EXHIBIT 10.35
Series S
No. S-001
THE WARRANT REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES
ISSUABLE UPON EXERCISE HEREOF MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), (ii) AN EXEMPTION FROM
REGISTRATION, OR (iii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH
ACT (OR ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF
SECURITIES).
WARRANT TO PURCHASE COMMON STOCK
WARRANT TO PURCHASE COMMON STOCK ("Warrant") dated November 21, 2003
between NEOPROBE CORPORATION, a Delaware corporation (the "Company"), and
Alberdale Capital, LLC (the "Purchaser").
WHEREAS, the Company hereby grants to Alberdale Capital, LLC or its
registered assigns (the "Registered Holder") the right to purchase from the
Company 78,261 shares of the Company's common stock, par value $.001 per share
("Common Stock") at a price per share of $.28 (as adjusted from time to time
hereunder, the "Exercise Price"). Certain capitalized terms used herein are
defined in Section 5 hereof. The amount and kind of securities obtainable
pursuant to the rights granted hereunder and the purchase price for such
securities are subject to adjustment pursuant to the provisions contained in
this Warrant.
This Warrant is subject to the following provisions:
Section 1. Exercise of Warrant.
1.1. Exercise Period. The Registered Holder may exercise, in
whole or in part, the purchase rights represented by this Warrant at any time
and from time to time after November __, 2003 (hereinafter, the "Commencement
Date") to and including 5:00 p.m., New York time, on the fifth anniversary of
the Commencement Date or, if such day is not a Business Day, on the next
preceding Business Day (the "Exercise Period"). The Company shall give the
Registered Holder written notice of the expiration of the rights hereunder at
least thirty (30) days but not more than ninety (90) days prior to the end of
the Exercise Period.
1.2. Exercise Procedure.
(a) This Warrant shall be deemed to have been
exercised when the Company has received all of the following items (the
"Exercise Time"):
(i) a completed Exercise Agreement, as described
in paragraph 1.3 below, executed by the Person exercising all or part of
the purchase rights represented by this Warrant (the "Purchaser");
(ii) this Warrant;
(iii) if this Warrant is not registered in the
name of the Purchaser, an Assignment or Assignments evidencing the
assignment of this Warrant to the Purchaser, in which case the Registered
Holder shall have 9complied with the provisions set forth in Section 7
hereof; and
(iv) either (1) a check payable to the Company in
an amount equal to the product of the Exercise Price multiplied by the
number of shares of Common Stock being purchased upon such exercise (the
"Aggregate Exercise Price"), (2) the surrender to the Company of debt or
equity securities of the Company having a Fair Market Value equal to the
Aggregate Exercise Price of the Common Stock being purchased upon such
exercise (provided, that for purposes of this subparagraph, the Fair Market
Value of any note or other debt security or any preferred stock shall be
deemed to be equal to the aggregate outstanding principal amount or
liquidation value thereof plus all accrued and unpaid interest thereon or
accrued or declared and unpaid dividends thereon) or (3) a written notice
to the Company that the Purchaser is exercising the Warrant (or a portion
thereof) on a "cashless" basis by authorizing the Company to withhold from
issuance a number of shares of Common Stock issuable upon such exercise of
the Warrant which when multiplied by the Fair Market Value of the Common
Stock is equal to the Aggregate Exercise Price (and such withheld shares
shall no longer be issuable under this Warrant).
(b) Certificates for shares of Common Stock purchased upon
exercise of this Warrant shall be delivered by the Company to the Purchaser
within three (3) Business Days after the date of the Exercise Time. Unless this
Warrant has expired or all of the purchase rights represented hereby have been
exercised, the Company shall prepare a new Warrant, substantially identical
hereto, representing the rights formerly represented by this Warrant which have
not expired or been exercised and shall within such three-day period, deliver
such new Warrant to the Person designated for delivery in the Exercise
Agreement.
(c) The Common Stock issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Purchaser at the Exercise
Time, and the Purchaser shall be deemed for all purposes to have become the
record holder of such Common Stock at the Exercise Time.
(d) The issuance of certificates for shares of Common Stock
upon exercise of this Warrant shall be made without charge to the Registered
Holder or the Purchaser for any issuance tax in respect thereof or other cost
incurred by the Company in connection with such exercise and the related
issuance of shares of Common Stock. Each share of Common Stock issuable upon
exercise of this Warrant shall upon payment of the Exercise Price therefor, be
fully paid and nonassessable and free from all liens and charges with respect to
the issuance thereof.
