Take-Out Agreement - Transgenomic Inc. and Nebraska State Bank
TAKE-OUT AGREEMENT
THIS TAKE-OUT AGREEMENT (this "Agreement") is made as of May 19, 2000, by
and between Transgenomic, Inc., a Delaware corporation (the "Company") and
Nebraska State Bank, a Nebraska corporation (the "Lender").
WHEREAS, SD Acquisition, Inc. (the "Borrower") has acquired certain assets
of the Company pursuant to the terms and conditions of an Asset Purchase
Agreement of even date herewith; and
WHEREAS, the Borrower has borrowed in the aggregate $4,635,000 from the
Lender pursuant to the terms and conditions of those certain loan agreements
(the "Loan Agreements") of even date herewith (the "Loans");
WHEREAS, each of the Loans is guarantied by the personal guarantee of
Stephen and Nancy Dwyer (the "Dwyers"), which guarantee is secured by the pledge
or hypothecation of 750,000 shares of the Company's common stock beneficially
held by the Dwyers (the "Shares");
WHEREAS, the Company has filed with the Commission (as defined below) a
registration statement on Form S-1 (File No. 333-32174) with respect to the
offering of shares of its common stock (the "Initial Public Offering") and in
connection therewith will register the Shares with the Commission; and,
WHEREAS, concurrent with the completion of the Initial Public Offering, the
Company has agreed to purchase the Loans in an amount equal to the unpaid
principal balances thereof, together with accrued interest.
NOW THEREFORE, in consideration of the foregoing, the parties agree as
follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms shall
have the following respective meanings:
"Closing Date" shall mean the date of closing of the Initial Public
Offering.
"Commission" shall mean the Securities and Exchange Commission of the
United States or any other U.S. federal agency at the time administering the
Securities Act.
"Common Stock" means the common stock of the Company.
"Participating Lenders" means the Lender and any other financial
institution participating in the Loans.
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The terms "register", "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except as otherwise stated
below, incurred by the Company in complying with Section 3 hereof, including,
without limitation, all registration, qualification and filing fees, listing
application fees, printing expenses, escrow fees, fees and disbursements of
counsel for the Company, Blue Sky fees and expenses and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company which shall be paid in any
event by the Company).
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, or any similar United States
federal statute.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered
hereby.
2. SALE OF LOANS.
(a) On and subject to the terms and conditions of this Agreement, the
Lender for itself and as agent for, or predecessor in interest of,
each Participating Lender, hereby agrees to transfer, sell, convey and
assign to the Company, and the Company agrees to purchase from the
Participating Lenders, on the Closing Date all of the Participating
Lenders's respective rights and interests in the Loans. The purchase
of the Loans by the Company is conditioned upon the closing of the
Initial Public Offering and the Company agrees that the underwriting
agreement for the Initial Public Offering will provide that the
closing of the Initial Public Offering is conditioned upon the
Company's performance of its obligations hereunder. The Company shall
use its best efforts to cause the closing of the Initial Public
Offering to occur within sixty (60) days from the date of this
Agreement.
(b) The purchase price of the Loans shall be equal to the unpaid principal
balances of the Loans, together with all accrued, but unpaid, interest
thereon as of the Closing Date. The purchase price shall be paid by
wire transfer to such account or accounts as the Lender may designate
and shall be allocated amongst the Participating Lenders in accordance
with their respective interest in the Loans.
(c) At the closing of the transactions contemplated in this Section 2,
each of the Participating Lenders shall deliver to the Company (i)
such assignments, notices, termination statements and any other
documents as may be reaonsonably requested by the Company to effect
the transactions contemplated herein and (ii) all collateral held by
the Participating Lenders, or any of them, securing the Loans or any
guaranties of the Loans.
3. REGISTRATION OF SHARES.
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(a) The Shares shall be included in the registration statement on Form S-1
filed in connection with the Initial Public Offering.
(b) Upon request of a majority in interest of the Participating Lenders or
of the beneficial holders of the Shares, the Shares shall be listed on
The National Market of The Nasdaq Stock Market, or such other market
or exchange as the Common Stock may then be listed.
(c) The Company shall not have the right to terminate or withdraw any
registration statement contemplated in this Section 3 prior to the
effectiveness of such registration statement without the consent of
all of the Participating Lenders.
4. EXPENSES OF REGISTRATION.
(a) Registration Expenses. The Company shall bear all Registration
Expenses incurred in connection with the registration pursuant to
Section 3.
(b) Selling Expenses. Unless otherwise stated, all Selling Expenses, if
any, relating to securities registered pursuant to Section 3 shall be
borne by the beneficial holders thereof pro rata on the basis of the
number of shares so registered.
5. MISCELLANEOUS.
(a) Governing Law. This Agreement will be governed by and construed under
the laws of Nebraska as applied to agreements among Nebraska residents
entered into and to be performed entirely within Nebraska.
(b) 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 all the parties
hereto.
(c) Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be
illegally invalid, unenforceable or void, this Agreement shall
continue in full force and effect without said provision. In such
event, the parties shall negotiate, in good faith, a legal, valid and
binding substitute provision which most nearly effects the intent of
the parties in entering into this Agreement.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together will constitute one and the same instrument.
(e) 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.
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(f) Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter and supersedes all
other understandings, oral or written, with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TRANSGENOMIC, INC. NEBRASKA STATE BANK
By: /s/ Collin D'Silva By: /s/ Wayne Kehrli
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