EXHIBIT 99(c)
SHAREHOLDER AGREEMENT
This Shareholder Agreement (this "AGREEMENT") is made and entered into
as of December 31, 2001 (the "EFFECTIVE DATE") by and between XXX XXXXX, XXX
XXXX, XXXX XXXX, residents of the State of Israel, FIRST ISRATECH FUND LP, a
Minnesota, USA limited partnership, FIRST ISRATECH FUND LLC, a Minnesota, USA
limited liability company, First Isratech Fund Norway A.S, a Norway company,
GREATWAY COMMERCIAL, INC., a corporation organized under the laws of Panama, XXX
XXXXXX, a resident of the State of New York, CAREMI PARTNERS, a partnership
organized under the laws of Delaware, EMICAR, LLC, a limited liability company
organized under the laws of New York, and MA'ARAGIM ENTERPRISES LTD., an Israeli
company limited by shares (each, a "SHAREHOLDER", and collectively the
"SHAREHOLDERS"), and Neoprobe Corporation, a Delaware corporation with its
principal place of business located in Dublin, Ohio, USA (the "COMPANY").
RECITALS
A. The Shareholders and the Company have entered into a Stock Purchase
Agreement dated as of November 29, 2001 (the "STOCK PURCHASE AGREEMENT"),
pursuant to which the Company will purchase from the Shareholders all of the
issued and outstanding shares of capital stock of Biosonix, Ltd., an Israeli
company limited by shares ("BIOSONIX") in exchange for shares of common stock of
the Company (the "SHARES").
B. This Agreement is entered into by the Company and the Shareholders
pursuant to Section 2.8 of the Stock Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereto
covenant and agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement:
1.1. "AFFILIATE" shall have the meaning given to such term in Rule
12b-2 of the Exchange Act.
1.2 "ASSOCIATE" shall have the meaning given to such term in Rule 12b-2
of the Exchange Act.
1.3 "CLOSING DATE" means the Closing Date of the Stock Purchase
Agreement, as defined therein.
1.4 "CONTROL" when used with respect to any Person means the power to
direct the management and policies of such Person, either directly or
indirectly, whether through the ownership of Voting Securities, by contract or
otherwise.
1.5 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
1.6 "FINAL PROSPECTUS" has the meaning set forth in Section 3.5 of this
Agreement.
1.7 "PERSON" means any individual, corporation, company, partnership,
joint venture, business, group, association, organization, employee pension,
profit sharing or other benefit plan or trust, government or subdivision or
agency thereof or any other entity.
1.8 "PUBLIC SALE" means the transfer of Voting Securities pursuant to
an effective Registration Statement under the Securities Act, or pursuant to
Rule 144 under the Securities Act, that is effected through the facilities of a
national securities exchange, the NASDAQ National Market, or the NASDAQ Small
Cap Market, and is not a block trade under the rules of the exchange or the
NASD.
1.9 "REGISTRATION EFFECTIVE DATE" has the meaning set forth in Section
3.1 of this Agreement.
1.10 "REGISTRATION STATEMENT" means the registration statement on Form
S-3 or Form S-1 (or other comparable form) referenced in Section 3.1 of this
Agreement.
1.11 "REGISTERED SECURITIES" has the meaning set forth in Section 3.1
of this Agreement.
1.12 "REGISTRABLE SECURITIES" means: (1) the Shares, and (2) any shares
of common stock of the Company 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,
the Shares; EXCLUDING in all cases, however, any Registrable Securities sold by
a Person in a transaction in which rights under Article III of this Agreement
are not assigned in accordance with this Agreement, or any Registrable
Securities sold to the public or sold pursuant to Rule 144 promulgated under the
Securities Act
1.13 "REQUEST" has the meaning set forth in Section 3.1 of this
Agreement.
1.14 "SEC" means the U.S. Securities and Exchange Commission.
1.15 "SECURITIES ACT" means the Securities Act of 1933, as amended.
1.16 "SELLERS' REPRESENTATIVE" has the meaning set forth in the Stock
Purchase Agreement.
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1.17 "TRANSFER" means to sell, assign, pledge, exchange, give, convey,
grant a security interest in or otherwise encumber or dispose of.
1.18 "VOTING SECURITIES" means all securities of the Company entitled
to vote and all securities convertible into, or exchangeable or exercisable for,
any such securities, including, without limitation, the Shares.
