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EXHIBIT 10.1
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (the "Agreement") is made as of the
24th day of February, 1998, by and among Oncor, Inc., a Maryland corporation
("Oncor"), and the persons listed on Schedule A hereto (collectively, the
"Holders").
WHEREAS, each of the Holders is the record and beneficial owner of
such number of shares of capital stock of Codon Pharmaceuticals, Inc. ("Codon")
set forth opposite the name of such Holder on Schedule A hereto (the "Codon
Shares"); and
WHEREAS, the Holders wish to sell, and Oncor wishes to purchase from
the Holders, the Codon Shares on the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the respective representations,
warranties and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1.1 Purchase and Sale of the Codon Shares. Subject to the terms and
conditions of this Agreement, Oncor agrees to purchase at the Closing and each
Holder agrees to sell to Oncor at the Closing, that number of Codon Shares set
forth opposite each Holder's name on Schedule A hereto.
1.2 Purchase Price. Subject to the terms and conditions of this Agreement,
in consideration and as payment for the Codon Shares, Oncor shall deliver to
each Holder such number of shares of Common Stock, $.01 par value per share, of
Oncor (the "Oncor Shares"), as set forth opposite the name of each such Holder
on Schedule A hereto.
1.3 Closing. The purchase and sale of the Codon Shares shall take place at
the offices of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, XX, at
10:00 A.M., on February 24, 1998, or at such other time and place as Oncor and
holders of a majority of the Codon Shares mutually agree upon orally or in
writing (which time and place are designated as the "Closing"). At the Closing,
Oncor shall deliver to each Holder the certificates representing the Oncor
Shares set forth opposite the name of each Holder on Schedule A hereto as
payment of the purchase price for the Codon Shares against delivery of the
certificates representing the Codon Shares held by each Holder to Oncor.
2. Representations and Warranties of Oncor. Oncor hereby represents
and warrants to each Holder as follows:
2.1 Organization and Good Standing. Oncor is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Maryland.
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2.2 Authorization; Valid Issuance. All corporate action on the part
of Oncor necessary for the authorization, execution and delivery of this
Agreement and the performance of all of its obligations hereunder, and the
issuance, sale and delivery of the Oncor Shares being delivered hereunder has
been taken or will be taken prior to the Closing. The Oncor Shares, when issued,
sold and delivered pursuant to the terms hereof, will be duly and validly
issued, fully paid and non-assessable. This Agreement has been duly executed and
delivered by Oncor, and assuming due authorization, execution and delivery by
each of the Holders, constitutes a valid and legally binding obligation of
Oncor, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
2.4 Governmental Consents. Except for any requisite filings under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), no consent,
approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority on the part of Oncor is required in connection with the
consummation of the transactions contemplated by this Agreement.
2.5 Offering. Subject in part to the truth and accuracy of each
Holder's representations set forth in Section 3 of this Agreement, the delivery
of the Oncor Shares in exchange for the Codon Shares as contemplated by this
Agreement are exempt from the registration requirements of the Securities Act of
1933, as amended (the "Act").
2.6 Litigation. There is no action, suit, proceeding or investigation
pending or currently threatened against Oncor that questions the validity of
this Agreement or the right of Oncor to enter into the Agreement, or to
consummate the transactions contemplated hereby.
2.7 Compliance with Other Instruments. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, a material
default under any material instrument, judgment, order, writ, decree or contract
to which Oncor is a party or by which it is bound and will not trigger any
preemptive rights, rights of first refusal or other rights of securityholders or
other persons to acquire securities of Oncor, unless waived by the holder of
such right.
