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EXHIBIT 10.3.48
R E S T A T E D S U B S C R I P T I O N A N D
O P T I O N A G R E E M E N T
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April 17, 1998
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NEOPROBE CORPORATION, a Delaware corporation ("Neoprobe").
XXXX TECHNOLOGIES, INC., a Delaware corporation ("Xxxx") and
Each of the individual stockholders of Xxxx who has signed this Agreement (the
"Stockholders")
hereby agree as follows:
P R E A M B L E :
1. Xxxx has developed data, discoveries, inventions, and other new technology
for the treatment of chronic infectious and/or autoimmune disease in humans
which involves the mitogenic stimulation of cytokine-secreting cells
derived from lymph nodes excised from chronically-infected and/or
autoimmune disease-affected human patients and the preparation of a
therapeutic agent which then is administered to the infected patients, and
data, know-how, processes, and procedures connected therewith (the
"Technology").
2. On March 14, 1996, Neoprobe and Xxxx entered into a Technology Option
Agreement (the "Technology Agreement") under which Neoprobe agreed to
provide financial, clinical and technical support to Xxxx and The Ohio
State University Research Foundation to allow them to conduct a Phase I
clinical evaluation of the Technology.
3. On March 14, 1996, Neoprobe, Xxxx and the Stockholders entered into the
Subscription and Option Agreement (the "Original Agreement") whereby
Neoprobe agreed to purchase 78 shares of Xxxx common stock, Neoprobe
received an option ("Option") to purchase additional shares of Xxxx common
stock and Neoprobe received a right of first refusal with regard to any
newly issued shares of Xxxx common stock. On September 5, 1997, the board
of directors of Xxxx declared a stock dividend at the rate of 2,999 shares
of Xxxx common stock for each share held on September 5, 1997. As a result
of this dividend, Neoprobe received 233,922 additional shares of Xxxx
common stock for a total ownership of 234,000 shares (the "Original
Shares").
4. Neoprobe, Xxxx and the Shareholders wish to terminate the Original
Agreement, agree that Neoprobe shall purchase 116,400 additional shares of
Xxxx common stock, terminate the Option, agree that Neoprobe and Xxxx enter
into a License and Option Agreement to govern their respective rights and
obligations with regard to the Technology and bind Neoprobe to the
Stockholders Agreement ("Stockholders Agreement") as amended and restated
on the date hereof by executing this Restated Subscription and Option
Agreement ("Restated Agreement"). Once Neoprobe purchases the 116,400
additional shares, Neoprobe will own a total of 350,400 shares of Xxxx
common stock which will represent 15% of the total issued and outstanding
shares of Xxxx common stock.
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T E R M S :
ARTICLE 1. EXECUTION OF AGREEMENTS.
SECTION 1.1. LICENSE AGREEMENT. Simultaneously with execution of this
Restated Agreement, Neoprobe and Xxxx have executed a license and option
agreement ("License Agreement").
SECTION 1.2. STOCKHOLDER AGREEMENT. With regard to the Original Shares
and those shares to be issued to Neoprobe pursuant to Article 2 of this
Agreement, Neoprobe hereby agrees to be bound by and comply with the terms of
the Stockholders Agreement. Xxxx and the Stockholders hereby consent to the
inclusion of Neoprobe as a party to the Stockholders Agreement.
ARTICLE 2. STOCK ISSUANCE.
Neoprobe hereby subscribes for and agrees to purchase 116,400 shares of
Xxxx common stock ("Additional Shares") for and in consideration of the
termination of the Option, the execution of the License Agreement and $.001 per
Additional Share and Xxxx hereby issues and sells such Additional Shares free
and clear of all liens, encumbrances and adverse claims (other than restrictions
on transfer under this Restated Agreement and applicable federal and state
securities laws or those that are imposed by or through Neoprobe) and
acknowledges the sufficiency of the consideration received therefor.
Simultaneously with the execution and delivery of this Restated Agreement, Xxxx
has delivered a valid and genuine stock certificate representing the Additional
Shares to Neoprobe.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF XXXX.
As of the date of the Original Agreement and the date of this Restated
Agreement, the Original Agreement and the Restated Agreement are collectively
referred to herein as the "Agreements"), Xxxx hereby represents and warrants to
Neoprobe as follows:
SECTION 3.1. ORGANIZATION AND STANDING. Xxxx is a corporation that was
duly organized, and is validly existing and in good standing under the laws of
the State of Delaware. Xxxx has all requisite corporate power to own and operate
its properties and assets, to carry on its business as presently conducted, to
execute and deliver the Agreements, to sell and issue the Original Shares and
the Additional Shares (the Original Shares and the Additional Shares are
collectively referred to herein as the "Shares") and to carry out and perform
its obligations under the terms of the Agreements.
