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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 6, 1996
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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ONCOR, INC.
(Exact name of Registrant as specified in its charter)
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MARYLAND 52-1310084
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
209 PERRY PARKWAY, GAITHERSBURG, MARYLAND 20877
(301) 963-3500
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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RICHARD R. PLUMRIDGE, ESQ.
ALEXANDER D. LYNCH, ESQ.
BROBECK, PHLEGER & HARRISON LLP
1301 Avenue of the Americas
New York, New York 10019
(212) 581-1600
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable on or after this Registration Statement is declared
effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. / X /
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF SHARES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED AGGREGATE PRICE PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock,
$.01 par value(2) 260,580 Shares $4.5625 $1,188,896.25 $410.00
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</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of computing
the registration fee based upon the average of the high and low prices
of the Common Stock, as reported on the American Stock Exchange as of
a date which is within five business days of the date of this
Registration Statement.
(2) Pursuant to Rule 416, there are also being registered such
indeterminable additional securities as may be issued to prevent
dilution resulting from stock dilution, stock splits, stock dividends
or similar transactions or by reason of changes in the conversion
price of certain securities in accordance with the terms thereof.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PROSPECTUS
260,580 SHARES
ONCOR, INC.
COMMON STOCK
----------------------
This Prospectus relates to the public offering, which is not being
underwritten, of up to 260,580 shares of Common Stock, par value $.01 per
share, of Oncor, Inc. ("Oncor" or the "Company"). Of these shares, 222,272
shares are currently issued and outstanding (the "Issued Shares") and are held
by certain stockholders of the Company. The remaining 38,308 shares (the
"Warrant Shares") are issuable by the Company upon the exercise of outstanding
warrants (the "Warrants"). The Issued Shares and the Warrant Shares
(collectively, the "Shares") may be offered by holders of the Issued Shares and
holders of the Warrants who subsequently exercise their Warrants for Warrant
Shares (collectively, the "Selling Stockholders").
The Shares may be offered by the Selling Stockholders from time to
time in transactions on the American Stock Exchange, in negotiated
transactions, or a combination of such methods of sale, at fixed prices which
may be changed, at market prices prevailing at the time of sale, at prices
related to prevailing market prices or at negotiated prices. The Selling
Stockholders may effect such transactions by selling the Shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Stockholders and/or the
purchasers of the Shares for whom such broker-dealers may act as agents or to
whom they sell as principals, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions). In order to comply
with the securities laws of certain states, if applicable, the Shares will be
sold in such jurisdictions only through registered or licensed brokers or
dealers. The Selling Stockholders may transfer their Shares or Warrants under
certain circumstances to other persons who may, in turn, resell Shares in the
manner described above. In addition, the Selling Stockholders may pledge or
make gifts of their Shares and such Shares may also be sold by the pledgees or
transferees. To the extent required, the specific Shares to be sold, the names
of the Selling Stockholders, the public offering price, the names of any such
agent, dealer or underwriter, and any applicable commission or discount with
respect to any particular offer will be set forth in an accompanying Prospectus
Supplement. See "Selling Stockholders" and "Plan of Distribution."
None of the proceeds from the sale of the Issued Shares by the Selling
Stockholders will be received by the Company. The Company will receive
aggregate proceeds of up to $176,983 upon the issuance of all of the Warrant
Shares. See "Issuance of the Warrant Shares and Use of Proceeds." The Company
has agreed to bear certain expenses (other than selling commissions and fees
and expenses of counsel and other advisors to the Selling Stockholders) in
connection with the registration of the Shares. The Company has agreed to
indemnify certain of the Selling Stockholders and their affiliates against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"). Certain of the Selling Stockholders have
agreed to indemnify the Company and its affiliates against certain liabilities,
including liabilities under the Securities Act under certain circumstances.
AN INVESTMENT IN THE SHARES OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 3.
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The Common Stock of the Company is traded on the American Stock
Exchange under the symbol "ONC." The last reported sales price of the Company's
Common Stock on the American Stock Exchange on February 5, 1996 was $4.625 per
share.
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The Selling Stockholders and any broker-dealers, agents or
underwriters that participate with the Selling Stockholders in the
distribution of the Shares may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions received by
them and any profit on the resale of the Shares purchased by them may be deemed
to be underwriting commissions or discounts under the Securities Act. See
"Plan of Distribution" herein for a description of indemnification
arrangements.
----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
----------------------
THE DATE OF THIS PROSPECTUS IS FEBRUARY 6, 1996
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No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection
with the offering made hereby, and if given or made, such information or
representations must not be relied upon as having been authorized by the
Company, any Selling Stockholder or by any other person. Neither the delivery
of this Prospectus nor any sale made hereunder shall, under any circumstances,
create any implication that the information herein is correct as of any time
subsequent to the date hereof. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy the Shares to any person or by anyone
in any jurisdiction in which such offer or solicitation may not lawfully be
made.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 under the Securities Act
with respect to the Common Stock offered hereby. This Prospectus does not
contain all of the information set forth in the Registration Statement and the
exhibits and the schedules thereto. For further information with respect to
the Company and such Common Stock, reference is made to the Registration
Statement and exhibits and schedules thereto. Statements contained in this
Prospectus as to the contents of any contract or other document referred to are
not necessarily complete, and, with respect to any contract or other document
filed as an exhibit to the Registration Statement, each such statement is
qualified in all respects by reference to such exhibit. Copies of the
Registration Statement and the exhibits thereto are on file at the offices of
the Commission and may be obtained upon payment of the prescribed fee or may be
examined without charge at the public reference facilities of the Commission
described below.
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files annual and quarterly reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information may be inspected, and copies of such material may be obtained upon
payment of the prescribed fees, at the Commission's Public Reference Section,
Room 1024, 450 Fifth Street, N.W., Washington D.C. 20549, as well as at the
Commission's Regional Offices at Seven World Trade Center, New York, New York
10048, and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such material can be obtained in person from
the Public Reference Section of the Commission at its principal office located
at 450 Fifth Street, N.W., Washington, D.C. 20549, upon payment of the
prescribed fees.