(e) The Company shall not close its books against the
transfer of this Warrant or of any share of Common Stock issued or issuable upon
the exercise of this Warrant in any manner which interferes with the timely
exercise of this Warrant. The Company shall from time to time take all such
action as may be necessary to assure that the par value per share of the
unissued Common
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Stock acquirable upon exercise of this Warrant is at all times equal to or less
than the Exercise Price then in effect.
(f) The Company shall assist and cooperate with any
Registered Holder or Purchaser required to make any governmental filings or
obtain any governmental approvals prior to or in connection with any exercise of
this Warrant (including, without limitation, making any filings required to be
made by the Company).
(g) Notwithstanding any other provision hereof, if an
exercise of all or any portion of this Warrant is to be made in connection with
a registered public offering, a sale of the Company or any transaction or event,
such exercise may, at the election of the Registered Holder hereof, be
conditioned upon the consummation of such transaction or event in which case
such exercise shall not be deemed to be effective until the consummation of such
transaction or event.
(h) The Company shall at all times reserve and keep
available out of its authorized but unissued shares of Common Stock solely for
the purpose of issuance upon the exercise of this Warrant, such number of shares
of Common Stock as are issuable upon the exercise of this Warrant. All shares of
Common Stock which are so issuable shall, when issued, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and charges.
The Company shall take all such actions as may be necessary to assure that all
such shares of Common Stock may be so issued without violation of any applicable
law or governmental regulation or any requirements of any domestic securities
exchange upon which shares of Common Stock may be listed (except for official
notice of issuance which shall be immediately delivered by the Company upon each
such issuance). The Company shall not take any action which would cause the
number of authorized but unissued shares of Common Stock to be less than the
number of such shares required to be reserved hereunder for issuance upon
exercise of this Warrant. The Company will use its best efforts to cause the
shares of Common Stock, immediately upon such exercise, to be listed on any
domestic securities exchange upon which shares of Common Stock or other
securities constituting such shares of Common Stock are listed at the time of
such exercise.
1.3. Exercise Agreement. Upon any exercise of this Warrant,
the Exercise Agreement shall be substantially in the form set forth in either
Exhibit I or Exhibit II attached hereto, except that if the shares of Common
Stock are not to be issued in the name of the Person in whose name this Warrant
is registered, the Exercise Agreement shall also state the name of the Person to
whom the certificates for the shares of Common Stock are to be issued, and if
the number of shares of Common Stock to be issued does not include all the
shares of Common Stock purchasable hereunder, it shall also state the name of
the Person to whom a new Warrant for the unexercised portion of the rights
hereunder is to be delivered. Such Exercise Agreement shall be dated the actual
date of execution thereof.
1.4. Fractional Shares. If the Common Stock is listed on any
securities exchange or quoted on the Nasdaq Stock Market System or the
over-the-counter market and a fractional share of Common Stock would, but for
the provisions of this paragraph 1.4, be issuable upon exercise of the rights
represented by this Warrant, the Company shall, within five (5) Business Days
after the date of the Exercise Time, deliver to the Purchaser a check payable to
the Purchaser in lieu of such
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fractional share in an amount equal to the difference between Fair Market Value
of such fractional share as of the date of the Exercise Time and the Exercise
Price of such fractional share.
Section 2. Adjustment of Exercise Price and Number of Shares
of Common Stock. In order to prevent dilution of the rights granted under this
Warrant and grant the holder hereof certain additional rights, the Exercise
Price and the number of shares of Common Stock obtainable upon exercise of this
Warrant shall be subject to adjustment from time to time as provided in this
Section 2.
