EXHIBIT 99(i)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of April 2,
2003, by and between NEOPROBE CORPORATION, a Delaware corporation, (the
"COMPANY"), and undersigned purchasers (together with their permitted assigns,
the "BUYERS") of the Series Q Warrants to Purchase Common Stock (the
"WARRANTS"), and the 9.5% Convertible Secured Note (the "CONVERTIBLE NOTE")
issued by the Company on the date hereof. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings set forth in the
Warrants and Convertible Note.
WHEREAS:
A. The Company has agreed, upon the terms and subject to the
conditions of the Note Purchase Agreements dated as of even date (the "Purchase
Agreements"), to issue to the Buyers the Warrants exercisable for 875,000 shares
of the Company's common stock, par value $.001 per share (the "COMMON STOCK")
(the "WARRANT SHARES") and the Convertible Note, which is convertible (subject
to adjustment) shares of Common Stock ("CONVERSION SHARES"); and
B. To induce the Buyers to enter into the Note Purchase
Agreements, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "1933 ACT"), and
applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Buyers hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
a. "PERSON" means any person or entity including any
corporation, a limited liability company, an association, a partnership, an
organization, an individual, a governmental or political subdivision thereof or
a governmental agency.
b. "REGISTER," "REGISTERED," and "REGISTRATION" refer to
a registration effected by preparing and filing one or more registration
statements of the Company in compliance with the 1933 Act and pursuant to Rule
415 under the 1933 Act or any successor rule providing for offering securities
on a continuous basis ("RULE 415"), and the declaration or ordering of
effectiveness of such registration statement(s) by the United States Securities
and Exchange Commission (the "SEC").
c. "REGISTRABLE SECURITIES" means the Warrant Shares and
the Conversion Shares which have been, or which may from time to time be issued,
upon exercise of the Warrants or conversion of the Convertible Note.
e. "REGISTRATION STATEMENT" means the registration
statement of the Company which the Company has agreed to file hereunder
registering the offer and sale by Buyers to the public of the Registrable
Securities.
2. REGISTRATION.
a. Mandatory Registration. The Company shall as soon as
practicable following June 30, 2003, but no later than September 30, 2003, file
the Registration Statement with the SEC. Buyers and their respective counsel
shall have a reasonable opportunity to review and comment upon the Registration
Statement prior to its filing. Buyers shall furnish all information reasonably
requested by the Company for inclusion in the Registration Statement. The
Company shall use commercially reasonable efforts to have the Registration
Statement declared effective by the SEC within 90 days of the filing date. The
Company shall use commercially reasonable efforts to keep the Registration
Statement effective pursuant to Rule 415 promulgated under the 1933 Act and
available for sales by Buyers of all of the Registrable Securities at all times
until the earlier of (i) the date as of which any Buyer would, if not an
affiliate of the Company, be able sell all of the Registrable Securities without
restriction pursuant to Rule 144(k) promulgated under the 1933 Act (or successor
thereto), or (ii) date on which Buyers shall have sold all the Registrable
Securities (the "REGISTRATION PERIOD").
b. Rule 424 Prospectus. The Company shall, as required
by applicable securities regulations, from time to time file with the SEC,
pursuant to Rule 424 promulgated under the 1933 Act, the prospectus and
prospectus supplements, if any, to be used in connection with sales of the
Registrable Securities under the Registration Statement. Buyers and their
counsel shall have a reasonable opportunity to review and comment upon such
prospectus prior to its filing with the SEC.
3. RELATED OBLIGATIONS.
With respect to the Registration Statement, the Company shall have the
following obligations:
a. The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement, which prospectus is to be filed pursuant to Rule 424
promulgated under the 1933 Act, as may be necessary to keep the Registration
Statement effective at all times during the Registration Period.
b. The Company shall permit Buyers to review and comment
upon the Registration Statement and all amendments and supplements thereto at
least two Business Days prior to their filing with the SEC. Each of the Buyers
shall provide the Company with any comments or corrections to the Registration
Statement, or any amendments or supplements thereto, within two Business Days
from the date such Buyer receives the final version thereof.