The Common Stock of the Company is traded on the American Stock
Exchange, and in accordance therewith, annual and quarterly reports, proxy
statements and other information concerning the Company may be inspected at the
American Stock Exchange's offices located in New York.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed with the Commission are hereby
incorporated by reference in this Prospectus: (1) the Annual Report of the
Company on Form 10-K for the fiscal year ended December 31, 1994 (the "1994
Form 10-K"); (2) the Quarterly Reports of the Company on Form 10-Q for the
quarters ended March 31, 1995, June 30, 1995 and September 30, 1995; (3) the
Proxy Statement of the Company dated May 2, 1995 in connection with the Annual
Meeting of the Stockholders held on June 7, 1995; (4) the Current Report of the
Company on Form 8-K, dated May 23, 1994, as amended by Form 8-K/A, dated July
20, 1994 (the "BDS 8-K"); (5) the Current Report of the Company on Form 8-K,
dated October 7, 1994, as amended by Form 8-K/A, dated December 5, 1994, and by
Form 8-K/A-2, dated December 15, 1994 (the "Appligene 8-K"); and (6) the
Current Report of the Company on Form 8-K, dated January 4, 1996.
All reports and other documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of this Prospectus and prior to the termination of this Offering shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such reports and documents. Any statement incorporated
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
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modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the foregoing documents incorporated herein by reference (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such document). Requests for such documents
should be submitted in writing to Mr. John L. Coker, Vice President, Oncor,
Inc., 209 Perry Parkway, Gaithersburg, Maryland 20877.
THE COMPANY
The Company was incorporated in Maryland in July 1983. The Company's
principal offices are located at 209 Perry Parkway, Gaithersburg, Maryland
20877, and its telephone number is (301) 963-3500.
RISK FACTORS
An investment in the shares of Common Stock offered hereby involves a
high degree of risk and should not be made by any investor who cannot afford
the loss of his entire investment. Accordingly, prospective investors should
carefully consider the following factors, in addition to all of the other
information presented in this Prospectus, before purchasing any of the shares
of Common Stock offered hereby.
RISK ASSOCIATED WITH THE HER-2/NEU GENE-BASED TEST SYSTEM
In November 1995, a U.S. Food and Drug Administration ("FDA") advisory
panel made a recommendation against final approval of the Company's Pre-Market
Approval ("PMA") application for the use of its Her-2/neu gene-based test
system for diagnostic purposes. No assurance can be given that the FDA
advisory panel will reconsider its position or that the Company will obtain
final FDA approval for its Her-2/neu gene-based test system. The failure to
obtain FDA approval for its Her-2/neu gene-based test system on a timely basis,
or at all, would have a material and adverse effect on the Company's business,
financial condition and results of operations. In the event that the Company
receives final FDA approval for its Her-2/neu gene-based test system, there can
be no assurance that the Company will be capable of manufacturing the test
system in commercial quantities at reasonable costs or marketing the product
successfully, that the test system will be accepted by the medical diagnostic
community, or that the market demand for the test system will be sufficient to
allow profitable sales.
HISTORY OF OPERATING LOSSES
Oncor has not been profitable since its inception in July 1983. For
the year ended December 31, 1994 and the nine months ended September 30, 1995,
the Company incurred net losses of $19.6 million and $11.7 million,
respectively. As of September 30, 1995, the accumulated deficit of the Company
was $66.1 million. The Company incurred additional substantial losses in the
fourth quarter of 1995 and expects to incur additional substantial losses in
future periods. The Company is unable to predict when, or if, it will become
profitable.
NO ASSURANCE OF REGULATORY APPROVALS; GOVERNMENT REGULATION
The Company's products are subject to extensive regulation by
governmental authorities in the United States and other countries. The FDA and
comparable agencies in other countries impose substantial requirements that
must be satisfied before newly developed products may be sold for diagnostic
use. Although the Company may sell its products in the United States for
research purposes only, it may not sell such products in the United States for
diagnostic purposes until it receives approval from the FDA. The Company has
obtained FDA approval for one of these products for sale for diagnostic
purposes. The Company is currently pursuing FDA approval of certain existing
products and expects to pursue FDA approval of certain additional products
under development. There can be no assurance that the Company will receive
regulatory approval for any of its products or, even if it does receive
regulatory approval for a particular product, that the Company will ever
recover its costs in connection with
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obtaining such approval. The timing of regulatory approvals is not within the
control of the Company. The failure of the Company to receive requisite
approval, or significant delays in obtaining such approval, could have a
material and adverse effect on the business, financial condition and results of
operations of the Company.
Approval by the FDA requires lengthy, detailed and costly laboratory
and clinical testing procedures to demonstrate a product's efficacy and safety
before a product can be sold for diagnostic use. Even if such regulatory
approval is obtained for a product, its manufacturer and its manufacturing
facilities are subject to continual review and periodic inspections. The
regulatory standards for manufacturing are applied stringently by the FDA.
Discovery of previously unknown problems with a product, manufacturer or
facility may result in restrictions on such product or manufacturer, including
costly recalls or even withdrawal of the product from the market. Furthermore,
approval may entail ongoing requirements for postmarketing studies. Failure to
maintain requisite manufacturing standards or discovery of previously unknown
problems could have a material and adverse effect on the Company's business,
financial condition or results of operations.
Sales of the Company's products outside the United States are also
subject to extensive regulatory requirements, which vary widely from country to
country. Diagnostic products that have not been approved by the FDA may be
exported for sale for diagnostic use outside the United States only after
receiving approval for export by the FDA. Furthermore, such products may be
exported for diagnostic use only in certain countries, generally countries
within Europe, Canada, Australia and Japan, and, then, only if the appropriate
regulatory authorities in such countries have approved such products for
diagnostic use in their respective countries. The time required to obtain such
approvals may be longer or shorter than that required for FDA approval. The
Company has recently received approval to market its Her-2/neu and CML
gene-based test systems for diagnostic use in Australia, Austria, Canada,
Denmark, Germany, Ireland, the Netherlands, Switzerland and the United Kingdom.
Various export applications have been submitted to date and the Company expects
several additional applications will be submitted in 1996. This foreign
regulatory approval process includes all of the risks associated with FDA
approval set forth above.
Additionally, the Company is or may become subject to various federal,
state and local laws, regulations and recommendations relating to safe working
conditions, laboratory and manufacturing practices, the experimental use of
animals and the use and disposal of hazardous or potentially hazardous
substances, including radioactive compounds and infectious disease agents, used
in connection with the Company's research and development work. The Company is
unable to predict the extent of future government regulation.