2.1. Computation of Adjusted Exercise Price. Except as
hereinafter provided, in case the Company shall at any time after the date
hereof issue or sell any shares of Common Stock, other than the issuances or
sales referred to in Section 2.7 hereof ("Excluded Issuances"), including shares
held in the Company's treasury and shares of Common Stock issued upon the
exercise of any outstanding options, rights or warrants, to subscribe for shares
of Common Stock and shares of Common Stock issued upon the direct or indirect
conversion or exchange of securities for shares of Common Stock, for a
consideration per share less than the Exercise Price in effect immediately prior
to the issuance or sale of such shares, or without consideration, then forthwith
upon such issuance or sale, the Exercise Price shall (until another issuance or
sale) be reduced to the price (calculated to the nearest full cent) equal to the
quotient derived by dividing (i) an amount equal to the sum of (a) the total
number of shares of Common Stock outstanding immediately prior to the issuance
or sale of such shares, multiplied by the Exercise Price in effect immediately
prior to such issuance or sale, and (b) the aggregate of the amount of all
consideration, if any, received by the Company upon such issuance or sale, by
(ii) the total number of shares of Common Stock outstanding immediately after
such issuance or sale; provided, however, that in no event shall the Exercise
Price be adjusted pursuant to this computation to an amount in excess of the
Exercise Price in effect immediately prior to such computation, except in the
case of a combination of outstanding shares of Common Stock, as provided by
Section 2.3 hereof.
For the purposes of this Section 2 the term "Exercise Price" shall mean
the Exercise Price per share of Common Stock set forth in Section 5 hereof, as
adjusted from time to time pursuant to the provisions of this Section 2.
For the purposes of any computation to be made in accordance with this
Section 2.1, the following provisions shall apply:
(i) In case of the issuance or sale of shares of Common Stock
for a consideration, part or all of which shall be cash, the amount of the cash
consideration therefor shall be deemed to be the amount of cash received by the
Company for such shares (or, if shares of Common Stock are offered by the
Company for subscription, the subscription price, or if either of such
securities shall be sold to underwriters or dealers for public offering without
a subscription offering, the initial public offering price) before deducting
therefrom any compensation paid or discount allowed in the sale, underwriting or
purchase thereof by underwriters or dealers or others performing similar
services, or any expenses incurred in connection therewith.
(ii) In case of the issuance or sale (otherwise than as a
dividend
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or other distribution on any stock of the Company) of shares of Common Stock for
a consideration part or all of which shall be other than cash, the amount of the
consideration therefor other than cash shall be deemed to be the value of such
consideration as determined in good faith by the Board of Directors of the
Company.
(iii) Shares of Common Stock issuable by way of dividend or other
distribution on any capital stock of the Company shall be deemed to have been
issued immediately after the opening of business on the day following the record
date for the determination of stockholders entitled to receive such dividend or
other distribution and shall be deemed to have been issued without
consideration.
(iv) The reclassification of securities of the Company other than
shares of Common Stock into securities including shares of Common Stock shall be
deemed to involve the issuance of such shares of Common Stock for a
consideration other than cash immediately prior to the close of business on the
date fixed for the determination of security holders entitled to receive such
shares, and the value of the consideration allocable to such shares of Common
Stock shall be determined as provided in subsection (ii) of this Section 2.1.
(v) The number of shares of Common Stock at any one time
outstanding shall include the aggregate number of shares issued or issuable
(subject to readjustment upon the actual issuance thereof) upon the exercise of
options, rights, warrants and upon the conversion or exchange of convertible or
exchangeable securities.
(vi) As used herein, the phrase "Market Price" at any date shall
be deemed to be the last reported sale price, or, in case no such reported sale
takes place on such day, the average of the last reported sale prices for the
last three (3) trading days, in either case as officially reported by the
principal securities exchange on which the Common Stock is listed or admitted to
trading, or, if the Common Stock is not listed or admitted to trading on any
national securities exchange, the average closing bid price as furnished by the
NASD through NASDAQ or similar organization if NASDAQ is no longer reporting
such information, or if the Common Stock is not quoted on NASDAQ, as determined
in good faith by resolution of the Board of Directors of the Company, based on
the best information available to it.
2.2. Options, Rights, Warrants and Convertible and Exchangeable
Securities. In case the Company shall at any time after the date hereof issue
options, rights or warrants to subscribe for shares of Common Stock, or issue
any securities convertible into or exchangeable for shares of Common Stock,
other than Excluded Issuances, for a consideration per share less than the
Exercise Price in effect or the Market Price immediately prior to the issuance
of such options, rights or warrants, or such convertible or exchangeable
securities, or without consideration, the Exercise Price in effect immediately
prior to the issuance of such options, rights or warrants, or such convertible
or exchangeable securities, as the case may be, shall be reduced to a price
determined by making a computation in accordance with the provisions of Section
2.1 hereof, provided that:
(a) The aggregate maximum number of shares of Common Stock, as
the case may be, issuable under such options, rights or warrants shall be deemed
to be issued and outstanding at the time such options, rights or warrants were
issued, and for a consideration equal to the minimum purchase price per share
provided for in such options, rights or warrants at the time of issuance, plus
the
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consideration (determined in the same manner as consideration received on the
issue or sale of shares in accordance with the terms of the Series R Warrants),
if any, received by the Company for such options, rights or warrants.
