partnerships have agreed that they will not, during the period from December 17, 1997 to and including December 17, 1998, directly or indirectly, offer, sell, offer to sell, grant options to purchase or otherwise sell or dispose of any shares of Common Stock received upon conversion of the Warrants in the Warrant Exchange. 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, the Non-Employee Director Stock Plan, the Subscription Agreement, the Warrant Exchange Agreement, the Offering Registration Rights Agreement, the Registration Rights Amendment, and the "lock-up" agreements executed in connection with the Offering and the Warrant Exchange 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, the Non-Employee Director Stock Plan, the Subscription Agreement, the Warrant Exchange Agreement, the Offering Registration Rights Agreement, the Registration Rights Amendment and the "lock-up" agreements executed in connection with the Offering and the Warrant Exchange, copies of which are filed as Exhibits (1), (2), (3), (4), (5), (7), (8), (9), (10), (11) and (12) 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 Agreements for Non-Employee Directors; Biofield Corp. 1996 Stock Option Plan for Non-Employee Directors (6) Joint Filing Agreement (7) Subscription Agreement by and among the Company and the Limited Partnerships, dated December 17, 1997. (8) Form of Warrant Exchange Agreement, by and among the Company and the Limited Partnerships. (9) Form of Registration Rights Agreement, by and among the Company, the Limited Partnerships, and the purchasers in the Offering. (10) Second Amendment, dated December 17, 1997, to the Registration Rights Agreement by and among the Company and the purchasers of Securities Units, dated as of March 3, 1995, as amended. (11) Form of Lock-up Agreement, by and among the Company and the Limited Partnerships, with regard to shares of Common Stock acquired in the Offering. (12) Form of Lock-up Agreement, by and among the Company and the Limited Partnerships, with regard to shares of Common Stock acquired in the Warrant Exchange. 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. December 24, 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: Presidentt 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 II-B 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. Name Position Present Principal Occupation - ---- -------- ---------------------------- Richard A. Friedman Director/President Managing Director of Goldman, Sachs & Co. Terence M. O'Toole Director/Vice Managing Director of Goldman, President Sachs & Co Elizabeth S. Cogan Treasurer Managing Director of Goldman, Sachs & Co. Joseph H. Gleberman Director/Vice Managing Director of Goldman, President Sachs & Co Henry Cornell Vice President Managing Director of Goldman, (Asia) L.L.C. Barry S. Volpert Director/Vice Managing Director of Goldman, President Sachs & Co Eve M. Gerriets Vice President/ Vice President of Goldman, Secretary Sachs & Co David J. Greenwald Assistant Secretary Vice President of Goldman, Sachs & Co. C. Douglas Fuge Assistant Treasurer Managing Director of Goldman, Sachs & Co. Katherine B. Vice President Vice President of Goldman, Enquist Sachs & Co 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 Agreements for Non-Employee Directors; Biofield Corp. 1996 Stock Option Plan for Non-Employee Directors (6) Joint Filing Agreement (7) Subscription Agreement by and among the Company and the Limited Partnerships, dated December 17, 1997. (8) Form of Warrant Exchange Agreement, by and among the Company and the Limited Partnerships. (9) Form of Registration Rights Agreement, by and among the Company, the Limited Partnerships, and the purchasers in the Offering. (10) Second Amendment, dated December 17, 1997, to the Registration Rights Agreement by and among the Company and the purchasers of Securities Units, dated as of March 3, 1995, as amended. (11) Form of Lock-up Agreement, by and among the Company and the Limited Partnerships, with regard to shares of Common Stock acquired in the Offering. (12) Form of Lock-up Agreement, by and among the Company and the Limited Partnerships, with regard to shares of Common Stock acquired in the Warrant Exchange. EX-5 2 Exhibit 5 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 Which is Option is Granted 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. FORM OF STOCK OPTION LETTER AGREEMENT FOR NON-EMPLOYEE DIRECTORS TO: Joseph 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 2,500 shares of the Company's common stock, $0.01 par value, at a post-split exercise price of $4.69 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 fully vested as of the date hereof. Date of Grant. The date of grant of the option is June 4, 1997. 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:---------------------------------- MICHAEL R. GAVENCHAK EXECUTIVE VICE PRESIDENT GENERAL COUNSEL 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. EX-7 3 EXHIBIT 7 SUBSCRIPTION AGREEMENT AS INDICATED ON THE SIGNATURE PAGE TO THIS SUBSCRIPTION AGREEMENT, THE EXECUTION OF THIS SUBSCRIPTION AGREEMENT BY AN INVESTOR SHALL ALSO SERVE AS A COUNTERPART SIGNATURE TO THE REGISTRATION RIGHTS AGREEMENT CONTAINED IN APPENDIX C TO THE PRIVATE PLACEMENT MEMORANDUM OF WHICH THIS SUBSCRIPTION AGREEMENT IS A PART. THE SECURITIES ACQUIRED PURSUANT TO THIS SUBSCRIPTION AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS, NOR HAVE THE SECURITIES BEEN REGISTERED WITH ANY STATE SECURITIES COMMISSION. THE REPRESENTATIONS MADE HEREIN WILL BE RELIED UPON BY THE COMPANY IN COMPLYING WITH ITS OBLIGATIONS UNDER APPLICABLE SECURITIES LAWS. THE SECURITIES MAY NOT BE TRANSFERRED OR SOLD OR OFFERED FOR SALE OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED IN ABSENCE OF SUCH REGISTRATION OR QUALIFICATION OR AN EXEMPTION THEREFROM UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. . Subscription. Biofield Corp. (the "Company") is offering (the "Offering") shares of its Common Stock, par value $.001 per share (the "Common Stock"), to accredited investors on the terms and conditions described in the Confidential Private Placement Memorandum, dated October 24, 1997, including the appendices thereto, as it may be supplemented and amended from time to time (the "Memorandum"). The undersigned, on behalf of itself and certain affiliates of the Goldman Sachs Group, L.P. (together with the undersigned, the "GS Parties"), hereby agrees to invest, in the aggregate, not less than $1 million in the Offering if at least $6 million is invested in the Offering by other investors, and agrees to invest, in the aggregate, not less than $1.5 million in the Offering if at least $7 million is invested in the Offering by other investors and not less than $2 million in the Offering if at least $8 million is invested in the Offering by other investors. The GS Parties hereby, jointly and severally, subscribe for an aggregate of 730,157 shares of Common Stock at a price of $3.15 per share. Payment in full to the Company is tendered with this subscription by wire transfer for the full purchase price of the Shares delivered to the Company. Upon receipt, the Company will promptly forward all subscription proceeds to an escrow account. All subscription proceeds will be deposited and held in such account pending the closing of the purchase. Upon receipt of notice from the Company that the closing is being held, The Chase Manhattan Bank (the "Escrow Agent") will release the subscription funds to the Company. If subscriptions for a minimum of $7,000,000 of aggregate gross proceeds from the Offering are not delivered on or before December 31, 1997 (subject to extension for up to 30 days) or if the Offering is otherwise terminated or withdrawn, the Company will promptly return to the GS Parties such subscription proceeds held by the Escrow Agent in the escrow account, without interest. The GS Parties acknowledge that this subscription shall not become effective until it has been properly executed by the undersigned and accepted by the Company. THE COMPANY MAY REJECT THIS SUBSCRIPTION IN WHOLE OR IN PART FOR ANY REASON AND AT ANY TIME PRIOR TO ACCEPTANCE. IN THE EVENT THE COMPANY REJECTS THIS SUBSCRIPTION IN WHOLE OR IF A CLOSING IS NOT HELD ON OR BEFORE DECEMBER 31, 1997 (SUBJECT TO EXTENSION FOR UP TO 30 DAYS), ALL OF THE OBLIGATIONS OF THE UNDERSIGNED AND THE COMPANY UNDER THIS AGREEMENT SHALL TERMINATE. . Confidential Private Placement Memorandum and SEC Filings. The undersigned acknowledges receipt of the Memorandum and the publicly filed reports (the "Public Filings") of the Company attached as Appendix A thereto. The undersigned has received no offering materials other than the Memorandum and the Public Filings. The undersigned further acknowledges that it or its representative has read carefully and is familiar with the Memorandum and the Public Filings and has had a reasonable opportunity to ask questions and, prior to its execution of this Agreement, was given full access to all information which the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of information furnished to the undersigned, and all such questions, if asked, have been answered satisfactorily and such documents, if examined, have been found to be fully satisfactory. The undersigned further acknowledges that, in making its investment decision, it is relying upon its own investment judgment and the Memorandum and Public Filings. No other representations have been made to, or authorized to be made to, the undersigned. . Representations and Warranties of the Undersigned. The undersigned, on behalf of itself and the other GS Parties, hereby represents and warrants to the Company as follows: () The Shares are being subscribed for by the undersigned, and each of the other GS Parties, each for its own account, for investment only and not presently with a view toward resale or distribution in a manner which would require registration of the Shares under the Securities Act and will not be transferred by the undersigned, or any of the other GS Parties, in violation of the Securities Act and the rules and regulations promulgated thereunder or applicable state securities laws. () The undersigned, and each of the other GS Parties, if a