c. The Company shall furnish to Buyers, (i) promptly
after the same is prepared and filed with the SEC, at least one copy of the
Registration Statement and any amendment(s) thereto, including financial
statements and schedules, and all exhibits, (ii) upon the effectiveness of any
registration statement, 10 copies of the prospectus included in such
registration statement and all amendments and supplements thereto (or such other
number of copies as Buyers may reasonably request) and (iii) such other
documents, including copies of any preliminary or final prospectus, as Buyers
may reasonably request from time to time in order to facilitate the disposition
of the Registrable Securities owned by Buyers.
d. The Company shall use commercially reasonable efforts
to (i) register and qualify the Registrable Securities covered by a registration
statement under such other securities or "blue
sky" laws of such jurisdictions in the United States as Buyers reasonably
request, (ii) prepare and file in those jurisdictions, such amendments
(including post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof during
the Registration Period, (iii) take such other actions as may be necessary to
maintain such registrations and qualifications in effect at all times during the
Registration Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such jurisdictions;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to (x) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (y) subject itself to general taxation in any such jurisdiction,
or (z) file a general consent to service of process in any such jurisdiction.
e. As promptly as practicable after becoming aware of
such event or facts, the Company shall notify Buyers in writing of the happening
of any event or existence of such facts as a result of which the prospectus
included in the Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and promptly prepare
and file with the SEC and with all other applicable "blue sky" authorities a
supplement or amendment to such registration statement to correct such untrue
statement or omission, and deliver 10 copies of such supplement or amendment to
Buyers (or such other number of copies as Buyers may reasonably request). The
Company shall also promptly notify Buyers in writing (i) when a prospectus or
any prospectus supplement or post-effective amendment has been filed, and when
the Registration Statement or any post-effective amendment has become effective,
(ii) of any request by the SEC for amendments or supplements to the Registration
Statement or related prospectus or related information, and (iii) of the
Company's reasonable determination that a post-effective amendment to the
Registration Statement would be appropriate.
f. The Company shall use its commercially reasonable
efforts to prevent the issuance of any stop order or other suspension of
effectiveness of any registration statement, or the suspension of the
qualification of any Registrable Securities for sale in any jurisdiction and, if
such an order or suspension is issued, to obtain the withdrawal of such order or
suspension at the earliest possible moment and to notify Buyers of the issuance
of such order and the resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose.
4. OBLIGATIONS OF BUYERS.
a. Each Buyer shall promptly furnish to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it as shall
be reasonably requested by the Company to effect the registration of such
Registrable Securities, including information to be included in the Registration
Statement, prospectus and all amendments and supplements thereto, and shall
execute such documents in connection with such registration as the Company may
reasonably request.
b. Each Buyer agrees to cooperate with the Company as
reasonably requested by the Company in connection with the preparation and
filing of the Registration Statement, any amendment thereto, or any amendment or
supplement to the prospectus.
c. Each Buyer agrees that, upon receipt of any notice
from the Company of the happening of any event or existence of facts of the kind
described in Section 3(f) or the first sentence of 3(e), such Buyer will
immediately discontinue disposition of Registrable Securities until Buyer's
receipt
of the copies of the supplemented or amended prospectus contemplated by Section
3(f) or the first sentence of 3(e).
5. EXPENSES OF REGISTRATION.
All reasonable expenses, other than sales or brokerage
commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all
registration, listing and qualification fees, printing and accounting fees, and
fees and disbursements of counsel for the Company, shall be paid by the Company.
