Exhibit 10.1
SECURITIES AMENDMENT AND EXCHANGE
AGREEMENT
This Securities
Amendment and Exchange Agreement (the “ Agreement
”) is made as of July 24, 2009 by and between Neoprobe
Corporation (the “ Company ”) and
Platinum-Montaur Life Sciences, LLC (the “ Purchaser
”).
A. The
Company and the Purchaser are parties to a Securities Purchase
Agreement dated as of December 26, 2007 (the “ Purchase
Agreement ”), pursuant to which the Company has issued to
Purchaser the following securities: (a) the Company’s 10%
Series A Convertible Senior Secured Promissory Note in the
principal amount of $7,000,000, due December 26, 2011 (the “
Series A Note ”), (b) the Company’s 10% Series B
Convertible Senior Secured Promissory Note in the
principal amount of $3,000,000, due December 26, 2011 (the “
Series B Note ”), (c) 3,000 shares of the
Company’s 8% Series A Convertible Preferred Stock (the
“ Preferred Stock ”), (d) the Company’s
Series W Warrant to purchase shares of common stock of the Company
(the “ Series W Warrant ”), (e) the
Company’s Series X Warrant to purchase shares of common stock
of the Company (the “ Series X Warrant ”), and
(e) the Company’s Series Y Warrant to purchase shares of
common stock of the Company (the “ Series Y Warrant
”).
B. The
Company and the Purchaser have agreed to (i) amend the terms of the
Series A Note, Series B Note, Series W Warrant, Series X Warrant,
and Series Y Warrant and to effect such amendments by issuing
amended and restated instruments, and (ii) to amend the terms of
the Preferred Stock by amending and restating the Certificate of
Designations.
C. The
Company and the Purchaser have further agreed that, in accordance
with the terms set forth herein, (i) the Purchaser will exercise
for cash the Amended Series Y Warrant, and (ii) the Company will
issue to the Purchaser the Company’s Series AA Warrant to
purchase shares of common stock of the Company (the “
Series AA Warrant ”).
Statement of
Agreement
In
consideration of the mutual covenants and agreements set forth
herein and for other good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, the parties hereto
agree as follows.
Section
1.
Definitions . Capitalized terms used in this
Agreement and not otherwise defined shall have the respective
meanings defined in the Purchase Agreement.
Section
2.
Issuance and Exchange of Securities .
(a) Subject
to the terms and conditions herein set forth, at the Closing (as
defined below) the Company will issue and deliver to the Purchaser
(a) the Company’s Amended and Restated 10% Series A
Convertible Senior Secured Promissory Note in the principal amount
of $7,000,000, due December 26, 2011 in the form attached hereto as
Exhibit A (the “ Amended Series A Note
”), (b) the Company’s Amended and Restated 10% Series B
Convertible Senior Secured Promissory Note in the principal amount
of $3,000,000, due December 26, 2011, in the form attached hereto
as Exhibit B (the “ Amended Series B Note
”), (c) the Company’s Amended and Restated
Series W Warrant to purchase shares of common stock of the Company
in the form attached hereto as Exhibit C (the “
Amended Series W Warrant ”), (d) the Company’s
Amended and Restated Series X Warrant to purchase shares of common
stock of the Company in the form attached hereto as Exhibit
D (the “ Amended Series X Warrant ”); and
(e) the Company’s Amended and Restated Series Y Warrant to
purchase shares of common stock of the Company in the form attached
hereto as Exhibit E (the “ Amended Series Y
Warrant ”).