SECTION 3.2. AUTHORIZATION. All corporate action on the part of Xxxx,
its directors and stockholders necessary to authorize the execution and delivery
of the Agreements, the performance of Xxxx'x obligations under the Agreements
and the sale and issuance of the Shares has been duly taken. The Agreements have
been duly executed and delivered by Xxxx and are valid and legally binding
obligations of Xxxx, which are enforceable against Xxxx in accordance with their
terms. The execution and delivery of the Agreements by Xxxx, the performance of
its obligations under the Agreements and the sale and issuance of the Shares did
not and will not violate any law applicable to Xxxx or its Certificate of
Incorporation or By-laws or breach or be a default under (with or without the
giving of notice or the lapse of time) any material contract, agreement or
instrument to which Xxxx is a party. The Shares have been duly authorized and,
when issued and paid for in accordance with the terms of the Agreements, will be
validly issued, fully paid and nonassessable and free and clear of all liens,
encumbrances and adverse claims other than restrictions on transfer under the
Agreements and applicable federal and state securities laws or those that are
imposed by or through Neoprobe.
SECTION 3.3. NO REGISTRATION REQUIREMENT. Subject to the truth and
accuracy of the representations of Neoprobe set forth in Article 4 of the
Original Agreement, the offer, sale and issuance of the Shares as contemplated
by the Agreements are exempt from the registration and prospectus delivery
requirements of Section 5 of the Securities Act, and neither Xxxx nor
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any person acting on its behalf will take any action hereafter that would cause
the loss of such exemption.
SECTION 3.4. DISCLOSURE. No representation or warranty by Xxxx
contained in the Agreements, nor any other statement or certificate furnished or
to be furnished to Neoprobe pursuant hereto or in connection with the
transactions contemplated hereby by Xxxx contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained therein or herein not misleading in
light of the circumstances under which they were made.
SECTION 3.5. INDEMNIFICATION. Xxxx shall indemnify Neoprobe, each of
its directors and officers, each legal counsel and independent accountant of
Xxxx and each person who controls Neoprobe (within the meaning of the Securities
Act) against any and all claims, losses and liabilities (and actions and
proceedings in respect thereof) arising out of or related to any breach of any
warranty or agreement made by Xxxx in the Agreements or any misrepresentation of
Xxxx contained in the Agreements and will reimburse Neoprobe, such directors,
officers, persons or control persons for any legal or any other expense
reasonably incurred in connection with investigating or defending any such
claim, loss, liability, action or proceeding.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF NEOPROBE. As of the date of the
Agreements, Neoprobe hereby represents and warrants to Xxxx as follows:
SECTION 4.1. PRIVATE OFFERING. Neoprobe understands that the Shares
have not been registered under the Securities Act on the ground that the sales
provided for in the Agreements and the issuance of the Shares under the
Agreements are exempt from registration under the Securities Act pursuant to
Section 4(2) thereof, that Xxxx'x reliance on such exemption is predicated on
Neoprobe's representations set forth in the Agreements and that in order to
obtain such exemption, the transfer of the Shares is restricted by Section 4.2
of this Restated Agreement and the legend required by Section 4.2 of this
Restated Agreement.
SECTION 4.2. TRANSFER RESTRICTIONS. Neoprobe will not offer for sale,
sell or otherwise transfer any of the Shares unless the Shares have been
registered under the Securities Act and under applicable state securities laws
or such Shares or their offer, sale or transfer are exempt from such
registration and Xxxx has received an opinion of counsel, in form and substance
reasonably satisfactory to Xxxx, to the effect that such Shares or their offer,
sale or transfer are so exempt. Any certificate representing the Shares shall
bear the following legend in larger or other contrasting type or color:
These securities have not been registered under the Securities Act of
1933. These securities may not be offered for sale, sold or otherwise
transferred unless they are registered under the Securities Act of 1933 or
they or such offer, sale or transfer are exempt from such registration and
the Issuer has received an opinion of counsel reasonably satisfactory to
the Issuer in form and substance to that effect.
The transfer of these shares is restricted by the terms of a Restated
Subscription and Option Agreement among the Corporation and its
Stockholders dated April 17, 1998. Except as provided in such Agreement,
these Shares may not be given, sold, pledged or otherwise transferred. The
Corporation will mail to the Stockholder a copy of such Agreement without
charge within five days after receipt of written request therefor.
SECTION 4.3. INVESTMENT INTENT. Neoprobe purchased the Original Shares
and is purchasing the Additional Shares for Neoprobe's own account and not for
other persons and for investment and not with a view to the distribution of any
of the Shares.
SECTION 4.4. INFORMATION. Neoprobe has had an opportunity to ask
questions and receive answers from
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Xxxx regarding the terms and conditions of the offerings of the Shares and the
business, properties, financial condition, and prospects of Xxxx and to obtain
additional information (to the extent Xxxx possessed such information or could
acquire it without unreasonable effort or expense) necessary to verify the
accuracy of any information furnished to Neoprobe.