PATENTS AND PROPRIETARY RIGHTS
The Company's success will depend in large part on its, or its
licensors, ability to obtain patents, defend its patents, maintain trade
secrets and operate without infringing upon the proprietary rights of others,
both in the United States and in foreign countries. The patent position of
firms relying upon biotechnology is highly uncertain in general and involves
complex legal and factual questions. To date there has emerged no consistent
policy regarding the breadth of claims allowed in biotechnology patents or the
degree of protection afforded under such patents. The Company relies on
certain patents and pending United States and foreign patent applications
relating to various aspects of its products. These patents and patent
applications are either owned by the Company or rights under them are licensed
to the Company. There can be no assurance that patents will issue as a result
of any such pending applications or that, if issued, such patents will be
sufficiently broad to afford protection against competitors with similar
technology. In addition, there can be no assurance that any patents issued to
the Company, or for which the Company has license rights, will not be
challenged, invalidated or circumvented, or that the rights granted thereunder
will provide competitive advantages to the Company. The commercial success of
the Company will also depend upon avoiding the infringement of patents issued
to competitors and upon maintaining the technology licenses upon which certain
of the Company's current products are, or any future products under development
might be, based. Litigation, which could result in substantial cost to the
Company, may be necessary to enforce the Company's patent and license rights
or to determine the scope and validity of others' proprietary rights. If
competitors of the Company prepare and file patent applications in the United
States that claim technology also claimed by the Company, the Company may have
to participate in interference proceedings declared by the United States
Patent and Trademark Office ("PTO") to determine the priority of invention,
which could result in substantial
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cost to the Company, even if the outcome is favorable to the Company. An
adverse outcome could subject the Company to significant liabilities to third
parties and require the Company to license disputed rights from third parties
or cease using the technology. A United States patent application is
maintained under conditions of confidentiality while the application is pending
in the PTO, so that the Company cannot determine the inventions being claimed
in pending patent applications filed by its competitors in the PTO. Further,
United States patents do not provide any remedies for infringement that
occurred before the patent is granted.
The University of California and its licensee Vysis, Inc. ("Vysis")
filed suit against Oncor on September 5, 1995 for infringement of U.S. Patent
No. 5,447,841 entitled Methods and Compositions for Chromosome Specific
Staining which issued on that same date. The patent relates to a method of
performing in situ hybridization using a blocking nucleic acid that is
complementary to repetitive sequences. A failure to successfully defend
against or settle this suit may result in damages being assessed against the
Company and an injunction against the sale of some of the Company's probes.
The University of California and Vysis have offered to grant the Company a
non-exclusive license.
The Company has licensed rights to inventions disclosed in United
States and foreign patent applications relating to methods and probes for
detecting the presence of the Fragile X syndrome. The Company believes that
its licensors are original inventors and are entitled to patent protection in
the United States, but the Company is aware that certain third parties also
have filed patent applications in the United States and abroad and claim to be
entitled to patents related to this technology. The Company has initiated an
interference proceeding with these third parties in the PTO to resolve which
party is entitled to a United States patent, if any. The application licensed
by the Company is senior in the interference. An unfavorable decision in such
a proceeding could have an adverse effect on the Company.
The Company currently has certain licenses from third parties and in
the future may require additional licenses from other parties to develop,
manufacture and market commercially viable products effectively. There can be
no assurance that such licenses will be obtainable on commercially reasonable
terms, if at all, that the patents underlying such licenses will be valid and
enforceable or that the proprietary nature of the patented technology
underlying such licenses will remain proprietary.
The Company relies substantially on certain technologies that are not
patentable or proprietary and are therefore available to the Company's
competitors. The Company also relies on certain proprietary trade secrets and
know-how that are not patentable. Although the Company has taken steps to
protect its unpatented trade secrets and know-how, in part through the use of
confidentiality agreements with its employees, consultants and certain of its
contractors, there can be no assurance that these agreements will not be
breached, that the Company would have adequate remedies for any breach, or that
the Company's trade secrets will not otherwise become known or be independently
developed or discovered by competitors.
UNCERTAINTIES RELATING TO PRODUCT DEVELOPMENT
Most of the Company's products have not been approved by the FDA and
may be sold only for research purposes. The Company has undertaken to seek FDA
approval for certain of these products, and may in the future undertake to seek
such approval for other products, and substantial additional investment,
laboratory development, clinical testing and FDA approval will be required
prior to the commercialization of such products for diagnostic purposes. There
can be no assurance that the Company will be successful in developing such
existing or future products, that such products will prove to be efficacious in
clinical trials, that required regulatory approvals can be obtained for such
products, that such products, if developed and approved, will be capable of
being manufactured in commercial quantities at reasonable costs, will be
marketed successfully or will be accepted by the medical diagnostic community,
or that market demand for such products will be sufficient to allow profitable
operations.
INTERNATIONAL SALES AND FOREIGN EXCHANGE RISK
The Company derived approximately $5.9 million or 51% of its total
revenues, from customers outside of the United States for the nine months ended
September 30, 1995. The Company anticipates that a significant
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amount of its sales will take place in European countries and likely will be
denominated in currencies other than the U.S. dollar. These sales may be
adversely affected by changing economic conditions in foreign countries and by
fluctuations in currency exchange rates. Any significant decline in the
applicable rates of exchange could have a material adverse effect on the
Company's business, financial condition and results of operations. Additional
risks inherent in the Company's international business activities generally
include unexpected changes in regulatory requirements, tariffs and other trade
barriers, lack of acceptance of products in foreign markets, longer accounts
receivable payment cycles, difficulties in managing international operations,
potentially adverse tax consequences, restrictions on repatriation of earnings
and the burdens of complying with a wide variety of foreign laws. There can be
no assurance that such factors will not have a material adverse effect on the
Company's future international revenues and, consequently, on the Company's
business, financial condition and results of operations.
In connection with the acquisition of Appligene, S.A. (together with
its consolidated subsidiaries, "Appligene") the Company issued or acquired
approximately $6 million in indebtedness denominated in French francs.
Accordingly, any significant decline in the value of the U.S. dollar as
compared to the French franc would materially increase the dollar amount
required to repay such indebtedness. Although the Company intends to continue
to mitigate such risk through hedging transactions, such transactions may not
be available to the Company at a reasonable cost, or at all.
LIMITED MANUFACTURING EXPERIENCE
The Company's ability to conduct clinical trials on a timely basis, to
obtain regulatory approvals and to commercialize its products will depend in
part upon its ability to develop and maintain facilities to manufacture its
products, either directly or through third parties, at a competitive cost in
accordance with the FDA's prescribed current Good Manufacturing Practices
("GMP") and other regulatory requirements. Any failure to maintain
manufacturing facilities in accordance with the FDA's GMP requirements could
result in the inability of the Company to manufacture its products and may
limit the Company's ability to deliver its products to its customers, which
would have a material and adverse effect on the Company's business, financial
condition and results of operations. No assurance can be given that the
Company will be able to develop and maintain GMP facilities or engage third
parties to do so at a cost acceptable to the Company.