(b) Subject
to the terms and conditions herein set forth, promptly following
the Closing the Purchaser will surrender to the Company for
cancellation (a) the Series A Note (in exchange for the Amended
Series A Note), (b) the Series B Note (in exchange for the Amended
Series B Note), (c) the Series W Warrant (in exchange for the
Amended Series W Warrant) (d) the Series X Warrant (in exchange for
the Amended Series X Warrant); and (e) the Series Y Warrant (in
exchange for the Amended Series Y Warrant) (the foregoing
hereinafter referred to collectively as the “ Original
Securities ”). Purchaser represents to the Company that
it has not assigned, pledged or transferred any interest in the
Original Securities, and agrees to indemnify the Company from any
expenses, losses or damages, including, but not limited to,
reasonable attorneys fees, that the Company may suffer as a result
of the presentation of any of the Original Securities or any other
claim of ownership of the right to purchase the Common Stock
issuable upon the exercise or conversion of the Original Securities
by any third party. The Purchaser makes this representation in
connection with the effectiveness of Exchanged Securities, which
shall in all respects supersede and replace the Original
Securities.
Section
3.
Issuance of Series AA Warrant . Subject to the
terms and conditions herein set forth, the Company agrees to issue
to the Purchaser at the Closing the Series AA Warrant in the form
attached hereto as Exhibit E .
Section
4.
Exercise of Amended Series Y Warrant . The
Purchaser hereby delivers notice, pursuant to Section 8(a) of the
Amended Series Y Warrant, that it waives the provisions of Section
8(a) therein effective as of the 61 st day following the Closing Date (as defined
below). Subject to the terms and conditions herein set forth, the
Purchaser agrees to exercise the Amended Series Y Warrant for
2,844,319 shares of the Company’s common stock, $.001 par
value (“Common Stock”), at the Closing (but in no event
in excess of any amount permitted to be exercised pursuant to
Section 8(a) of the Amended Series Y Warrant as in effect on the
Closing Date) in accordance with the terms set forth in the Amended
Series Y Warrant, which terms include without limitation the
surrender of a duly executed exercise form in the form attached
thereto, and payment by wire transfer to an account designated by
the Company of the aggregate exercise price therefore in
immediately available funds. Upon such exercise, the
Company will cause to be issued to Purchaser a certificate for
2,844,319 fully paid and non-assessable shares of Common Stock
(hereinafter referred to together with the shares of Common Stock
issued upon the exercise of the balance of the Amended Series Y
Warrant as described below as the “Amended Series Y
Warrant Shares ”), as provided in Section 2(d) of the
Amended Series Y Warrant, and bearing a restrictive legend as
provided in Section 2(g)(ii) of the Amended Series Y
Warrant. Upon and after the 61 st day following Closing, but in no event later
than September 30, 2009, the Purchaser shall exercise the balance
of the Amended Series Y Warrant by payment by wire transfer of
immediately available funds to an account designated by the Company
of the aggregate cash exercise price therfor. Upon such
exercise in full, the Purchaser shall surrender the Amended Series
Y Warrant to the Company, the Amended Series Y Warrant shall be
cancelled and the Company shall have no further obligations in
respect thereof.
Section
5.
Amendment of Certificate of Designations . Subject to the
terms and conditions herein set forth, and effective upon the
Closing, the Parties agree to amend and restate the Certificate of
Designations as provided in Exhibit F attached hereto (the “
Amended Certificate of Designations
”). Immediately prior to the Closing the Company
shall execute the Amended Certificate of Designations, and promptly
following the Closing the Company shall cause it to be filed with,
and accepted for filing by, the Delaware Secretary of
State.
Section
6.
Closing . The issuance and exchange of the
Amended Series A Note, Amended Series B Note, Amended Series W
Warrant, Amended Series X Warrant, and Amended Series Y Warrant,
the issuance of the Series AA Warrant, and the partial exercise of
the Amended Series Y Warrant shall take place at a closing (the
“ Closing ”) simultaneously with the execution
and delivery of this Agreement or on such other date and time as
the Parties may agree (the “ Closing Date ”) at
the offices of Purchaser, 152 West 57th Street, 54th
Floor, New York, New York. Upon Closing, the Company shall deliver
to the Purchaser a legal opinion in form and substance reasonably
satisfactory to the Purchaser.
Section
7.
Representations and Warranties of the Company .
(a) The
Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the
corporate power and authority to execute, deliver and perform its
obligations under this Agreement as well as under the Amended
Series A Note, the Amended Series B Note, the Amended Series W
Warrant, th