(b) The aggregate maximum number of shares of Common Stock
issuable upon conversion or exchange of any convertible or exchangeable
securities shall be deemed to be issued and outstanding at the time of issuance
of such securities, and for a consideration equal to the consideration
(determined in the same manner as consideration received on the issue or sale of
shares of Common Stock in accordance with the terms of the Series R Warrants)
received by the Company for such securities, plus the minimum consideration, if
any, receivable by the Company upon the conversion or exchange thereof.
(c) If any change shall occur in the price per share provided for
in any of the options, rights or warrants referred to in subsection (a) of this
Section 2.2, or in the price per share at which the securities referred to in
subsection (b) of this Section 2.2 are convertible or exchangeable, such
options, rights or warrants or conversion or exchange rights, as the case may
be, shall be deemed to have expired or terminated on the date when such price
change became effective in respect of shares not theretofore issued pursuant to
the exercise or conversion or exchange thereof, and the Company shall be deemed
to have issued upon such date new options, rights or warrants or convertible or
exchangeable securities at the new price in respect of the number of shares
issuable upon the exercise of such options, rights or warrants or the conversion
or exchange of such convertible or exchangeable securities.
2.3. Subdivision and Combination. In case the Company shall at
any time subdivide or combine the outstanding shares of Common Stock, the
Exercise Price shall forthwith be proportionately decreased in the case of
subdivision or increased in the case of combination.
2.4. Adjustment in Number of Securities. Upon each adjustment of
the Exercise Price pursuant to the provisions of this Section 2, the number of
shares of Common Stock issuable upon the exercise of this Warrant shall be
adjusted to the nearest full amount by multiplying a number equal to the
Exercise Price in effect immediately prior to such adjustment by the number of
shares of Common Stock issuable upon exercise of this Warrant immediately prior
to such adjustment and dividing the product so obtained by the adjusted Exercise
Price.
2.5. Definition of Common Stock. For the purpose of this
Agreement, the term "Common Stock" shall mean (i) the class of stock designated
as Common Stock in the Certificate of Incorporation of the Company as may be
amended as of the date hereof, or (ii) any other class of stock resulting from
successive changes or reclassifications of such Common Stock consisting solely
of changes in par value, or from par value to no par value, or from no par value
to par value. In the event that the Company shall after the date hereof issue
securities with greater or superior voting rights than the shares of Common
Stock outstanding as of the date hereof, the Holder, at its option, may receive
upon exercise of this Warrant either shares of Common Stock or a like number of
such securities with greater or superior voting rights.
2.6. Merger or Consolidation. In case of any consolidation of the
Company with, or
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merger of the Company with, or merger of the Company into, or sale by the
Company of all or substantially all of its assets to another corporation (other
than a consolidation or merger which does not result in any reclassification or
change of the outstanding Common Stock), the corporation formed by such
consolidation or merger or acquiror of such assets shall execute and deliver to
the Holder a supplemental warrant agreement providing that the Holder of each
Warrant then outstanding or to be outstanding shall have the right thereafter
(until the expiration of such Warrant) to receive, upon exercise of such
Warrant, the kind and amount of shares of stock and other securities and
property receivable upon such consolidation or merger, by a holder of the number
of shares of Common Stock of the Company for which such Warrant might have been
exercised immediately prior to such consolidation, merger, sale or transfer.
Such supplemental warrant agreement shall provide for adjustments which shall be
identical to the adjustments provided in Section 2. The above provision of this
subsection shall similarly apply to successive consolidations or mergers.
