PORTIONS OF THIS EXHIBIT WERE OMITTED AND FILEDSEPERATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO ANAPPLICATION FOR CONFIDENTIAL TREATMENT FILED WITH COMMISSION PURSUANT TO RULE24B-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. SUCH PORTIONS ARE MARKED BYASTERISKS.

 

**Exhibit 10.1**

 

**COMMON STOCK PURCHASE AGREEMENT**

 

**By and Among**

 

**ERGO SCIENCE CORPORATION**

 

*****

 

**and**

 

**COURT SQUARE CAPITAL LIMITED**

 

**Dated as of May 23, 2001**

 

**TABLE OF CONTENTS**

 

 

|   |                                             |                                                     |
|--------|--------------------------------------------------|----------------------------------------------------------|
|   |                                             |                                                     |
|   |                                             |                                                     |
| 1.     | AUTHORIZATION AND SALE OF STOCK                  |
|   | 1.1.                                             | Authorization of Common Stock                            |
|   | 1.2.                                             | Sale of Common Stock                                     |
|   | 1.3.                                             | Limitation On Other Issuances of Common Stock            |
|   | 1.4.                                             | Proceeds                                                 |
| 2.     | THE CLOSING                                      |
| 3.     | REPRESENTATIONS OF THE COMPANY                   |
|   | 3.1.                                             | Organization and Corporate Power                         |
|   | 3.2.                                             | Authorization                                            |
|   | 3.3.                                             | Effect of Transactions                                   |
|   | 3.4.                                             | Brokerage                                                |
| 4.     | REPRESENTATIONS OF THE PURCHASERS                |
|   | 4.1.                                             | Accredited Investor                                      |
|   | 4.2.                                             | Investment                                               |
|   | 4.3.                                             | Suitability                                              |
|   | 4.4.                                             | Lack of Liquidity                                        |
|   | 4.5.                                             | Knowledge and Experience                                 |
|   | 4.6.                                             | Access to Management                                     |
|   | 4.7.                                             | Brokerage                                                |
| 5.     | CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER   |
|   | 5.1.                                             | Accuracy of Representations and Warranties;  Performance |
|   | 5.2.                                             | Certificate                                              |
|   | 5.3.                                             | Stockholder Approval                                     |
|   | 5.4.                                             | *                                                        |
|   | 5.5.                                             | Purchaser Satisfaction with Acquisition                  |
| 6.     | CONDITIONS TO THE OBLIGATIONS OF THE COMPANY     |
|   | 6.1.                                             | Accuracy of Representations and Warranties;  Performance |
|   | 6.2.                                             | Certificate                                              |
|   | 6.3.                                             | Stockholder Approval                                     |
|   | 6.4.                                             | *                                                        |
|   | 6.5.                                             | Company Satisfaction with Acquisition                    |
| 7.     | SUCCESSORS AND ASSIGNS                           |
| 8.     | SURVIVAL OF REPRESENTATIONS AND WARRANTIES       |
| 9.     | EXPENSES                                         |
| 10.    | NOTICES                                          |
| 11.    | NO CONDITIONS TO EFFECTIVENESS, ENTIRE AGREEMENT |
| 12.    | AMENDMENTS AND WAIVERS                           |
| 13.    | COUNTERPARTS                                     |
| 14.    | CAPTIONS                                         |
| 15.    | SEVERABILITY                                     |
| 16.    | GOVERNING LAW                                    |
| 17.    | TERMINATION AND EXPIRATION                       |
|   |                                             |                                                     |
|        |                                                  |                                                          |  |

**COMMON STOCK PURCHASE AGREEMENT**

             ThisCommon Stock Purchase Agreement (this "***Agreement***"), dated as ofMay 23, 2001, is made by and among Ergo Science Corporation, a Delawarecorporation ("***Ergo***")* and Court Square Capital Limited, a Delaware corporation ("***Court Square***"and together with its permitted assignees, the "***Purchasers***").When used herein, the term "***Company***" shall refer to (i) Ergo *(as hereinafter defined)  * .