corporation, partnership, trust or other form of business entity, is authorized and otherwise duly qualified to purchase and hold the Shares. Such entity's principal place of business is as set forth on the signature page hereof and if such entity has been formed for the specific purpose of acquiring the Shares subscribed to hereunder, it hereby agrees to supply any additional written information that may be required by the Company. () The undersigned, and each of the other GS Parties, is an "Accredited Investor" as that term is defined in Rule 501 under the Securities Act. The particular category or categories within which the undersigned, and each of the other GS Parties, falls is marked with an (X) in each of the applicable spaces provided. ____ (i) A bank as defined in Section 3(a)(2) of the Securities Act, or a savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary capacity; ____ (ii) A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended; ____ (iii) An insurance company as defined in Section 2(13) of the Securities Act; ____ (iv) An investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act; ____ (v) A Small Business Investment Company licensed by the United States Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; ____ (vi) A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000; ____ (vii) An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are Accredited Investors; ____ (viii) A private business development company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940; ____ (ix) An organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; ____ (x) A director, executive officer, or general partner of the issuer of the securities being offered or sold, or director, executive officer, or general partner of a general partner of that issuer; ____ (xi) A natural person whose individual net worth, or joint net worth with that person's spouse, at the time of his purchase exceeds $1,000,000; ____ (xii) A natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; ____ (xiii) A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person who has such knowledge and experience in financial and business matters that such person is capable of evaluating the risks and merits of an investment in the Shares (as described in ss.230.506(b)(2)(ii) promulgated under the Securities Act); or ____ (xiv) An entity in which all of the equity owners are Accredited Investors. () The undersigned, and each of the other GS Parties, understands that the Shares have not been registered under the Securities Act. The undersigned, and each of the other GS Parties, is fully aware of the restrictions on sale, transferability and assignment of the Shares as set forth in the certificates of such Shares, that the undersigned must bear the economic risk of the undersigned's investment in the Company and that the Shares cannot be offered or sold unless they are subsequently registered under the Securities Act or an exemption from such registration is available. The undersigned, and each of the other GS Parties, further understands that the Shares will bear an appropriate legend to this effect. () The undersigned, and each of the other GS Parties, is aware of the following: () The Shares are speculative investments which involve a high degree of risk; and () There are substantial restrictions on the transferability of the Shares and the undersigned agrees to be responsible for compliance with all conditions on transfer imposed by any state blue sky or securities law. The foregoing representations and warranties are true and accurate as of the date of delivery of the funds to the Company and shall survive such delivery. If, in any respect, such representations and warranties shall not be true and accurate prior to delivery of funds, the undersigned shall give written notice of such fact to the Company, specifying which representations and warranties are not true and accurate and the reasons therefore. . Representations and Warranties of the Company. The Company hereby represents and warrants to the undersigned that the Shares, when issued and delivered to and paid for by the undersigned, and/or the other GS Parties, as provided herein, will have been duly authorized and will be validly issued, fully paid and nonassessable. . Transferability. Neither the undersigned, nor any of the other GS Parties, will transfer or assign this Agreement, or any interest of the undersigned, or of the other GS Parties, herein. . Revocation. The undersigned will not cancel, terminate or revoke this Agreement or any agreement made by the undersigned hereunder and this Agreement shall survive the death or disability of the undersigned, except as provided herein. . High Risk. The undersigned, on behalf of itself and the other GS Parties, warrants and represents that it, and each of the other GS Parties, has such knowledge and experience in financial and business matters, that it is capable of evaluating the merits and risks of an investment in the Company, and that the undersigned, and each of the other GS Parties, is able to bear the economic risks of the investment for an indefinite period of time and at the present time could afford a complete loss of such investment. . Registration Rights. Upon the terms and subject to the conditions of the Registration Rights Agreement (as defined in the Memorandum) which has been provided to the Subscriber, the Company shall prepare and file with the Securities and Exchange Commission as soon as reasonably practicable after the closing of the Offering, a registration statement on Form S-3 covering resale of the Shares, and the Company shall use its best efforts to cause such registration statement to become effective as soon as reasonably practicable and, in any event, within seventy-five (75) days following such closing. . Miscellaneous. () All notices or other communications given or made hereunder shall be in writing and shall be delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, to the undersigned or the other GS Parties, at the address set forth on the signature page hereto and to the Company at: Biofield Corp. 1225 Northmeadow Parkway Suite 120 Roswell, Georgia 30076 Attention:Michael R. Gavenchak () This Agreement shall be governed by and construed in accordance with the substantive law of the State of Delaware without giving effect to the principles of conflicts of law thereof. () This Agreement together with the Registration Rights Agreement and the Memorandum constitute the entire agreement between the parties hereto with respect to the subject matter hereof and may be amended only by writings executed by all parties. . Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original but all of which taken together shall constitute one agreement. . Third Party Beneficiary. The undersigned, on behalf of itself and the other GS Parties, understands and agrees that Hambrecht & Quist LLC, as placement agent for the Offering (the "Placement Agent"), is intended to be a third party beneficiary of the representations and warranties of the undersigned, on behalf of itself and the other GS Parties, contained in this Subscription Agreement, that the Placement Agent shall be entitled to rely upon such representations and warranties in connection with the Offering and that such representations and warranties shall survive the closing of the Offering. SUBSCRIPTION AGREEMENT SIGNATURE PAGE The undersigned hereby executes this Agreement as of the date set forth below. The undersigned's execution of this Agreement shall also serve as a counterpart signature to the Registration Rights Agreement contained in Appendix C to the Memorandum. GS CAPITAL PARTNERS, L.P. By: GS Advisors L.P., its general partner Dated December 17, 1997 By: GS Advisors, Inc., its general partner By: /s/ Katherine B. Enquist Name: Katherine B. Enquist Title: Vice President ADDRESS: 85 Broad Street New York, NY 10004 ACCEPTED: By: /s/ Michael R. Gavenchak Name: Michael R. Gavenchak Title: Executive Vice President Dated: December 17, 1997 EX-8 4 EXHIBIT 8 November 4, 1997 BIOFIELD CORP. To: Holders of Biofield Corp. Warrants Issued in 1995 Securities Units Offering Biofield Corp. (the "Company") is offering shares of Common Stock, par value $.001 per share (the "Common Stock"), to accredited investors in a private placement (the "Offering") intended to yield gross proceeds to the Company of at least $7,000,000 and up to $15,000,000. The Offering is being made pursuant to, and on the terms and conditions described in, the Confidential Private Placement Memorandum, dated October 24, 1997, including the appendices thereto, as it may be supplemented and amended from time to time (the "Memorandum"). A copy of the Memorandum is enclosed herewith. In conjunction with the Offering, the Company is offering to issue, upon the consummation of the Offering, shares of Common Stock ("Exchange Shares") in exchange (the "Warrant Exchange") for the outstanding warrants (the "Warrants") issued to investors in the Company's 1995 private placement of securities units (the "1995 Units Offering"). The terms of the Warrant Exchange were established as a result of negotiations between the Company and Goldman Sachs, L.P. ("Goldman"), taking into account an analytical valuation model as well as other considerations. The exchange ratio was designed so that the shares of Common Stock issued in connection with the Warrant Exchange are equivalent in value to the Warrants exchanged for such shares. As discussed below, the Company agreed to undertake the Warrant Exchange upon receipt of a commitment from Goldman to invest concurrently in the Offering. Accordingly, the Warrant Exchange is conditioned upon the consummation of the Offering. Hambrecht & Quist LLC, the placement agent for the Offering, did not act as an advisor to the Company in connection with the Warrant Exchange. In order to participate in the Warrant Exchange, the terms of which are described on page 6 of the Memorandum, holders of the Warrants must commit to invest in the Offering. In connection with the Warrant Exchange, certain affiliates of Goldman (collectively, the "GS Parties") have agreed to invest not less than $1 million in the Offering if at least $6 million is invested in the Offering