ARTICLE II
STANDSTILL, VOTING AND TRANSFER PROVISIONS
2.1 STANDSTILL. Each of the Shareholders agrees that for a period of
two (2) years after the Closing Date, neither such Shareholder nor any of his or
its Affiliates will:
(a) in any manner acquire, agree to acquire, make any offer or
proposal to acquire, or announce or disclose any intention to make an offer or
proposal to acquire, directly or indirectly, by purchase or otherwise (except
pursuant to a stock split, stock dividend, or other pro rata distribution by the
Company to holders of any class of its outstanding Voting Securities), any
Voting Securities other than Voting Securities issued to such Shareholder (i)
pursuant to the Stock Purchase Agreement, or (ii) by the Company, PROVIDED
HOWEVER, that such Shareholder may make open market purchases (including block
trades) that are effected through the medium of any national securities exchange
or inter-dealer automated quotation system on which the Voting Securities are
listed or admitted for quotation;
(b) propose to enter into, or announce or disclose any
intention to propose to enter into, directly or indirectly, any merger, business
combination or similar transaction involving the Company or its Affiliates or to
purchase, directly or indirectly, all or a material portion of the assets of the
Company or any of its Affiliates;
(c) make, or in any way participate, directly or indirectly,
in any "solicitation" of "proxies" (as such terms are defined or used in
Regulation 14A of the Exchange Act) to vote, or seek to advise or influence any
person with respect to the voting of, any Voting Securities, or become a
"participant" in any "election contest" (as such terms are defined or used in
Regulation 14A of the Exchange Act) relating to the election of directors of the
Company, or initiate, propose or solicit holders of Voting Securities for the
approval of any shareholder proposal, provided that no Shareholder shall not be
deemed to have engaged in a "solicitation" or to have become a "participant" by
reason of his membership on the Board of Directors of the Company or by voting
his Shares in accordance with this Agreement or by reason of his participation
in the Company's solicitation of proxies in connection with any annual or
special meeting of shareholders of the Company;
(d) form, join or in any way participate in a "group" (within
the meaning of Section 13(d) (3) of the Exchange Act) or otherwise act in
concert with any Person, (i) for the purpose of circumventing the provisions of
this Agreement or (ii) for the purpose of acquiring, holding, voting or
disposing of any Voting Securities;
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(e) deposit any Voting Securities in a voting trust or
subject them to a voting agreement or other agreement of similar effect;
(f) participate in any action by written consent of the
shareholders of the Company; or
(g) otherwise act in concert with others to seek or offer to
control or influence, in any manner, the management, Board of Directors or
policies of the Company other than (x) in the Shareholder's capacity as a
director or officer of the Company, or (y) by voting the Shareholder's Shares in
accordance with this Agreement.
2.2 VOTING AGREEMENT. For a period of two (2) years after the Closing
Date, each Shareholder agrees to vote, in person or by proxy, all of his or its
shares of Voting Securities, whether such shares are now owned or hereafter
acquired, in accordance with the recommendations of the a majority of the Board
of Directors of the Company on any of the following matters that are submitted
to a vote of the stockholders of the Company:
(a) election of directors of the Company;
(b) approval of a merger, consolidation or other business
combination of the Company with another entity;
(c) approval of a sale, lease or exchange of all or
substantially all of the Company's property and assets;
(d) approval of any transaction resulting in a change of
control of the Company;
(e) adoption of amendments to or restatements of the
Company's certificate of incorporation or bylaws, including without limitation
amendments relating to the creation of a new class or series of capital stock
(including classes having rights and preferences either prior and superior or
subordinate to the stock of any class then authorized), the exchange,
reclassification, subdivision, combination, recapitalization, cancellation of
any class or series of capital stock, or any action that would increase or
decrease the number of authorized shares of any class of capital stock; or
(f) adoption or amendment of stock option or other equity
compensation plans for employees.
Each Shareholder agrees to be present, in person or by proxy, at every meeting
of the stockholders of the Company held during the term of this Agreement, and
to execute and deliver to the designee of the board of directors of the Company
any proxies requested by the Company in order to effectively carry out the
provisions of this Section 2.2. Notwithstanding the foregoing, the provisions of
this Section 2.2 shall not require a Shareholder to vote as recommended by a
majority of the Board of Directors with respect to any transaction specified in
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paragraphs (b), (c) or (d) above, unless the recommendation of the Board of
Directors is to vote against the approval of the transaction.
