WARRANT TO PURCHASE COMMON STOCK OF NEOPROBE CORPORATION
Exhibit
10.3
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 WV07 |
WARRANT
TO
PURCHASE
|
|
NO.
001
|
500,000 SHARES
OF COMMON STOCK
|
WARRANT
TO PURCHASE
COMMON
STOCK
OF
NEOPROBE
CORPORATION
This
certifies that, for value received, Xxxxx X. Xxxx, Xxxxxxx X. Xxxxxxx, and
Xxxxxx X. Xxxx, as joint tenants with right of survivorship, or their 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 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 a 10% Convertible Note
Purchase Agreement dated as of July 3, 2007, 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 thirty-one cents ($0.31), 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
July 3, 2007 (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.
2
(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.
(d) Issuance
of Common Stock Below Purchase Price.
(i) If
the
Company shall, at any time and from time to time, after the date hereof,
directly or indirectly, sell or issue shares of Common Stock (regardless of
whether originally issued or from the Company’s treasury), or rights, options,
warrants or convertible or exchangeable securities containing the right to
subscribe for or purchase shares of Common Stock) at a price per share of Common
Stock (determined, in the case of rights, options, warrants or convertible
or
exchangeable securities (collectively, “Securities”), by dividing (x) the total
consideration received or receivable by the Company in consideration of the
sale
or issuance of such Securities, plus the total consideration payable to the
Company upon exercise or conversion or exchange thereof, by (y) the total number
of shares of Common Stock covered by such Securities) which is lower than the
Purchase Price in effect immediately prior to such sale or issuance, then,
subject to Section 3.1(d)(ii), the Purchase Price shall be reduced to a price
determined by multiplying the Purchase Price in effect immediately prior thereto
by a fraction, the numerator of which shall be the sum of the number of shares
of Common Stock outstanding immediately prior to such sale or issuance plus
the
number of shares of Common Stock which the aggregate consideration received
(in
the case of Securities, determined as provided below) for such sale or issuance
would purchase at the Purchase Price in effect immediately prior to such sale
or
issuance and the denominator of which shall be the total number of shares of
Common Stock outstanding immediately after such sale or issuance. Such
adjustment shall be made successively whenever such sale or issuance is made.
For the purposes of such adjustments, the shares of Common Stock which the
holder of any such Securities shall be entitled to subscribe for or purchase
shall be deemed to be issued and outstanding as of the date of such sale or
issuance of such Securities and the consideration “received” by the Company
therefor shall be deemed to be the consideration actually received or receivable
by the Company (plus any underwriting discounts or commissions in connection
therewith) for such Securities, plus the consideration stated in such Securities
to be payable to the Company for the shares of Common Stock covered thereby.
If
the Company shall sell or issue shares of Common Stock for a consideration
consisting, in whole or in part, of property other than cash or its equivalent,
then in determining the “price per share of Common Stock” and the
“consideration” received or receivable by or payable to the Company for purposes
of the first sentence and the immediately preceding sentence of this Section
3.1(d)(i), the fair value of such property shall be determined in good faith
by
the Board of Directors of the Company. Except as provided below, the
determination of whether any adjustment is required under this Section 3.1(d)(i)
by reason of the sale or issuance of Securities and the amount of such
adjustment, if any, shall be made only at the time of such issuance or sale
and
not at any subsequent time.
(ii) No
adjustment shall be made to the Purchase Price pursuant to Section 3.1(d)(i)
in
connection with the (A) issuance of shares in any of the transactions described
in Section 3.1(a), 3.1(b) , or 3.1(c) hereof; (B) issuance of shares upon
exercise of the Warrants; (C) issuance of shares upon conversion of the Notes;
(D) issuance of shares of Common Stock upon the exercise of options or the
grant
of options provided that such options were or are issued pursuant to stock
option plans approved by the stockholders of the Company; (E) issuance of shares
of Common Stock or rights, options, warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of Common
Stock as part of a unit in connection with an arm’s length institutional debt
financing, (F) issuance of shares of Common Stock upon the exercise or
conversion of rights, options, warrants or convertible or exchangeable
securities containing the right to subscribe for or purchase shares of Common
Stock outstanding on the Effective Date; (G) issuance of shares of Common Stock
or rights, options, warrants or convertible or exchangeable securities
containing the right to subscribe for or purchase shares of Common Stock in
connection with licenses, assignments or other transfers of intellectual
property of the Company or Subsidiaries, or rights therein, in connection with
cooperative research and development agreements, strategic alliances, or
agreements providing for the manufacturing, distribution or sale of products
or
services of the Company or Subsidiaries; (H) issuance of shares of Common Stock
pursuant to the Common Stock Purchase Agreement, dated December 1, 2006, between
the Company and Fusion Capital Fund II, LLC, and (I) contributions of Common
Stock to the Company’s 401(k) Plan.
3
(iii) In
the
event of any change in the number of shares of Common Stock deliverable or
any
change in the consideration payable to the Company upon exercise, conversion
or
exchange of any Securities (including, without limitation, by operation of
the
anti-dilution provisions of such Securities other than those anti-dilution
provisions contained within the Securities that are substantially similar to
the
provisions of Section 3.1(a), 3.1(b), or 3.1(c) hereof), any adjustment to the
Purchase Price which was made upon the issuance of such Securities, and any
subsequent adjustments based thereon, shall be recomputed to reflect such
change, except as provided below, no further adjustment shall be made for the
actual issuance of Common Stock or any payment of such consideration upon the
exercise, conversion or exchange of any such Securities. The Company shall
make
all necessary adjustments (including successive adjustments if required) to
the
Purchase Price in accordance with Section 3.1. Upon the expiration or
termination of the right to exercise, convert or exchange any Securities, any
adjustment to the Purchase Price which was made upon the issuance of such
Securities, and any subsequent adjustments based thereon, shall be recomputed
to
reflect the issuance of only the number of shares of Common Stock actually
issued upon the exercise, conversion or exchange of such Securities and the
actual consideration received therefor (as determined in this Section
3.1).
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 that is subject to Section 271(a)
of
the Delaware General Corporation Law; or
(d) authorizes
a voluntary or involuntary dissolution, liquidation or winding up of the
Company;
4
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
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.
5
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.
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) 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.
6
(c) The
Holder shall have no right to require the Company to register the Warrant Shares
under the Securities Act or any state securities law, except to the extent
provided in the Registration Rights Agreement of even date
herewith.
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 Delaware General Corporation Law 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 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.
7
IN
WITNESS WHEREOF, this Warrant has been duly executed by the Company as of July
3, 2007.
|
NEOPROBE
CORPORATION.
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxx | |
|
Xxxxx X. Xxxxxx |
||
|
Vice
President-Finance and Chief
Financial
Officer
|
||
8
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: | __________________________________________________________ |
9
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:
_____________________________________
10