by other investors, and have agreed to invest not less than $1.5 million in the Offering if at least $7 million is invested in the Offering by other investors and not less than $2 million in the Offering if at least $8 million is invested in the Offering by other investors. In order for holders of the Warrants other than the GS Parties to exchange their Warrants pursuant to the Warrant Exchange, such holders must purchase shares of Common Stock in the Offering with an aggregate purchase price proportional to the GS Parties' investment, based upon the ratio between the number of Warrants held by each such other holder and the aggregate number of Warrants held by the GS Parties. In addition, the holders of the Warrants will be required to agree, as part of the Warrant Exchange, not to, directly or indirectly, offer, sell, offer to sell, grant any option to purchase or otherwise sell or dispose of any Exchange Shares during the one-year period following the closing of the Offering (the "Lock-Up Agreements"). Background Pursuant to the 1995 Units Offering, in March, April and June 1995, the Company sold an aggregate of 2,914,771 securities units, consisting of (i) an aggregate of 2,914,771 shares of Series C Preferred Stock (the outstanding shares of Series C Preferred Stock were automatically converted into approximately 1,428,802 shares of Common Stock upon completion of the Company's initial public offering); (ii) 1,457,385 warrants (the "Series D Warrants") to purchase shares of Series D Convertible Preferred Stock, at an initial exercise price of $6.00 per share; (iii) 1,457,385 warrants (the "Series D Warrants") to purchase shares of Series D Preferred Stock at an exercise price of $6.00 per share, or upon the occurrence of certain events, shares of Series C Preferred Stock at an exercise price of $4.50 per share (which events subsequently occurred); and (iv) the right, upon the occurrence of certain events, to receive an aggregate of 357,192 warrants (the "Common Warrants") to purchase an aggregate of 357,192 shares of Common Stock at an exercise price of $9.18 per share. On June 30, 1996, the Company issued the Common Warrants to the investors in the 1995 Units Offering. Upon the completion of the Company's initial public offering, the Series D Warrants automatically became exercisable to purchase .4902 shares of Common Stock at an exercise price of $12.24 per share and the Series C Warrants automatically became exercisable to purchase .4902 shares of Common Stock at an exercise price of $9.18 per share. The Warrants subject to the Warrant Exchange consist of the Series D Warrants, the Series C Warrants and the Common Warrants issued to investors in the 1995 Units Offering. The outstanding Warrants are currently exercisable for an aggregate of 1,785,994 shares of Common Stock at a weighted average exercise price of $10.40 per share. Pursuant to the Warrant Exchange, the Warrants will be exchangeable for an aggregate of 730,651 Exchange Shares. The GS Parties hold an aggregate of 1,089,329 Warrants, which will be exchangeable for 444,512 Exchange Shares pursuant to the Warrant Exchange. The number of Exchange Shares issuable for each Warrant has been determined using the analytical pricing model referred to above, based on the exercise price of the Warrant and the expiration date thereof. Enclosed herewith for each Warrant holder, as Annex A hereto, is a schedule prepared by the Company listing the Warrants held by such Warrant holder, the number of Exchange Shares which will be issuable to such Warrant holder upon the consummation of the Warrant Exchange, and the minimum investment in the Offering required by such Warrant holder in order to participate in the Warrant Exchange. Warrant Exchange Procedures To participate in the Warrant Exchange and purchase shares of Common Stock in the Offering, the Warrant holder must send the Warrants to be surrendered and exchanged to the Company at its principal offices at 1225 Northmeadow Parkway, Suite 120, Roswell, Georgia 30076, Attention: Timothy G. Roche, Vice President, Finance, along with the enclosed Election to Participate in Warrant Exchange, Subscription Agreement and Lock-Up Agreement, all duly executed, and accompanied by payment by wire transfer or a check of the full purchase price for the number of shares which the Warrant holder is obligated to purchase in the Offering based on the $1 million minimum GS Parties' investment under the terms of the Warrant Exchange. If the GS Parties are required to invest more than $1 million in the Offering, the other Warrant holders participating in the Warrant Exchange will be obligated to deliver an additional Subscription Agreement duly executed and accompanied by wire transfer or a check of the full purchase price for the number of additional shares of Common Stock that such holder is obligated to purchase in the Offering under the terms of the Warrant Exchange. If a Warrant holder does not subscribe for the required number of additional shares, such holder may not participate in the Warrant Exchange and its Election to Participate in the Warrant Exchange and original Subscription Agreement will be canceled and the original Warrant and all funds previously paid will be returned. At the closing of the Offering, and upon receipt of the Warrant, Election to Participate in Warrant Exchange, Subscription Agreement, any additional Subscription Agreement, Lock-Up Agreement and payment(s) from the Warrant holder, the Company shall cause to be issued certificates for the total number of Exchange Shares issuable to the Warrant holder as determined by the terms of the Warrant Exchange, registered in the name of the Warrant holder or its nominee, and the Company shall thereupon promptly deliver such certificates to such holder. The Warrant Exchange, which may be independently withdrawn by the Company, is conditioned upon the consummation of the Offering. If the Offering is terminated or withdrawn, the Warrant Exchange will not be completed and therefore, the Election to Participate in Warrant Exchange and Subscription Agreements received from Warrant Holders will be canceled, all subscription proceeds and the original Warrant will be returned and the terms of the Warrant holder's original Warrant will remain in effect. THIS DOCUMENT AND THE MEMORANDUM ARE SUBMITTED ON A CONFIDENTIAL BASIS TO THE HOLDERS OF THE COMPANY'S WARRANTS ISSUED IN THE 1995 UNITS OFFERING FOR INFORMATIONAL USE SOLELY IN CONNECTION WITH THEIR CONSIDERATION OF THE WARRANT EXCHANGE AND THE OFFERING. THIS DOCUMENT AND THE MEMORANDUM MAY NOT BE COPIED OR REPRODUCED IN WHOLE OR IN PART NOR MAY THEY BE DISTRIBUTED OR ANY OF THEIR CONTENTS BE DISCLOSED TO ANYONE OTHER THAN THE PERSONS TO WHOM THEY ARE SUBMITTED AND THEIR ADVISORS (WHO SHALL BE INSTRUCTED AS TO THE CONFIDENTIAL NATURE OF THESE DOCUMENTS). IN MAKING A DECISION WHETHER OR NOT TO PARTICIPATE IN THE WARRANT EXCHANGE AND THE OFFERING, WARRANT HOLDERS MUST RELY ON THEIR OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE WARRANT EXCHANGE AND THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. WARRANT HOLDERS SHOULD NOT CONSTRUE THE CONTENTS OF THE MEMORANDUM, THE OTHER DOCUMENTS DELIVERED THEREWITH OR ANY OTHER COMMUNICATION FROM THE COMPANY OR ITS REPRESENTATIVES AS INVESTMENT, LEGAL OR TAX ADVICE. THE TERMS OF THE WARRANT EXCHANGE, THE MEMORANDUM, THE OTHER DOCUMENTS DELIVERED THEREWITH AND ANY SUCH OTHER MATERIALS, AS WELL AS THE NATURE OF AN INVESTMENT IN THE OFFERING, SHOULD BE REVIEWED BY THE WARRANT HOLDER AND SUCH WARRANT HOLDER'S INVESTMENT, TAX, LEGAL, ACCOUNTING AND OTHER ADVISORS. If you have any questions about the enclosed documents, the Warrant Exchange, the Offering or the Company, please contact Timothy G. Roche, Vice President, Finance of the Company at (770) 740-8180. ANNEX A Name of Holder:__________________________________ Number of Warrants Held of Record: Series D Warrants:__________________________ Series C Warrants:__________________________ Common Warrants:____________________________ Total Number of Warrants Held of Record:_______________ Number of Exchange Shares Issuable: for Series D Warrants:_________________ for Series C Warrants:_________________ for Common Warrants:___________________ Total Number of Shares Issuable:__________________ Minimum required investment by Holder in the Offering if the GS Parties are required to invest at least $1 million: $_________________ Minimum required investment by Holder in the Offering if the GS Parties are required to invest at least $1.5 million: $_________________ Minimum required investment by Holder in the Offering if the GS Parties are required to invest at least $2 million: $_________________ ELECTION TO PARTICIPATE IN WARRANT EXCHANGE [TO BE EXECUTED ONLY IF WARRANT HOLDER ELECTS TO PARTICIPATE IN THE WARRANT EXCHANGE AND THE OFFERING] BIOFIELD CORP. 1225 Northmeadow Parkway Suite 120 Roswell, Georgia 30076 The undersigned registered holder of ___________ Warrants represented by Warrant Certificate No.