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Exhibit 10.2.56
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into effective as of
April 1, 2000 ("Effective Date), by and between NEOPROBE CORPORATION, a Delaware
Corporation with a place of business at 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxx 00000-0000 (the "Company") and XXXX XXXXX of Worthington, Ohio (the
"Employee").
WHEREAS, the Company and the Employee entered into an Employment
Agreement dated as of October 1, 1999 (the "1999 Employment Agreement"); and
WHEREAS, the Company and the Employee wish to establish new terms,
covenants, and conditions for the Employee's continued employment with the
Company through this agreement ("Employment Agreement").
NOW, THEREFORE, in consideration of the mutual agreements herein set
forth, the parties hereto agree as follows:
1. DUTIES. From and after the Effective Date, and based upon the terms and
conditions set forth herein, the Company agrees to employ the Employee
and the Employee agrees to be employed by the Company, as
Vice-President, Instrument Development in such equivalent, additional
or higher level position or positions as shall be assigned to him by
the Chief Executive Officer of the Company. While serving in such
position, the Employee shall report to, be responsible to, and shall
take direction from the Chief Executive Officer of the Company. During
the Term of this Employment Agreement (as defined in Section 2 below),
the Employee agrees to devote substantially all of his time to the
position he holds with the Company and to faithfully, industriously,
and to the best of his ability, experience and talent, perform the
duties which are assigned to him. The Employee shall observe and abide
by the reasonable corporate policies and decisions of the Company in
all business matters.
2. TERM OF THIS EMPLOYMENT AGREEMENT. Subject to Sections 4 and 5 hereof,
the Term of this Employment Agreement shall be for an initial period of
eighteen (18) months commencing April 1, 2000 and terminating September
30, 2001.
3. COMPENSATION. During the Term of this Employment Agreement, the Company
shall pay, and the Employee agrees to accept as full consideration for
the services to be rendered by the Employee hereunder, compensation
consisting of the following:
A. SALARY. Beginning on the first day of the Term of this
Employment Agreement, the Company shall pay the Employee a
salary of One Hundred Twenty-Seven Thousand Five Hundred
Dollars ($127,500) per year, payable in semi-monthly or
monthly installments.
B. BONUS. The Chief Executive Officer of the Company will, on an
annual basis, review the performance of the Employee and the
Company will pay such bonus as it deems appropriate, in its
discretion, to the Employee based upon such review. Such
review and bonus shall be consistent with any bonus plan
adopted by the Compensation Committee which covers the
officers of the Company generally.
C. BENEFITS. During the Term of this Employment Agreement, the
Employee will receive such employee benefits as are generally
available to all employees of the Company.
D. STOCK OPTIONS. The Compensation Committee of the Board of
Directors may, from time-to-time, grant stock options,
restricted stock purchase opportunities and such other forms
of stock-based incentive compensation as it deems appropriate,
in its discretion, to the Employee under the Company's Stock
Option and Restricted Stock Purchase Plan and the 1996 Stock
Incentive Plan (the "Stock Plans"). The terms of the relevant
award agreements shall govern the rights of the Employee and
the Company thereunder in the event of any conflict between
such agreement and this Employment Agreement.
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E. VACATION. The Employee shall be entitled to twenty (20) days
of vacation during each calendar year during the Term of this
Employment Agreement.
F. EXPENSES. The Company shall reimburse the Employee for all
reasonable out-of-pocket expenses incurred by him in the
performance of his duties hereunder, including expenses for
travel, entertainment and similar items, promptly after the
presentation by the Employee, from time-to- time, of an
itemized account of such expenses.
4. TERMINATION.
A. FOR CAUSE. The Company may terminate the employment of the
Employee prior to the end of the Term of this Employment
Agreement for cause. In the event of termination by the
Company "for cause," all salary, benefits and other payments
shall cease at the time of termination, and the Company shall
have no further obligations to the Employee.