2.8 Disclosure. Oncor has fully provided each Holder with all the
information that such Holder has reasonably requested in deciding whether to
exchange the Codon Shares held by such Holder for the Oncor Shares as set forth
herein, including without limitation, the following:
(a) Oncor's most recent filings with the Securities and
Exchange Commission (the "Commission") pursuant to the
Exchange Act, including its Proxy Statement dated April
30, 1997, Form 10-K for the fiscal year ended December 31,
1996, Form 10-Q for the fiscal
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quarter ended March 31, 1997, Form 10-Q for the fiscal
quarter ended June 30, 1997 and Form 10-Q for the fiscal
quarter ended September 30, 1997;
(b) Oncor's press release dated August 29, 1997 relating to
the lawsuit against the Oncor by the University of
California and Vysis Inc.; and
(c) the description of the business, operations and financial
condition of Codon, including its (i) unaudited statement
of operations dated as of December 31, 1995 and 1996 and
March 31, 1996 and 1997 and (ii) unaudited balance sheet
at December 31, 1996 and March 31, 1997, attached hereto
as Exhibit A (the "Codon Information Statement").
2.9 Material Misstatements or Omissions. No representation or
warranty in this Agreement or any schedule, exhibit or other document furnished
or to be furnished by Oncor to the Holders pursuant to this Agreement contains
or will contain any untrue statement of a material fact or omits to state a
material fact necessary to make the statements made therein, in light of the
circumstanced under which they were made, not misleading.
3. Representations and Warranties of the Holders. The Holders hereby,
severally, but not jointly, represent and warrant to Oncor as follows:
3.1 Organization and Authorization. If other than an individual, each
Holder is an entity duly organized, validly existing and in good standing under
the laws of the state of its organization. Each Holder has full power and
authority to enter into this Agreement and that this Agreement has been duly
executed and delivered by each such Holder, and assuming due authorization,
execution and delivery by Oncor, constitutes its valid and legally binding
obligation, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
3.2 Purchase Entirely for Own Account. This Agreement is made with
each Holder in reliance upon such Holder's representation to Oncor, which by
such Holder's execution of this Agreement such Holder hereby confirms, that the
Oncor Shares will be acquired for investment for such Holder's own account, not
as a nominee or agent, and not with a view to the resale or distribution of any
part thereof, and that such Holder has no present intention of selling, granting
any participation in, or otherwise distributing the same. By executing this
Agreement, each Holder further represents that such Holder does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Oncor Shares.
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3.3 Disclosure of Information. Each Holder believes it has received
all the information it considers necessary or appropriate for deciding to
exchange the Codon Shares held by such Holder for the Oncor Shares as herein set
forth, including without limitation the information set forth in Section 2.8
above. Each Holder represents that it has carefully reviewed the Codon
Information Statement and that such Holder has had an opportunity to ask
questions and receive answers from the representatives of Oncor and Codon
regarding the business, properties, prospects and financial condition of Codon
and any and all other matters which the Holder considers necessary or
appropriate in connection with the consummation of the transactions contemplated
hereunder.
3.4 Investment Experience. Each Holder acknowledges that it can bear
the economic risk of the transactions contemplated hereunder, and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of such transactions. If other than an
individual, the Holder also represents it has not been organized for the purpose
of acquiring the Oncor Shares.
3.5 Accredited Investor. Each Holder is an "accredited investor"
within the meaning of Securities and Exchange Commission ("SEC") Rule 501 of
Regulation D, as presently in effect.
3.6 Restricted Securities. Each Holder understands that the Oncor
Shares are characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from Oncor in a transaction not
involving a public offering and that under such laws and applicable regulations
such securities may be resold without registration under the Act, only in
certain limited circumstances. In this connection, such Holder represents that
it is familiar with SEC Rule 144, as presently in effect, and understands the
resale limitations imposed thereby and by the Act.
3.7 Legends. It is understood that the certificates evidencing the
Oncor Shares may bear the following legend:
"These securities have not been registered under the Securities
Act of 1933, as amended. They may not be sold, offered for sale,
pledged or hypothecated in the absence of a registration
statement in effect with respect to the securities under such Act
or an opinion of counsel satisfactory to Oncor that such
registration is not required or unless sold pursuant to Rule 144
of such Act."
3.8 Title and Ownership. Each Holder now has and at the Closing will
have good and marketable title to the Codon Shares to be delivered by each
Holder, free and clear of any liens, encumbrances, equities and claims.
3.9 Governmental Consents. Except for any requisite filings under the
Exchange Act, no consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state or
local governmental authority on the
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part of such Holder is required in connection with the consummation of the
transactions contemplated by this Agreement.
