EXHIBIT 99(g)
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE,
ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF, UNLESS REGISTERED PURSUANT TO
THE PROVISIONS OF THE SECURITIES ACT OR AN OPINION OF COUNSEL IS OBTAINED
STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION.
SERIES Q WARRANT TO XXXXXXXX
XX.000 500,000 SHARES OF COMMON STOCK
WARRANT TO PURCHASE
COMMON STOCK
OF
NEOPROBE CORPORATION
This certifies that, for value received, Xxxxxx X. Xxxxxxxx, or his registered
permitted assigns (collectively, the "HOLDER"), is entitled to purchase from
NEOPROBE CORPORATION, (the "COMPANY"), a corporation organized and existing
under the laws of the State of Delaware, subject to the terms and conditions set
forth below, at any time on or after 9:00 A.M., Eastern time, on April 3, 2003
of this Warrant, and before 5:00 P.M., Eastern time, on the Expiration Date (as
defined below), the number of fully paid and nonassessable shares of common
stock, $0.001 par value, of the Company ("COMMON STOCK") stated above at the
Purchase Price (as defined below). The Purchase Price and the number of shares
purchasable hereunder are subject to adjustment as provided below. This Warrant
is issued pursuant to the terms of an 9.5% Convertible Secured Note Purchase
Agreement dated as of March 26, 2003, as the same may be amended, modified or
supplemented pursuant to the terms thereof (the "PURCHASE AGREEMENT"), and is
subject to the terms thereof.
ARTICLE I
DEFINITIONS
Section 1.1. (a) The term "Business Day" as used in this
Warrant means a day other than a Saturday, Sunday or other day on which national
banking associations whose principal offices are located in the State of Ohio
are authorized by law to remain closed.
(b) The term "Expiration Date" as used in this Warrant
means the date of expiration of the sixty (60) month period immediately after
the Exercise Date (as defined in Section 2.1 hereof) or, if that day is not a
Business Day, as defined above, at or before 5:00 P.M. Eastern time on the next
following Business Day.
(c) The term "Purchase Price" as used in this Warrant
shall mean Thirteen Cents ($0.13), as may be adjusted pursuant to the terms of
Article III hereof.
(d) The term "Warrant" as used in this Warrant means this
Warrant and Warrants of like tenor to purchase up to the amount of Warrant
Shares (as defined below), indicated on the first page of the Warrant.
(e) The term "Warrant Shares" as used in this Warrant
means the shares of Common Stock issuable upon exercise of the Warrant.
ARTICLE II
DURATION AND EXERCISE OF WARRANT
Section 2.1. This Warrant may be exercised at any time after
9:00 A.M., Eastern time, on April 3, 2003 (the "EXERCISE DATE") and before 5:00
P.M., Eastern time, on the Expiration Date.
Section 2.2. (a) The Holder may exercise this Warrant in whole
or in part (but not in denominations of fewer than 5,000 Warrant Shares except
upon an exercise of the Warrant with respect to the remaining balance of Warrant
Shares purchasable hereunder at the time of exercise) by surrender of this
Warrant, with the Purchase Form (attached hereto) duly executed, to the Company
at its corporate office, together with the applicable Purchase Price of each
Warrant Share being purchased in lawful money of the United States, or by
certified check or official bank check payable in United States dollars to the
order of the Company, subject to compliance with all the other conditions set
forth in this Warrant.
(b) Upon receipt of this Warrant with the Purchase Form
duly executed and accompanied by payment of the aggregate Purchase Price for the
shares of Common Stock for which this Warrant is being exercised, the Company
shall cause to be issued certificates for the total number of whole shares (as
provided in Section 3.2) of Common Stock for which this Warrant is being
exercised in such denominations as the Holder may request, each registered in
the name of the Holder or such other name as may be designated by the Holder,
and thereafter the Company will promptly deliver, at its sole cost and expense,
those certificates to the Holder, together with any other securities or property
to which the Holder is entitled upon such exercise.
(c) If the Holder exercises this Warrant with respect to
fewer than all the shares of Common Stock that may be purchased by exercise of
this Warrant, the Company will execute a new Warrant for the balance of the
shares of Common Stock that may be purchased by exercise of this Warrant and
deliver that new Warrant to the Holder.