(s) _______________ hereby irrevocably elects to participate in the Warrant Exchange on the terms and conditions described above and in the Memorandum. The undersigned acknowledges that in order to participate in the Warrant Exchange, holders of the Warrants must commit to invest in the Offering on such terms and conditions. Dated: __________________, 1997 ___________________________________ (Signature must conform in all respects to name holder as specified on face of Warrant) Print name and address: ___________________________________ (Name) ___________________________________ (Street Address) ___________________________________ (City) (State) (Zip Code) Accepted: BIOFIELD CORP. By:_______________________________ Name: Title: Dated:______________________, 1997 EX-9 5 EXHIBIT 9 REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of December __, 1997, by and among Biofield Corp., a Delaware corporation, with headquarters located at 1225 Northmeadow Parkway, Suite 120, Roswell, Georgia 30076 (the "COMPANY"), and each of the investors set forth on the signature pages hereto (the "INITIAL INVESTORS"). WHEREAS: . In connection with the several Subscription Agreements of even date herewith by and between each of the Initial Investors and the Company (collectively, the "SUBSCRIPTION AGREEMENTS"), the Company has agreed, upon the terms and subject to the conditions contained therein, to issue and sell to each of the Initial Investors shares of the Company's common stock, par value $.001 per share (the "COMMON STOCK"). . To induce each of the Initial Investors to execute and deliver the Subscription Agreements, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the "1933 ACT"), and applicable state securities laws. NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: . DEFINITIONS. . As used in this Agreement, the following terms shall have the following meanings: () "INVESTORS" means either Initial Investors or their transferees or assignees who agree to be bound by the provisions of this Agreement in accordance with Section 9 hereof. () "REGISTER," "REGISTERED," and "REGISTRATION" refer to a registration effected by preparing and filing a Registration Statement in compliance with the 1933 Act and pursuant to Rule 415 under the 1933 Act or any successor rule providing for offering securities on a continuous basis ("RULE 415"), and the declaration or ordering of effectiveness of such Registration Statement by the United States Securities and Exchange Commission (the "SEC"). () "REGISTRABLE SECURITIES" means the shares of Common Stock issued or issuable pursuant to the Subscription Agreements or Section 2(c) hereof, or as a dividend on or in exchange for or otherwise with respect to any of the foregoing which are held by an Investor. As to any particular Registrable Securities, such securities will cease to be Registrable Securities when they have been distributed to the public pursuant to an offering registered under the 1933 Act or are eligible to be sold by the holder thereof pursuant to Rule 144(k) under the 1933 Act (or any similar rule then in force) or are sold in compliance with Rule 144. () "REGISTRATION STATEMENT" means a registration statement of the Company under the 1933 Act filed pursuant to Section 2(a) hereof. . Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Subscription Agreements. . REGISTRATION. ------------ . Mandatory Registration. The Company shall prepare and file with the SEC as soon as reasonably practicable after the date of this Agreement a Registration Statement on Form S-3 (or, if Form S-3 is not then available, on such form of Registration Statement as is then available to effect a registration of the Registrable Securities) covering the resale of the Registrable Securities and thereafter use its best efforts to cause such Registration Statement to become effective as soon as reasonably practicable and, in any event, within seventy five (75) days following the date of this Agreement. . Underwritten Offering. Investors holding a majority-in-interest of the Registrable Securities being registered pursuant to Section 2(a) hereof may determine to engage the services of an underwriter in connection with such offering. If such offering is an underwritten offering, the Investors who hold a majority-in-interest of the Registrable Securities subject to such underwritten offering shall have the right to select one legal counsel and an investment banker or bankers and manager or managers to administer the offering, which investment banker or bankers or manager or managers shall be reasonably satisfactory to the Company. . Payments by the Company. If the Registration Statement is not declared effective by the SEC within seventy five (75) days after the date of this Agreement (THE "PRE-REGISTRATION PERIOD") or if, at any time after the Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to the Registration Statement because of the issuance of a stop order or other suspension of effectiveness of the Registration Statement, or if the Investors are not permitted under Section 4(c) hereof to sell Registrable Securities for a period of more than ten (10) consecutive business days, or the Common Stock is not listed or included for quotation on the Nasdaq National Market ("NASDAQ"), the New York Stock Exchange (the "NYSE") or the American Stock Exchange (the "AMEX"), then the Company shall issue additional shares of Common Stock to the Investors in such amounts and at such times as shall be determined pursuant to this Section 2(c) as partial relief for the damages to the Investors by reason of any such delay in or reduction of their ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies that may otherwise be available at law or in equity). The number of shares of Common Stock the Company shall issue pursuant to the preceding sentence shall be equal to the product of (i) the number of shares of Registrable Securities held by such Investor to be covered by the Registration Statement; (ii) either (a) two hundredths (.02) if such penalty relates to the one-hundred eighty (180) day period (THE "FIRST PAYMENT PERIOD") commencing immediately upon the expiration of the Pre-registration Period, or (b) one hundredth (.01) if such penalty relates to the period after the expiration of the First Payment Period; and (iii) the sum of the following, provided, however, that the total number of months under this subsection (iii) shall not exceed nine and one-half months: (x) the number of months (prorated for partial months) after the end of the Pre-registration Period and prior to the date the Registration Statement is declared effective by the SEC (the "EFFECTIVE DATE"); provided, however, that there shall be excluded from such period any delays which are solely attributable to changes required by the Investors in the Registration Statement with respect to information relating to the Investors, including, without limitation, changes to the plan of distribution, or to the failure of the Investors to conduct their review of the Registration Statement pursuant to Section 3(g) below in a reasonably prompt manner; (y) the number of months (prorated for partial months) that sales cannot be made pursuant to the Registration Statement during the Registration Period (as hereinafter defined) because of the issuance of a stop order or other suspension of effectiveness of the Registration Statement, or if the Investors are not permitted under Section 4(c) hereof to sell Registrable Securities for a period of more than ten (10) consecutive business days; and (z) the number of months (prorated for partial months) that the Common Stock is not listed or included for quotation on the Nasdaq, NYSE or AMEX or that trading of the Common Stock thereon is halted during the Registration Period (unless all trading on the Nasdaq, NYSE or AMEX, as the case may be, is halted). (For example, if the Registration Statement becomes effective one (1) month after the end of the Pre-registration Period, the Company would be required to issue 2,000 additional shares of Common Stock to the Investors for each 100,000 shares of Common Stock issued pursuant to the Subscription Agreements. If thereafter, sales could not be made pursuant to the Registration Statement for an additional period of fifteen (15) days subsequent to the First Payment Period, the Company would be required to issue an additional 500 shares of Common Stock to the Investors for each 100,000 shares of Common Stock issued pursuant to the Subscription Agreements). Any shares of Common Stock issued pursuant to this Section 2(c) shall be Registrable Securities. The additional shares of Common Stock to be issued pursuant to this Section 2(c) shall be issued to the Investors within five (5) days after the end of each period that gives rise to such obligation; provided that if any such period extends for more than thirty (30) days, interim issuances of Common Stock shall be made for each such 30-day period. If the provisions of this Section 2(c) would otherwise result in the issuance of fractional shares of Common Stock to an Investor, the Company shall round the number of shares to be issued to such Investor to the nearest whole share. . Eligibility for Form S-3. The Company represents and warrants that, as of the date hereof, it meets the registrant eligibility and transaction requirements for the use of Form S-3 for registration of the sale of the Registrable Securities by the Investors, and the Company shall file all reports required to be filed by the Company with the SEC in a timely manner so as to maintain such eligibility for the use of Form S-3. . OBLIGATIONS OF THE COMPANY. -------------------------- In connection with the registration of the Registrable Securities, the Company shall have the following obligations: . The Company shall prepare and file a Registration Statement and use its best efforts to cause such Registration Statement to become effective, all as provided in Section 2(a) hereof, and keep the Registration Statement effective pursuant to Rule 415 at all times until such date as is the earlier of (i) the date on which all of the Registrable Securities covered by the Registration Statement have been sold by the Investors, or (ii) the date on which all of the shares of Common Stock issued pursuant to the Subscription Agreements or Section 2(c) hereof, or as a dividend on or in exchange for or otherwise with respect to any of the foregoing, have ceased to be Registrable Securities. The period from the filing of the Registration Statement until the earlier of (i) or (ii) above shall be referred to herein as the "REGISTRATION PERIOD". . The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration Statement until such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in the Registration Statement. . The Company shall furnish to each Investor (and the firm of legal counsel designated pursuant to Section 3(g)) whose Registrable Securities are included in the Registration Statement (i) promptly after the same is prepared and publicly distributed and filed with the SEC, one copy of the Registration Statement and any amendment thereto, each preliminary prospectus and prospectus and each amendment and supplement thereto, and (ii) such number of copies of a prospectus and all amendments and supplements thereto and such other documents as such Investor may reasonably request in order to facilitate the disposition of the Registrable Securities covered