3.10 Litigation. There is no action, suit, proceeding or
investigation pending or currently threatened against such Holder that questions
the validity of this Agreement or the right of such Holder to enter into the
Agreement, or to consummate the transactions contemplated hereby.
3.11 Compliance with Other Instruments. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, a material
default under any material instrument, judgment, order, writ, decree or contract
to which such Holder is a party or by which it is bound.
3.12 Waiver. Each Holder hereby waives such Holder's right, if any,
to elect to treat the transaction contemplated by this Agreement as a
liquidation, dissolution or winding up of Codon pursuant to Subsection B.2. of
Article IV of Codon's Amended and Restated Certificate of Incorporation.
4. Conditions of Holder's Obligations at Closing. The obligations of
each Holder under Section 1 of this Agreement are subject to the fulfillment on
or before the Closing of each of the following conditions:
4.1 Representations and Warranties. The representations and
warranties of Oncor contained in Section 2 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the date of such Closing.
4.2 Performance. Oncor shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
4.3 Qualifications. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the consummation of the
transactions contemplated by this Agreement shall be duly obtained and effective
as of the Closing.
4.4 Delivery of Other Closing Documents. Oncor shall deliver to each
Holder the stock certificates representing the Oncor Shares being delivered to
such Holder hereunder.
5. Conditions of Oncor's Obligations at Closing. The obligations of
Oncor to each Holder under Section 1 of this Agreement are subject to the prior
execution of this Agreement by each and every Holder and the fulfillment on or
before the Closing of each of the following conditions by that Holder:
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5.1 Representations and Warranties. The representations and
warranties of the Holder contained in Section 3 shall be true on and as of the
Closing with the same effect as though such representations and warranties had
been made on and as of the Closing.
5.2 Performance. Each Holder shall have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing.
5.3 Qualifications. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the United States or of
any state that are required in connection with the consummation of the
transactions contemplated by this Agreement shall be duly obtained and effective
as of the Closing.
5.4 Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto shall be reasonably satisfactory in form and substance to
counsel to Oncor, and they shall have received all such counterpart original and
certified or other copies of such documents as they may reasonably request.
5.5 Delivery of Other Closing Documents. Each Holder shall deliver to
Oncor a duly executed stock assignment, together with the stock certificate(s)
representing the Codon Shares being delivered by such Holder to Oncor hereunder.
5.6 Fairness Opinion. The Board of Directors of Oncor shall have
received a fairness opinion from Xxxxxx Brothers Inc. with respect to the
transactions contemplated by this Agreement, the costs of which shall be borne
solely by Oncor.
6. Miscellaneous.
6.1 Survival of Warranties. The warranties, representations and
covenants of Oncor and the Holders contained in or made pursuant to this
Agreement shall survive the Closing for a period of twelve (12) months and shall
terminate upon the expiration of such twelve (12) month period.
6.2 Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties. Nothing in
this Agreement, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
6.3 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Maryland as applied to agreements among Maryland
residents entered into and to be performed entirely within Maryland.
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6.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.5 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties.
6.7 Finder's Fee. Each party represents that it neither is nor will
be obligated for any finders' fee or commission in connection with this
transaction.
6.8 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of Oncor and a majority of the Holders. Notwithstanding
anything to the contrary set forth herein, Oncor may, at its sole discretion,
waive any of the conditions set forth in Section 5 above.
6.9 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
6.10 Entire Agreement. This Agreement and the documents referred to
herein constitute the entire agreement among the parties and no party shall be
liable or bound to any other party in any manner by any warranties,
representations, or covenants except as specifically set forth herein or
therein.
6.11 Legal Requirements and Filings. Subject to the terms and
conditions of this Agreement, each party will use its reasonable efforts to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable law and regulations to
consummate the transactions contemplated under this Agreement.
7. Market Stand-Off.
7.1 Definition. For the purpose of this Section 7, the "Lock-Up
Period" shall mean the period commencing on the date of the Closing and ending
on the date that is six months from the Closing.
