EXHIBIT 10.2.60
SCHEDULE IDENTIFYING OMITTED DOCUMENTS
The only particulars in which the attached agreement differs from the omitted
agreements are the name of the officer who is a party to the agreement, the
annual base salary effective October 1, 2001, the annual base salary effective
October 1, 2002, the amount of severance, and the amount of change of control
severance.
Annual Base Annual Base Change of
Salary Effective Salary Effective Control
Name 10/1/2001 10/1/2002 Severance Severance
---- --------- --------- --------- ---------
Xxxxxx X. Xxxxx $110,000 $125,000 $125,000 $250,000
Xxxxx X. Xxxxxx $135,000 $148,000 $148,000 $296,000
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into effective as of October
1, 2001 (the "Effective Date"), by and between NEOPROBE CORPORATION, a Delaware
Corporation with a place of business at 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxx 00000-1367 (the "Company") and XXXX X. XXXXX of Worthington, Ohio
(the "Employee").
WHEREAS, the Company and the Employee entered into an Employment Agreement
effective as of April 1, 2000 (the "2000 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 of the Company and in such
equivalent, additional or higher executive level position or positions
as shall be assigned to him by the Company's President and CEO. While
serving in such executive level position or positions, the Employee
shall report to, be responsible to, and shall take direction from the
President and CEO 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 working 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 that 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 a period of
twenty-four (24) months, commencing October 1, 2001 and terminating
September 30, 2003.
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 Thirty-Five Thousand Dollars ($135,000) per year, payable
in semi-monthly or monthly installments as requested by the
Employee.
Beginning on October 1, 2002, the Company shall pay the Employee a
salary of One Hundred Forty-Eight Thousand Dollars ($148,000) per
year, payable in semi-monthly or monthly installments as requested
by the Employee.
B. BONUS. The Compensation Committee of the Board of Directors will,
on an annual basis, review the performance of the Company and of
the Employee and 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 executive officers and
employees 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.
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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.
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." Termination "for cause" shall be defined as a termination
by the Company of the employment of the Employee occasioned by the
failure by the Employee to cure a willful breach of a material duty
imposed on the Employee under this Employment Agreement within 15
days after written notice thereof by the Company or the
continuation by the Employee after written notice by the Company of
a willful and continued neglect of a duty imposed on the Employee
under this Employment Agreement. 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 becomes 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 of his choice in order to obtain such opinion,
at the request of the Company, made after the Employee has been
absent from his place of employment for at least six (6) months.
Any requested examination shall be paid for 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, provided, however, that the Company shall
provide such health, dental and similar insurance or benefits as
were provided to Employee immediately before his termination by
reason of death or disability, to Employee or his family for the
longer of twelve (12) months after such termination or the full
unexpired Term of this Employment
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Agreement on the same terms and conditions (including cost) as were
applicable before such termination. In addition, for the first six
(6) months of disability, the Company shall pay to the Employee the
difference, if any, between any cash benefits received by the
Employee from a Company-sponsored disability insurance policy and
the Employee's salary hereunder. 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 below,
after the Term of this Employment Agreement has ended) 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 and shall provide him with all of his
benefits under paragraph C of Section 3 above for the longer of
twelve (12) months or 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.
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. 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
reasonable 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 Forty-Eight Thousand Dollars ($148,000) together with
the value of any accrued but unused vacation time.
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
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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 Two Hundred
Ninety-Six Thousand Dollars ($296,000) 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. 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.
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 thirty
percent (30%) 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
eighty 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
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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 directly 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 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 intraoperative detection of
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. ARBITRATION. Any dispute or controversy arising under or in connection
with this Employment Agreement shall be settled exclusively by
arbitration in Columbus, Ohio, in accordance with the non-union
employment arbitration rules of the American Arbitration Association
("AAA") then in effect. If specific non-union employment dispute rules
are not in effect, then AAA commercial arbitration rules shall govern
the dispute. If the amount claimed exceeds $100,000, the arbitration
shall be before a panel of three arbitrators. Judgment may be entered
on the arbitrator's award in any court having jurisdiction. The Company
shall indemnify the Employee against and hold him harmless from any
attorney's fees, court costs and other expenses incurred by the
Employee in connection with the preparation, commencement, prosecution,
defense, or enforcement of any arbitration, award, confirmation or
judgment in order to assert or defend any right or obtain any payment
under paragraph C of Section 4 above or under this sentence; without
regard to the success of the Employee or his attorney in any such
arbitration or proceeding.
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8. GOVERNING LAW. The Employment Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
9. 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.
10. ENTIRE AGREEMENT.
A. The 2000 Employment Agreement is terminated as of the effective
date of this Employment Agreement, except that awards under the
Stock Plans granted to the Employee in the 2000 Employment
Agreement or in any previous employment agreement or by the
Compensation Committee remain in full force and effect.
B. 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.
11. 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 delivered this
Employment Agreement as of the date first written above.
NEOPROBE CORPORATION EMPLOYEE
By: /s/ Xxxxx Xxxx /s/ Xxxx X. Xxxxx
-------------------------------- --------------------------------------
Xxxxx X. Xxxx, President and CEO Xxxx X. Xxxxx
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