Contract
Exhibit
10.2
THIS
NOTE
HAS NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES ADMINISTRATOR OF ANY STATE PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”). THIS NOTE IS SUBJECT TO THE TERMS OF A NOTE
PURCHASE AGREEMENT DATED AS OF JUNE 29, 2007 AND MAY NOT BE TRANSFERRED OR
SOLD
EXCEPT AS PROVIDED THEREIN AND AS PERMITTED UNDER THE ACT PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM.
NEOPROBE
CORPORATION
10%
CONVERTIBLE NOTE DUE JULY 8, 2008
| $1,000,000.00 |
July
3, 2007
|
FOR
VALUE
RECEIVED, the undersigned, NEOPROBE CORPORATION (herein called the “Company”),
a
corporation organized and existing under the laws of the State of Delaware
hereby promises to pay to Xxxxx X. Xxxx, Xxxxxxx X. Xxxxxxx, and Xxxxxx X.
Xxxx,
as joint tenants with right of survivorship, or their registered assigns, the
principal sum of $1,000,000.00 on July 8, 2008, with interest (computed on
the
basis of a 360-day year of twelve 30-day months) on the unpaid balance thereof
at the rate of 10.0% per annum from the date hereof, payable quarterly in
arrears, on the last day of each calendar quarter, commencing with the calendar
quarter next succeeding the date hereof, until the principal hereof shall have
become due and payable.
Payments
of principal of, and interest on this Note are to be made in lawful money of
the
United States of America at the address of the holder of this Note provided
for
receipt of notices under the Note Purchase Agreement referred to below or,
at
the option of the holder of this Note, in immediately available funds at any
bank or other financial institution capable of receiving immediately available
funds designated by the holder of this Note.
This
Note
has been issued pursuant, and is subject, to an 10% Convertible Note Purchase
Agreement, dated as of July 3, 2007, as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof, between
the
Company and the Purchaser named therein (the “Note
Purchase Agreement”)
and is
entitled to the benefits thereof. Each holder of this Note will be deemed,
by
its acceptance hereof, (a) to have agreed to all of the terms of the Note
Purchase Agreement and other agreements referenced therein, and (b) to have
made
the representations and warranties set forth in Sections 4.2 through 4.8 of
the
Note Purchase Agreement.
This
Note
may be prepaid at any time prior to maturity in whole or in part without premium
or penalty, upon ten (10) days prior written notice to the Holder.
If
an
Event of Default, as defined in the Note Purchase Agreement, occurs and is
continuing, the principal of this Note may be declared or otherwise become
due
and payable in the manner, at the price and with the effect provided in the
Note
Purchase Agreement.
This
Note
is convertible into shares of Common Stock of the Company, on the terms and
subject to the conditions set forth in the Note Purchase Agreement.
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2 pages
This
Note
will be construed and enforced in accordance with and governed by the laws
of
the State of Ohio, without reference to principles of conflicts of law. Any
controversy, claim or dispute arising out of or relating to this Note or the
breach, termination, enforceability or validity of this Note, including the
determination of the scope or applicability of the agreement to arbitrate set
forth in this paragraph shall be determined exclusively by binding arbitration
in the City of Columbus, Ohio. The arbitration shall be governed by the rules
and procedures of the American Arbitration Association (the “AAA”) under its
Commercial Arbitration Rules and its Supplementary Procedures for Large, Complex
Disputes; provided that persons eligible to be selected as arbitrators shall
be
limited to attorneys-at-law each of whom (a) is on the AAA’s Large, Complex Case
Panel or a Center for Public Resources (“CPR”) Panel of Distinguished Neutrals,
or has professional credentials comparable to those of the attorneys listed
on
such AAA and CPR Panels, and (b) has actively practiced law (in private or
corporate practice or as a member of the judiciary) for at least 15 years in
the
State of Ohio concentrating in either general commercial litigation or general
corporate and commercial matters. Any arbitration proceeding shall be before
one
arbitrator mutually agreed to by the parties to such proceeding (who shall
have
the credentials set forth above) or, if the parties are unable to agree to
the
arbitrator within 15 business days of the initiation of the arbitration
proceedings, then by the AAA. No provision of, nor the exercise of any rights
under, this paragraph shall limit the right of any party to request and obtain
from a court of competent jurisdiction in the State of Ohio, County of Franklin
(which shall have exclusive jurisdiction for purposes of this paragraph) before,
during or after the pendency of any arbitration, provisional or ancillary
remedies and relief including injunctive or mandatory relief or the appointment
of a receiver. The institution and maintenance of an action or judicial
proceeding for, or pursuit of, provisional or ancillary remedies shall not
constitute a waiver of the right of any party, even if it is the plaintiff,
to
submit the dispute to arbitration if such party would otherwise have such right.
Each of the parties hereby submits unconditionally to the exclusive jurisdiction
of the state and federal courts located in the County of Franklin, State of
Ohio
for purposes of this provision, waives objection to the venue of any proceeding
in any such court or that any such court provides an inconvenient forum and
consents to the service of process upon it in connection with any proceeding
instituted under this paragraph in the same manner as provided for the giving
of
notice under the Note Purchase Agreement. Judgment upon the award rendered
may
be entered in any court having jurisdiction. The parties hereby expressly
consent to the nonexclusive jurisdiction of the state and federal courts
situated in the County of Franklin, State of Ohio for this purpose and waive
objection to the venue of any proceeding in such court or that such court
provides an inconvenient forum. The arbitrator shall have the power to award
recovery of all costs (including attorneys’ fees, administrative fees,
arbitrators' fees and court costs) to the prevailing party. The arbitrator
shall
not have power, by award or otherwise, to vary any of the provisions of this
Note.
|
NEOPROBE
CORPORATION
|
||
| |
|
|
| By | /s/ Xxxxx X. Xxxxxx | |
|
Xxxxx X. Xxxxxx, |
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|
Vice
President of Finance
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