ARTICLE III
ADJUSTMENT OF PURCHASE PRICE, NUMBER
OF SHARES OR NUMBER OF WARRANTS
Section 3.1. The Purchase Price, the number and type
of securities issuable on exercise of this Warrant and the number of Warrants
outstanding are subject to adjustment from time to time as follows:
(a) If the Company issues any shares of its Common Stock
as a dividend on its Common Stock, the Purchase Price then in effect will be
proportionately reduced at the opening of business on the day following the date
fixed for the determination of stockholders entitled to receive the dividend or
other distribution. For example, if the Company distributes one share of Common
Stock as a dividend on each outstanding share of Common Stock the Purchase Price
would be reduced by 50%. If the Company issues as a dividend on its Common Stock
any securities which are convertible into, or exchangeable for, shares of its
Common Stock, such dividend will be treated as a dividend of the Common Stock
into which the securities may be converted, or for which they may be exchanged,
and the Purchase Price shall be proportionately reduced.
(b) If the outstanding shares of Common Stock are
subdivided into a greater number of shares of Common Stock, then the Purchase
Price will be proportionately reduced at the opening of business on the day
following the day when the subdivision becomes effective, and if the outstanding
shares of the Common Stock are combined into a smaller number of shares of
Common Stock, the Purchase Price will be proportionately increased at the
opening of business on the day following the day when the combination becomes
effective.
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(c) If by reason of a merger, consolidation,
reclassification or similar corporate event, the holders of the Common Stock
receive securities or assets other than Common Stock, upon exercise of this
Warrant after that corporate event, the Holder of this Warrant will be entitled
to receive the securities or assets the Holder would have received if the Holder
had exercised this Warrant immediately before the first such corporate event and
not disposed of the securities or assets received as a result of that or any
subsequent corporate event.
Section 3.2. Upon each adjustment of the applicable Purchase
Price pursuant to Section 3.1 hereof, this Warrant will, after the adjustment,
evidence the right to purchase, at the adjusted Purchase Price, the number of
shares (calculated to the nearest hundredth) obtained by (i) multiplying the
number of shares issuable on exercise of this Warrant immediately prior to the
adjustment by the Purchase Price in effect immediately prior to the adjustment
and (ii) dividing the resulting product by the Purchase Price in effect
immediately after the adjustment. However, the Company will not be required to
issue a fractional share or to make any payment in lieu of issuing a fractional
share.
Section 3.3. Whenever the Purchase Price or the number of
shares or type of securities issuable on exercise of this Warrant is adjusted as
provided in this Article III, the Company will compute the adjusted Purchase
Price and the adjusted number of Warrant Shares and will prepare a certificate
signed by its President or any Vice President, and by its Treasurer or Secretary
setting forth the effective date of the adjustment, the adjusted Purchase Price
and the adjusted number of Warrant Shares and showing in reasonable detail the
facts upon which the adjustments were based and mail a copy of that certificate
to the Holder by first class mail, postage prepaid, addressed to the registered
Holder of this Warrant at the address of such Holder as shown on the books of
the Company.
Section 3.4. If at any time when this Warrant is outstanding
the Company:
(a) declares any cash dividend (or authorizes any other
distribution) on its Common Stock;
(b) authorizes the granting to the holders of its Common
Stock of rights to subscribe for or purchase any shares of its capital stock or
assets, other than a dividend payable solely in shares of Common Stock;
(c) authorizes a reclassification, split or combination
of the Common Stock, or a consolidation or merger to which the Company is a
party or a sale or transfer of all or substantially all the assets of the
Company; or
(d) authorizes a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of said cases, the Company shall give, by certified or
registered mail, postage prepaid, addressed to the registered Holder of this
Warrant at the address of such Holder as shown on the books of the Company, (i)
at least 30 days' prior written notice of the date on which the books of the
Company shall close or a record shall be taken for such dividend, distribution
or subscription rights or for determining rights to vote in respect of any such
dissolution, liquidation or winding-up; (ii) at least 10 days' prior written
notice of the date on which the books of the Company shall close or a record
shall be taken for determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger or sale, and (iii) in
the case of any such reorganization, reclassification, consolidation; merger,
sale, dissolution, liquidation or winding-up, at least 30 days' written notice
of the date when the same shall take place. Any notice given in accordance with
clause (i) above shall also specify, in the case of any such dividend,
distribution or option rights, the date on which the holders of Common Stock
shall be entitled thereto. Any notice given in accordance with clause (iii)
above shall also specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
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deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding-up, as the case may be.