SECTION 4.5. ADVERTISING. Neoprobe did not purchase the Original Shares
and is not purchasing the Additional Shares as a result of or subsequent to (a)
any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio or
(b) any seminar or meeting whose attendees, including Neoprobe, had been invited
by any general advertising or general solicitation.
SECTION 4.6. INVESTOR SOPHISTICATION; SUITABILITY. Neoprobe has such
knowledge and experience in financial and business matters that Neoprobe is
capable of evaluating the merits and risks of investment in the Shares. Neoprobe
has determined that the Shares are a suitable investment for Neoprobe and that
Neoprobe could bear the complete loss of Neoprobe's investment in the Shares.
SECTION 4.7. ACCREDITED INVESTOR. Neoprobe is an "accredited investor"
within the meaning of Rule 501(a) of Regulation D as promulgated under the
Securities Act.
SECTION 4.8. CAPACITY; ENFORCEABILITY. Neoprobe is a corporation that
was duly organized, and is validly existing and in good standing under the laws
of the State of Delaware. Neoprobe has all requisite corporate power to execute
and deliver the Agreements, to purchase the Shares under the Agreements and to
carry out and perform its obligations under the terms of the Agreements. All
corporate action on the part of Neoprobe, its directors and stockholders
necessary to authorize the execution and delivery of the Agreements and the
performance of Neoprobe's obligations under the Agreements has been duly taken.
The Agreements have been duly executed and delivered by Neoprobe and the
Agreements are valid and legally binding obligations of Neoprobe, which are
enforceable against Neoprobe in accordance with their terms.
SECTION 4.9. INDEMNIFICATION. Neoprobe shall indemnify Xxxx, each of
its directors and officers, each legal counsel and independent accountant of
Xxxx and each person who controls Xxxx (within the meaning of the Securities
Act), against any and all claims, losses and liabilities (and actions and
proceedings in respect thereof) arising out of or related to any breach of any
warranty or agreement made by Neoprobe in this Article 4 or any
misrepresentation of Neoprobe contained herein and will reimburse Xxxx, such
directors, officers, persons or control persons for any legal or any other
expense reasonably incurred in connection with investigating or defending any
such claim, loss, liability, action or proceeding.
ARTICLE 5. CERTAIN RIGHTS OF NEOPROBE.
SECTION 5.1. NEW SECURITIES. The parties have agreed to delete this
section and hereby release any rights thereunder.
SECTION 5.2 SIZE OF THE BOARD. The parties have agreed to delete this
section and hereby release any rights thereunder.
SECTION 5.3. NOMINATIONS. The parties have agreed to delete this
section and hereby release any rights thereunder.
SECTION 5.4. TERMINATION. The provisions of this Article 5 shall
terminate when (a) the common stock of Xxxx has been registered and sold in a
firm-commitment underwriting after the date hereof.
ARTICLE 6. REGISTRATION RIGHTS.
SECTION 6.1. CERTAIN DEFINITIONS.
(a) "Registrable Securities" means the Shares and any shares of Xxxx
common stock issued in respect thereof in any recapitalization, provided,
however, that Registrable Securities shall not include any shares of Xxxx common
stock which have previously been
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registered and sold or which have been sold to the public under Rule 144.
(b) "Registration" means a registration effected by preparing and
filing a registration statement in compliance with the Securities Act and the
ordering of the effectiveness of such registration statement.
SECTION 6.2. PIGGY-BACK REGISTRATION.
(a) If Xxxx determines to register any of its securities either for its
own account or the account of security holders exercising their respective
contractual registration rights, other than a registration relating solely to
employee benefit plans, a Rule 145 transaction or an exchange offer, or a
registration on any registration form that does not permit secondary sales, Xxxx
shall promptly give written notice thereof to Neoprobe, and use its best efforts
to include in such registration (and any related qualification under blue sky
laws or other compliance), except as set forth in paragraph (b) of this Section
6.2, and in any underwriting involved therein, all the Registrable Securities
specified in a written request, made by Neoprobe within twenty (20) days after
the written notice from Xxxx is given. Such written request may specify all or a
part of Neoprobe's Registrable Securities.
(b) If the registration of which Xxxx gives notice is for a registered
public offering involving an underwriting, Xxxx shall so advise Neoprobe as a
part of the written notice given pursuant to paragraph (a) of this Section 6.2.
In such event, the right of Neoprobe to participate in such registration
pursuant to this Section 6.2 shall be conditioned upon Neoprobe's participation
in such underwriting and the inclusion of Neoprobe's Registrable Securities in
the underwriting to the extent provided herein. Neoprobe shall (together with
Xxxx and the other holders of securities of Xxxx with contractual registration
rights to participate therein distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
representative of the underwriters selected by Xxxx.