             **WHEREAS**, subject to theapproval of its stockholders, Ergo is * (as hereinafter defined) by means of *pursuant to which *;

             **WHEREAS**, the Company wishesto acquire one or more operating businesses (the "***Acquisition***")for such consideration as may then be agreed upon including, withoutlimitation, consideration in the form of cash;

             **WHEREAS**, the Company andCourt Square entered into an agreement to induce Court Square to assist theCompany in identifying suitable targets for the Acquisition by granting CourtSquare certain rights with respect to the issuance and sale of shares of CommonStock (as defined herein) to finance the Acquisition (the "***Original Agreement***");and

             **WHEREAS**, the parties wishto, and hereby do, amend and restate the Original Agreement as follows.

             **NOW, THEREFORE**, in considerationof the mutual promises and covenants contained in this Agreement, and intendingto be legally bound by the terms and conditions of this Agreement, the partieshereto hereby agree as follows:

 **1.****         *Authorizationand Sale of Stock.***

             **1.1.*** Authorization of Common Stock.*  The Company has duly authorized the sale and issuance of up to **7,500,000** shares of its Common Stock, parvalue $0.01 per share (the "***Common Stock***").

             **1.2.*** Sale of Common Stock.*

             (a)         Subjectto the terms and conditions of this Agreement, at the Closing, the Companyshall issue and sell to the Purchasers, and the Purchasers shall purchase fromthe Company that number of shares of Common Stock (the "***Common Shares***")as may be determined by mutual agreement of the parties, up to an aggregatemaximum of **7,500,000** shares (suchmaximum number subject to adjustment as provided below) of Common Stock at apurchase price per share equal to the sum of (i) $1.15 and (ii) theBook Value Increase (as defined below) per share (such purchase price per sharesubject to adjustment as provided below, the ***"Purchase Price"***). ThePurchasers shall pay the Purchase Price to the Company for the Common Shares,and such Common Shares shall be sold and issued, in accordance withSection 2 of this Agreement.
             (b)        Themaximum number of Common Shares subject to issuance and sale pursuant to thisSection 1.2, the Purchase Price and the Book Value Per Share (as definedbelow) shall each be equitably adjusted for any stock split, stock dividend,combination of shares, reorganization, recapitalization, reclassification orsimilar event involving or affecting the Common Stock (including, withoutlimitation, *).

             (c)         Forpurposes of this Section 1.2: (i) the term "***Book Value Increase***"shall mean any increase in the Book Value Per Share occurring betweenMay 23, 2001 and the Closing Date attributable to (A) the Company'sreceipt of Cash in consideration of the sale of the Company's non-Cash assetsor (B) the reduction or elimination of the Liquidation Preference;(ii) the term "***BookValue Per Share***" shall mean the *quotient* of (A) the Company's then total amount ofassets *less* the *sum* of its then total amount ofliabilities and the Liquidation Preference *dividedby* (B) the number of shares of the Company's Common Stock thenoutstanding; (iii) the term "***Liquidation Preference***" shall mean thethen aggregate accrued liquidation preference on all outstanding shares of theCompany's preferred stock; and (iv) the term "***Cash***" shall meancash, cash equivalents and short-term investments.

             **1.3.*** Limitation On Other Issuances of Common Stock.*  The Company hereby covenants and agrees thatit shall not issue any shares of Common Stock or other security exercisable foror convertible into Common Stock to any party (other than as specificallycontemplated herein) in connection with the financing of an Acquisition of abusiness introduced to the Company by Court Square either directly orindirectly (i.e. through an intermediary introduced to the Company by CourtSquare) unless and until either (i) the Company has issued and sold all ofthe Common Shares to the Purchasers or (ii) the Purchasers have declinedto purchase the Common Shares offered to them pursuant to this Agreement inconnection with such Acquisition.

             **1.4.*** Proceeds.*  Proceeds fromthe sale of the Common Shares may be used for any corporate purpose, includingwithout limitation as consideration for an Acquisition and/or general workingcapital purposes.

 **2.****         *TheClosing.***  The closing ofthe sale and purchase of the Common Shares pursuant to this Agreement shalltake place, if at all, in such place, on such date and at such time as shall bemutually agreed by the Company and the Purchasers (the "***Closing***"). Thedate of the Closing is hereinafter referred to as the "***Closing Date***."At the Closing, the Company shall deliver to each Purchaser a certificaterepresenting the number of Common Shares purchased by such Purchaser asprovided in Section 1.2 hereof registered in the name of the Purchaser.The Purchase Price shall be paid by wire transfer, certified or cashier's checkor other method acceptable to the Company and which shall facilitate the consummationof the Acquisition. If, at the Closing, any of the conditions specified inSection 5 of this Agreement shall not have been fulfilled, each Purchasershall, at its election, be relieved of all of its obligations under thisAgreement without thereby waiving any other right it may have by reason of suchfailure or such non-fulfillment. If, at the Closing, any of the conditionsspecified in Section 6 of this Agreement shall not have been fulfilled,the Company shall, at its election, be relieved of all of its obligations underthis Agreement without thereby waiving any other right it may have by reason ofsuch failure or such non-fulfillment.