B. RESIGNATION. If the Employee resigns for any reason, all
salary, benefits and other payments (except as otherwise
provided in paragraph G of this Section 4 below) shall cease
at the time such resignation become effective. At the time of
any such resignation, the Company shall pay the Employee the
value of any accrued but unused vacation time, and the amount
of all accrued but previously unpaid base salary through the
date of such termination. The Company shall promptly reimburse
the Employee for the amount of any expenses incurred prior to
such termination by the Employee as required under paragraph F
of Section 3 above.
C. DISABILITY, DEATH. The Company may terminate the employment of
the Employee prior to the end of the Term of this Employment
Agreement if the Employee has been unable to perform his
duties hereunder for a continuous period of six (6) months due
to a physical or mental condition that, in the opinion of a
licensed physician, will be of indefinite duration or is
without a reasonable probability of recovery. The Employee
agrees to submit to an examination by a licensed physician in
order to obtain such opinion at the request of the Company.
Such examination shall be paid for by the Company and shall be
performed by a licensed physician designated by the Company.
However, this provision does not abrogate either the Company's
or the Employee's rights and obligations pursuant to the
Family and Medical Leave Act of 1993, and a termination of
employment under this paragraph C shall not be deemed to be a
termination for cause.
If during the Term of this Employment Agreement, the Employee
dies or his employment is terminated because of his
disability, all salary, benefits and other payments shall
cease at the time of death or disability. At the time of any
such termination, the Company shall pay the Employee, the
value of any accrued but unused vacation time, and the amount
of all accrued but previously unpaid base salary through the
date of such termination. The Company shall promptly reimburse
the Employee for the amount of any expenses incurred prior to
such termination by the Employee as required under paragraph F
of Section 3 above.
D. TERMINATION WITHOUT CAUSE. A termination without cause is a
termination of the employment of the Employee by the Company
that is not "for cause" and not occasioned by the resignation,
death or disability of the Employee. If the Company terminates
the employment of the Employee without cause, (whether before
the end of the Term of this Employment Agreement or, if the
Employee is employed by the Company under paragraph E of this
Section 4 above, after the Term of this Employment Agreement
has ended) the Company shall, at the time of such termination,
pay tot the Employee the severance payment provided in
paragraph F of this Section 4 below together with the value of
any accrued but unused vacation time and the amount of all
accrued but previously unpaid base salary through the date of
such termination and shall provide him with all of this
benefits under paragraph C of Section 3 above for the full
unexpired Term of this Employment Agreement. The Company shall
promptly reimburse the Employee for the amount of any expenses
incurred prior to such termination by the Employee as required
under paragraph F of Section 3 above.
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If the Company terminates the employment of the Employee
because it has ceased to do business or substantially
completed the liquidation of its assets or because it has
relocated to another city and the Employee has decided not to
relocate also, such termination of employment shall be deemed
to be without cause.
E. END OF THE TERM OF THIS EMPLOYMENT AGREEMENT. If Employee is
employed by the Company on September 30, 2000, the Company
shall pay him a retention bonus of Twenty Four Thousand
Dollars ($24,000) on the next business day. Except as
otherwise provided in paragraphs F and G of this Section 4
below, the Company may terminate the employment of the
Employee at the end of the Term of this Employment Agreement
without any liability on the part of the Company to the
Employee but, if the Employee continues to be an employee of
the Company after the Term of this Employment Agreement ends,
his employment shall be governed by the terms and conditions
of this Agreement, but he shall be an employee at will and his
employment may be terminated at any time by either the Company
or the Employee without notice and for any reason not
prohibited by law or no reason at all. If the Company
terminates the employment of the Employee at the end of the
Term of this Employment Agreement, the Company shall, at the
time of such termination, pay to the Employee the severance
payment provided in paragraph F of this Section 4 below
together with the value of any accrued but unused vacation
time and the amount of all accrued but previously unpaid base
salary through the date of such termination. The Company shall
promptly reimburse the Employee for the amount of any expenses
incurred prior to such termination by the Employee as required
under paragraph F of Section 3 above.