2.7. No Adjustment of Exercise Price in Certain Cases. No
adjustment of the Exercise Price shall be made:
(a) Upon the issuance or sale of this Warrant, any Series R
Warrant or Series S Warrant, or the shares of Common Stock issuable upon the
exercise of any of the foregoing, or any other options, rights or warrants
issued and outstanding on the date hereof;
(b) If the amount of said adjustment shall be less than 2 cents
($.02) per Warrant, provided, however, that in such case any adjustment that
would otherwise be required then to be made shall be carried forward and shall
be made at the time of and together with the next subsequent adjustment which,
together with any adjustment so carried forward, shall amount to at least 2
cents ($.02) per Warrant; or
(c) (i)the issuance of Common Stock to employees, consultants,
officers or directors of the Corporation pursuant to stock purchase or stock
option plans or agreements approved by the Board of Directors of the Corporation
(the "Board"), (ii) the issuance of Common Stock (or securities exercisable for
or converted into Common Stock) representing in the aggregate not more than 2%
of the outstanding Common Stock of the Company to vendors, distributors,
suppliers, financial institutions or lessors in connection with commercial
credit arrangements, equipment financings or similar transactions approved by
the Board, or (iii) the issuance of securities pursuant to transactions
involving the in-licensing of technology or products or the development of
technology or products on behalf of the Company unanimously approved by the
Board.
2.8. Dividends and Other Distributions. In the event that the
Company shall at any time prior to the exercise of the Warrant declare a
dividend (other than a dividend consisting solely of shares of Common Stock) or
otherwise distribute to its stockholders any assets, property, rights, evidences
of indebtedness, securities (other than shares of Common Stock), whether issued
by the Company or by another, or any other thing of value, the Holder of any
unexercised portion of this Warrant shall thereafter be entitled, in addition to
the shares of Common Stock or other securities and property receivable under the
exercise thereof, to receive, upon the exercise of thereof, the same property,
assets, rights, evidences of indebtedness, securities or any other thing of
value that they would have been entitled to receive at the time of such dividend
or distribution as if such unexercised portion
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had been exercised immediately prior to such dividend or distribution. At the
time of any such dividend or distribution, the Company shall make appropriate
reserves to ensure the timely performance of the provisions of this Subsection
2.8.
2.9. Notices.
(a) Immediately upon any adjustment of the Exercise Price,
the Company shall give written notice thereof to the Registered Holder, setting
forth in reasonable detail and certifying the calculation of such adjustment.
(b) The Company shall give written notice to the Registered
Holder at least twenty (20) days prior to the date on which the Company closes
its books or takes a record (A) with respect to any dividend or distribution
upon the Common Stock, (B) with respect to any pro rata subscription offer to
holders of Common Stock, or (C) for determining rights to vote with respect to
any Liquidation Event or other dissolution or liquidation.
(c) The Company shall also give written notice to the
Registered Holder at least twenty (20) days prior to the date on which any
Liquidation Event or other dissolution or liquidation shall take place.
Section 3. Liquidating Dividends. If the Company declares or
pays a dividend upon the Common Stock payable otherwise than in cash out of
earnings or earned surplus (determined in accordance with generally accepted
accounting principles, consistently applied) except for a stock dividend payable
in shares of Common Stock (a "Liquidating Dividend"), then the Company shall pay
to the Registered Holder of this Warrant at the time of payment thereof the
Liquidating Dividend which would have been paid to such Registered Holder on the
Common Stock had this Warrant been fully exercised immediately prior to the date
on which a record is taken for such Liquidating Dividend, or, if no record is
taken, the date as of which the record holders of Common Stock entitled to such
dividends are to be determined.
Section 4. Purchase Rights. If at any time the Company grants,
issues or sells any Options, Convertible Securities or rights to purchase stock,
warrants, securities or other property pro rata to the record holders of any
class of Common Stock (the "Purchase Rights"), then the Registered Holder of
this Warrant shall be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which such holder could have
acquired if such holder had held the number of shares of Common Stock acquirable
upon complete exercise of this Warrant immediately before the date on which a
record is taken for the grant, issuance or sale of such Purchase Rights, or, if
no such record is taken, the date as of which the record holders of Common Stock
are to be determined for the grant, issue or sale of such Purchase Rights.
Section 5. Definitions. The following terms have meanings set
forth below:
"Board of Directors" means the board of directors of the
Company.
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"Business Day" means any day other than a Saturday, a Sunday
or a day on which banks in New York City are authorized or obligated by law or
executive order to close.
"Common Stock" means the Company's Common Stock, par value
$0.001 per share, and except for purposes of the shares obtainable upon exercise
of this Warrant, any capital stock of any class of the Company hereafter
authorized which is not limited to a fixed sum or percentage of par or stated
value in respect to the rights of the holders thereof to participate in
dividends or in the distribution of assets upon any liquidation, dissolution or
winding up of the Company.
