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EXHIBIT 4.11
AMENDMENT TO LICENSE AGREEMENT AND DEVELOPMENT AGREEMENT
AGREEMENT made this 28th day of March 1996, between ENZON, INC., a
Delaware corporation with an office at 20 Kingsbridge Road, Piscataway, New
Jersey 08854 ("Enzon"), and NEOPROBE CORPORATION, a Delaware corporation with an
office at 425 Metro Place North, Dublin, Ohio 43017 ("Neoprobe").
WHEREAS:
A) Enzon and Neoprobe have entered into a License Agreement, dated as
of August 15, 1992, and amended from time to time ("License Agreement") and an
SCA Protein Development Agreement, dated as of August 15, 1992, and amended from
time to time ("Development Agreement");
B) Disagreements have arisen between Enzon and Neoprobe concerning the
terms of the License Agreement and the Development Agreement and the parties'
performance or actions thereunder; and
C) The parties desire to settle all their differences with regard to
these Agreements;
NOW, THEREFORE, in consideration of their mutual undertakings as set
forth herein, the parties intending to be bound agree as follows:
1. The Development Agreement is terminated in all respects. Neither
Enzon nor Neoprobe shall have any further obligation or liability to the other
under the Development Agreement and any claims either party has against the
other with respect to the Development Agreement are forever waived, released and
discharged.
2. Enzon acknowledges that it received in full the cash payment
required under section 4.1 of the License Agreement.
3. The License Agreement is modified and amended as follows:
a. The Note referred to in section 4.2 of the License Agreement is
cancelled. Neither party shall have any obligation or liability to the other
with respect to the Note. Promptly after the execution of this Agreement, Enzon
shall return the original Note to Neoprobe.
b. Section 4.3 of the License Agreement is deleted and replaced in
its entirety with the following:
"Neoprobe hereby grants Enzon warrants to purchase (i) 50,000 shares
of the common stock of Neoprobe (the "Common Stock") at an exercise price of
$6.30 per share and (ii) an additional 100,000 shares of Common Stock at an
exercise price of $12.60 per share, (collectively, the "Warrants"). The Warrants
will be exercisable until the later of November 11, 1996 or ninety (90) days
after the effective date of the Enzon Registration Statement, as defined below.
The number of Warrants and shares of Common Stock issuable under the Warrants
(the "Warrant Shares") and the exercise prices of the Warrants shall not be
affected by any common stock distribution or dividend, stock split or stock
combination effected by Neoprobe prior to March 8, 1996."
c. Subsections (a), (b) and (d) of section 4.4 of the License
Agreement are deleted in their entirety.
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d. In Section 12.1 of the License Agreement, the language beginning
with "PROVIDED HOWEVER that" and continuing to the end of the paragraph is
deleted.
e. Sections 13.1 and 13.2 of the License Agreement are deleted in
their entirety.
4. Neoprobe shall file a registration statement for the Warrants and
the Warrant Shares (the "Enzon Registration Statement") with the SEC on the
earliest of the following events or dates:
a. ten days after the closing of the public offering described in
the Form S-3 registration statement (File-No. 33-32146) filed by Neoprobe with
the SEC on March 8, 1996 (the "Current Primary Offering");
b. the filing by or on behalf of Neoprobe with the SEC of any
registration statement after March 8, 1996, other than the registration
statement for the Current Primary Offering; or
c. May 10, 1996.
5. Neoprobe shall
a. furnish to Enzon and to any underwriter or broker designated by
Enzon such number of copies of the Enzon Registration Statement as declared
effective and, if required, a prospectus, in conformity with the requirements of
the federal securities laws, in order to facilitate the public sale or other
disposition of the Warrants or Warrant Shares;
b. use its best efforts to register or qualify the Warrants and
Warrant Shares under the blue sky laws of New Jersey, New York and Ohio;
c. before filing the Enzon Registration Statement, furnish to
Enzon's counsel copies of the documents proposed to be filed which shall be
subject to the reasonable approval of such counsel;
d. furnish to Enzon's counsel a copy of the Enzon Registration
Statement as filed, and a copy of the final, effective version of the
registration statement for the Current Primary Offering and any amendments
thereto.