X. XXXXXXXXX. If the employment of the Employee is terminated by
the Company, at the end of the Term of this Employment
Agreement or, without cause (whether before the end of the
Term of this Employment Agreement or, if the Employee is
employed by the Company under paragraph E of this Section 4
above, after the Term of this Employment Agreement has ended),
the Employee shall be paid, as a severance payment at the time
of such termination, the amount of One Hundred Twenty-Seven
Thousand Five Hundred Dollars ($127,500). If any such
termination occurs at or after the substantial completion of
the liquidation of the assets of the Company, the severance
payment shall be increased by adding Thirty-One Thousand Eight
Hundred Seventy-Five Dollars ($31,875) to such amount. The
amount of the retention bonus paid to the employee under
paragraph E of this Section 4 shall be subtracted from any
severance payment made to the Employee on account of any
termination of employment that occurs on or within ninety days
after the end of the Term of this Employment Agreement.
G. CHANGE OF CONTROL SEVERANCE. In addition to the rights of the
Employee under the Company's employee benefit plans
(paragraphs C of Section 3 above) but in lieu of any severance
payment under paragraph F of this Section 4 above, if there is
a Change in Control of the Company (as defined below) and the
employment of the Employee is concurrently or subsequently
terminated (a) by the Company without cause, (b) by the
expiration of the Term of this Employment Agreement, or (c) by
the resignation of the Employee because he has reasonably
determined in good faith that his titles, authorities,
responsibilities, salary, bonus opportunities or benefits have
been materially diminished, that a material adverse change in
his working conditions has occurred, that his services are no
longer required in light of the Company's business plan, or
the Company has breached this Employment Agreement, the
Company shall pay the Employee, as a severance payment, at the
time of such termination, the amount of One Hundred Ninety-One
Thousand Two Hundred Fifty Dollars ($191,250) together with
the value of any accrued but unused vacation time, and the
amount of all accrued but previously unpaid base salary
through the date of termination and shall provide him with all
of this benefits under paragraph C of Section 3 above for the
longer of six (6) months or the full unexpired Term of this
Employment Agreement. If any such termination occurs at or
after the substantial completion of the liquidation of the
assets of the Company, the severance payment shall be
increased by adding Thirty-One Thousand Eight Hundred
Seventy-Five Dollars ($31,875) to such amount. The Company
shall promptly reimburse the Employee for the amount of any
expenses incurred prior to such termination by the Employee as
required under paragraph F of Section 3 above.
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For the purpose of this Employment Agreement, a Change in
Control of the Company has occurred when: (a) any person
(defined for the purposes of this paragraph G to mean any
person within the meaning of Section 13 (d) of the Securities
Exchange Act of 1934 (the "Exchange Act")), other than
Neoprobe or an employee benefit plan created by its Board of
Directors for the benefit of its employees, either directly or
indirectly, acquires beneficial ownership (determined under
Rule 13d-3 of the Regulations promulgated by the Securities
and Exchange Commission under Section 13(d) of the Exchange
Act) of securities issued by Neoprobe having fifteen percent
(15%) or more of the voting power of all the voting securities
issued by Neoprobe in the election of Directors at the next
meeting of the holders of voting securities to be held for
such purpose; (b) a majority of the Directors elected at any
meeting of the holders of voting securities of Neoprobe are
persons who were not nominated for such election by the Board
of Directors or a duly constituted committee of the Board of
Directors having authority in such matters; (c) the
stockholders of Neoprobe approve a merger or consolidation of
Neoprobe with another person other than a merger or
consolidation in which the holders of Neoprobe's voting
securities issued and outstanding immediately before such
merger or consolidation continue to hold voting securities in
the surviving or resulting corporation (in the same relative
proportions to each other as existed before such event)
comprising eight percent (80%) or more of the voting power for
all purposes of the surviving or resulting corporation; or (d)
the stockholders of Neoprobe approve a transfer of
substantially all of the assets of Neoprobe to another person
other than a transfer to a transferee, eighty percent (80%) or
more of the voting power of which is owned or controlled by
Neoprobe or by the holders of Neoprobe's voting securities
issued and outstanding immediately before such transfer in the
same relative proportions to each other as existed before such
event. The parties hereto agree that for the purpose of
determining the time when a Change of Control has occurred
that if any transaction results from a definite proposal that
was made before the end of the Term of this Employment
Agreement but which continued until after the end of the Term
of this Employment Agreement and such transaction is
consummated after the end of the Term of this Employment
Agreement, such transaction shall be deemed to have occurred
when the definite proposal was made for the purposes of the
first sentence of this paragraph G of this Section 4.