The Company has only limited experience in manufacturing products on a
commercial basis. The Company believes that its existing manufacturing
facilities will enable it to produce commercial quantities of its products
through 1996. No assurance can be given, however, that manufacturing or
quality control problems will not arise if the Company increases production of
its products, or if additional facilities are required in the future.
LIMITED MARKETING AND DISTRIBUTION EXPERIENCE
The Company markets and sells its products for research purposes and,
once approved by the appropriate regulatory authority, for diagnostic use,
through its direct sales forces in both Europe and the United States and
indirectly through third parties in the Pacific Rim. The Company only has
limited experience in sales, marketing and distribution. In order to market
its products directly, the Company must maintain a sales force with technical
expertise and an understanding of the Company's products. There can be no
assurance that the Company will be able to maintain such a sales force or that
the Company's direct sales and marketing efforts will be successful. In
addition, the Company's products compete with the products of many other
companies that currently have extensive and well-funded marketing and sales
operations. There can be no assurance that the Company's marketing and sales
efforts will compete successfully against such other companies. To the extent
the Company enters arrangements with third parties, any revenues received by
the Company will be dependent on the efforts of such third parties, and there
can be no assurance that such efforts will be successful.
COMPETITION AND TECHNOLOGICAL CHANGE
The diagnostic and biotechnology industries are subject to intense
competition and rapid and significant technological change. Competitors of the
Company in the United States and in foreign countries are numerous and include,
among others, diagnostic, health care, pharmaceutical, biotechnology and
chemical companies, academic
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institutions, government agencies and other public and private research
organizations. Many of these competitors have substantially greater financial
and technical resources and production and marketing capabilities than the
Company. There can be no assurance that these competitors will not succeed in
developing technologies and products that are more effective, easier to use or
less expensive than those that have been or are being developed by the Company
or that would render the Company's technology and products obsolete and
noncompetitive. The Company also competes with various companies in acquiring
technology from academic institutions, government agencies and research
organizations. In addition, many of the Company's competitors have
significantly greater experience than the Company in conducting clinical trials
of new diagnostic products and in obtaining FDA and other regulatory approvals
of products for use in health care. Accordingly, the Company's competitors may
succeed in obtaining regulatory approval for products more rapidly than the
Company.
INVESTMENT IN ONCORMED AND ONCORPHARM
The Company owns approximately 29% of the common stock of its
publicly-traded affiliate, OncorMed, and 53% of the voting securities of its
consolidated subsidiary, OncorPharm. The shares of common stock of both
OncorMed and OncorPharm held by the Company are not currently freely tradeable
and no public market exists for the Common Stock of OncorPharm. Therefore,
there can be no assurance that the Company will be able to realize the economic
benefit of its investment or predict the timing of such realization. The value
of the Company's investment in OncorMed represents a significant portion of the
total assets of the Company and such value fluctuates with the market price of
OncorMed's common stock. Therefore, any event that has a material and adverse
effect on the market price of the common stock of OncorMed will have a material
and adverse effect on the value of the Company's investment in OncorMed.
Although Stephen Turner, the Company's Chief Executive Officer, is a Director
of OncorMed and the Company is a significant stockholder in OncorMed, the
Company does not control the day-to-day operations and management of OncorMed
and, therefore, has little direct control over its operations and financial
results. Both OncorMed and OncorPharm will require additional financing in the
future. The Company does not currently intend to provide such financing
although the Company may provide additional financing in the future. The
failure of either OncorMed or OncorPharm to obtain any required financing on
acceptable terms could have a material and adverse effect on the value of the
Company's investment in OncorMed and OncorPharm.
RESTRICTED USE OF THE COMPANY'S PRODUCTS
The Company currently has received FDA approval to sell one of its
leukemia and lymphoma test systems as a diagnostic product but the Company's
other products must be sold in the United States for research purposes only and
must be labeled accordingly. The FDA imposes distribution requirements and
procedures on companies selling products for research purposes only, including
the requirement that the seller receive specified certifications from its
customer as to the customer's intended use of the product. As a result of
these requirements, most of the Company's products can only be sold in the
United States to a limited number of customers for limited use and can not be
sold for broader commercial use without FDA approval. No assurance can be
given that the Company will receive FDA approval for its products or that it
will be able to sell its approved products in larger quantities.
GOVERNMENT FUNDING
The Company's products being sold for research purposes only are in
large part purchased by cancer researchers operating under government funded
programs. These products are also purchased by researchers involved in the
human genome project, which is likewise principally funded by the government.
There can be no assurance that such government funding will continue at its
current level. The Company would be adversely affected by decreases in or
changes in the kinds of government funding for cancer research or human genome
research.
ATTRACTION AND RETENTION OF KEY PERSONNEL
The Company's ability to successfully develop marketable products and
to maintain a competitive position will depend in large part on its ability to
attract and retain highly qualified scientific and management personnel.
-7-
<PAGE> 9
The Company is highly dependent upon the principal members of its management,
scientific staff and science advisory board. Competition for such personnel
and advisors is intense, and there can be no assurance that the Company will be
able to continue to attract and retain such personnel.
UNCERTAINTY RELATED TO HEALTH CARE REFORM MEASURES AND THIRD-PARTY
REIMBURSEMENT
Political, economic and regulatory influences are likely to lead to
fundamental change in the health care industry in the United States. Numerous
proposals for comprehensive reform of the nation's health care system have been
introduced in Congress over the past year. In addition, certain states are
considering various health care reform proposals. The Company anticipates that
Congress and state legislatures will continue to review and assess alternative
health care delivery systems and payment methodologies, and that public debate
of these issues will likely continue in the future. Due to uncertainties
regarding the ultimate features of reform initiatives and their enactment and
implementation, the Company cannot predict which, if any, reforms will be
adopted, when they may be adopted, or what impact they may have on the Company.
The Company's ability to earn sufficient returns on its products may also
depend in part on the extent to which reimbursement for the costs of such
products will be available from government health administration authorities,
private health insurers and other organizations. Third-party payors are
increasingly challenging the price and cost effectiveness of medical products
and services. Significant uncertainty exists as to the reimbursement status of
newly approved health care products, and there can be no assurance that
adequate reimbursement will be available or sufficient to allow the Company to
sell its products on a competitive basis.