"Convertible Securities" means any stock or securities
(directly or indirectly) convertible into or exchangeable for Common Stock.
"Exchange Act" means the Securities and Exchange Act of 1934,
as amended.
"Fair Market Value" means as to any security, the greater of
either (i) the closing price on the day "Fair Market Value" is to be determined
or (ii) the average of the closing prices of such security's sales on the New
York Stock Exchange, the American Stock Exchange or any other domestic
securities exchanges on which such security may at the time be listed, or, if
there have been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed, the average of the
representative bid and asked prices quoted in the Nasdaq Stock Market as of 4:00
P.M., New York time, on such day, or, if on any day such security is not quoted
in the Nasdaq Stock Market, the average of the highest bid and lowest asked
prices on such day in the domestic over-the-counter market as reported by the
National Quotation Bureau, Incorporated, or any similar successor organization
(collectively, a "Securities Exchange"), in each such case averaged over a
period of three (3) days consisting of the day as of which "Fair Market Value"
is being determined and the two (2) consecutive Business Days prior to such day.
If at any time such security is not listed or quoted on any Securities Exchange,
the "Fair Market Value" shall be the fair value thereof determined jointly by
the Company and the Registered Holders of Series R Warrants and Series S
Warrants representing a Majority of the Common Stock purchasable upon exercise
of all the Series R Warrants and Series S Warrants then outstanding; provided,
that if such parties are unable to reach agreement within a reasonable period of
time, such fair value shall be determined by an appraiser jointly selected by
the Company and the Registered Holders of Series R and Series S Warrants
representing two-thirds of the Common Stock purchasable upon exercise of all the
Series R and Series S Warrants then outstanding. The determination of such
appraiser shall be final and binding on the Company and the Registered Holders
of the Warrants, and the fees and expenses of such appraiser shall be paid by
the Company.
"Liquidation Event" means (a) the liquidation, dissolution or
winding up of the Company, (b) any merger, reorganization or consolidation to
which the Company is a party, except for a merger, reorganization or
consolidation in which the Company is the surviving Company, the terms of the
Warrants or Common Stock are not changed and neither the Warrants nor Common
Stock are exchanged for cash, securities or other property, and after giving
effect to such merger, reorganization or consolidation, the holders of the
Company's outstanding capital stock possessing a majority of the voting power
(under ordinary circumstances) to elect a majority of the Board of
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Directors immediately prior to the merger, reorganization or consolidation shall
continue to own the Company's outstanding capital stock possessing the voting
power (under ordinary circumstances) to elect a majority of the Board of
Directors, (c) any sale or transfer of more than 50% of the assets of the
Company and its Subsidiaries on a consolidated basis (measured either by book
value in accordance with generally accepted accounting principles consistently
applied or by fair market value determined in the reasonable good faith judgment
of the Board of Directors) in any transaction or series of transactions and (d)
any sale, transfer or issuance or series of sales, transfers and/or issuances of
Common Stock or other securities by the Company or any holders thereof which
results in either (i) any Person or group of Persons (as the term "group" is
used under the Exchange Act), beneficially owning (as such term is used in the
Exchange Act) more than 50% of the Common Stock outstanding or on a fully
diluted basis at the time of such sale, transfer or issuance or series of sales,
transfers and/or issuances or (ii) Persons beneficially owning the Common Stock
outstanding or on a fully diluted basis at the time of such sale, transfer or
issuance or series of sales, transfers and/or issuances beneficially owning less
than 50% of the Common Stock outstanding or on a fully diluted basis following
such sale, transfer or issuance or series of sales, transfers and/or issuances.
"Options" means any rights or options to subscribe for or
purchase Common Stock or Convertible Securities.
"Person" means an individual, a partnership, a joint venture,
a corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"Series R Warrants" means the warrants to purchase 6,086,959
shares of Common Stock which were designated as Series R Warrants that were
issued by the Company to certain purchasers (the "Purchasers") in connection
with a private placement of securities contemporaneously with the issuance of
this Warrant.
"Series S Warrants" means the warrants to purchase 1,432,609
shares of Common Stock which are designated as Series S Warrants, and of which
series this Warrant is a part.