6. In connection with the Enzon Registration Statement, Neoprobe hereby
indemnifies and holds Enzon harmless in accordance with the terms of the
indemnification set forth in Schedule 1 to this Agreement.
7. Neoprobe shall pay all expenses incurred in effecting the
registration of the Warrants and the Warrant Shares, including, without
limitation, all federal and state registration, qualification and filing fees,
printing expenses, fees and disbursements of Neoprobe's counsel, blue sky fees
and expenses and the expense of any special audits incident to or required by
any such registration, but not including underwriting discounts, commissions and
expenses.
8. Neoprobe shall use its best efforts to cause the Enzon Registration
Statement to become effective as soon as practicable after the date it is
initially filed with the SEC. Neoprobe shall notify Enzon of the effective date
of the Enzon Registration Statement immediately after receiving notice of same
from the SEC. In the event that the Enzon Registration Statement does not become
effective for any reason on or before December 31, 1996 or does not remain
effective until the earlier of (i) sixty (60) days after it becomes effective or
(ii) Enzon has sold all of the Warrants and Warrant Shares, Enzon may, at its
sole
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option and discretion, as liquidated damages for the failure of the Enzon
Registration Statement to become or remain effective, exchange the Warrants for
100,000 shares of Neoprobe Common Stock, without payment to Neoprobe. Neoprobe
shall issue such shares to Enzon or its designee no later than three (3)
business days after demand therefor from Enzon. Unless Enzon's counsel provides
an opinion to Neoprobe which is reasonably satisfactory to Neoprobe's counsel
that such a legend is not required, such shares shall contain a legend in the
customary language stating that the shares are unregistered and subject to the
restrictions of Rule 144 of the SEC.
9. Neoprobe shall cause the Enzon Registration Statement to remain
effective until the earlier of (i) nine months after it becomes effective or
(ii) Enzon has sold all of the Warrants and Warrant Shares.
10. Neoprobe shall cooperate with Enzon in connection with the transfer
or sale by Enzon of the Warrants and Warrant Shares and shall promptly and
without delay or compensation provide Enzon or its designee any documents
reasonably required by Enzon or its designee to effectuate the sale or transfer
of the Warrants and Warrant Shares in the shortest time practicable.
11. Any provision in this Agreement, the License Agreement or the
Warrants to the contrary notwithstanding, Enzon agrees that after the effective
date of the Enzon Registration Statement it will exercise no more than the
number of Warrants calculated according to the formula set forth in this section
11, and agrees that its rights to the remainder of the Warrants, if any, will be
then extinguished. If the closing price of Neoprobe's Common Stock as reported
on the NASDAQ National Market System on the next business day following the date
Neoprobe gives Enzon notice of the Enzon Registration Statement becoming
effective (the "Base Line Closing Price") is $20.25 Enzon may exercise all of
the Warrants at the exercise price of $6.30 a share and 50,000 of the Warrants
at the exercise price of $12.60 a share. If the Base Line Closing Price is other
than $20.25, Enzon agrees to exercise only so many Warrants as to create a
spread or difference between the Total Exercise Price (that is, the exercise
price or prices times the total number of Warrants exercised) and the Total Base
Line Closing Price (that is, the Base Line Closing Price times the total number
of Warrants exercised) which shall be equal to One Million Eighty Thousand
($1,080,000) Dollars. The foregoing notwithstanding, regardless of the Base Line
Closing Price, the total number of Warrants Enzon may exercise shall not exceed
150,000 and shall not be less than 75,000. Examples of the calculation at
different Base Line Closing Prices are contained in the spread sheet attached as
Schedule 2 to this Agreement.