2.3 TRANSFERS. (a) For a period of two (2) years after the Closing
Date, no Shareholder may transfer to any person any Voting Securities in a
Public Sale pursuant to a Registration Statement, unless (a) the Shareholder has
complied with the notice and other provisions of Article III of this Agreement,
and (b) such transfers by a Shareholder in any ten day period do not exceed the
greater of (i) one percent (1%) of the Company's outstanding Voting Securities,
or (ii) the average weekly reported volume of trading in such Voting Securities
on all national securities exchanges and/or reported through the automated
quotation system of a registered securities association during the four calendar
weeks preceding the notice required by clause (a) of this Section 2.3. During
the term of this Agreement, no Shareholder may transfer to any Person any Voting
Securities other than in a Public Sale unless (x) the transfer is in compliance
with all applicable legal requirements, including the Securities Act and
regulations thereunder and the Shareholder has, prior to consummation to such
transfer, provided the Company with an opinion of counsel reasonably acceptable
to the Company to that effect, (y) the Shareholder has given the Company written
notice at least ten business days prior to such transfer of the name of the
transferee and the terms and conditions of the transfer, and (z) the transferee
shall have agreed in writing to comply with the provisions of this Agreement to
the same extent that would be required if the transferee were a Shareholder.
(b) Each Shareholder agrees that any Voting Securities of the
Company that he or it acquires beneficial ownership of after the Closing Date
shall be subject to the terms and conditions of this Article II.
ARTICLE III
REGISTRATION RIGHTS
3.1 REGISTRATION. As soon as practicable, but not later than one
hundred eighty (180) days following the Closing Date, the Company shall file a
registration statement on Form S-3 (or, if the Company is ineligible to use Form
S-3, on Form S-1 or other comparable form) (the "REGISTRATION STATEMENT") for a
continuous registered shelf offering under Rule 415 of the Securities Act
covering all the Registrable Securities, subject only to the limitations of this
Article III.
The Company shall use its best efforts to cause the Registration
Statement and the registration of the registered securities thereunder (the
"REGISTERED SECURITIES") to be declared effective (the "REGISTRATION EFFECTIVE
DATE") by the SEC as soon as practicable, and shall continuously maintain the
effectiveness of the Registration Statement at all times following the
Registration Effective Date until the termination of the Company's registration
obligation pursuant to Section 3.7. The Shareholders' right to offer and sell
Registered Securities pursuant to the Registration Statement shall be subject to
the following limitations:
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(a) NOTICE OF PROPOSED SALE. The Shareholders shall give the
Company written notice of their bona fide intention to sell Registered
Securities pursuant to the Registration Statement at least five (5) business
days in advance of the proposed date of sale, and the Company shall act as soon
as practicable to make any necessary filings with the SEC and regulatory bodies
as may be necessary to permit the sale of the Registered Securities in
accordance with this Section 3.1.
(b) EXPENSES. The Shareholders shall bear all discounts,
commissions or other amounts payable to brokers and fees and disbursements of
counsel for the Shareholders in connection with sales of Registered Securities
by the Shareholders. All other expenses incurred in connection with a sale of
Registered Securities pursuant to this Section 3.1, including, without
limitation all federal and "blue sky" registration and qualification fees,
printers' and accounting fees, and fees and disbursements of counsel for the
Company shall be borne by the Company.
(c) CURATIVE MEASURES. If for any reason the Registration
Statement ceases to be effective at any time prior to the termination of the
Company's registration obligation under Section 3.7, then the Company shall use
its best efforts to cause the Registration Statement (or a new shelf
registration statement conforming to the provisions of this Section 3.1) to be
declared effective by the SEC and remain effective until eighteen (18) months
after the Closing Date (or until the earlier sale of the Registrable Securities
covered thereby).