Section 3.5. The form of this Warrant need not be changed
because of any change in the Purchase Price or in the number of Warrant Shares,
and Warrants issued after that change may continue to describe the Purchase
Price and the number of Warrant Shares which were described in this Warrant as
initially issued.
ARTICLE IV
OTHER PROVISIONS RELATING TO
RIGHTS OF WARRANT HOLDER
Section 4.1. If this Warrant is duly exercised, the Holder
will for all purposes be deemed to become the holder of record of the Warrant
Shares as to which this Warrant is exercised, and the certificate for such
shares will be dated, on the date this Warrant is surrendered for exercise and
the Purchase Price paid in accordance with Section 2.2 hereof, except that if
such date is not a Business Day, the Holder will be deemed to become the record
holder of the Warrant Shares, and the certificate will be dated, on the next
succeeding Business Day. The Holder will not be entitled to any rights as a
holder of the Warrant Shares, including the right to vote and to receive
dividends, until the Holder becomes or is deemed to become the holder of such
shares pursuant to the terms hereof.
Section 4.2. (a) The Company covenants and agrees that it will
at all times reserve and keep available for the exercise of this Warrant a
sufficient number of authorized but unissued shares of Common Stock to permit
the exercise in full of this Warrant.
(b) The Company covenants that all shares of Common Stock
issued upon exercise of this Warrant and against payment of the Purchase Price
will be duly authorized, validly issued, fully paid and nonassessable and free
from all pre-emptive rights of any stockholder and free of all taxes, liens and
charges with respect to the issue thereof. The Company covenants that it will
take all reasonable action as may be necessary to assure that such Common Stock
may be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of any domestic securities exchange or
automated quotation system upon which the Common Stock may be listed, or any
agreement to which the Company may be a party.
Section 4.3. Notices to the Holder relating to this Warrant
will be effective on the earliest of actual receipt or the third business day
after mailing by first class mail (which shall be certified or registered,
return receipt requested), postage prepaid, addressed to the Warrant Holder at
the address shown on the books of the Company.
Section 4.4. The issuance of certificates for shares of Common
Stock upon the exercise of the Warrant shall be made without charge to the
Holder for any issue tax in respect thereof; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any certificate in a name
other than that of the then Holder of the Warrant being exercised.
ARTICLE V
TREATMENT OF WARRANT HOLDER
Prior to presentation of this Warrant for registration of
transfer, the Company may treat the Holder for all purposes as the owner of this
Warrant and the Company will not be affected by any notice to the contrary.
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ARTICLE VI
COMBINATION, EXCHANGE AND TRANSFER OF WARRANTS
Section 6.1. Any transfer permitted under this Warrant will be
made by surrender of this Warrant to the Company at its principal office with
the Form of Assignment (attached hereto) duly executed. In such event the
Company will, without charge, execute and deliver a new Warrant to and in the
name of the assignee named in the instrument of assignment and this Warrant will
promptly be canceled.
Section 6.2. This Warrant may be divided or combined with
other Warrants which carry the same rights upon presentation of them at the
principal office of the Company together with a written notice signed by the
Holder, specifying the names and denominations in which new Warrants are to be
issued.
Section 6.3. Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Warrant, and, in the case of loss, theft or destruction, of reasonably
satisfactory indemnification, or, in the case of mutilation, upon surrender of
the mutilated Warrant, the Company will execute and deliver a new Warrant
bearing the same terms and date as the lost, stolen or destroyed Warrant, which
will thereupon become void.
ARTICLE VII
OTHER MATTERS
Section 7.1. (a) Except for transfers of this Warrant to a
member of the original Holder's parents, brothers, sisters, spouse or lineal
descendants, or to trusts for the benefit thereof, pursuant to which the
original Holder retains the sole authority to take any action hereunder on
behalf of such transferees, this Warrant may not be sold, transferred, pledged,
hypotecated or otherwise disposed of by the Holder, other than with respect to
the entire unexercised portion thereof. In addition to the foregoing
restriction, this Warrant and any Warrant Shares may not be sold, transferred,
pledged, hypothecated or otherwise disposed of except as follows: (i) to a
person who, in the reasonable opinion of counsel to the Company, is a person to
whom this Warrant or the Warrant Shares may legally be transferred without
registration and without the delivery of a current prospectus under the
Securities Act of 1933 (the "SECURITIES ACT") with respect thereto, and then
only against receipt of an agreement of such person to comply with the
provisions of this Section 7.1(a) with respect to any resale or other
disposition of such securities; or (ii) to any person upon delivery of a
prospectus then meeting the requirements of the Securities Act relating to such
securities and the offering thereof for such sale or disposition, and thereafter
to all successive assignees.