12. If Neoprobe defaults under any provision of this Agreement for any
reason and fails to cure such default within fourteen (14) days of notification
thereof by facsimile from Enzon or its counsel, Enzon may in its sole discretion
and in addition to any other remedies it may have at law or in equity take any
one or more of the following actions:
a. terminate the License Agreement effective immediately;
b. obtain in any court of law or equity with jurisdiction over the
parties an injunction or other court order requiring immediate specific
performance by Neoprobe of its obligations hereunder with respect to the
Warrants and Additional Warrants. In this regard, Neoprobe acknowledges and
agrees not to contest or dispute in any court action that (i) there is no
adequate remedy at law for a further delay in the issuance and/or registration
of the Warrants, Additional Warrants or Warrant Shares and (ii) Enzon will
suffer irreparable injury if there is further delay in the registration or
issuance of the Warrants, Additional Warrants or Warrant Shares. In the event
any court action is brought by Enzon under this paragraph of this Agreement,
Neoprobe will pay for Enzon's reasonable attorneys' fees and disbursements and
consents to the entry of an order determining the amount by the court in which
the action is brought.
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13. The provisions of this Agreement shall be deemed to modify and
amend the License Agreement as necessary and shall govern in the event there is
any inconsistency between this Agreement and the License Agreement; as so
modified and amended, the terms of the License Agreement are incorporated into
and made a part of this Agreement. As modified and amended herein, the License
Agreement is continued in full force and effect and any notices of termination
heretofore sent are hereby withdrawn and cancelled.
14. Any notices or demands sent under this Agreement or the License
Agreement shall be in writing and shall be sent by facsimile or by certified
mail, return receipt requested, as follows:
To ENZON: John A. Caruso
Vice President, Business Development and
General Counsel
Enzon, Inc.
20 Kingsbridge Road
Piscataway, NJ 08854-3969
fax: 908/980-5911
with a copy to Kevin T. Collins, Esq.
Ross & Hardies
65 East 55th Street
New York, NY 10022
fax: 212/715-2305
To NEOPROBE: David C. Bupp
President and Chief Operating Officer
Neoprobe Corporation
425 Metro Place North
Dublin, OH 43017-1367
fax: 614/793-7522
with copy to Robert S. Schwartz, Esq.
Schwartz, Warren & Ramirez
A Limited Liability Company
41 South High Street
Columbus, OH 443215
fax: 614/224-0360
or such other address as the parties may designate in writing from time to time.
Notices sent by facsimile shall be deemed received as of the date sent.
15. Neoprobe acknowledges that the courts located in the States of
Delaware, Ohio and New Jersey have jurisdiction over Neoprobe in connection with
any legal action against Neoprobe that may be brought by Enzon to enforce this
Agreement or the License Agreement and hereby consents and submits to the
jurisdiction of the courts of any of those States in connection with any such
action.
16. This Agreement and the License Agreement, as modified herein,
constitute the entire agreement between the parties as to the subject matter
hereof, and supersedes and replaces all prior agreements, understandings,
writings or discussions between the parties relating to such subject matter.
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17. Neither party shall make any public disclosure concerning this
agreement without the consent of the other party, which consent will not be
unreasonably withheld, taking into account the disclosure obligations of the
parties under applicable securities laws.
18. This Agreement may be executed in counterparts. Signatures obtained
by facsimile shall be the equivalent of original signatures.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ENZON, INC.
By:
-----------------------------------
NEOPROBE CORPORATION
By:
-----------------------------------
David Bupp, President and COO
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SCHEDULE 1
Indemnification. The Company shall indemnify and hold harmless Enzon,
Inc. (the "Warrantholder") for Warrants and Warrant Shares that are registered
pursuant to the Registration Statement and each underwriter, within the meaning
of the Act, who may purchase from or sell for the Warrantholder any such
Warrants and Warrant Shares, and each person, if any, who controls the
Warrantholder or underwriter within the meaning of the Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
of a material fact contained in any registration statement or any post-effective
amendment thereto or any prospectus included therein required to be filed or
furnished in connection therewith or caused by any omission to state therein a
material fact required to be stated therein in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission based upon information furnished
or required to be furnished in writing to the Company by the Warrantholder or
underwriter expressly for use therein.