6. INDEMNIFICATION.
a. To the fullest extent permitted by law, the Company
will, and hereby does, indemnify, hold harmless and defend each Buyer, each
Person, if any, who controls a Buyer, the members, the directors, officers,
partners, employees, agents, representatives of Buyers and each Person, if any,
who controls Buyers within the meaning of the 1933 Act or the Securities
Exchange Act of 1934, as amended (the "1934 ACT") and their respective
successors and assigns (each, an "INDEMNIFIED PERSON"), against any losses,
claims, damages, liabilities, judgments, fines, penalties, charges, costs,
attorneys' fees, amounts paid in settlement or expenses, joint or several,
(collectively, "CLAIMS") incurred in investigating, preparing or defending any
action, claim, suit, inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative or other
regulatory agency, body or the SEC, whether pending or threatened, whether or
not an indemnified party is or may be a party thereto ("INDEMNIFIED DAMAGES"),
to which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon: (i) any untrue statement or alleged untrue statement of a
material fact in the Registration Statement, or any post-effective amendment
thereto or in any filing made in connection with the qualification of the
offering under the securities or other "blue sky" laws of any jurisdiction in
which Registrable Securities are offered ("BLUE SKY FILING"), or the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in the final
prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading, or (iii) any violation or alleged violation by the Company
of the 1933 Act, the 1934 Act, any other law, including, without limitation, any
state securities law, or any rule or regulation thereunder relating to the offer
or sale of the Registrable Securities pursuant to the Registration Statement
(the matters in the foregoing clauses (i) through (iii) being, collectively,
"VIOLATIONS"). The Company shall reimburse each Indemnified Person promptly as
such expenses are incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i) shall
not apply to a Claim by an Indemnified Person arising out of or based upon a
Violation which occurs as a result of any untrue statement or omission of a
material fact by either Buyer in information provided to the Company expressly
for use in connection with the preparation of the Registration Statement, or any
amendment thereof or supplement thereto; (ii) with respect to any superseded
prospectus, shall not inure to the benefit of any such person from whom the
person asserting any such Claim purchased the Registrable Securities that are
the subject thereof (or to the benefit of any person controlling such person) if
the untrue statement or omission of material fact contained in the superseded
prospectus was corrected in the revised prospectus, as then amended or
supplemented, prior to the purchase, and if such revised
prospectus was timely made available by the Company pursuant to Section 3(c) or
Section 3(e); (iii) shall not be available to the extent such Claim is based on
a failure of an Indemnified Person to deliver or to cause to be delivered the
prospectus made available by the Company, if such prospectus was timely made
available by the Company pursuant to Section 3(c) or Section 3(e); and (iv)
shall not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, provided that such
consent shall not be unreasonably withheld. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Indemnified Person and shall survive any transfer of the Registrable Securities
by a Buyer pursuant to Section 9.
b. In connection with the Registration Statement, each
Buyer agrees to indemnify, hold harmless and defend, to the same extent and in
the same manner as is set forth in Section 6(a), the Company, each of its
directors, each of its officers who signs the Registration Statement, each
Person, if any, who controls the Company within the meaning of the 1933 Act or
the 1934 Act and their respective successors and assigns (collectively and
together with an Indemnified Person, an "INDEMNIFIED PARTY"), against any Claim
or Indemnified Damages to which any of them may become subject, under the 1933
Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified Damages
arise out of or are based upon any Violation, in each case to the extent, and
only to the extent, that such Violation (i) occurs in reliance upon and in
conformity with information furnished to the Company by such Buyer expressly for
use in connection with the Registration Statement, prospectus or amendment or
supplement thereto, (ii) arises from an untrue statement or omission of material
fact contained in a superseded prospectus, if the untrue statement or omission
of material fact contained in the superseded prospectus was corrected in the
revised prospectus, as then amended or supplemented, if such revised prospectus
was timely made available by the Company pursuant to Section 3(c) or Section
3(e), (iii) arises as a result of such Buyer's failure to deliver or to cause to
be delivered the prospectus made available by the Company, if such prospectus
was timely made available by the Company pursuant to Section 3(c) or Section
3(e), or (iv) arises from the offer or sale or Registrable Securities under the
securities or other "blue sky" laws of any jurisdiction in which such Buyer has
not requested the Company to register and qualify the Registrable Securities
pursuant to Section 3(d); and, subject to Section 6(d), such Buyer will
reimburse promptly as such expenses are incurred and are due and payable any
legal fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) and the agreement with respect to
contribution contained in Section 7 shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of such Buyer, provided that such consent shall not be unreasonably
withheld. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall survive
the transfer of the Registrable Securities by Buyer pursuant to Section 9.
c. Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement of any
claim, investigation, inquiry, action or proceeding (including any governmental
action or proceeding) involving a Claim, such Indemnified Person or Indemnified
Party shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
control of the defense thereof with counsel mutually satisfactory to the
indemnifying party and the Indemnified Person or the Indemnified Party, as the
case may be; provided, however, that an Indemnified Person or Indemnified Party
shall have the right to retain its own counsel with the fees and expenses to be
paid by the indemnifying party, if, in the reasonable opinion of counsel
retained by the indemnifying party, the representation by such counsel of the
Indemnified Person or Indemnified Party and the indemnifying
party would be inappropriate due to actual or potential differing interests
between such Indemnified Person or Indemnified Party and any other party
represented by such counsel in such proceeding. The Indemnified Party or
Indemnified Person shall cooperate fully with the indemnifying party in
connection with any negotiation or defense of any such action or claim by the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party or Indemnified Person which
relates to such action or claim. The indemnifying party shall keep the
Indemnified Party or Indemnified Person fully apprised at all times as to the
status of the defense or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any action, claim or
proceeding effected without its written consent, provided, however, that the
indemnifying party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the consent of the Indemnified
Party or Indemnified Person, consent to entry of any judgment or enter into any
settlement or other compromise which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party or
Indemnified Person of a release from all liability in respect to such claim or
litigation. Following indemnification as provided for hereunder, the
indemnifying party shall be subrogated to all rights of the Indemnified Party or
Indemnified Person with respect to all third parties, Persons, firms or
corporations relating to the matter for which indemnification has been made. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party under this
Section 6, except to the extent that the indemnifying party is prejudiced in its
ability to defend such action.
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided, however, that:
(i) no seller of Registrable Securities guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
fraudulent misrepresentation; and (ii) contribution by any seller of Registrable
Securities shall be limited in amount to the net amount of proceeds received by
such seller from the sale of such Registrable Securities.
8. REPORTS AND DISCLOSURE UNDER THE SECURITIES ACTS.
With a view to making available to Buyers the benefits of Rule
144 promulgated under the 1933 Act or any other similar rule or regulation of
the SEC that may at any time permit Buyers to sell securities of the Company to
the public without registration ("RULE 144"), until the Warrants have been fully
exercised or have expired, the Company agrees to:
a. make and keep public information available, as those
terms are understood and defined in Rule 144;
b. file with the SEC in a timely manner all reports and
other documents required of the Company and its officers under the 1933 Act and
the 1934 Act so long as the Company remains subject to such requirements and the
filing of such reports and other documents is required for the applicable
provisions of Rule 144; and
c. furnish to each Buyer so long as such Buyer owns
Registrable Securities, promptly upon request, (i) a written statement by the
Company that it and its officers have complied with
the reporting and or disclosure provisions of Rule 144, the 1933 Act and the
1934 Act, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company and its
officers, and (iii) such other information as may be reasonably requested to
permit Buyers to sell such securities pursuant to Rule 144 without registration.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The Company shall not assign this Agreement or any rights or
obligations hereunder without the prior written consent of Buyers, including by
merger or consolidation. A Buyer may not assign its rights under this Agreement
without the written consent of the Company, other than to a permitted transferee
of Buyer's Warrant.
10. AMENDMENT OF REGISTRATION RIGHTS.
Provisions of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the holders of a requisite majority interest of Registrable Securities.
11. MISCELLANEOUS.
a. A Person is deemed to be a holder of Registrable
Securities whenever such Person owns or is deemed to own of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
b. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one Trading Day after
deposit with a nationally recognized overnight delivery service, in each case
properly addressed to the party to receive the same. The addresses and facsimile
numbers for such communications shall be:
If to the Company:
Neoprobe Corporation
425 Metro Place North, Suite 300
Dublin, OH 43017
Telephone: 614-793-7500
Facsimile: 614-793-7522
Attention: Chief Financial Officer
With a copy to:
Porter Wright Morris & Arthur
41 South High Street, Suite 2900
Columbus, OH 43215
Telephone: (614) 227-2136
Facsimile: (614) 227-2100
Attention: William J. Kelly
If to the Buyers:
David C. Bupp
9095 Moors Place North
Dublin, Ohio 43017
copy to:
Kenneth J. Warren, Esq.
5134 Blazer Parkway
Dublin, Ohio 43017
and
Donald E. Garlikov
The Garlikov Companies
41 South High Street
Columbus, Ohio 43215-3437
(fax) (614) 221-1508
copy to:
Ira O. Kane, Esq.