 **3.****         *Representationsof the Company.***  The Companyhereby represents and warrants to the Purchasers as follows:

             **3.1.*** Organization and Corporate Power.*  The Company is a corporation duly organized, validly existing andin corporate good standing under the laws of the State of Delaware and isqualified to do business as a foreign corporation in each jurisdiction in whichsuch qualification is required, except where the failure to be so qualifiedwould not have a material and adverse effect on the business, operations,financial condition, assets, prospects, liabilities or contractual rights ofthe Company (a "***MaterialAdverse Effect***"). The Company has all required corporatepower and authority to own its property, to carry on its business as presentlyconducted or contemplated, to enter into and perform this Agreement and theother agreements, documents and instruments contemplated hereby (collectivelywith this Agreement, the "***Transaction Documents***"), and generally to carry outthe transactions contemplated hereby. The Company is not in violation of anyterm of its Certificate of Incorporation or By-laws, or in violation of anyterm of any agreement, instrument, judgment, decree, order, statute, rule orgovernment regulation applicable to the Company or to which the Company is aparty, where any violation, noncompliance or default would result in a MaterialAdverse Effect.

             **3.2.*** Authorization.*  Other thanobtaining the approval of the Company's stockholders with regard to theissuance of the Common Shares:

             (a)         TheTransaction Documents are valid and binding obligations of the Company,enforceable against the Company in accordance with their terms, except as maybe limited by (A) applicable bankruptcy, insolvency, reorganization orother laws of general application relating to or affecting the enforcement ofcreditors' rights generally and (B) the effects of rules of law governingthe availability of equitable remedies.

             (b)        Theexecution, delivery and performance of the Transaction Documents have been dulyauthorized by all necessary corporate or other action of the Company.
             (c)         Theissuance, sale and delivery of the Common Shares in accordance with thisAgreement have been, or will be prior to the Closing, duly authorized andreserved for issuance, as the case may be, by all necessary corporate action onthe part of the Company.

             (d)        TheCommon Shares, when so issued, sold and delivered against payment therefor inaccordance with the provisions of this Agreement will be duly and validlyissued, fully paid and non-assessable.

             (e)         Noconsent, approval or authorization of, or designation, declaration or filingwith, any governmental authority or any other person or entity is required ofthe Company in connection with the execution and delivery of the TransactionDocuments, or the issuance, sale and delivery of the Common Shares inaccordance with the terms of this Agreement or the consummation of any othertransaction contemplated hereby or by the other Transaction Documents.

             **3.3.*** Effect of Transactions.*  The execution, delivery and performance by the Company of theTransaction Documents will not conflict with or result in any default under anymaterial contract, obligation or commitment of the Company, or any provision ofthe Company's Certificate of Incorporation or By-laws, or in any corporaterestriction of the Company or the creation of any lien, charge or encumbranceof any nature upon any of the properties or assets of the Company which couldhave a Material Adverse Effect. The Company's execution and delivery of theTransaction Documents and its performance of the transactions contemplatedthereby will not violate any instrument, agreement, judgment, decree, order,statute, rule or regulation of any federal, state or local government or agencyapplicable to the Company which could reasonably be expected to have a MaterialAdverse Effect.

             **3.4.*** Brokerage.*  There are noclaims for brokerage commissions, finder's fees or similar compensation inconnection with the transactions contemplated by this Agreement based on anyarrangement or agreement made by or on behalf of the Company, except asdescribed herein.

 **4.****         *Representationsof the Purchasers.***  Each Purchaser severally represents and warrants to the Company,as follows:

             **4.1.*** Accredited Investor.*  Except asotherwise disclosed to the Company, it is an "accredited investor" assuch term is defined in Regulation D under the Securities Act of 1933, asamended (the "***SecuritiesAct***").