ADDITIONAL FINANCING REQUIREMENTS AND ACCESS TO CAPITAL FUNDING
The Company has expended and will continue to expend in the future
substantial funds to continue the research and development of its products,
conduct clinical trials, make capital expenditures, establish additional
manufacturing capability, and market its products. The Company believes that
its existing funds will be adequate to finance its operations at least through
1996. This belief is based on the Company's current research and development
plans, the current regulatory environment, historical industry experience in
the development of biotechnology products and general economic conditions.
However, the Company's cash requirements may vary materially from those now
planned as a result of unforeseen changes that could consume a significant
portion of the available resources before such time. To the extent that funds
expected to be generated from the Company's operations are insufficient to meet
current or planned operating requirements, the Company will seek to obtain
additional funds through equity or debt financing, collaborative or other
arrangements with corporate partners and others, and from other sources. No
assurance can be given that additional financing will be available when needed
or on terms acceptable to the Company. If adequate funds are not available,
the Company may be required to delay or to eliminate expenditures for certain
of its products or to license to third parties the rights to commercialize
products or technologies that the Company would otherwise seek to develop
itself.
PRODUCT LIABILITY
The testing, marketing and sale of health care products could expose
the Company to the risk of product liability claims. A product liability claim
could have a material and adverse effect on the business, results of operations
or financial condition of the Company. The Company currently maintains product
liability insurance coverage of $5.0 million per occurrence. There can be no
assurance, however, that this coverage will be adequate to protect the Company
against future product liability claims or that product liability insurance
will be available to the Company in the future on acceptable terms, if at all.
ENVIRONMENTAL RISKS
The manufacturing and research and development processes of the
Company involve the controlled use of hazardous materials. The Company is
subject to federal, state and local laws and regulations governing the use,
manufacture, storage, handling and disposal of such materials and certain waste
products. Although the Company believes that its activities currently comply
with the standards prescribed by such laws and regulations, the risk of
accidental contamination or injury from these materials cannot be eliminated.
In the event of such an accident, the
-8-
<PAGE> 10
Company could be held liable for any damages that result and any such liability
could exceed the resources of the Company. In addition, there can be no
assurance that the Company will not be required to incur significant costs to
comply with environmental laws and regulations in the future.
POSSIBLE VOLATILITY OF STOCK PRICE
The market prices for securities of life sciences companies, including
the Company, have been highly volatile and the market has experienced
significant price and volume fluctuations that are unrelated to the operating
performance of particular companies. Announcements of technological
innovations or new commercial products by the Company or its competitors,
developments concerning proprietary rights, including patents and litigation
matters, publicity regarding actual or potential clinical trial results with
respect to products under development by the Company or others, decisions
regarding regulatory approvals of the products of the Company or others,
regulatory developments in both the United States and foreign countries, public
concern as to the efficacy of new technologies, general market conditions, as
well as quarterly fluctuations in the Company's revenues and financial results
and other factors, may have a significant impact on the market price of the
Common Stock. In particular, the realization of any of the risks described in
these "Risk Factors" could have a dramatic and adverse impact on such market
price.
LARGE NUMBER OF SHARES ELIGIBLE FOR FUTURE SALE; EFFECT ON ABILITY TO RAISE
CAPITAL
Sales of substantial amounts of Common Stock in the public market
following this Offering could adversely affect the prevailing market price of
the Company's Common Stock and may have a material and adverse effect on the
Company's ability to raise the capital necessary to fund its future operations.
As of January 4, 1996, without taking into account shares of Common Stock
issued upon exercise of stock options, warrants or other rights to acquire
Common Stock after January 4, 1996, the Company had outstanding 25,169,614
shares of Common Stock (including 3,426,546 shares of Common Stock issuable
upon conversion of the outstanding Convertible Notes). The Shares and
substantially all of the shares of Common Stock already outstanding, will be
freely tradeable in the public market without restriction under the Securities
Act, except that any shares held by "affiliates" of the Company, as such term
is defined in Rule 144(a) under the Securities Act ("Affiliates"), may
generally only be sold in compliance with the applicable provisions of Rule 144
of the Securities Act. In general, under Rule 144 an Affiliate is entitled to
sell within any three-month period a number of shares that does not exceed the
greater of 1% of the then outstanding shares of the Company's Common Stock
(approximately 251,696 shares) or the average weekly trading volume in the
Company's Common Stock on the American Stock Exchange during the four calendar
weeks preceding the date on which notice of such sale was filed under Rule 144.
Sales under Rule 144 are also subject to certain provisions relating to the
manner and notice of sale and the availability of current public information
about the Company. Additional shares of Common Stock, including shares
issuable upon exercise of options, warrants and other rights to acquire Common
Stock, will also become eligible for sale in the public market from time to
time in the future. Furthermore, certain holders of Common Stock have the
right to cause the Company to register their shares under the Securities Act in
the future. The Company is required to bear the expenses of all such required
registrations (except underwriting discounts and commissions). The Company is
required to use its best efforts to effect such registrations, subject to
certain conditions and limitations. On January 8, 1996, the Company filed a
registration statement registering 4,194,930 shares for resale from time to
time and plans to keep such registration statement effective for a minimum of
90 days.
DIVIDENDS UNLIKELY
The Company has never paid any cash dividends on its Common Stock and
does not anticipate paying any cash dividends in the foreseeable future.
-9-
<PAGE> 11
ISSUANCE OF THE WARRANT SHARES AND USE OF PROCEEDS
The Warrant Shares are issuable upon the exercise of outstanding
Warrants. The aggregate gross proceeds that the Company could receive on the
exercise of all of the outstanding Warrants is $176,983. The Company intends
to use any net proceeds from the exercise of the Warrants for general corporate
purposes, including working capital.
SELLING STOCKHOLDERS
The following table sets forth the number of shares of Common Stock
beneficially owned by each of the Selling Stockholders as of January 2, 1996.
None of the Selling Stockholders has had a material relationship with the
Company within the past three years other than as a result of the ownership of
the Shares or other securities of the Company. The Shares offered by this
Prospectus may be offered from time to time by the Selling Stockholders. See
"Plan of Distribution."