181 Stanbery Avenue
Columbus, Ohio 43209
or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party three Business Days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by a nationally recognized overnight delivery service, shall be
rebuttable evidence of personal service, receipt by facsimile or receipt from a
nationally recognized overnight delivery service in accordance with clause (i),
(ii) or (iii) above, respectively.
c. Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof.
d. 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 Agreement shall be governed by the
internal laws of the
State of Ohio, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Ohio or any other jurisdictions) that
would cause the application of the laws of any jurisdiction other than the State
of Ohio. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
e. This Agreement, the Warrants, the Convertible Note,
the Purchase Agreement and the other agreements and instruments referenced
therein, constitute the entire agreement among the parties hereto with respect
to the subject matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement and the Purchase Agreement, and the other agreements and
instruments executed and delivered in connection therewith, supersede all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof.
f. Subject to the requirements of Section 9, this
Agreement shall inure to the benefit of and be binding upon the permitted
successors and assigns of each of the parties hereto.
g. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in identical
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement. This Agreement, once executed by a party,
may be delivered to the other party hereto by facsimile transmission of a copy
of this Agreement bearing the signature of the party so delivering this
Agreement.
i. Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
j. The language used in this Agreement will be deemed to
be the language chosen by the parties to express their mutual intent and no
rules of strict construction will be applied against any party.
k. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not
for the benefit of, nor may any provision hereof be enforced by, any other
Person.
l. Any controversy, claim or dispute arising out of or
relating to this Agreement or the breach, termination, enforceability or
validity of this Agreement, including the determination of the scope or
applicability of the agreement to arbitrate set forth in this Section 11(l)
shall be determined exclusively by binding arbitration in the City of Columbus,
Ohio. The arbitration shall be governed by the rules and procedures of the
American Arbitration Association (the "AAA") under its Commercial Arbitration
Rules and its Supplementary Procedures for Large, Complex Disputes; provided
that persons eligible to be selected as arbitrators shall be limited to
attorneys-at-law each of whom (a) is on the
AAA's Large, Complex Case Panel or a Center for Public Resources ("CPR") Panel
of Distinguished Neutrals, or has professional credentials comparable to those
of the attorneys listed on such AAA and CPR Panels, and (b) has actively
practiced law (in private or corporate practice or as a member of the judiciary)
for at least 15 years in the State of Ohio concentrating in either general
commercial litigation or general corporate and commercial matters. Any
arbitration proceeding shall be before one arbitrator mutually agreed to by the
parties to such proceeding (who shall have the credentials set forth above) or,
if the parties are unable to agree to the arbitrator within 15 business days of
the initiation of the arbitration proceedings, then by the AAA. No provision of,
nor the exercise of any rights under, this Section 11(l) shall limit the right
of any party to request and obtain from a court of competent jurisdiction in the
State of Ohio, County of Franklin (which shall have exclusive jurisdiction for
purposes of this Section 11(l)) before, during or after the pendency of any
arbitration, provisional or ancillary remedies and relief including injunctive
or mandatory relief or the appointment of a receiver. The institution and
maintenance of an action or judicial proceeding for, or pursuit of, provisional
or ancillary remedies shall not constitute a waiver of the right of any party,
even if it is the plaintiff, to submit the dispute to arbitration if such party
would otherwise have such right. Each of the parties hereby submits
unconditionally to the exclusive jurisdiction of the state and federal courts
located in the County of Franklin, State of Ohio for purposes of this provision,
waives objection to the venue of any proceeding in any such court or that any
such court provides an inconvenient forum and consents to the service of process
upon it in connection with any proceeding instituted under this Section 11(l) in
the same manner as provided for the giving of notice under this Agreement.
Judgment upon the award rendered may be entered in any court having
jurisdiction. The parties hereby expressly consent to the nonexclusive
jurisdiction of the state and federal courts situated in the County of Franklin,
State of Ohio for this purpose and waive objection to the venue of any
proceeding in such court or that such court provides an inconvenient forum. The
arbitrator shall have the power to award recovery of all costs (including
attorneys' fees, administrative fees, arbitrators' fees and court costs) to the
prevailing party. The arbitrator shall not have power, by award or otherwise, to
vary any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the day and year first above written.
THE COMPANY:
NEOPROBE CORPORATION
By: /s/ Brent L. Larson
-----------------------------------------
Name: Brent L. Larson
Title: Vice President-Finance and
Chief Financial Officer
BUYERS:
/s/ David C. Bupp
--------------------------------------------
David C. Bupp
/s/ Donald E. Garlikov
--------------------------------------------
Donald E. Garlikov