(c) Notwithstanding any other provision of this Section 6.2, if the
representative of the underwriters advises Xxxx in writing that marketing
factors require a limitation on the number of shares to be underwritten, the
representative may (subject to the limitations set forth below) exclude all
Registrable Securities from, or limit the number of Registrable Securities to be
included in, the registration and underwriting. Xxxx shall so advise all holders
of securities requesting registration, and the number of shares or securities
that are entitled to be included in the registration and underwriting shall be
allocated first to Xxxx for securities being sold for its own account and
thereafter among selling stockholders on a pro-rata basis according to their
total holdings. If any person does not agree to the terms of any such
underwriting, he shall be excluded therefrom by written notice from Xxxx or the
underwriter. If shares are so withdrawn from the registration and if the number
of shares of Registrable Securities to be included in such registration was
previously reduced as a result of marketing factors, Xxxx shall then offer
(subject to the availability of a reasonable amount of time to make such offer
before the commencement of a distribution) to all persons who have retained the
right to include securities in the registration the right to include additional
securities in the registration in an aggregate amount equal to the number of
shares so withdrawn, with such shares to be allocated among the persons
requesting inclusion on a pro-rata basis according to their total holdings.
SECTION 6.3. REGISTRATION PROCEDURES. In the case of any registration
by Xxxx under this Article 6 in which Neoprobe participates, Xxxx shall keep
Neoprobe advised in writing as to the initiation of each such registration and
the completion thereof; and Xxxx shall use its best efforts to:
(a) Keep such registration effective for a period of one hundred twenty
(120) days or until Neoprobe has completed the distribution described in the
registration statement relating thereto, whichever occurs sooner; provided,
however, that (i) such one hundred twenty (120) day period shall be extended for
a period of time equal to the period Neoprobe refrains
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from selling any securities included in such registration at the request of an
underwriter of common stock (or other securities) of Xxxx; and (ii) in the case
of any registration of Registrable Securities on Form S-3 which are intended to
be offered on a continuous or delayed basis, such one hundred twenty (120) day
period shall be extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold;
(b) Prepare and file with the Commission 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 under such registration statement;
(c) Furnish such number of prospectuses and other documents incident
thereto, including any amendment of or supplement to the prospectus, as Neoprobe
may reasonably request from time to time;
(d) Notify each seller of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto 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 any 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 or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
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 not misleading or
incomplete in the light of the circumstances then existing; and
(e) Cause all such Registrable Securities registered pursuant
thereunder to be listed on each securities exchange on which securities issued
by Xxxx and of the same class are then listed;
(f) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration;
(g) Comply with all applicable rules and regulations of the Commission,
and make available to its security holders, as soon as reasonably practicable,
an earnings statement covering the period of at least twelve (12) months, but
not more than eighteen (18) months, beginning with the first month after the
effective of the registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act.
SECTION 6.4. INFORMATION BY NEOPROBE. If Registrable Securities are
being registered pursuant to Section 6.2 above, Neoprobe shall furnish to Xxxx
such information regarding Neoprobe and the distribution proposed by it as Xxxx
may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification, or compliance referred to in
this Article 6.
SECTION 6.5. EXPENSES OF REGISTRATION. All expenses incurred by Xxxx in
complying with this Article 6 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for Xxxx, blue sky fees and expenses, and the expense of any special
audits incident to or required by any such registration shall be borne by Xxxx
and all underwriting discounts and selling commissions applicable to the sale of
the Registrable Securities shall be borne by Neoprobe.
SECTION 6.6. INDEMNIFICATION.
(a) Xxxx shall indemnify Neoprobe, each of its officers, directors,
stockholders and legal counsel, and each person who controls (within the meaning
of the Securities Act) Neoprobe against any and all claims, losses and
liabilities (and actions and proceedings in
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respect thereof) arising out of or based on (i) any untrue statement (or alleged
untrue statement) of a material fact contained in any registration statement
filed pursuant to Section 6.2, any prospectus issued thereunder, or any
amendment thereof based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made, or (ii) any violation by Xxxx of any federal or state law, rule or
regulation applicable to Xxxx in connection with any such registration, and will
reimburse Neoprobe, each of its officers, directors, stockholders and legal
counsel, and each person who controls Neoprobe, for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, liability, action or proceeding, as incurred, provided that
Xxxx will not be liable in any such case to the extent that any such claim,
loss, liability, action or proceeding arises out of or is based on any untrue
statement or omission based upon information furnished to Xxxx by Neoprobe in
writing pursuant to Section 6.4 above.