<TABLE>
<CAPTION>
Beneficial Ownership
After Offering(2)
---------------------
Number of Shares Number of Shares
Beneficially Owned Registered Number
Name of Selling Stockholder Prior to Offering(1) for Sale Hereby of Shares Percent
- --------------------------- -------------------- --------------------- --------- -------
<S> <C> <C> <C> <C>
BDSX Corporation . . . . . . . . . . . . 150,000 150,000 -- --
Ruth Sharp Altshuler . . . . . . . . . . 1,259 1,259 -- --
D. H. Blair Investment Banking Corp. . . 87,492 87,492 -- *
Ram Charan . . . . . . . . . . . . . . . 4,455 203 4,252 *
E. L. Cox Trust #12 . . . . . . . . . . . 1,135 1,135 -- --
Charles G. Craddock . . . . . . . . . . . 1,065 84 981 --
Hilah White Craddock Trust . . . . . . . 7,355 336 7,019 *
Diversified Venture Fund . . . . . . . . 1,362 1,362 -- --
George Gund . . . . . . . . . . . . . . . 22,272 1,017 21,255 *
Huber Investment Co. . . . . . . . . . . 24,864 1,135 23,729 *
J&S Investment Partnership #14 . . . . . 1,017 1,017 -- --
Lester Jameson Family Partnership . . . . 9,194 420 8,774 *
Cameron D. Kramlich . . . . . . . . . . . 2,065 163 1,902 *
Christopher W. Kramlich . . . . . . . . . 2,065 163 1,902 *
Douglas C. Kramlich . . . . . . . . . . . 427 427 -- *
Kendra L. Kramlich . . . . . . . . . . . 2,065 163 1,902 *
Raymonde S. Kramlich . . . . . . . . . . 102 102 -- *
Susan Sharp McAdam . . . . . . . . . . . 630 630 -- --
Monteverdi Associates . . . . . . . . . . 454 454 -- --
Denise L. Petitfils . . . . . . . . . . . 210 210 -- --
Lorraine F. Petitfils Trust . . . . . . . 1,362 1,362 -- --
Louis Petitfils . . . . . . . . . . . . . 210 210 -- --
Potomac Preservation, Inc. . . . . . . . 1,259 1,259 -- --
Republic Bank Dallas Retirement Trust . . 1,017 1,017 -- --
SOGINVEST Banca . . . . . . . . . . . . . 16,301 6,016 10,285 --
Charles Stanton Sharp, Jr., Trust . . . . 630 630 -- --
William H. Taylor, II (3) . . . . . . . . 2,354 107 2,247 *
Marshall C. Turner, Jr. . . . . . . . . . 107 107 -- *
Weaver, Wiltomac, Wingert & Rose . . . . 1,850 1,850 -- --
Laurie Frank Wilson . . . . . . . . . . . 2,193 114 2,079 *
The Wohlhaupter Family Trust . . . . . . 1,721 136 1,585 *
TOTAL . . . . . . . . . . . . . 348,492 260,580 87,912 *
------------- ------- --------- -----
</TABLE>
- --------------------
* Less than 1%.
-10-
<PAGE> 12
(1) Certain of the Selling Stockholders will be the beneficial owner of
this number of shares of Common Stock if, and when, each such Selling
Stockholder exercises its right to purchase the shares of Common Stock
pursuant to certain of the Warrants.
(2) The number of shares of Common Stock and the percentage of shares of
Common Stock beneficially owned by each Selling Stockholder after the
offering are based on the assumption that all of the Selling
Stockholders will sell all of the Issued Shares and Warrant Shares
registered for sale hereby. See "Plan of Distribution."
(3) Dr. Taylor is a director of the Company.
Excluding the shares held by BDSX Corporation ("BDSX"), all of the Issued
Shares being offered hereby were acquired by the Selling Stockholders from the
Company in private placement transactions at an average gross purchase price
per share of $1.61. The Issued Shares held by BDSX were issued by the Company
as part of the consideration paid for certain assets acquired by the Company
from BDSX and Biological Detection Systems, Inc. ("BDS") (collectively, the
"Sellers"). The assets acquired were substantially all of the assets,
properties and rights relating to or used in the Apple Computer-based research
instrument imaging systems and software business of the Sellers. The
consideration paid for the assets was (i) cash payments of $989,230.72 to BDS
and $400,000 to BDSX, (ii) a promissory note in a principal amount of $1.2
million in favor of BDSX, (iii) the assumption of certain liabilities and
obligations of the Sellers, and (iv) 200,000 unregistered and previously
unissued shares of the Company's common stock, $0.01 par value, of which 50,000
shares have been previously registered and sold by BDSX and of which 150,000
shares are being registered for sale by BDSX hereby. See the BDS 8-K.
Assuming the exercise of all the outstanding Warrants, the Warrant Shares
will be acquired by the Selling Stockholders at an average purchase price per
share of $4.62. The Shares are being registered as a result of the contractual
arrangement with certain Selling Stockholders. The Company has agreed to bear
certain expenses (other than selling commissions and fees and expenses of
counsel and other advisors to the Selling Stockholders) in connection with the
registration of the Shares.
The sale of Shares by Affiliates must generally be in compliance with the
applicable provisions of Rule 144. The Company has agreed to prepare and file
such amendments and supplements to the Registration Statement as may be
necessary to keep this Registration Statement effective until the earlier of
December 28, 1998 or until all of the Shares have been sold pursuant to the
terms hereof.
PLAN OF DISTRIBUTION
The Shares offered hereby are being offered directly by the Selling
Stockholders. The Company will not receive any of the proceeds from the sale
of the Issued Shares by the Selling Stockholders. The Company will receive
aggregate proceeds of up to $176,983 upon the issuance of all of the Warrant
Shares. The sale of the Shares may be effected by the Selling Stockholders
from time to time in transactions on the American Stock Exchange, in negotiated
transactions, or a combination of such methods of sale, at fixed prices which
may be changed, at market prices prevailing at the time of sale, at prices
related to prevailing market prices or at negotiated prices. The Selling
Stockholders may effect such transactions by selling the Shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Stockholders and/or the
purchasers of the Shares for whom such broker-dealers may act as agents or to
whom they sell as principals, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions). In order to comply
with the securities laws of certain states, if applicable, the Shares will be
sold in such jurisdictions only through registered or licensed brokers or
dealers. The Selling Stockholders may transfer their Shares or Warrants under
certain circumstances to other persons who may, in turn, resell Shares in the
manner described above. In addition, the Selling Stockholders may pledge or
make gifts of their Shares and such Shares may also be sold by the pledgees or
transferees.
At the time a particular offer of Shares is made, to the extent required, a
Prospectus Supplement will be distributed which will set forth the number of
Shares being offered and the terms of the offering including the name or names
of any underwriters, dealers or agents, the purchase price paid by any
underwriter for the Shares purchased from Selling Stockholders, any discounts,
commissions and other items constituting compensation from the Selling
Stockholders and any discounts, commissions or concessions allowed or reallowed
or paid to dealers.