             **4.2.*** Investment.*  It is acquiringCommon Shares for its own account for investment and not with a view to, or forsale in connection with, any distribution thereof, nor with any present intentionof distributing or selling the same, and it has no present or contemplatedagreement, undertaking, arrangement, obligation, indebtedness or commitmentproviding for the disposition thereof.
             **4.3.*** Suitability.*  It understandsand has fully considered for purposes of this investment the risks of thisinvestment and understands that (i) this investment is suitable only foran investor who is able to bear the economic consequences of losing its entireinvestment; (ii) the Company is substantially similar to an early–stageenterprise with no operating history, and no revenues or net income fromoperations to date; (iii) the purchase of Common Shares is a speculativeinvestment which involves a high degree of risk of loss of the entireinvestment; and (iv) there are substantial restrictions on thetransferability of the Common Shares, and accordingly, it may not be possiblefor it to liquidate its investment in case of emergency or otherwise.

             **4.4.*** Lack of Liquidity.*  It is able(i) to bear the economic risk of this investment, (ii) to hold theCommon Shares for an indefinite period of time, and (iii) presently toafford a complete loss of its investment. It has sufficient liquid assets sothat the illiquidity associated with this investment will not cause any unduefinancial difficulties or affect its ability to provide for its current needsand possible financial contingencies, and that its commitment to allspeculative investments (including the investment contemplated by this PurchaseAgreement) is reasonable in relation to its net worth or investment portfolio.

             **4.5.*** Knowledge and Experience.*  It has such knowledge and experience in financial and businessmatters that it is capable of evaluating the merits and risks of an investmentin the Common Shares and of making an informed investment decision and can beara complete loss of its investment.

             **4.6.*** Access to Management.*  It, in making its decision to purchase Common Shares, has beengiven the opportunity to ask questions of, and to receive answers from,management and other persons acting on behalf of the Company concerning theCompany and the terms and conditions of transaction contemplated by thisAgreement, and to obtain any additional information, to the extent such personspossess such information.

             **4.7.*** Brokerage.*  There are noclaims for brokerage commissions, finder's fees or similar compensation inconnection with the transactions contemplated by this Agreement based on anyarrangement or agreement made by or on behalf of such Purchaser, except asdescribed herein.

**5.****          *Conditionsto the Obligations of the Purchaser.***  The obligations of each Purchaser under this Agreement aresubject to the fulfillment, or the waiver by such Purchaser, of the conditionsset forth in this Section 5 on or before the Closing Date.

             **5.1.*** Accuracy of Representations and Warranties; Performance.*  The representations and warranties of theCompany contained in Section 3 of this Agreement shall be true on and asof the Closing Date with the same effect as though such representation andwarranty had been made on and as of that date, other than as would not, takenas a whole, have an Material Adverse Effect. The Company shall have performedand complied with all agreements and conditions contained in this Agreement requiredto be performed or complied with by the Company prior to or at the Closing.

             **5.2.*** Certificate.*  The Companyshall have delivered to each Purchaser a certificate, executed by the Presidentof the Company as of the Closing Date, certifying to the fulfillment of theconditions to the Purchasers' obligations under this Agreement set forth inSection 5.1.
             **5.3.*** Stockholder Approval.*  The stockholders of Ergo shall have approved (i) * and (ii) theissuance of Common Shares contemplated herein.

             **5.4.***  **   shall have been *.

             **5.5.*** Purchaser Satisfaction with Acquisition.*  The Acquisition shall be acceptable in all respects to suchPurchaser in its sole discretion.

**6.****          *Conditionsto the Obligations of the Company.***  The obligations of the Company under this Agreement are subjectto the fulfillment, or the waiver in writing by the Company, of the conditionsset forth in this Section 6 on or before each Closing Date.

             **6.1.*** Accuracy of Representations and Warranties; Performance.*  The representations and warranties of eachPurchaser contained in Section 4 shall be true on and as of the ClosingDate with the same effect as though such representations and warranties hadbeen made on and as of that date. Each Purchaser shall have performed andcomplied with all agreements contained in this Agreement required to beperformed and complied with by it prior to or at the Closing.

             **6.2.*** Certificate.*  Each Purchasershall have delivered to the Company a certificate, duly executed by or onbehalf of it as of the Closing Date, certifying to the fulfillment of theconditions to the Company's obligations under this Agreement set forth inSection 6.1.

             **6.3.*** Stockholder Approval.*  The stockholders of Ergo shall have approved (i) * and(ii) the issuance of the Common Shares contemplated herein.

             **6.4.***  ** shall have been *.

             **6.5.*** Company Satisfaction with Acquisition.*  The Acquisition shall be acceptable in all respects to theCompany in its sole discretion.