(b) If Shares held by Neoprobe are included in a registration statement
filed pursuant to Section 6.2, Neoprobe shall indemnify Xxxx, each of its
directors and officers, each legal counsel and independent accountant of Xxxx,
each underwriter, if any, of Xxxx'x securities covered by such a registration
statement, each person who controls Xxxx or such underwriter (within the meaning
of the Securities Act), against any and all claims, losses and liabilities (and
actions and proceedings in respect thereof) arising out of or based on (i) any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, any prospectus issued thereunder, or any
amendment thereof, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made, or (ii) breach of the covenant set forth in Section 6.8 below and will
reimburse Xxxx, such directors, officers, counsel, accountants, underwriters or
control persons for any legal or any other expense reasonably incurred in
connection with investigating or defending any such claim, loss, liability,
action or proceeding, as incurred, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, prospectus or other
document in reliance upon and in conformity with information furnished to Xxxx
by Neoprobe in writing pursuant to Section 6.4 above.
(c) Each party entitled to indemnification under this Section 6.6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has received written notice of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld). The Indemnified Party may participate in such defense
at such party's expense; provided, however, that the Indemnifying Party shall
bear the expense of such defense of the Indemnified Party if representation of
both parties by the same counsel would be inappropriate due to actual or
potential conflicts of interest. The failure of any Indemnified Party to give
notice as provided herein shall relieve the Indemnifying Party of its
obligations under this Section 6.6 only to the extent that such failure to give
notice shall materially adversely prejudice the Indemnifying Party in the
defense of any such claim or any such litigation. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 6.6 is held by
a court of competent jurisdiction to be unavailable to an Indemnified Party with
respect
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to any loss, liability, claim, damage, or expense referred to therein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such loss, liability, claim, damage, or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party on the
one hand and of the Indemnified Party on the other in connection with the
statements or omissions that resulted in such loss, liability, claim, damage, or
expense as well as any other relevant equitable considerations. The relative
fault of the Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement shall
control.
SECTION 6.7. "LOCK-UP" AGREEMENT. If requested by an underwriter of
Common Stock, Neoprobe will not sell or otherwise transfer or dispose of any
shares of Xxxx common stock held by Neoprobe (other than those included in the
registration) during a period of up to one hundred eighty (180) days following
the effective date of a registration statement; provided that all persons having
contractual registration rights and all officers and directors of Xxxx enter
into similar agreements. The obligations described in this Section 6.7 shall not
apply to a registration relating solely to employee benefit plans, Rule 145
transactions or exchange offers. Xxxx may impose stop-transfer instructions with
respect to the securities subject to the foregoing restriction until the end of
the applicable period.
SECTION 6.8. RULE 10B-6. Neoprobe hereby covenants and agrees with Xxxx
that, for so long as any of the shares of Xxxx common stock held by Neoprobe are
saleable under a registration statement filed pursuant to this Article 6,
Neoprobe shall not purchase any Xxxx common stock in a transaction that would
violate Commission Rule 10b-6.
SECTION 6.9. TERMINATION OF REGISTRATION RIGHTS. The right of Neoprobe
to request inclusion in any registration pursuant to Section 6.2 above, shall
terminate when, (a) all Registrable Securities held by Neoprobe may be sold by
it under Rule 144(k), (b) the Common Stock (including all Registrable
Securities) are listed on the New York or American Stock Exchange or the Nasdaq
National Market and (c) all transfer restrictions on the Registrable Securities
held by Neoprobe and any legends concerning such restrictions on certificates
representing such stock have been removed.
ARTICLE 7. COVENANTS OF XXXX. From the date hereof until such time as the common
stock of Xxxx has been registered and sold in a firm-commitment underwriting
after the date hereof and unless Neoprobe otherwise consents, Xxxx will perform
and observe the following covenants:
SECTION 7.1. BASIC FINANCIAL INFORMATION. Xxxx will furnish the
following reports to Neoprobe:
(a) As soon as practicable after the end of each quarter and in any
event within twenty (20) days thereafter a consolidated balance sheet of Xxxx
and its subsidiaries, if any, as of the end of such quarter and consolidated
statements of operations and cash flow of Xxxx and its subsidiaries, for each
quarter and for the current fiscal year of Xxxx to date, all subject to normal
year-end audit adjustments, prepared in accordance with generally accepted
accounting principles consistently applied.
(b) As soon as practicable after transmission or occurrence and in any
event within ten (10) days thereof, copies of any reports or communications
delivered to any class of Xxxx'x security holders or
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broadly to the financial community, including any filings by Xxxx with any
securities exchange, the Commission or the National Association of Securities
Dealers.
SECTION 7.2. ADDITIONAL INFORMATION AND RIGHTS.
(a) Xxxx will permit a representative of Neoprobe to visit and inspect
any of the properties of Xxxx, including its books of account and other records
(and make copies thereof and take extracts therefrom), and to discuss its
affairs, finances and accounts with Xxxx'x officers and its independent public
accountants, all upon reasonable notice at such reasonable times and as often as
any such person may reasonably request. Xxxx shall provide to Neoprobe such
other financial information and data with respect to Xxxx and its subsidiaries
as Neoprobe may from time to time reasonably request.