by the Registration Statement and owned by such Investor. The Company shall immediately notify each Investor by facsimile of the effectiveness of the Registration Statement or any post-effective amendment. . The Company shall use reasonable efforts to (i) register and qualify the Registrable Securities covered by the Registration Statement under such other securities or "blue sky" laws of such jurisdictions in the United States as the Investors who hold a majority-in-interest of the Registrable Securities being offered reasonably request, (ii) prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (a) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (b) subject itself to general taxation in any such jurisdiction, or (c) file a general consent to service of process in any such jurisdiction. . As promptly as practicable after becoming aware of such event, the Company shall notify each Investor of the happening of any event of which the Company has knowledge as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Company shall use its best efforts to promptly prepare a supplement or amendment to the Registration Statement to correct such untrue statement or omission, and deliver such number of copies of such supplement or amendment to each Investor as such Investor may reasonably request. . The Company shall use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of the Registration Statement, and, if such an order is issued, to obtain the withdrawal of such order at the earliest possible moment and to notify each Investor who holds Registrable Securities being sold (or, in the event of an underwritten offering, the managing underwriters) of the issuance of such order and the resolution thereof. . The Company shall permit a single firm of legal counsel designated by the Investors holding a majority-in-interest of the Registrable Securities included in the Registration Statement to review the Registration Statement and all amendments and supplements thereto (as well as all requests for acceleration or effectiveness thereof) a reasonable period of time prior to their filing with the SEC, and shall not file any document in a form to which such counsel reasonably objects and will not request acceleration of the Registration Statement without prior notice to such counsel. The sections of the Registration Statement covering information with respect to the Investors, the Investors' beneficial ownership of securities of the Company or the Investors' intended method of disposition of Registrable Securities shall conform to the information provided to the Company by each of the Investors. . The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with the provisions of Section 11(a) and Rule 158 under the 1933 Act) covering a period of at least twelve-months beginning with the first day of the Company's first full calendar quarter following the Effective Date. . The Company shall make available for inspection, at the offices where normally kept and during reasonable business hours, by (i) any Investor, (ii) any underwriter participating in any disposition pursuant to the Registration Statement, (iii) any firm of legal counsel and any firm of accountants or other agents retained by any Investors holding Registrable Securities included in such Registration Statement, and (iv) one firm of legal counsel retained by all such underwriters (collectively, the "INSPECTORS"), all pertinent financial and other records, corporate documents and properties of the Company (collectively, the "RECORDS"), as shall be reasonably requested by such person in connection with such Registration Statement, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in confidence and shall not make any disclosure (except to an Investor or agents of the Company) of any Record or other information obtained in connection with any such inspection, unless (a) the disclosure of such Records is necessary in connection with the Inspectors' or Investors' assertion of any claims or actions or with their establishment of any defense in any pending administrative or judicial action or proceeding, (b) the release of such Records is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement. Each Investor agrees that it shall, and shall cause each of its Inspectors to, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give notice of such request to the Company. . The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission of material fact in the Registration Statement that directly relates to such Investor, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give notice of such request to such Investor. . The Company shall (i) cause all the Registrable Securities covered by the Registration Statement to be listed on each national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) secure the designation and quotation of all the Registrable Securities covered by the Registration Statement on Nasdaq. . The Company shall provide a transfer agent and registrar, which may be a single entity, for the Registrable Securities not later than the Effective Date. . The Company shall enter into such customary agreements (including underwriting agreements in customary form as are reasonably satisfactory to the Company with customary indemnification and contribution obligations) and take all such other appropriate actions as the holders of a majority-in-interest of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities. The Investors holding Registrable Securities which are to be distributed by such underwriters shall be parties to such underwriting agreement and may, at their option, require that the Company make to and for the benefit of such holders the representations, warranties and covenants of the Company which are being made to and for the benefit of such underwriters and which are of the type customarily provided to institutional investors in secondary offerings. . The Company shall use it best efforts to obtain an opinion from the Company's counsel and a "cold comfort" letter from the Company's independent public accountants in customary form and covering such matters as are customarily covered by such opinions and "cold comfort" letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the underwriter, if any, and to the Investors holding a majority-in-interest of the Registrable Securities, and furnish to each Investor participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to such Investor or underwriter. . The Company shall cooperate with the Investors holding Registrable Securities and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the underwriting agreement prior to any sale of Registrable Securities to the underwriters or, if not an underwritten offering, in accordance with the instructions of the Investors holding Registrable Securities at least three business days prior to any sale of Registrable Securities and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof. . The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investors of Registrable Securities pursuant to the Registration Statement. . If any such registration statement or comparable statement under "blue sky" laws refers to any Investor by name or otherwise as the holder of any securities of the Company, then such Investor shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to such Investor and the Company, to the effect that the holding by such Investor of such securities is not to be construed as a recommendation by such Investor of the investment quality of the Company's securities covered thereby and that such holding does not imply that such Investor will assist in meeting any future financial requirements of the Company, or (ii) in the event that such reference to such Investor by name or otherwise is not in the judgment of the Company, as advised by counsel, required by the 1933 Act or any similar federal statute or any state "blue sky" or securities law then in force, the deletion of the reference to such Investor. . OBLIGATIONS OF THE INVESTORS. ---------------------------- In connection with the registration of the Registrable Securities, the Investors shall have the following obligations: . It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Investor that such Investor furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it as shall be reasonably required to effect the registration of such Registrable Securities and as are customarily provided by selling stockholders and shall execute such documents in connection with such registration as the Company may reasonably request and as are customarily executed by selling stockholders; provided that any such information shall be used only in connection with such registration. At least five (5) business days prior to the first anticipated filing date of the Registration Statement, the Company shall notify each Investor or its counsel of the information the Company requires from each such Investor. . Each Investor, by such Investor's acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Registration Statement, unless such Investor has notified the Company in writing of such Investor's election to exclude all of such Investor's Registrable Securities from the Registration Statement. . Each Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(e) or 3(f), such Investor will immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Investor's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(e) or 3(f) and, if so directed by the Company, such Investor shall, at its option, deliver to the Company (at the expense of the Company) or destroy (and deliver to the Company a certificate of destruction) all copies in such Investor's possession, of the prospectus covering such Registrable Securities at the time of receipt of such notice. . No Investor may participate in any underwritten registration hereunder unless such Investor (i) agrees to sell such Investor's Registrable Securities on the basis provided in any underwriting arrangements entered into by the Company, (ii) completes and executes all questionnaires, indemnities, underwriting agreements and other documents (other than powers of attorney) reasonably required under the terms of such underwriting arrangements, and (iii) agrees to pay its pro rata