**7.****          *Successorsand Assigns.***  No assignment ortransfer of this Agreement or any right or privilege hereunder by any party,including any assignment by operation of law pursuant to a merger, liquidation,foreclosure, or involuntary sale in bankruptcy, shall be effective or bindingon the other party without such other party's prior written consent.Notwithstanding the foregoing, (i) Ergo may assign its rights andobligations hereunder * and (ii) Court Square may assign its rights andobligations, in whole or in part, to any of its "affiliates" (as suchterm is defined in Regulation D under the Securities Act) or any employeeor director of Court Square of any such affiliate. The provisions of thisAgreement shall bind and inure to the benefit of the respective permittedsuccessors, assigns, heirs, executors, and administrators of the partieshereto.
**8.****          *Survivalof Representations and Warranties.***  All representations, warranties and covenants shall terminate at,and be of no further force and effect after, the Closing.

**9.****          *Expenses.***  Each party shall bear its own costs andexpenses in connection with the transactions contemplated hereby.

**10.****        *Notices.***  All notices, requests, consents and othercommunications under this Agreement shall be in writing and shall be deliveredby hand, by telecopier, by express overnight courier service or mailed by firstclass mail, postage prepaid, as follows:

             If toPurchaser, addressed to:

                           CourtSquare Capital Limited                           c/oCiticorp Venture Capital, Ltd.                           399Park Avenue                           NewYork, NY 10043                           Attn:President                           Telephone:       (212) 559-3765                           Fax:                    (212) 888-2940

             If toCompany, addressed to:

                           ErgoScience Corporation                           790Turnpike Street; Suite 205                           NorthAndover, MA 01845                           Attn:President                           Telephone:       (978) 974-9474                           Fax:                    (978) 974-0688

             With acopy to:

                           Mintz,Levin, Cohn, Ferris, Glovsky and Popeo, P.C.                           OneFinancial Center                           Boston,MA 02111                           Attention:Douglas A. Zingale, Esq.                           Telephone:       (617) 542-6000                           Fax:                    (617) 542-2241

or to such other place and with such other copies aseither party may designate as to itself by written notice to the other.

             Noticesprovided in accordance with this Section 10 shall be deemed delivered uponpersonal delivery, receipt by telecopier or overnight mail, or 48 hoursafter deposit in the mail in accordance with the above.
**11.****        *NoConditions to Effectiveness, Entire Agreement.***  This Agreement, together with theinstruments and other documents hereby contemplated to be executed anddelivered in connection herewith, contains the entire agreement andunderstanding of the parties hereto, and supersedes any prior agreements orunderstandings between or among them, with respect to the subject matterhereof, including without limitation the Original Agreement.

**12.       *****Amendmentsand Waivers.***  Except asotherwise expressly set forth in this Agreement, any term of this Agreement maybe amended and the observance of any term of this Agreement may be waived(either generally or in a particular instance and either retroactively orprospectively), with the written consent of the Company and the Purchasers. Nowaivers of or exceptions to any term, condition or provision of this Agreement,in any one or more instances, shall be deemed to be, or construed as, a furtheror continuing waiver of any such term, condition or provision.

**13.***        **Counterparts.***  This Agreement may be executed in one ormore counterparts, each of which shall be deemed an original, but all of whichtogether shall constitute one and the same instrument.

**14.****        *Captions.***  The captions of the sections, subsectionsand paragraphs of this Agreement have been added for convenience only and shallnot be deemed to be a part of this Agreement.

**15.****        *Severability.***  Each provision of this Agreement shall beinterpreted in such manner as to validate and give effect thereto to thefullest lawful extent, but if any provision of this Agreement is determined bya court of competent jurisdiction to be invalid or unenforceable underapplicable law, such provision shall be ineffective only to the extent sodetermined and such invalidity or unenforceability shall not affect theremainder of such provision or the remaining provisions of this Agreement.

**16****.        *GoverningLaw.***  This Agreementshall be governed by, interpreted, construed and enforced in accordance with,the substantive laws of the State of Delaware, without reference to principlesof conflict of laws.

**17.****        *Terminationand Expiration.***  Unless otherwiseterminated earlier by mutual agreement of the Company and Court Square, theterm of this Agreement shall expire on the second anniversary of the datehereof.

             **IN WITNESS WHEREOF**, Ergo * and CourtSquare have executed this Common Stock Purchase Agreement as of the day andyear first above written.

 
 **ERGO Science Corporation**   By:/s/ David R. Burt   Name:David R. Burt Title:*President*    *****        **Court Square Capital Limited**   By:/s/ Thomas F.  McWilliams   Name:Thomas F.  McWilliams Title:Managing Director