(b) The provisions of this Section 7.2 shall not limit any rights which
Neoprobe may have to inspect and copy the books and records of Xxxx and its
subsidiaries, to inspect their properties or discuss their affairs and finances,
under the laws of the jurisdictions in which they are incorporated.
(c) Neoprobe hereby agrees to hold in confidence and not use for its
own benefit nor disclose any confidential information provided pursuant to this
Section 7.2. Information that is provided to any news media or that is otherwise
publicly available shall not be deemed to be confidential.
(d) Xxxx has no obligation to provide Neoprobe access to Xxxx'x
confidential technical information or data, and nothing in this Section 7.2
shall be construed otherwise.
SECTION 7.3. INDEPENDENT ACCOUNTANTS. The parties have agreed to delete
this section and hereby release any rights thereunder.
SECTION 7.4. ACCOUNTS AND RECORDS. Xxxx shall make and keep books,
records, and accounts, which, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of assets of Xxxx, its subsidiaries
and their employee benefit plans; and shall devise and maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (a)
transactions are executed in accordance with management's general or specific
authorization; (b) transactions have been and are recorded as necessary (i) to
permit preparation of financial statements in conformity with GAAP, and (ii) to
maintain accountability for assets; (c) access to assets is permitted only in
accordance with management's general or specific authorization; and (d) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action has been and is taken with respect
to any differences.
SECTION 7.5. CORPORATE EXISTENCE. The parties have agreed to delete
this section and hereby release any rights thereunder.
SECTION 7.6. MAINTENANCE OF PROPERTIES. The parties have agreed to
delete this section and hereby release any rights thereunder.
SECTION 7.7. INSURANCE. The parties have agreed to delete this section
and hereby release any rights thereunder.
SECTION 7.8. PAYMENT OF TAXES, ETC. The parties have agreed to delete
this section and hereby release any rights thereunder.
SECTION 7.9. COMPLIANCE WITH LAWS. Xxxx shall and shall cause each of
its subsidiaries to comply with all laws, orders of a tribunal or governmental
permits relating to the conduct of their businesses or to their properties or
assets.
SECTION 7.10. PERFORMANCE OF CONTRACTS. The parties have agreed to
delete this section and hereby release any rights thereunder.
SECTION 7.11. NATURE OF THE BUSINESS. The parties have agreed to delete
this section and hereby release any rights thereunder.
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SECTION 7.12. ISSUANCE OF STOCK. The parties have agreed to delete this
section and hereby release any rights thereunder.
SECTION 7.13. DIVIDENDS ON OR REDEMPTION OF SECURITIES. The parties
have agreed to delete this section and hereby release any rights thereunder.
SECTION 7.14. DEBT. The parties have agreed to delete this section and
hereby release any rights thereunder.
SECTION 7.15. LOANS, ADVANCES AND INVESTMENTS. The parties have agreed
to delete this section and hereby release any rights thereunder.
SECTION 7.16. CONSULTING AGREEMENT. The parties have agreed to delete
this section and hereby release any rights thereunder.
SECTION 7.17. INDEMNITY BY XXXX. Xxxx agrees to indemnify and hold
harmless Neoprobe from and against any and all liabilities, costs and expenses,
including reasonable fees of counsel (including fees incurred in establishing
the right to indemnity), resulting from the breach or default in the performance
by Xxxx of any of the covenants or other obligations which it is to perform
hereunder, including the failure by Xxxx or any of its subsidiaries to comply
with any law, order of a tribunal or governmental permit relating to the
environment or the ownership by Xxxx or any of its subsidiaries of property that
does not comply with such laws, orders of a tribunal or governmental permits.
ARTICLE 8. STOCKHOLDERS' COVENANTS. Each of the Stockholders,
individually, covenants to and agrees with Neoprobe that:
SECTION 8.1. VOTING OF STOCK. The parties have agreed to delete this
section and hereby release any rights thereunder.
SECTION 8.2. NO CONTRARY ACTION. The parties have agreed to delete this
section and hereby release any rights thereunder.
SECTION 8.3. TERMINATION OF COVENANTS. The parties have agreed to
delete this section and hereby release any rights thereunder.
SECTION 8.4. TRANSFERS OF STOCKHOLDERS' STOCK. The parties have agreed
to delete this section and hereby release any rights thereunder.
SECTION 8.5. LEGENDS. The parties have agreed to delete this section
and hereby release any rights thereunder.
SECTION 8.6. RIGHT OF FIRST REFUSAL. The parties have agreed to delete
this section and hereby release any rights thereunder.
SECTION 8.7. CERTAIN TRANSFERS. The parties have agreed to delete this
section and hereby release any rights thereunder.
ARTICLE 9. DEFINITIONS.