share of all underwriting discounts and commissions and its own expenses (including, without limitation, counsel fees, except as specifically provided herein). . EXPENSES OF REGISTRATION. ------------------------ All expenses incident to the Company's performance of or compliance with this Agreement, including, without limitation, all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, and fees and disbursements of counsel for the Company and all independent certified public accountants, underwriters (excluding underwriting discounts and commissions) and other persons retained by the Company (all such expenses being herein called "Registration Expenses"), will be borne by the Company. Additionally, the Company will reimburse the holders of Registrable Securities covered by a Registration Statement for the reasonable fees and disbursements of one counsel chosen by the holders of a majority-in-interest of the Registrable Securities. Each Investor will, however, bear any transfer taxes and underwriting discounts or commissions applicable to the Registrable Securities sold by such Investor. . INDEMNIFICATION. --------------- In the event any Registrable Securities are included in a Registration Statement under this Agreement: . To the fullest extent permitted by law, the Company will, and hereby agrees to, indemnify, hold harmless and defend (i) each Investor who holds such Registrable Securities, (ii) the directors, officers, partners, employees, agents and each person who controls any Investor within the meaning of the 1933 Act or the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, of any similar successor statute (the "1934 ACT"), if any, (iii) any underwriter (as defined in the 1933 Act) for the Investors, and (iv) the directors, officers, partners, employees and each person who controls any such underwriter within the meaning of the 1933 Act or the 1934 Act, if any (each, an "INDEMNIFIED PERSON"), against any and all joint or several losses, claims, damages, liabilities or expenses (collectively, together with actions, proceedings or inquiries by any regulatory or self-regulatory organization, whether commenced or threatened, in respect thereof, "CLAIMS") to which any of them may become subject insofar as such Claims arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement or the omission or alleged omission to state therein a material fact required to be stated or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus if used prior to the Effective Date, or contained in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; or (iii) any violation or alleged violation by the Company of the 1933 Act, the 1934 Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities (the matters in the foregoing clauses (i) through (iii) being, collectively, "VIOLATIONS"). Subject to the restrictions set forth in Section 6(c) hereof with respect to the retention of legal counsel by an Indemnified Person or Indemnified Party (as defined below), the Company shall reimburse the Indemnified Person, promptly as such expenses are incurred and are due and payable, for any reasonable legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to a Claim arising out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Indemnified Person expressly for use in connection with the preparation of the Registration Statement or any such amendment thereof or supplement thereto, if such prospectus was timely made available by the Company pursuant to Section 3(c) hereof; and (ii) with respect to any preliminary prospectus, shall not inure to the benefit of any Indemnified Person if the untrue statement or omission of material fact contained in the preliminary prospectus was corrected on a timely basis in the prospectus, as then amended or supplemented, such corrected prospectus was timely made available by the Company pursuant to Section 3(c) hereof, and the Investors were promptly advised in writing not to use the incorrect prospectus prior to the use giving rise to a Violation and such Indemnified Person, notwithstanding such advice, used it. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of the Registrable Securities by the Investors pursuant to Section 9 hereof. . In connection with any Registration Statement in which an Investor is participating, each such Investor agrees severally and not jointly to indemnify, hold harmless and defend, to the same extent and in the same manner set forth in Section 6(a) hereof, the Company, each of its directors, each of its officers who signs the Registration Statement, to the fullest extent permitted by law, each person, if any, who controls the Company within the meaning of the 1933 Act or the 1934 Act, any underwriter and any other stockholder selling securities pursuant to the Registration Statement or any of its directors, officers, agents or any person who controls such stockholder or underwriter within the meaning of the 1933 Act or the 1934 Act (collectively and together with an Indemnified Person, an "INDEMNIFIED PARTY"), against any Claim to which any of them may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim arises out of or is based upon any Violation by such Investor, in each case to the extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with written information furnished to the Company by such Investor expressly for use in connection with such Registration Statement; and subject to Section 6(c) hereof with respect to the retention of legal counsel by an Indemnified Person or Indemnified Party, such Investor will reimburse any legal or other expenses (promptly as such expenses are incurred and are due and payable) reasonably incurred by them in connection with investigating or defending any such Claim; provided, however, that the Investor shall be liable under this Agreement (including this Section 6(b) and Section 7 hereof) for only that amount as does not exceed the net proceeds from the sale of Registrable Securities by such Investor pursuant to such Registration Statement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of the Registrable Securities by the Investors pursuant to Section 9 hereof. Notwithstanding anything herein to the contrary, the indemnification agreement contained in this Section 6(b) with respect to any preliminary prospectus shall not inure to the benefit of any Indemnified Party if the untrue statement or omission of material fact contained in the preliminary prospectus was corrected on a timely basis in the prospectus, as then amended or supplemented. . Indemnification similar to that specified in the preceding paragraphs (a) and (b) of this Section 6 (with appropriate modifications) shall be given by the Company and each Investor selling Registrable Securities with respect to any required registration or other qualification of securities under any state securities and "blue sky" laws. . Any person entitled to indemnification under this Agreement shall notify promptly the indemnifying party in writing of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to this Section 6, but the failure of any indemnified party to provide such notice shall not relieve the indemnifying party of its obligations under the preceding paragraphs of this Section 6, except to the extent the indemnifying party is materially prejudiced thereby and shall not relieve the indemnifying party from any liability which it may have to any indemnified party otherwise than under this Section 6. In case any action or proceeding is brought against an indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, unless in the reasonable 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 chooses, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party that it so chooses, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that (i) if the indemnifying party fails to take reasonable steps necessary to defend diligently the action or proceeding within 20 days after receiving notice from such indemnified party that the indemnified party believes it has failed to do so; (ii) if such indemnified party who is a defendant in any action or proceeding which is also brought against the indemnifying party reasonably shall have concluded that there may be one or more legal defenses available to such indemnified party which are not available to the indemnifying party; or (iii) if representation of both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in any such case, the indemnified party shall have the right to assume or continue its own defense as set forth above (but with no more than one firm of counsel for all indemnified parties in each jurisdiction, except to the extent any indemnified party or parties reasonably shall have concluded that there may be legal defenses available to such party or parties which are not available to the other indemnified parties or to the extent representation of all indemnified parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct) and the indemnifying party shall be liable for any expenses therefor. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (A) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. . If for any reason the foregoing indemnity is unavailable or is insufficient to hold harmless an indemnified party under Sections 6(a), (b) or (c), then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of any Claim in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to such offering of securities. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party 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 6(e) 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 in the preceding sentences of this Section 6(e). The amount paid or payable in respect of any Claim shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 6(e) to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 6(e) to contribute any amount in excess of the net proceeds received by such indemnifying party from the sale of Registrable Securities in the offering to which the losses, claims, damages or liabilities of the indemnified parties relate, less the amount of any indemnification payment made pursuant to Sections 6(b) and (c). . The indemnity agreements contained herein 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 or omitted by or on behalf of any indemnified party and shall survive the transfer of the Registrable Securities by any such party. . The indemnification and contribution required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or expense, loss, damage or liability is incurred. . NO OBLIGATION TO SELL. --------------------- Nothing in this Agreement shall be deemed to create an independent obligation on the part of any Investor to sell any Registrable Securities pursuant to any effective registration statement. . REPORTS UNDER THE 1934 ACT. -------------------------- With a view to making available to the Investors the benefits of Rule 144 promulgated under the 1933 Act or any other similar rule or regulation of the SEC that may at any time permit the investors to sell securities of the Company to the public without registration ("RULE 144"), the Company agrees, during the term of this Agreement, to: . make and keep public information available, as those terms are understood and defined in Rule 144; . file with the SEC in a timely manner all reports and other documents required of the Company under the 1933 Act and the 1934 Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and . furnish to each Investor so long as such Investor owns Registrable Securities, promptly upon written request, (i) a written statement by the Company as to whether or not it has complied with the reporting requirements of Rule 144, the 1933 Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to permit the Investors to sell such securities pursuant to Rule 144 without registration. . ASSIGNMENT. ---------- The rights under this Agreement may be assigned by the Investors to any transferee of all or any portion of Registrable Securities if the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein (such agreement being evidenced by the execution of a Counterpart and Acknowledgement substantially in the form attached hereto as Exhibit A). Subject to the requirements of this Section 9, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto. . AMENDMENT. --------- Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only with written consent of the Company and Investors who hold a majority-in-interest of the Registrable Securities; provided, however, that no Investor who purchases $1 million or more of Common Stock pursuant to the Subscription Agreements shall be bound by any such amendment or waiver without such Investor's written consent. Any amendment or waiver effected in accordance with this Section 10 shall be binding upon each Investor and the Company. - MISCELLANEOUS. ------------- . Definition of Holder of Registrable Securities. A person or entity is deemed to be the holder of Registrable Securities owned by such person and its affiliates. If Registrable Securities are held by a nominee for the beneficial owner thereof, the beneficial owner thereof may, at its option, 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 constituting Registrable Securities held by any holder or holders of Registrable Securities contemplated by this Agreement); provided that the Company shall have received assurances reasonably satisfactory to it of such beneficial ownership. . Notices. Any notices required or permitted to be given under the terms hereof shall be sent by certified or registered mail (return receipt requested) or delivered personally or by courier (including a nationally recognized overnight delivery service) or by facsimile and shall be effective five days after being placed in the mail, if mailed by regular U.S. mail, or upon receipt, if delivered personally or by courier (including a nationally recognized overnight delivery service) or by facsimile, in each case addressed to a party. The addresses for such communications shall be: If to the Company: Biofield Corp. 1225 Northmeadow Parkway Suite 120 Roswell, Georgia 30076 Attention: Michael R. Gavenchak Facsimile: (770) 410-1779 With copy to: Squadron, Ellenoff, Plesent & Sheinfeld, LLP 551 Fifth Avenue New York, New York 10176-0001 Attention: Stephen H. Kay, Esq. Facsimile: (212) 697-6686 If to an Investor: to the address set forth immediately below such Investor's name on the signature pages to the Subscription Agreements. . Remedies. Any person having rights under any provision of this Agreement shall be entitled to enforce such rights specifically to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or other security) for specific performance and for other injunctive relief in order to enforce or prevent violation of the provisions of this Agreement. Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof. . Governing Law; Severability. This Agreement shall be enforced, governed by and construed in accordance with the laws of New York applicable to agreements made and to be performed entirely within such State. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof. The parties hereto hereby submit to the exclusive jurisdiction of the United States Federal Courts located in New York with respect to any dispute arising under this Agreement or the transactions contemplated hereby. . Merger Clause. This Agreement and the Subscription Agreements (including all schedules and exhibits thereto) constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties or undertakings other than those set forth or referred to herein and therein. This Agreement and the Subscription Agreements supersede all prior agreements and understandings among the parties hereto with respect to the subject matter hereof and thereof. Notwithstanding the foregoing, this Agreement shall have no effect on any other registration rights agreement to which any Investor and the Company are a party. . Descriptive Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. . Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same agreement. This Agreement, once executed by a party, may be delivered to any other party hereto by facsimile transmission of a copy of this Agreement bearing the signature of the party so delivering this Agreement. . Further Acts. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby. . Consents. Except as otherwise provided herein, all consents and other determinations to be made by the Investors pursuant to this Agreement shall be made by Investors holding a majority-in-interest of the Registrable Securities. . Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. * * * * * IN WITNESS WHEREOF, the Company and the undersigned Initial Investors have caused this Agreement to be duly executed as of the date first above written. BIOFIELD CORP. By:_______________________________ Its:______________________________ INVESTORS: __________________________________ By:_______________________________ Its:______________________________ Address:__________________________ Facsimile:________________________ __________________________________ By:_______________________________ Its:______________________________ Address:__________________________ Facsimile:________________________ __________________________________ By:_______________________________ Its:______________________________ Address:__________________________ Facsimile:________________________ EXHIBIT A REGISTRATION RIGHTS AGREEMENT COUNTERPART AND ACKNOWLEDGEMENT TO: BIOFIELD CORP. RE: The Registration Rights Agreement (the "Agreement") dated as of __________ __, 1997, by and among Biofield Corp. and the Initial Investors (as defined in the Agreement) The undersigned hereby agrees to be bound by the terms of the Agreement as a party to the Agreement, and shall be entitled to all benefits of an Investor (as defined in the Agreement) pursuant to the Agreement, as fully and effectively as though the undersigned had executed a counterpart of the Agreement together with the other parties to the Agreement. The undersigned hereby acknowledges having received and reviewed a copy of the Agreement. DATED this _____ day of ____________, 199__. INVESTOR __________________________________ By:_______________________________ Its:______________________________ Address:__________________________ Facsimile:________________________ Number of Shares of Registrable Securities:____________ EX-10 6 EXHIBIT 10 SECOND AMENDMENT, (the "Second Amendment"), dated December 17, 1997, to the Registration Rights Agreement (the "Registration Rights Agreement"), dated March 3, 1995, as amended, among Biofield Corp., a Delaware corporation (the "Company"), GS Capital Partners, L.P., a Delaware limited partnership ("GSCP"), and the other parties signatory thereto. WHEREAS, the Company is contemplating a private placement (the "Placement Offering") of its common stock, par value $.001 (the "Common Stock") with a maximum offering amount of $15,000,000 in gross proceeds and a minimum offering amount of $7,000,000 in gross proceeds; WHEREAS, in connection with the Placement Offering, the Company is offering to issue, upon consummation of the Placement Offering, shares of Common Stock in exchange for certain of its outstanding Warrants (the "Warrant Exchange"); NOW, THEREFORE, in consideration of the premises and of the respective agreements and conditions contained herein, the parties agree as follows: 1. Capitalized Terms. Capitalized terms used but otherwise not defined herein have the meaning assigned to such terms in the Registration Rights Agreement. 2. Amendment to Section 1.6. Section 1.6 of the Registration Rights Agreement is hereby amended and restated in its entirety as follows: "1.6. "Registrable Securities": any shares of Common Stock issued upon conversion of any share of New Series Preferred Stock or upon exercise or exchange of any of the Warrants (and any shares issued upon any subdivision, combination or reclassification of such shares or any stock dividend in respect of any of the foregoing shares). As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (i) a registration statement with respect to the sale of such securities shall have been declared effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, or (ii) such securities shall have been sold (other than in a privately negotiated sale) pursuant to Rule 144 (or any successor provision) under the Securities Act and in compliance with the requirements of paragraphs (c), (e), (f) and (g) of Rule 144 (notwithstanding the provisions of paragraph (k) of such Rule)." 