-11-
<PAGE> 13
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Shares may not be sold unless they have been registered or qualified for sale
in the applicable state or an exemption from the registration or qualification
requirement is available and is complied with by the Company and the Selling
Stockholders.
The Selling Stockholders may also transfer their Shares pursuant to Rule
144, whether or not the Registration Statement, of which this Prospectus forms
a part, is effective at the time of any such transfer.
The Selling Stockholders and any broker-dealers, agents or underwriters that
participate with the Selling Stockholders in the distribution of the Shares may
be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any commissions received by them and any profit on the
resale of the Selling Stockholder Shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. The Company
has agreed to indemnify certain of the Selling Stockholders and their
affiliates against certain liabilities, including liabilities under the
Securities Act. Certain of the Selling Stockholders have agreed to indemnify
the Company and its affiliates against certain liabilities, including
liabilities under the Securities Act.
Under applicable rules and regulations under the Exchange Act, any person
engaged in the distribution of the Shares may not simultaneously engage in
market making activities with respect to the Common Stock of the Company for a
period of two business days prior to the commencement of such distribution. In
addition and without limiting the foregoing, each Selling Stockholder will be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including, without limitation, Rules 10b-6 and 10b-7,
which provisions may limit the timing of purchases and sales of shares of the
Company's Common Stock by the Selling Stockholders.
The Company has agreed to bear certain expenses (other than selling
commissions and fees and expenses of counsel and other advisors to the Selling
Stockholders) in connection with the registration of the Shares.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for the
Company by Brobeck, Phleger & Harrison LLP, New York, New York.
EXPERTS
The financial statements of the Company incorporated in this Prospectus by
reference to the Company's 1994 Form 10-K, have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in giving said reports.
The financial statements of Biological Detection Systems, Inc. Instrument
Business as of December 31, 1993 and for the year then ended, incorporated in
this Prospectus by reference from the Company's BDS 8-K, have been audited by
Ferraro & McMurtry, P.C., independent auditors, as stated in the report which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in
accounting and auditing.
The consolidated financial statements of Appligene S.A. as of June 30, 1994
and 1993 and for the years then ended, incorporated in this Prospectus by
reference from the Company's Appligene 8-K, have been audited by Fiduciaire de
l'industrie et du commerce S.A., independent public accountants, as stated in
their report which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
The statements in this Prospectus under the caption "Risk Factors -- Patents
and Proprietary Rights" and other references herein to patents have been
reviewed and approved by Burns, Doane, Swecker & Mathis, L.L.P., patent counsel
to the Company, as experts on such matters and are included herein in reliance
upon that review and approval.
-12-
<PAGE> 14
260,580 Shares
ONCOR, INC.
Common Stock
PROSPECTUS
FEBRUARY 6, 1996
<PAGE> 15
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth an estimate of the expenses to be incurred by
the Company in connection with the issuance and distribution of the securities
being registered:
<TABLE>
<CAPTION>
Amount to
Be Paid
-----------
<S> <C>
Registration Fee - SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 410
Legal Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,000
Accounting Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,500
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,590
-------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $32,500
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 11 of the Registrant's Articles of Incorporation, as amended,
and Section 5-01 of the Registrant's By-Laws, as amended, provide that the
Registrant shall, to the full extent permitted by law, indemnify all directors,
officers, employees or agents of the Registrant. Section 2-418 of the Maryland
General Corporation Law permits indemnification of directors, officers,
employees, and agents of a corporation under certain conditions and subject to
certain limitations. The Section provides generally that such persons may be
indemnified unless they engage in a material act or omission in bad faith or
that is the result of active and deliberate dishonesty, they actually receive
an improper personal benefit in money, property or services, or, in the case of
a criminal proceeding, they have reasonable cause to believe that the act or
omission is unlawful. Provision is made for reimbursement of reasonable
expenses so long as it is finally determined that the standards of conduct have
been met. The Selling Stockholders have agreed to indemnify officers,
directors and controlling persons of the Registrant against certain
liabilities, including liabilities under the Securities Act under certain
circumstances.
The Company and its directors and officers have liability insurance.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
The following is a list of Exhibits filed as part of the Registration Statement:
<S> <C>
4.1 Specimen certificate for shares of the Registrant's Common Stock, incorporated herein by reference to Exhibit 4.1 to
Registration Statement No. 33-44520.
4.2 Provisions of the Articles of Incorporation and By-Laws of the Registrant defining rights of holders of Common Stock of the
Registrant, incorporated herein by reference to Exhibits 3.1 and 3.2 to Registration Statement No. 33-44520.
5. Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Ferraro & McMurtry, P.C., independent auditors.
23.3 Consent of Fiduciaire de l'industrie et du commerce S.A., independent public accountants.
23.4 Consent of Burns, Doane, Swecker & Mathis, L.L.P.
23.5 Consent of Brobeck, Phleger & Harrison LLP (included in the opinion filed as Exhibit 5).
24. Powers of Attorney.
</TABLE>
II-1
<PAGE> 16
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the Registrant
of expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Gaithersburg, State of
Maryland, on January 31, 1996.
ONCOR, INC.
By: /s/ Stephen Turner
--------------------------------
Stephen Turner, Chairman of the
Board of Directors and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities indicated on January 31, 1996
SIGNATURE TITLE
--------- -----
Chairman of the Board of Directors
/s/ Stephen Turner and Chief Executive Officer
- --------------------------------------- (Principal Executive Officer)
Stephen Turner
* Vice President -- Finance and
- --------------------------------------- Administration and Chief Financial
Officer (Principal Financial and
John L. Coker Accounting Officer)
*
- ---------------------------------------
Philip S. Schein Director
*
- ---------------------------------------
George W. Scherer Director
*
- ---------------------------------------
William H. Taylor II Director
*
- ---------------------------------------
Timothy J. Triche, M.D., Ph.D. Director
*By: /s/ Stephen Turner
-----------------------------------
Stephen Turner
Attorney-in-Fact
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
- ------ ----------- ----
<S> <C>
4.1 Specimen certificate for shares of the Registrant's Common Stock, incorporated
herein by reference to Exhibit 4.1 to Registration Statement No. 33-44520 . . . . . . . . . . . . . .
4.2 Provisions of the Articles of Incorporation and By-Laws of the Registrant
defining rights of holders of Common Stock of the Registrant, incorporated herein
by reference to Exhibits 3.1 and 3.2 to Registration Statement No. 33-44520 . . . . . . . . . . . . .