SECTION 9.1. GENERAL. Certain words and phrases used in this Agreement
shall have the meanings given to them below in this Section.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
"GAAP" means generally accepted accounting principles.
"Includes" means includes, but is not limited to.
"Or" is disjunctive but not exclusive.
"Recapitalization" means, with respect to any security, any issuance of
securities with respect thereto as a dividend or any issuance, combination or
other change in such security pursuant to any amendment of
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the issuer's certificate or articles of incorporation or a merger,
consolidation, purchase or sale of assets, dissolution, or plan of arrangement,
compromise or reorganization of the issuer.
"Rule 144" means Rule 144 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
"Rule 145" means Rule 145 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
"Securities" means securities as such term is defined in the Securities
Act whether or not the securities in question are exempt from any of the
provisions of such act.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar successor federal statute and the rules and regulations thereunder, all
as the same shall be in effect from time to time.
"Securities laws" means the Securities Act, the Exchange Act, all
regulations and rules thereunder, and all applicable state securities or "blue
sky" laws and the rules and regulations thereunder, each as they may be amended
from time to time.
"Stockholders Agreement" means the Stockholders Agreement as amended
among the Stockholders of Xxxx signatories thereto dated of even date herewith.
"Transfer" means every mode, direct or indirect, absolute or
conditional, voluntary or involuntary, of disposing of or parting with an asset
or property or of an interest therein, and includes payment of money, release,
lease, abandonment and creation of a lien or other encumbrance.
SECTION 9.2. OTHER. The following defined terms shall have the
definitions set forth in the sections indicated:
TERM SECTION
---- -------
Additional Shares 2.1
Agreements 3.1
Xxxx Parties
Indemnified Party 6.6 (c)
Indemnifying Party 6.6 (c)
License Agreement 1.1
Neoprobe Parties
Option Preamble 4
Original Agreement Preamble 3
Original Shares Preamble 3
Registrable Securities 6.1 (a)
Registration 6.1 (b)
Restated Agreement Preamble 4
Shares 3.1
Stockholders Parties
Stockholders Agreement Preamble 4
Technology Preamble 1
Technology Agreement Preamble 1
SECTION 9.3. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP.
SECTION 9.4. EFFECT OF DEFINITIONS. The definitions set forth in
Section 9.1 above or referenced in Section 9.2 above shall apply equally to the
singular, plural, adjectival, adverbial and other forms of any of the words and
phrases defined regardless of whether they are capitalized.
SECTION 9.5. THIS AGREEMENT. This Restated Agreement consists of the
title, date, names of parties, and preamble set forth above, these terms, the
signatures of the parties and the information set forth on the signature pages
below, the exhibits attached hereto and the certificates, documents and other
instruments required to be delivered hereunder and any reference to this
Restated Agreement refers to all of such constituents. The date first set forth
above shall
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be deemed to be the date hereof for all purposes. The statements set forth in
the preamble are made for the purpose of providing background information that
will assist persons who read this Restated Agreement in interpreting it. Such
statements do not constitute representations, warranties or covenants of the
parties hereto and they may be contradicted by the parties.
SECTION 9.6. CASE AND GENDER. In this Restated Agreement words in the
singular number include the plural, and in the plural include the singular; and
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender.
ARTICLE 10. MISCELLANEOUS.
SECTION 10.1. OPPORTUNITIES. Nothing contained in this Restated
Agreement or Neoprobe's ownership of the Shares shall require Neoprobe to offer
any business opportunity to Xxxx or provide any funds to Xxxx not specifically
mentioned in this Restated Agreement.
SECTION 10.2. SURVIVAL. The representations, warranties, covenants and
agreements made by the parties herein shall survive any investigation made by
Neoprobe or Xxxx and shall survive the closing of the transactions contemplated
hereby.
SECTION 10.3. EXPENSES. Xxxx and Neoprobe shall each bear its own
expenses and legal fees incurred on its behalf with respect to this Restated
Agreement and the transactions contemplated hereby.
SECTION 10.4. NOTICES. Any notice, request or other communication
required or permitted to be given under this Restated Agreement shall be in
writing and deemed to have been properly given: (a) when delivered, if delivered
in person; (b) when sent, if sent by telecopy or other electronic means and
confirmation of receipt is received; (c) the day designated as the delivery
date, if sent by nationally recognized overnight courier service; or (d) two (2)
days after being sent, if sent by certified or registered United States mail,
return receipt requested, postage prepaid, addressed to the party at the address
set forth next to such party's signature hereto and with such copies delivered,
transmitted, couriered or mailed to such persons as are specified therein. Any
party may change his address for notices in the manner set forth above.
SECTION 10.5. SUCCESSORS. The terms of this Restated Agreement shall be
binding upon and inure to the benefit of the parties and their respective heirs,
personal representatives or corporate successors.