3.2 RIGHTS OF THE COMPANY. Notwithstanding anything to the contrary in
this Agreement, the Company shall not be obligated to take any action to effect
any such registration pursuant to Section 3.1 as follows:
(a) In any particular jurisdiction in which the Company would
be required to execute a general consent to service of process in effecting such
registration unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act;
(b) During the period starting with the filing of and ending
on the date ninety (90) days immediately following the effective date of any
registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective; or
(c) If the Company shall furnish to the Shareholders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company it would be seriously
detrimental, for the specific reasons stated in such certificate, to the Company
or its shareholders for a registration statement to be filed in the near future,
then the Company's obligation to use its best efforts to register under this
Section 3.1 shall be deferred for a period not to exceed ninety (90) days from
the date of receipt of the Request from the Shareholders;
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provided, however, that the provisions of paragraphs (b) and (c) above shall not
apply to registrations effected pursuant to the Common Stock Purchase Agreement
between the Company and Fusion Capital Fund II, LLC dated as of November 19,
2001.
3.3 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities under this Agreement, and except as
otherwise provided in this Section or otherwise in this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare promptly and file with the SEC a Registration
Statement with respect to such Registrable Securities and use its best efforts
to cause such Registration Statement to become effective, and, keep such
registration statement effective until the termination of the Company's
registration obligation under Section 3.7, which Registration Statement
(including any amendments or supplements thereto and prospectuses contained
therein) shall not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein, or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading.
(b) Prepare promptly and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement.
(c) Furnish to the Shareholders such number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as it may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them that are included in such registration.
(d) Use its best efforts to register and qualify the
securities covered by such Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Shareholders, PROVIDED, that the Company 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 Shareholders at any time when a prospectus
relating to the Registrable Securities is required to be delivered under the
Securities Act of the happening of any event as a result of which the prospectus
included in such 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) Cooperate with the Shareholders and any attorney,
accountant or other agent retained by the Shareholders by providing any due
diligence necessary to file a Registration Statement relating to the Registrable
Securities.
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(g) Use its best efforts to cause all the Registrable
Securities covered by a Registration Statement to be listed or admitted for
quotation on the Nasdaq Small Cap Market or other securities exchange on which
the Company's common stock trades at that time.
(h) Provide a transfer agent and registrar, which may be a
single entity, for the Registrable Securities not later than the Registration
Effective Date.
(i) Cooperate with the Shareholders to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive legends)
representing Registrable Securities to be sold pursuant to a registration
effected hereto, and enable such certificates to be in such denominations or
amounts as the case may be, and registered in such names as the Shareholders may
reasonable request.
(j) Take all other reasonable actions necessary to expedite
and facilitate disposition by the Shareholders of the Registrable Securities
pursuant to the Registration Statement.
3.4 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 3.1 that the
Shareholders shall furnish to the Company such information regarding them, the
Registrable Securities held by them, and the intended method of disposition of
such securities as shall be required to timely effect the registration of its
Registrable Securities.
3.5 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under Section 3.1:
(a) BY THE COMPANY. To the extent permitted by law, the
Company will indemnify and hold harmless the Shareholders (and their directors
and officers) and each person, if any, who controls a Shareholder, against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the Exchange Act or other federal or
state law, 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 a Registration Statement filed pursuant
to this Section 3.1, including any preliminary prospectus or final
prospectus contained therein or in any amendments or supplements
thereto;
(ii) the omission or alleged omission to state in a
Registration Statement filed pursuant to this Section 3.1 (including
any preliminary prospectus or final prospectus contained therein or in
any amendments or supplements thereto), 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 the
Company of the Securities Act, the Exchange Act, any federal or state
securities law or any rule or regulation
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promulgated under the Securities Act, the Exchange Act or any federal
or state securities law in connection with the offering covered by
such registration statement;
and the Company will reimburse each of the Shareholders, such officer, director,
or controlling person for any legal or other expenses reasonably incurred by
them, as incurred, in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity
agreement contained in this subsection 3.5(a) 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 the Company (which consent shall
not be unreasonably withheld), nor shall the Company 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 information furnished expressly for use in connection with such
registration by the Shareholders, or by such, officer, director, or controlling
person, or other authorized agents, of the Shareholders.