5. Opinion and Consent of Brobeck, Phleger & Harrison LLP . . . . . . . . . . . . . . . . . . . . . . .
23.1 Consent of Arthur Andersen LLP, independent public accountants . . . . . . . . . . . . . . . . . . .
23.2 Consent of Ferraro & McMurtry, P.C., independent auditors . . . . . . . . . . . . . . . . . . . . . .
23.3 Consent of Fiduciaire de l'industrie et du commerce S.A., independent public
accountants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23.4 Consent of Burns, Doane, Swecker & Mathis, L.L.P. . . . . . . . . . . . . . . . . . . . . . . . . . .
23.5 Consent of Brobeck, Phleger & Harrison LLP (included in the opinion filed as
Exhibit 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
24. Powers of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
<PAGE> 1
EXHIBIT 5
[BROBECK PHLEGER & HARRISON LLP LETTERHEAD]
February 6, 1996
Oncor, Inc.
209 Perry Parkway
Gaithersburg, Maryland 20877
Re: Registration Statement on Form S-3
Gentlemen and Ladies:
We have examined the Registration Statement on Form S-3 filed by you
with the Securities and Exchange Commission (the "Commission") on February 6,
1996, in connection with the registration under the Securities Act of 1933, as
amended, of 260,580 shares of your Common Stock (the "Shares"). The Shares
include 222,272 shares (the "Issued Shares") currently outstanding and 38,308
shares (the "Warrant Shares") issuable by the Company upon the exercise of
outstanding warrants (the "Warrants"). The Issued Shares and the Warrant
Shares are being offered by certain stockholders of the Company. As your
counsel, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the transactions
described in the Registration Statement.
We have examined such records and documents and have made such
examination of laws as we considered necessary to form a basis for the opinion
set forth herein. In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
and the conformity with the originals of all documents submitted to us as
copies thereof.
Based upon and subject to the foregoing, it is our opinion that,
upon conclusion of the proceedings being taken or contemplated by us, as your
counsel, to be taken prior to the issuance of the Warrant Shares and upon
completion of the proceedings being taken in order to permit the issuance or
sale of the Warrant Shares and the Issued Shares to be carried out in
accordance with the securities laws of the various states where required, the
Warrant Shares, when issued and sold in accordance with the terms of the
Warrants and in the manner described in the Registration Statement, and the
Issued Shares, when sold in the manner described in the Registration
Statement, will be legally and validly issued, fully paid and nonassessable.
<PAGE> 2
Oncor, Inc.
February 6, 1996
Page 2
We hereby consent to the use of our name in the Registration
Statement under the caption "Legal Matters" in the related Prospectus and
consent to the filing of this opinion as an exhibit thereto.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON LLP
------------------------------------
BROBECK, PHLEGER & HARRISON LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our reports dated February 28, 1995
included in Oncor, Inc.'s Form 10-K for the year ended December 31, 1994 and to
all references to our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
-----------------------
ARTHUR ANDERSEN LLP
Washington, D.C.
February 5, 1996
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
ONCOR, Inc., on Form S-3, relating to the sale of Common Stock, of our report
dated June 15, 1994, regarding Biological Detection Systems, Inc. Instrument
Business, appearing in the current report on Form 8-K dated May 23, 1994, as
amended by Form 8K/A, dated July 20, 1994, and to the reference to us under the
heading "Experts" in the prospectus, which is a part of such Registration
Statement.
/s/ FERRARO & MCMURTRY
- ----------------------------
Ferraro & McMurtry, P.C.
(Formerly Ferraro Krebs & McMurtry, P.C.)
Pittsburgh, Pennsylvania
February 5, 1996
<PAGE> 1
EXHIBIT 23.3
[FIDUCIAIRE DE L'INDUSTRIE ET DU COMMERCE LETTERHEAD]
INDEPENDENT PUBLIC ACCOUNTANTS' CONSENT
We consent to the incorporation by reference in this Registration
Statement, relating to the sale of shares of Common Stock on Oncor, Inc. on
Form S-3, of our report dated October 14, 1994 regarding Appligene Group,
appearing in the Current Report on Form 8-K, dated September 22, 1994, as
amended by Form 8-K/4, dated December 5, 1994, and by Form 8-K/A-2, dated
December 15, 1994, and to the reference to us under the heading "Experts" in
the Prospectus, which is a part of such Registration Statement.
Strasbourg, France FIDUCIAIRE DE L'INDUSTRIE
February 5, 1996 ET DU COMMERCE SA
/s/ CHRISTIAN EINHORN
---------------------
Christian EINHORN
<PAGE> 1
EXHIBIT 23.4
CONSENT OF EXPERTS
We hereby consent to and approve (i) the statements made under the
caption "Risk Factors -- Patents and Proprietary Rights" and other references
to patents in the Prospectus which is part of the Registration Statement and
(ii) the reference to our firm under the caption "Experts" in such Prospectus.
BURNS, DOANE, SWECKER & MATHIS, L.L.P.
/s/ ROBERT S. SWECKER
/s/ ROBERT G. MUKAI
Alexandria, Virginia
February 5, 1996
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
We, the undersigned directors and/or officers of Oncor, Inc. (the
"Company"), hereby severally constitute and appoint Stephen Turner and John L.
Coker, and each of them individually, with full powers of substitution and
resubstitution, our true and lawful attorneys, with full powers to them and
each of them to sign for us, in our names and in the capacities indicated
below, the Registration Statement on Form S-3 filed with the Securities and
Exchange Commission, and any and all amendments to said Registration Statement
(including post-effective amendments) and any Registration Statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, in
connection with the registration under the Securities Act of 1933, as amended,
of equity securities of the Company, and to file or cause to be filed the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as each of them might or could do in person, and hereby
ratifying and confirming all that said attorneys, and each of them, or their
substitute or substitutes, shall do or cause to be done by virtue of this Power
of Attorney.
This Power of Attorney may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same Power of Attorney.
WITNESS our hands on this 6th day of February, 1996.
<TABLE>
<S> <C>
/s/ Stephen Turner /s/ John L. Coker
- ------------------------------------- ------------------------------------
Stephen Turner John L. Coker
Chairman of the Board of Directors Vice President - Finance and
and Chief Executive Officer Administration and Chief Financial Officer
/s/ Philip S. Schein /s/ William R. Taylor
- ------------------------------------- ------------------------------------
Phillip S. Schein, M.D. William R. Taylor II, Ph.D.
Director Director
/s/ George W. Scherer /s/ Timothy J. Triche
- ------------------------------------- ------------------------------------
George W. Scherer Timothy J. Triche, M.D., Ph.D.
Director Director
</TABLE>