3. Shelf Registration. It is understood and agreed to by the Company that a request by any Holder to include Registrable Securities pursuant to Section 2.2 of the Registration Rights Agreement in any registration statement covering the resale of securities issued in the Placement Offering shall not, by itself, violate any lock-up letter or similar agreement executed by any Holder in connection with the Placement Offering or the Warrant Exchange, it being understood that the foregoing shall not permit a Holder to sell or offer to sell securities under such registration statement during the lock-up period described in any such lock-up letter or in a similar agreement. 4. Continuing Effect of the Registration Rights Agreement. This Second Amendment shall not constitute an amendment of any other provision of the Registration Rights Agreement not expressly referred to herein and shall not be construed as a consent to any further or future amendment of any of the terms of the Registration Rights Agreement. Except as expressly amended hereby, the provisions of the Registration Rights Agreement are and shall remain in full force and effect. 5. Counterparts. This Second Amendment may be executed in counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument. 6. Governing Law. This Second Amendment shall be construed in accordance with and governed by the laws of the State of New York applicable to agreements made and to be performed wholly within such jurisdiction. IN WITNESS WHEREOF, each of the parties hereto has caused this Second Amendment to be duly executed on its behalf as of the date first above written. BIOFIELD CORP. By: /s/Michael R. Gavenchak ---------------------------------------- Name: Michael R. Gavenchak Title: Executive Vice President GS CAPITAL PARTNERS, L.P. By: GS Advisors L.P., its general partner By: GS Advisors, Inc., its general partner By:/s/ Katherine B. Enquist ------------------------------------------ Name: Katherine B. Enquist Title: Vice President AGREED AND ACCEPTED BY: STONE STREET FUND 1994, L.P. By: Stone Street Funding Corp., its general partner By:/s/ Katherine B. Enquist ------------------------------------------ Name: Katherine B. Enquist Title: Vice President STONE STREET FUND 1995, L.P. By: Stone Street Value Corp., its general partner By:/s/ Katherine B. Enquist ------------------------------------------ Name: Katherine B. Enquist Title: Vice President BRIDGE STREET FUND 1994, L.P. By: Stone Street Funding Corp., its general partner By:/s/ Katherine B. Enquist ------------------------------------------ Name: Katherine B. Enquist Title: Vice President BRIDGE STREET FUND 1995, L.P. By: Stone Street Value Corp., its general partner By:/s/ Katherine B. Enquist ------------------------------------------ Name: Katherine B. Enquist Title: Vice President EX-11 7 EXHIBIT 11 October 24, 1997 Hambrecht & Quist LLC 230 Park Avenue 21st Floor New York, New York 10169 Ladies and Gentlemen: The undersigned is a holder of securities of Biofield Corp., a Delaware corporation (the "Company"), and understands that the Company is conducting a private placement (the "Placement") of the common stock, par value $.001 per share, of the Company (the "Common Stock"). Hambrecht & Quist LLC ("H&Q") is acting as placement agent in connection with the Placement. The Placement will be made pursuant to the provisions of a letter agreement dated October 16, 1997 by and between the Company and H&Q. To facilitate the Placement and for other good and valuable consideration, receipt of which is hereby acknowledged, the undersigned agrees that, during the period from the date of the first closing of a purchase of Common Stock pursuant to the Placement (the "Closing Date") to and including the earlier of (a) the 90th day after the date on which the Securities and Exchange Commission declares effective the registration statement registering for resale the Common Stock purchased by the investors in the Placement pursuant to the Registration Rights Agreement set forth in the Private Placement Memorandum regarding the Placement (the "Memorandum"), or (b) the date which is one year from the Closing Date, he, she or it shall not, without the prior written consent of H&Q, which consent may be withheld at the sole discretion of H&Q, directly or indirectly, offer to sell, assign or grant options to purchase or otherwise dispose of or transfer (i) any shares of Common Stock, (ii) any security convertible into or exchangeable for Common Stock, or (iii) rights to acquire Common Stock owned or directly or indirectly controlled (whether or not beneficially owned by the undersigned or registered in the name of the undersigned) by the undersigned (whether or not such shares or securities are now owned or controlled or become owned or controlled after the date hereof); provided, however, that the foregoing agreement and representation shall not apply to (w) gifts or charitable contributions of (A) Common Stock, (B) securities convertible into or exchangeable for Common Stock, or (C) rights to acquire Common Stock made by the undersigned, if the recipient of such gift or contribution agrees in writing as a condition precedent to such gift or contribution to be bound by the terms hereof, (x) transfers of (A) Common Stock, (B) securities convertible into or exchangeable for Common Stock, or (C) rights to acquire Common Stock made by the undersigned, to "affiliates" of the transferor in transfers not involving a public distribution or public offering if the transferee agrees in writing as a condition precedent to such transfer to be bound by the terms hereof, (y) the Warrant Exchange (as defined in the Memorandum) contemplated in the Memorandum, or (z) the activities of the undersigned's broker dealer affiliates in connection with its customary broker, dealer and trading activities. The term "affiliate" shall have the meaning given such term in Rule 144 promulgated under the Securities Act of 1933, as amended. The undersigned is aware that H&Q will rely upon the representations set forth in this agreement in proceeding with the Placement. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent against the transfer of Common Stock held by the undersigned, except in accordance with the terms hereof. The undersigned represents that he, she or it is duly authorized to enter into this agreement and that this agreement is a valid and binding agreement of the undersigned and the undersigned's respective successors, heirs, personal representatives and assigns and is enforceable in accordance with its terms. This agreement shall no longer be of any effect if a closing does not occur pursuant to the Placement on or before January 31, 1998. Very truly yours, ________________________________________ (signature) ________________________________________ (print name of stockholder) ________________________________________ (print name of signatory) ________________________________________ (print title of signatory, if necessary) EX-12 8 EXHIBIT 12 Biofield Corp. 1225 Northmeadow Parkway Suite 120 Roswell, Georgia 30076 Ladies and Gentlemen: The undersigned is a holder of warrants (the "Warrants") of Biofield Corp., a Delaware corporation (the "Company"), issued in the Company's 1995 private placement of securities units, and understands that the Company is conducting a private placement (the "Offering") of the common stock, par value $.001 per share, of the Company (the "Common Stock") pursuant to a Confidential Private Placement Memorandum, dated October 24, 1997 (the "Memorandum"). In conjunction with the Offering, the Company is offering to issue, upon the consummation of the Offering, shares of Common Stock in exchange (the "Warrant Exchange") for the outstanding Warrants. To facilitate the Offering and as a condition to participate in the Warrant Exchange and for other good and valuable consideration, receipt of which is hereby acknowledged, the undersigned agrees that, during the period from the date of the first closing of the Offering (the "Closing Date") to and including the date which is one year from the Closing Date, he, she or it shall not, directly or indirectly, offer, sell, offer to sell, grant options to purchase or otherwise sell or dispose of any shares of Common Stock which the undersigned receives upon conversion of the Warrants he, she or it holds (the "Exchange Shares"); provided, however, that the foregoing agreement and representation shall not apply to (i) gift or charitable contributions of the Exchange Shares if the recipient of such gifts or contribution agrees in writing as a condition precedent to such gift or contribution to be bound by the terms hereof, or (ii) transfers of the Exchange Shares to "affiliates" of the transferor in transfers not involving a public distribution or public offering if the transferee agrees in writing as a condition precedent to such transfer to be bound by the terms hereof. The term "affiliate" shall have the meaning given such term in Rule 144 promulgated under the Securities Act of 1933, as amended. The undersigned is aware that the Company will rely upon the representations set forth in this agreement in proceeding with the Offering and the Warrant Exchange. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company's transfer agent against the transfer of the Exchange Shares held by the undersigned, except in accordance with the terms hereof. The undersigned represents that he, she or it is duly authorized to enter into this agreement and that this agreement is a valid and binding agreement of the undersigned and the undersigned's respective successors, heirs, personal representatives and assigns and is enforceable in accordance with its terms. This Agreement shall no longer be of any effect if a closing does not occur pursuant to the Offering on or before February 28, 1998. Very truly yours, Dated:____________________ ________________________________________ (signature) ________________________________________ (print name of stockholder) ________________________________________ (print name of signatory) ________________________________________ (print title of signatory, if necessary) -----END PRIVACY-ENHANCED MESSAGE-----