Section 6. No Voting Rights; Limitations of Liability. This
Warrant shall have voting rights as provided in the Company's Certificate of
Incorporation. No provision hereof, in the absence of affirmative action by the
Registered Holder to purchase Common Stock, and no enumeration herein of the
rights or privileges of the Registered Holder shall give rise to any liability
of such Registered Holder for the Exercise Price of Common Stock acquirable by
exercise hereof or as a stockholder of the Company.
Section 7. Warrant Transferable. Subject to the transfer
conditions referred to in the legend endorsed hereon, this Warrant and all
rights hereunder are transferable, in whole or in part, without charge to the
Registered Holder, upon surrender of this Warrant with a properly executed
Assignment (in the form of Exhibit III hereto) at the principal office of the
Company.
Section 8. Warrant Exchangeable for Different Denominations.
This Warrant is exchangeable, upon the surrender hereof by the Registered Holder
at the principal office of the
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Company, for new Warrants of like tenor representing in the aggregate the
purchase rights hereunder, and each of such new Warrants shall represent such
portion of such rights as is designated by the Registered Holder at the time of
such surrender. All Warrants representing portions of the rights hereunder are
referred to herein as the "Warrants."
Section 9. Replacement. Upon receipt of evidence reasonably
satisfactory to the Company (an affidavit of the Registered Holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing this Warrant, and in the case of any such loss, theft
or destruction, upon receipt of an unsecured indemnity agreement of the
Registered Holder in form reasonably satisfactory to the Company, or, in the
case of any such mutilation upon surrender of such certificate, the Company
shall (at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the same rights represented by such lost,
stolen, destroyed or mutilated certificate and dated the date of such lost,
stolen, destroyed or mutilated certificate.
Section 10. Notices. Except as otherwise expressly provided
hereunder, all notices referred to herein shall be in writing and shall be (i)
delivered in person, (ii) transmitted by facsimile, (iii) sent by registered or
certified mail, postage prepaid with return receipt requested, or (iv) sent by
reputable overnight courier service, fees prepaid, to (x) the Company, at its
principal executive offices and (y) to any Registered Holder, at such Registered
Holder's address as it appears in the records of the Company (unless otherwise
indicated by any such Registered Holder). Notices shall be deemed given upon
personal delivery, upon receipt of return receipt in the case of delivery by
mail, upon acknowledgment by the receiving facsimile machine or one day
following deposit with an overnight courier service.
Section 11. Amendment and Waiver. Except as otherwise provided
herein, the provisions of the Warrants may be amended and the Company may take
any action herein prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written consent of the
Registered Holders of Series R and Series S Warrants representing a majority of
the shares of Common Stock obtainable upon exercise of outstanding Series R and
Series S Warrants; provided, that no such action may change the Exercise Price
of the Warrants or the number of shares or class of stock obtainable upon
exercise of each Warrant without the written consent of the Registered Holders
of Warrants representing 100% of the shares of Common Stock obtainable upon
exercise of the Warrants.
Section 12. Warrant Register. The Company shall maintain at
its principal executive offices books for the registration and the registration
of transfer of Warrants. The Company may deem and treat the Registered Holder as
the absolute owner hereof (notwithstanding any notation of ownership or other
writing hereon made by anyone) for all purposes and shall not be affected by any
notice to the contrary.
Section 13. Governing Law. 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 AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
11
WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS PRINCIPLES. THE PARTIES HERETO
FURTHER AGREE AND ACKNOWLEDGE THAT ANY DISPUTE OR CONTROVERSY ARISING OUT OF OR
IN ANY MANNER WHATSOEVER RELATING TO THIS WARRANT SHALL BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK LOCATED IN THE STATE OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS WARRANT HEREBY (i) ACCEPTS THE JURISDICTION OF THE AFORESAID
COURTS; (ii) IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT OF ANY SUCH COURT
WITH RESPECT TO THIS WARRANT; AND (iii) IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE, COURT, ACTION OR PROCEEDING WITH RESPECT TO THIS WARRANT
BROUGHT IN ANY SUCH COURT AND FURTHER IRREVOCABLY WAIVES ANY SUCH CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
Section 14. Headings. The headings of the various sections of
this Warrant have been inserted for reference only and shall not be deemed to be
a part of this Warrant .