H. BENEFIT AND STOCK PLANS. In the event that a benefit plan or
Stock Plan which covers the Employee has specific provisions
concerning termination of employment, or the death or
disability of an employee (e.g., life insurance or disability
insurance), then such benefit plan or Stock Plan shall control
the disposition of the benefits or stock options.
5. PROPRIETARY INFORMATION AGREEMENT. Employee has executed a Proprietary
Information Agreement as a condition of employment with the Company.
The Proprietary Information Agreement shall not be limited by this
Employment Agreement in any manner, and the Employee shall act in
accordance with the provisions of the Proprietary Information Agreement
at all times during the Term of this Employment Agreement.
6. NON-COMPETITION. Employee agrees that for so long as he is employed by
the Company under this Employment Agreement and for one (1) year
thereafter, the Employee will not:
A. enter into the employ of or render any services to any person,
firm, or corporation, which is engaged, in any part, in a
Competitive Business (as defined below);
B. engage in any Competitive Business for his own account;
C. become associated with or interested in through retention or
by employment any Competitive Business as an individual,
partner, shareholder, creditor, director, officer, principal,
agent, employee, trustee, consultant, advisor, or in any other
relationship or capacity; or
D. solicit, interfere with, or endeavor to entice away from the
Company, any of its customers, strategic partners, or sources
of supply.
Nothing in this Employment Agreement shall preclude Employee
from taking employment in the
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banking or related financial services industries nor from
investing his personal assets in the securities or any
Competitive Business if such securities are traded on a
national stock exchange or in the over-the-counter market and
if such investment does not result in his beneficially owning,
at any time, more than one percent (1%) of the publicly-traded
equity securities of such Competitive Business. "Competitive
Business" for purposes of this Employment Agreement shall mean
any business or enterprise which:
a. is engaged in the development and/or
commercialization of products and/or systems for use
in (1) intraoperative detection of cancer and/or (2)
Activated Cellular Therapy for cancer, or
b. reasonably understood to be competitive in the
relevant market with products and/or systems
described in clause a above, or
c. the Company engages in during the Term of this
Employment Agreement pursuant to a determination of
the Board of Directors and from which the Company
derives a material amount of revenue or in which the
Company has made a material capital investment.
The covenant set forth in this Section 6 shall terminate
immediately upon the substantial completion of the liquidation
of assets of the Company or the termination of the employment
of the Employee by the Company without cause or at the end of
the Term of this Employment Agreement.
7. GOVERNING LAW. The Employment Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
8. VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Employment Agreement shall not affect the validity
or enforceability of any other provision of the Employment Agreement,
which shall remain in full force and effect.
9. ENTIRE AGREEMENT. This Employment Agreement constitutes the entire
understanding between the parties with respect to the subject matter
hereof, superseding all negotiations, prior discussions, and
preliminary agreements. This Employment Agreement may not be amended
except in writing executed by the parties hereto.
10. EFFECT ON SUCCESSORS OF INTEREST. This Employment Agreement shall inure
to the benefit of and be binding upon heirs, administrators, executors,
successors and assigns of each of the parties hereto. Notwithstanding
the above, the Employee recognizes and agrees that his obligation under
this Employment Agreement may not be assigned without the consent of
the Company.
IN WITNESS WHEREOF, the parties hereto have executed and deliverd this
Employment Agreement as of the date first written above.
NEOPROBE CORPORATION EMPLOYEE
By: /s/ Xxxxx X. Xxxx /s/ Xxxx Xxxxx
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Xxxxx X. Xxxx, President Xxxx Xxxxx