(b) BY THE SHAREHOLDERS. To the extent permitted by law, the
Shareholders will indemnify and hold harmless the Company (and its officers and
directors) and each person, if any, who controls the Company within the meaning
of the Securities Act, against any losses, claims, damages or liabilities (joint
or several) to which the Company or any such director, officer, or controlling
person may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) (i) arise out of or are based upon any Violation,
where such Violation occurs in reliance upon and in conformity with written
information furnished by the Shareholders for use in connection with such
registration, or (ii) any violation or alleged violation by the Shareholders of
the Securities Act, the Exchange Act, any federal or state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
federal or state securities law in connection with the offering covered by such
Registration Statement; and the Shareholders will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer, or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that the indemnity
agreement contained in this subsection 3.5(b) 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 the Shareholders, which consent
shall not be unreasonably withheld, and PROVIDED FURTHER, that the indemnity
obligation of any Shareholder under this section 3.5(b) shall be limited to the
gross proceeds received by such Shareholder from the sale of Registrable
Securities hereunder.
(c) NOTICE. Promptly after receipt by an indemnified party
under this Section 3.5 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against any indemnifying party
under this Section 3.5, deliver to the indemnifying party a written notice of
the commencement of such an action 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 shall have the right to retain its own
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
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would be inappropriate due to actual or potential conflict of 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 3.5, 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 3.5.
(d) DEFECT ELIMINATED IN FINAL PROSPECTUS. The foregoing
indemnity agreements of the Company and the Shareholders are subject to the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the registration statement in question becomes effective or in
the amended prospectus filed with the SEC pursuant to SEC Rule 424(b) (the
"FINAL PROSPECTUS"), such indemnity agreements shall not inure to the benefit of
any person if a copy of the Final Prospectus was furnished to the indemnified
party and was not furnished to the person asserting the loss, liability, claim
or damage at or prior to the time such action is required by the Securities Act.
(e) CONTRIBUTION. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) the Shareholders or the Company (and/or any officer, director, or
controlling Person who may be indemnified under Section 3.5(a) or Section
3.5(b)), makes a claim for indemnification pursuant to this Section 3.5 but it
is judicially determined (by the entry of a final judgment or decree by a court
of competent jurisdiction and the expiration of time to appeal or the denial of
the last right of appeal) that such indemnification may not be enforced in such
case notwithstanding the fact that this Section 3.5 provides for indemnification
in such case, or (ii) contribution under the Securities Act may be required on
the part of the Shareholders or the Company (and/or any officer, director, or
controlling person who may be indemnified under Section 3.5(a) or 3.5(b)) in
circumstances for which indemnification is provided under this Section 3.5;
then, and in each such case, the Company and the Shareholders (and/or such other
person) will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in proportion to
their relative fault as determined by a court of competent jurisdiction; and in
any event, no person or entity guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
(f) SURVIVAL. The obligations of the Company and the
Shareholders under this Section 3.5 shall survive the completion of any offering
of Registrable Securities in a Registration Statement, and otherwise.
3.6 RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the SEC which may at any time permit the sale
of the Registrable Securities to the public without registration after the
Closing Date, for so long as the Shareholders own any Registrable Securities,
the Company agrees to:
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(a) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act, at all
times;
(b) File with the SEC in a timely manner all reports and
other documents required of the Company under the Exchange Act; and
(c) So long as the Shareholders owns any Registrable
Securities, to furnish to the Shareholders forthwith upon request a written
statement by the Company as to its compliance with the reporting requirements of
said Rule 144, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company as the Shareholders
may reasonably request in availing itself of any rule or regulation of the SEC
allowing a holder to sell any such securities without registration.
3.7 TERMINATION OF THE COMPANY'S OBLIGATIONS. The Company shall have no
obligations to register Registrable Securities held by the Shareholders (i) if
all Registrable Securities have been registered and sold pursuant to
registrations effected pursuant to this Agreement, or (ii) after a date that is
18 months following the Closing Date (the "Termination Date"); PROVIDED,
HOWEVER, that if Shareholders holding a majority of the then outstanding
Registrable Securities so request in writing to the Company prior to the
Termination Date, if the Company is eligible to register the remaining
Registrable Securities on Form S-3, the Termination Date shall be extended to a
date that is two years following the Closing Date.
3.8 ASSIGNMENT. Notwithstanding anything herein to the contrary, the
registration rights of the Shareholders under Article III hereof may be assigned
only in a transfer in compliance with the requirements of Section 2.3, provided
that the Company is given written notice by the assigning party at the time of
such assignment stating the name and address of the assignee and identifying the
securities of the Company as to which the rights in question are being assigned;
and PROVIDED FURTHER, that any such assignee shall receive such assigned rights
subject to all the terms and conditions of this Agreement, including without
limitation the provisions of this Article III.