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7.2 Lock-Up. Each Holder hereby agrees that, during the Lock-Up
Period, it shall not, directly or indirectly sell, offer to sell, contract to
sell (including, without limitation, any short sale), grant any option to
purchase or otherwise transfer or dispose of (other than to donees who agree to
be similarly bound) any of the Oncor Shares held by it at any time during such
period without the prior written consent of Oncor. In order to enforce the
foregoing covenant, Oncor may impose stop-transfer instructions with respect to
the Oncor Shares of each Holder (and the shares or securities of every other
person subject to the foregoing restriction) until the end of such period.
8. Registration of Common Stock. Oncor covenants and agrees as follows:
8.1 Definitions. For purposes of this Section 8:
(a) The term "register", "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means (1) the Oncor Shares
issued pursuant to this Agreement; or (2) any Common Stock of Oncor issued as
(or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, such Oncor Shares, excluding in all
cases, however, any Registrable Securities which are sold, assigned, pledged,
hypothecated or otherwise disposed of by a Holder in a transaction in which such
Holder's rights under this Agreement are not assigned or assignable; and
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Oncor Shares
outstanding which are, and the number of shares of Common Stock issuable
pursuant to then exercisable or convertible securities which are, Registrable
Securities.
8.2 Required Registration.
(a) Oncor shall, subject to the limitations specified in this
Agreement, use its best efforts to file a registration statement on Form S-3
(together with any new registration statement filed pursuant to Section 8.3(a),
the "Registration Statement") within one hundred eighty (180) days from the date
hereof covering the registration under the Act of all Registrable Securities
then outstanding.
(b) Notwithstanding the foregoing, if Oncor shall furnish to the
Holders a certificate signed by the Chief Executive Officer and President of
Oncor stating that, in the good faith judgment of the Board of Directors of
Oncor, it would be seriously detrimental to Oncor and its stockholders for a
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, Oncor shall have the right to defer
taking action
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with respect to such filing for a period of not more than ninety (90) days from
the delivery of such certificate to the Holders.
(c) The Registration Statement may include other securities of
Oncor (i) which are held by persons who, by virtue of agreements with Oncor, are
entitled to include their securities in any such registration, (ii) which are
held by officers and directors of Oncor, or (iii) which are being offered for
the account of Oncor.
8.3 Obligations of Oncor. When required under this Section 8 to
effect the registration of the Registrable Securities, Oncor shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC the Registration Statement with
respect to the Registrable Securities and use its best efforts to cause the
Registration Statement to become effective, and keep the Registration Statement
effective until the earlier of: (i) the second anniversary of the date hereof or
(ii) until all such Registrable Securities have been sold or are eligible to be
sold pursuant to Rule 144, without regard to the volume limitations set forth in
Rule 144; provided that if, during the period the Registration Statement is
required to be kept effective, Oncor delivers a certificate, as per Section
8.2(b), stating that, in the good faith judgment of the Board of Directors of
Oncor, it would be seriously detrimental to Oncor and its shareholders for such
Registration Statement to be kept effective during a specified period of time
(the "Blackout Period"), then Oncor shall not be obligated to keep the
Registration Statement effective for a period of not more than thirty (30) days,
and the Holders of the Registrable Securities covered by the Registration
Statement shall not sell any of their Registrable Securities covered by the
Registration Statement, during such Blackout Period. Oncor shall not utilize
this right more than twice in any twelve (12) month period. After the
termination of such Blackout Period, Oncor shall file an amendment to the
Registration Statement or a new registration statement with respect to the
unsold portion of the Registrable Securities included in the original
registration statement and shall keep such amendment or new registration
statement effective until the earlier of; (i) the second anniversary of the date
hereof, or (ii) until all such Registrable Securities have been sold or are
eligible to be sold pursuant to Rule 144, without regard to the volume
limitations set forth in Rule 144.
(b) Prepare and file with the SEC such amendments and supplements
to the Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by the
Registration Statement.
(c) Furnish to the Holders whose Registrable Securities are
covered by the Registration Statement such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by the Registration Statement under such other securities or Blue Sky
laws of such jurisdictions as
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shall be reasonably requested by the Holders whose Registrable Securities are
covered by the Registration Statement; provided that Oncor shall not be required
in connection therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such states or
jurisdictions.