Section 15. Specific Performance. The Company, on the one
hand, and the holder of this Warrant, on the other hand, acknowledge that money
damages would not be a sufficient remedy for any breach of this Warrant. It is
accordingly agreed that the parties shall be entitled to specific performance
and injunctive relief as remedies for any such breach, these remedies being in
addition to any of the remedies to which they may be entitled at law or equity.
Section 16. Remedies Cumulative. Except as otherwise provided
herein, the remedies provided herein shall be cumulative and shall not preclude
the assertion by any party hereto of any other rights or the seeking of any
other remedies against any other party hereto.
Section 17. No Third Party Beneficiaries. Except as
specifically set forth or referred to herein, nothing herein is intended or
shall be construed to confer upon any person or entity other than the parties
hereto and their successors or assigns, any rights or remedies under or by
reason of this Warrant.
Section 18. Severability. If any term, provision, covenant or
restriction of this Warrant is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Warrant shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
Section 19. Entire Agreement; Modification. This Warrant
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and may not be modified or amended except by a writing
duly signed by the party against whom enforcement of the modification or
amendment is sought.
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Section 20. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Warrant. In the
event an ambiguity or question of intent or interpretation arises, this Warrant
shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Warrant.
Section 21. Registration Rights. The Company shall include the
shares of Common Stock issuable on exercise of this Warrant in any registration
statement filed to register under the Act the sale to the public of shares of
Common Stock issuable upon the exercise of the Series R Warrants pursuant to
Registration Rights Agreements between the Company and the Purchasers, and the
Registered Holder shall have the same rights and obligations as the Purchasers
the Registration Rights Agreements with respect to the preparation and filing of
any such registration statement, the payment of expenses, and indemnification
and contribution.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed and attested by its duly authorized officers under its corporate seal and
to be dated the date hereof.
NEOPROBE CORPORATION
Dated: November 21, 2003
------------------------------------
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
13
EXHIBIT I
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 1.2(a)(iv)]
(Exercise and payment by check or securities)
To: Dated:
The undersigned, pursuant to the provisions set forth in the
attached Warrant (Certificate No. S-____), hereby agrees to subscribe for the
purchase of ____________ shares of the Common Stock covered by such Warrant and
makes payment herewith in full therefor at the price per share provided by such
Warrant.
Signature:_________________________________
Address:___________________________________
SCHEDULE IDENTIFYING OMITTED DOCUMENTS
The only particulars in which the foregoing instrument differs materially
from the omitted instruments are the names of the holders of the warrants and
the number of shares of common stock for which the warrants are exercisable,
which information is contained in the following table:
------------------------------------------------- ------------------
HOLDER WARRANT SHARES
------------------------------------------------- ------------------
Xxxxxxxx Xxxxxxxxx & Company, Inc. 136,957
------------------------------------------------- ------------------
Rockwood Group, LLC 1,217,391
------------------------------------------------- ------------------
Xxxxxx Capital, LLC 391,304
------------------------------------------------- ------------------
Xxxxx Xxxxx 228,261
------------------------------------------------- ------------------
Xxxxxxx X. Xxxxxx 25,000
------------------------------------------------- ------------------
Sol Lax 21,913
------------------------------------------------- ------------------
EXHIBIT II
[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 1.2(a)(iv)(3)]
(Cashless Exercise)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase _________________ shares of
Common Stock all in accordance with the terms hereof and Section 1.2(a)(iv)(3)
of the Warrant Agreement. The undersigned requests that a certificate for such
securities be registered in the name of ________________________________________
whose address is _______________________________________________________________
______________________ and that such Certificate be delivered to _______________
_________________________ whose address is _____________________________________
___________________________________________.
Dated:
Signature _____________________________________
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant
Certificate.)
________________________________
(Insert Social Security or Other
Identifying Number of Holder)
EXHIBIT III
[FORM OF ASSIGNMENT PURSUANT TO SECTION 1.2(a)(iii)]
(To be executed by the registered holder if such holder desires to transfer the
Warrant Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
_____________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and hereby irrevocably constitutes and appoints _______________________________
Attorney, to transfer the within Warrant Certificate on the books of the
within-named Company, with full power of substitution.
Dated:
Signature: ___________________________________
(Signature must confirm in all respects to name of holder as
specified on the face of the Warrant Certificate.)
(Insert Social Security or Other Identifying Number of Assignee).