ARTICLE IV
GENERAL PROVISIONS
4.1 NOTICES. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or if deposited in the U.S. mail by registered or
certified mail, return receipt requested, postage prepaid, as follows:
(a) If to the Shareholders, to the Sellers'
Representative, at:
Xx. Xxxxxx Xxxxxx
Biosonix Ltd.
0 Xxxxxxxxx Xxxxxx
Kfar Xxxx
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X.X. Xxx 0000
Xxx Xxxxxxxx 00000, Xxxxxx
Telephone: 000-000-0-0000000
Facsimile: 011-972-9-7421526
with a copy to:
Xxxxxxxx Xxxxxxx, Adv.
Sharir, Shiv, Xxxxxxxx & Co. Law Xxxxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx
Xxx Xxxx 00000
Telephone: 011-972-3-6074777 ext. 4763
Facsimile: 011-972-3-6074778
(b) If to the Company, at:
Neoprobe Corporation
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Porter, Wright, Xxxxxx & Xxxxxx LLP
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party hereto (and such party's permitted assigns) may by notice so given
provide and change its address for future notices hereunder. Notice shall
conclusively be deemed to have been given when personally delivered or when
deposited in the mail in the manner set forth above.
4.2 ENTIRE AGREEMENT. This Agreement, constitutes and contains
the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes any and all prior negotiations,
correspondence, agreements, understandings, duties or obligations between the
parties respecting the subject matter hereof.
4.3 AMENDMENT OF RIGHTS. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either
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retroactively or prospectively), only with the written consent of the Company
and a majority in interest of the Shareholders (and/or any of their permitted
successors or assigns).
4.4 GOVERNING LAW. This Agreement shall be governed by and
construed exclusively in accordance with the internal laws of the State of
Delaware as applied to agreements among Delaware residents entered into and to
be performed entirely within Delaware, excluding that body of law relating to
conflict of laws and choice of law.
4.5 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, then such provision(s) shall
be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
4.6 THIRD PARTIES. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than the parties hereto
and their successors and assigns, any rights or remedies under or by reason of
this Agreement.
4.7 SUCCESSORS AND ASSIGNS. Subject to the provisions of
Sections 2.3 and 3.9, the provisions of this Agreement shall inure to the
benefit of, and shall be binding upon, the successors and permitted assigns of
the parties hereto.
4.8 CAPTIONS. The captions to sections of this Agreement have
been inserted for identification and reference purposes only and shall not be
used to construe or interpret this Agreement.
4.9 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
SHAREHOLDERS: NEOPROBE CORPORATION
/s/ Xxx Xxxxx By: /s/ Xxxxx X. Xxxx
------------------------------------ ------------------------------
Xxx Xxxxx
Its: President and CEO
------------------------------
/s/ Xxx Xxxx
------------------------------------
Xxx Xxxx
/s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx
/s/ Xxx Xxxxxx
------------------------------------
Xxx Xxxxxx
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First Isratech Fund LP
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Its: Director
---------------------------------------
First Isratech Fund LLC
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Its: Director
---------------------------------------
First Isratech Fund Norway A.S
By: /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Its: Director
---------------------------------------
Greatway Commercial, Inc.
By: /s/ Eva Quest
----------------------------------------
Its: Secretary
---------------------------------------
Caremi Partners
By: /s/ Xxxxxxx XxXxxxxx
----------------------------------------
Its: President
---------------------------------------
Emicar, LLC
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------------
Its: Secretary
---------------------------------------
X. Xxxxx Trusteeship Ltd
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Trustee for Ma'aragim
Enterprises Ltd.
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Sharir, Shiv, Xxxxxxxx - Trust Company Ltd.
By: /s/ Xxxxxxxx Xxxxxxx
----------------------------------------
Trustee for Xxx Xxxxx, Xxx Xxxx,
Xxxx Xxxx, Xxxxxx Xxxxxxxxx,
Xxxx Xxxxxxxx, Xxxxxx Xxxxx and
Xxxx Xxxxxxxxx
/s/ Xxxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxxx Xxxxxxx, Trustee for
Xxxxx Xxxxxx, Xxxxx Xxxxxxxxxx,
Xxxx Xxxxxx, Xxxxx Xxxx and
Xxxx Xxxxxxx
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