SECTION 10.6. PRIOR AGREEMENTS AND NEGOTIATIONS. This Restated
Agreement, the schedules and exhibits hereto and the agreements and instruments
required to be executed and delivered hereunder set forth the entire agreement
of the parties with respect to the subject matter hereof and supersede and
discharge all prior agreements (written or oral) and negotiations and all
contemporaneous oral agreements concerning such subject matter and negotiations.
There are no oral conditions precedent to the effectiveness of this Agreement.
SECTION 10.7. NON-WAIVER. Neither the failure of nor any delay by any
party to this Restated Agreement to enforce any right hereunder or to demand
compliance with its terms is a waiver of any right hereunder. No action taken
pursuant to this Restated Agreement on one or more occasions is a waiver of any
right hereunder or constitutes a course of dealing that modifies this Restated
Agreement.
SECTION 10.8. WAIVERS. No waiver of any right or remedy under this
Restated Agreement shall be binding on any party unless it is in writing and is
signed by the party to be charged. No such waiver of any right or remedy under
any term of this Restated Agreement shall in any event be deemed to apply to any
subsequent default under the same or any other term contained herein.
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SECTION 10.9. AMENDMENTS. No amendment, modification or termination of
this Restated Agreement shall be binding on any party hereto unless it is in
writing and is signed by the party to be charged.
SECTION 10.10. SEVERABILITY. The terms of this Restated Agreement are
severable and the invalidity of all or any part of any term of this Restated
Agreement shall not render invalid the remainder of this Restated Agreement or
the remainder of such term. If any term of this Restated Agreement is so broad
as to be unenforceable, such term shall be interpreted to be only so broad as is
enforceable.
SECTION 10.11. THIRD PARTIES. Nothing herein expressed or implied is
intended or shall be construed to give any person other than the parties hereto
any rights or remedies under this Restated Agreement.
SECTION 10.12. JOINT PREPARATION. This Restated Agreement shall be
deemed to have been prepared jointly by the parties hereto. Any ambiguity herein
shall not be interpreted against any party hereto and shall be interpreted as if
each of the parties hereto had prepared this Restated Agreement.
SECTION 10.13. SATURDAYS, SUNDAYS AND HOLIDAYS. Where this Restated
Agreement authorizes or requires a payment or performance on a Saturday, Sunday
or public holiday, such payment or performance shall be deemed to be timely if
made on the next succeeding business day.
SECTION 10.14. COUNTERPARTS. This Restated Agreement may be executed in
any number of counterparts, all of which shall constitute one and the same
instrument, and any party hereto may execute this Restated Agreement by signing
one or more counterparts.
SECTION 10.15. GOVERNING LAW. The validity, terms, performance and
enforcement of this Restated Agreement shall be governed by laws of the State of
Ohio that are applicable to agreements negotiated, executed, delivered and
performed solely in the State of Ohio.
SECTION 10.16. ARBITRATION. Any disputes, controversies or claims
arising out of or relating to the negotiation, execution, delivery, performance
or breach of this Restated Agreement shall be settled by arbitration conducted
in Franklin County, Ohio in accordance wit the Commercial Arbitration Rules of
the American Arbitration Association and judgment upon the award rendered by the
arbitrators may be entered in any Court having jurisdiction thereof. If the
amount claimed or disputed in such arbitration is equal to or more than One
Hundred Thousand Dollars ($100,000), it shall be conducted before a panel of
three arbitrators. All proceedings before and papers submitted to any arbitrator
hereunder shall be held in the strictest confidence by the parties, the
arbitrators and any attorneys participating therein.
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IN WITNESS WHEREOF, the parties hereto have caused this Restated Agreement
to be duly executed as of the date first above written.
ADDRESS: NEOPROBE CORPORATION
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxx 00000-0000 By: /s/ Xxxxx Xxxx
-------------------------------
Xxxxx X. Xxxx, President
XXXX TECHNOLOGIES, INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Xxxxxxx X. Xxxxx, President
00000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000 /s/ Xxxxxxx X. Xxxxx
------------------------------------
XXXXXXX X. XXXXX
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 /s/ Xxxx X. Xxxxxxxxx
------------------------------------
XXXX X. XXXXXXXXX
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000 /s/ Xxxxxxx XxXxxxxx
------------------------------------
XXXXXXX XXXXXXXX
0000 Xxxxx Xxxxx 00 XX
Xxxxxx, Xxxx 00000 /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
XXXXX X. XXXXXXXXX
XXXXXXX & XXXXX, LTD.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxx 00000 By: /s/ X. X. Xxxxxxx, Xx.
--------------------------------
Name: X. X. Xxxxxxx, Xx.
Title: Member
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 /s/ Xxxxxx X. Xxxxxxx
------------------------------------
XXXXXX X. XXXXXXX
0000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000 /s/ Xxxxxxx Xxxx
------------------------------------
XXXXXXX XXXX
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