The Warrantholder agrees to indemnify and hold harmless the Company and
its directors, officers, employees and agents against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or any prospectus
contained therein, or in any amendment thereof or supplement thereto, or arose
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or an omission or an
alleged untrue statement or an alleged omission made in reliance upon or in
conformity with written information furnished to the Company by the
Warrantholder or on behalf of the Warrantholder expressly for use in the
Registration Statement or any amendment thereof or any prospectus contained
therein or in any amendment thereof or supplement thereto.
Contribution. If the indemnification provided for herein from either
the Warrantholder or the Company is unavailable to an indemnified party (the
"Indemnitee") hereunder in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to herein, then the party responsible
for such indemnification (the "Indemnitor"), in lieu of indemnifying the
Indemnitee, shall contribute to the amount paid or payable by the Indemnitee as
a result of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnitor and Indemnitee in
connection with the actions which resulted in such losses, claims, damages or
liabilities (including legal or other fees and expenses reasonably incurred in
connection with any investigation or proceeding) as well as any other equitable
considerations.
If indemnification is available, the Indemnitor shall indemnify each
Indemnitee to the full extent provided for herein without regard to the relative
fault of the Indemnitor, the Indemnitee or any other equitable consideration
provided for hereunder.
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SCHEDULE 2
ENZON WARRANT ANALYSIS
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Price No Shares @ $6.30 Value No Shares @ $12.60 Value Total
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25.00 50,000.00 935,000.00 25,000.00 310,000.00 1,245,000.00
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24.00 50,000.00 885,000.00 25,000.00 285,000.00 1,170,000.00
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23.25 50,000.00 847,500.00 25,000.00 266,250.00 1,113,750.00
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23.00 50,000.00 835,000.00 25,000.00 260,000.00 1,095,000.00
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22.88 50,000.00 828,750.00 25,000.00 256,875.00 1,085,625.00
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22.80 50,000.00 825,000.00 25,000.00 255,000.00 1,080,000.00 Floor
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22.75 50,000.00 822,500.00 25,369.46 257,500.00 1,080,000.00
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22.63 50,000.00 816,250.00 26,309.23 263,750.00 1,080,000.00
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22.50 50,000.00 810,000.00 27,272.73 270,000.00 1,080,000.00
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22.38 50,000.00 803,750.00 28,260.87 276,250.00 1,080,000.00
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22.25 50,000.00 797,500.00 29,274.61 282,500.00 1,080,000.00
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21.25 50,000.00 747,500.00 38,439.31 332,500.00 1,080,000.00
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20.25 50,000.00 697,500.00 50,000.00 382,500.00 1,080,000.00 Base Case
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19.25 50,000.00 647,500.00 65,037.59 432,500.00 1,080,000.00
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18.25 50,000.00 597,500.00 85,398.23 482,500.00 1,080,000.00
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18.13 50,000.00 591,250.00 88,461.54 488,750.00 1,080,000.00
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18.00 50,000.00 585,000.00 91,666.67 495,000.00 1,080,000.00
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17.88 50,000.00 578,750.00 95,023.70 501,250.00 1,080,000.00
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17.75 50,000.00 572,500.00 98,543.69 507,500.00 1,080,000.00
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17.70 50,000.00 570,000.00 100,000.00 510,000.00 1,080,000.00 Cap
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17.63 50,000.00 566,250.00 100,000.00 502,500.00 1,068,750.00
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17.50 50,000.00 560,000.00 100,000.00 490,000.00 1,050,000.00
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17.25 50,000.00 547,500.00 100,000.00 465,000.00 1,012,500.00
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16.25 50,000.00 497,500.00 100,000.00 365,000.00 862,500.00
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15.25 50,000.00 447,500.00 100,000.00 265,000.00 712,500.00
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