(e) Notify the Holders whose Registrable Securities are covered
by the Registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event 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 not misleading in the light of the circumstances then existing.
(f) Use its best efforts to furnish, at the request of the
Holders whose Registrable Securities are covered by the Registration Statement,
on the date that such Registrable Securities are delivered to the underwriters
for sale in connection with a registration pursuant to this Section 8, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the Registration Statement
with respect to such securities becomes effective, (i) an opinion, dated such
date, of the counsel representing Oncor for the purposes of such registration,
in form and substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders whose
Registrable Securities are covered by the Registration Statement and (ii) a
letter dated such date, from the independent certified public accountants of
Oncor, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders whose Registrable Securities are
covered by the Registration Statement.
8.4 Furnish Information. It shall be a condition precedent to the
obligations of Oncor to take any action pursuant to this Section 8 with respect
to the Registrable Securities of the Holders whose Registrable Securities are
covered by the Registration Statement that each of such Holders shall furnish to
Oncor such information regarding itself, the Registrable Securities held by it,
and the intended method of disposition of such securities as shall be required
to effect the registration of such Holder's Registrable Securities.
8.5 Expenses of Registration. All expenses incurred in connection
with registrations, filings or qualifications pursuant to Section 8.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for Oncor, but excluding
underwriting discounts and commissions relating to the Registrable Securities,
shall be borne by Oncor.
8.6 Delay of Registration. The Holders shall not have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 8.
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8.7 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 8:
(a) To the extent permitted by law, Oncor will indemnify and hold
harmless the Holder whose Registrable Securities are covered by the Registration
Statement, any underwriter (as defined in the Act) for such Holders and each
person, if any, who controls such Holders or underwriter within the meaning of
the Act or the Exchange Act, against any losses, claims, damages, or liabilities
(joint or several) to which they may become subject under the Act or the
Exchange Act, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by Oncor of the Act, the Exchange Act, or any
rule or regulation promulgated under the Act or the Exchange Act; and Oncor will
pay to such Holders, and each such underwriter or controlling person any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this Section 8.7 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of Oncor (which
consent shall not be unreasonably withheld), nor shall Oncor be liable in any
such case for any such loss, claim, damage, liability, or action to the extent
that it arises out of or is based upon a Violation which occurs in reliance upon
and in conformity with written information furnished expressly for use in
connection with such registration by such Holders, or any such underwriter or
controlling person.
(b) To the extent permitted by law, each Holder whose Registrable
Securities are covered by the Registration Statement will indemnify and hold
harmless Oncor, each of its directors, each of its officers who has signed the
Registration Statement, each person, if any, who controls Oncor within the
meaning of the Act, any underwriter, and any controlling person of any such
underwriter, against any losses, claims, damages, or liabilities (joint or
several) to which any of the foregoing persons may become subject, under the
Act, or the Exchange Act, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, 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 by such Holder expressly for use in connection with such registration;
and such Holder will pay any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this Section 8.7, in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
Section 8.7 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of such Holder, which consent shall not be unreasonably withheld;
provided that, in no event shall any indemnity under this Section 8.7 exceed the
gross proceeds from the offering received by such Holder.
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(c) Promptly after receipt by an indemnified party under this
Section 8.7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 8.7, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
8.7, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 8.7.
(d) If the indemnification provided for in this Section 8.7 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
(e) The obligations of Oncor and Holders under this Section 8.7
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 8, and otherwise.
8.8 Assignment of Registration Right. The right to have Oncor
register the Registrable Securities pursuant to this Section 8 may not be
assigned; provided, however, that (i) any heir or the estate of an Investor
which acquires the Registrable Securities from such Investor by will or
intestate succession shall be entitled to have Oncor register the Registrable
Securities pursuant to this Section 8 (provided that such heirs or such estate
shall have a single attorney-in-fact for the purpose of exercising any rights,
receiving any notices or taking any action under this Section 8), and (ii) any
individual Investor may sell, assign or transfer
12.