(b) Unless the Warrant Shares have been registered under
the Securities Act, upon exercise of any of the Warrant and the issuance of any
of the Warrant Shares, all certificates representing Warrant Shares shall bear
on the face thereof substantially the following legend:
THE SALE OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, OFFERED FOR SALE, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF, UNLESS REGISTERED PURSUANT TO THE
PROVISIONS OF THAT ACT OR UNLESS AN OPINION OF COUNSEL TO THE ISSUER IS
OBTAINED STATING THAT SUCH DISPOSITION IS IN COMPLIANCE WITH AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION.
(c) The Holder shall have no right to require the Company
to register the Warrant Shares under the Securities Act of 1933 or any state
securities law, except to the extent provided in the Registration Rights
Agreement of even date herewith.
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Section 7.2. All the covenants and provisions of this Warrant
by or for the benefit of the Company will bind and inure to the benefit of its
successors and assigns.
Section 7.3. All notices and other communications under this
Warrant must be in writing. Any notice or communication to the Company will be
effective upon the earlier of actual receipt or the third business day after
mailing by first class mail (which shall be certified or registered, return
receipt requested), postage prepaid, addressed (until another address is
designated by the Company) as follows:
Neoprobe Corporation
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Chief Financial Officer
(tele) (000) 000-0000
(fax) (000) 000-0000
Any notice or demand authorized by this Warrant to be given or
made by the Company to the Holder must be given in accordance with Section 4.3.
Section 7.4. The corporate laws of the State of Delaware shall
govern all issues concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity,
enforcement and interpretation of this Warrant shall be governed by the internal
laws of the State of Ohio, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Ohio or any other
jurisdictions) that would cause the application of the laws of any jurisdiction
other than the State of Ohio. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Warrant and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. If any provision of this Warrant shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Warrant in that
jurisdiction or the validity or enforceability of any provision of this Warrant
in any other jurisdiction.
Section 7.5. Nothing in this Warrant will give any person,
corporation or other entity other than the Company and the Holder any right or
claim under this Warrant, and all agreements in this Warrant will be for the
sole benefit of the Company, the Holder, and their respective successors and
permitted assigns.
Section 7.6. The Article headings in this Warrant are for
convenience only, are not part of this Warrant and will not affect the
interpretation of its terms.
Section 7.7. Any controversy, claim or dispute arising out of
or relating to this Warrant or the breach, termination, enforceability or
validity of this Warrant, including the determination of the scope or
applicability of the agreement to arbitrate set forth in this Section 7.7 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 Section 7.7 shall limit the right of any
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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 Section 7.7) 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 Section 7.7 in
the same manner as provided for the giving of notice under this Warrant.
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 Warrant.
IN WITNESS WHEREOF, this Warrant has been duly executed by the
Company as of April 2, 2003.
NEOPROBE CORPORATION.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
Vice President-Finance and Chief
Financial Officer
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PURCHASE FORM
To Be Executed By The Warrant Holder
To Exercise The Warrant In Whole Or In Part:
To: NEOPROBE CORPORATION
The undersigned (__________________________________________________________)
Please insert Tax ID Number or other
identifying number of Holder
hereby irrevocably elects to exercise the right of purchase represented by the
within Warrant for, and to purchase thereunder, ___________________ shares of
Common Stock of Neoprobe Corporation in the amount of $__________ The
undersigned requests that certificates for those shares of Common Stock be
issued as follows:
Name:_____________________________________________
Address:__________________________________________
Deliver to:_______________________________________
Address:__________________________________________
Denominations:____________________________________
and that, if the number of shares of Common Stock is not all the shares of
Common Stock purchasable by exercise of the Warrant, that a new Warrant for the
balance of the shares of Common Stock purchasable under the within Warrant be
registered in the name of, and delivered to, the undersigned at the address
stated below:
Address:__________________________________________
Date:_____________________________________________
Signature:__________________
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FORM OF ASSIGNMENT
(To Be Executed Only Upon a Permitted Assignment)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto
____________________ the all of the undersigned's right, title and interest in
the within Warrant.
Signature_______________________________
Signature Guaranteed:
_________________________________
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