13
Registrable Securities to his or her spouse or children or to a trust
established for the benefit of his or her spouse, children or himself or
herself, and such transferee shall be entitled to have Oncor register the
Registrable Securities pursuant to this Section 8, if, and only if, such
transferee agrees in writing to be bound by the terms of this Agreement. In each
such event and for purposes of this Agreement, the term "Holder" as used herein
shall include all such heirs, such estate or such transferees.
13.
14
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
ONCOR, INC.
By:
------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
[Stock Exchange Agreement]
14.
15
HOLDERS:
---------------------------------------------
Print Name:
--------------------------------
[Stock Exchange Agreement]
15.
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SCHEDULE A
ONCOR, INC. ACQUISITION OF CODON SCHEDULE A
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Oncor Shares to be
Holder Shares of Codon Capital Stock Held by Holders Issued to Holder
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Common Series A Series B Series B Div. Total Pfd. for C/S for Pfd. Total
--------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxxx 100,000 50,000 150,000 0 82,049 82,049
Xxxxx, Xxxx 10,000 5,000 5,000 1,368 2,735 4,103
Capital Resource Company of Connecticut 16,667 8,333 25,000 0 13,675 13,675
Xxxxxxxx, Xxxxx 30,000 15,000 45,000 0 24,615 24,615
Chase 1991 Revocable Trust DTD 12,500 12,500 0 6,838 6,838
Xxxxxxxxxx, Xxxxxxx 25,000 25,000 0 13,675 13,675
Edgewater Private Equity Fund, L.P. 652,500 100,000 50,000 802,500 0 438,961 438,961
Xxxx, Xxxx 10,000 0 1,368 0 1,368
Fabiani, Dr. Xxx 16,000 8,000 24,000 0 13,128 13,128
Farm Bureau 100,000 100,000 0 54,700 54,700
FBL Ventures of South Dakota 200,000 50,000 250,000 0 136,748 136,748
Xxxxxxx, Xxxxxx X. 5,000 2,500 7,500 0 4,103 4,103
Flerberg, Xxxxxx 5,000 2,500 7,500 0 4,103 4,103
Hoegh Ivest A/S 50,000 70,000 35,000 155,000 0 84,784 84,784
IASD Health Services Corp. 175,000 50,000 25,000 250,000 0 136,748 136,748
JIBS Equities 32,500 32,500 0 17,778 17,778
Xxxxxxx Xxxx Pies, XXX Rollover ... 10,000 5,000 15,000 0 8,205 8,205
Xxxxxxx, Xxxxx 10,000 5,000 15,000 0 8,205 8,205
Xxxxx, Xxxxx 7,767 3,884 11,651 0 6,373 6,373
Kumar, Manju 2,233 1,116 3,349 0 1,832 1,832
Xxxxxx, Xxxxx 25,000 10,000 5,000 40,000 0 21,880 21,880
Mutual Risk Insurance 35,000 17,500 52,500 0 28,718 28,718
O'Xxxxx, Xxxxx 5,000 5,000 0 2,735 2,735
Oldfield Company 12,500 12,500 0 6,838 6,838
Xxxxxxxxx, Xxx, Intervivos Trust 100,000 0 13,675 0 13,675
Xxxxxxxxx, Xxxx 200,000 100,000 100,000 50,000 250,000 27,350 136,748 164,098
150,000 0 20,513 0 20,513
Penn Footwear Co. 25,000 25,000 0 13,675 13,675
Penn Footwear Retirement Trust 30,000 30,000 0 16,410 16,410
Xxxxxxxx, Xxxx 10,000 5,000 15,000 0 8,205 8,205
Xxxxxxxx, M.D., Derace L 20,000 0 2,735 0 2,735
Tang, Cyrus 200,000 100,000 300,000 0 164,098 164,098
Thebes, Inc. 100,000 0 13,675 0 13,675
Viking Medical Ventures Limited 100,000 35,000 17,500 152,500 0 83,417 83,417
West Bank, Custodian, Xxxxx ... 50,000 50,000 0 27,350 27,350
Totals 590,000 1,500,000 912,667 456,333 2,869,000 1,650,013
Date: February 24, 1998 (BP&H)
17.
