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EXHIBIT 10.2.44
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into effective as of
January 1, 1998 ("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 XXXXX X. XXXX of Dublin, Ohio
(the "Employee").
WHEREAS, the Company and the Employee entered into an Employment
Agreement dated as of January 1, 1996 (the "1996 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 President and
Chief Executive Officer of the Company and in such equivalent,
additional or higher executive level position or positions as shall be
assigned to him by the Board of Directors. While serving in such
executive level position or positions, the Employee shall report to, be
responsible to, and shall take direction from the Board of Directors 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 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.
The Employee represents and warrants to the Company that Exhibit A
attached hereto sets forth a true and complete list of (a) all offices,
directorships and other positions held by the Employee in corporations
and firms other than the Company and its subsidiaries and (b) any
investment or ownership interest in any corporation or firm other than
the Company beneficially owned by the Employee (excluding investments
in life insurance policies, bank deposits, publicly traded securities
that are less than five percent (5%) of their class and real estate).
The Employee will promptly notify the Board of Directors of the Company
of any additional positions undertaken or investments made by the
Employee during the Term of this Employment Agreement if they are of a
type which, if they had existed on the date hereof, should have been
listed on Exhibit A hereto. As long as the Employee's other positions
or investments in other firms do not create a conflict of interest,
violate the Employee's obligations under Section 7 below or cause the
Employee to neglect his duties hereunder, such activities and positions
shall not be deemed to be a breach of this Employment Agreement.
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2. TERM. Subject to Sections 4 and 5 hereof, the Term of this Employment
Agreement shall be for a period of two (2) years, commencing January 1,
1998 and terminating December 31, 1999.
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 and throughout the
first year of this Employment Agreement, the Company shall pay the
Employee a salary of $275,500 per year, payable in semi-monthly or
monthly installments. Promptly after both parties have signed
counterparts of this Agreement, the Company will pay to the
Employee an amount equal to the amount by which the salary
provided in the previous sentence exceeds the base salary actually
paid to the Employee during the period from the begining of the
Term through the date of payment. During the second year of the
Employment Agreement, the Company shall pay the Employee a salary
of at least $290,000 per year, payable in semi-monthly or monthly
installments.
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
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.
E. RESTRICTED STOCK. Simultaneously with the execution of this
Employment Agreement, the Employee will enter into a Restricted
Stock Purchase Agreement under the 1996 Stock Incentive Plan in
the form attached hereto as Exhibit B. The terms of such agreement
shall govern the rights of the Employee and the Company thereunder
in the event of any conflict between such agreement and this
Employment Agreement.
F. CONTINUATION. Employee's salary and benefits shall be paid by the
Company for the full Term if the Employee is terminated without
cause and if such termination without cause occurs during 1999,
the Company shall continue to pay the Employee his salary and
benefits until the first anniversary of such termination. The
salary and
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benefits shall cease if the Employee is terminated for cause or if
the Employee resigns (see Section 4).
G. VACATION. The Employee shall be entitled to twenty (20) days of
vacation during each calendar year during the Term of this
Employment Agreement.
H. CHANGE OF CONTROL SEVERANCE. In addition to the rights of the
Employee under the Company's employee benefit plans (paragraphs C
and F above) or otherwise but in lieu of any payment of base
salary under paragraph F 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 or the
Company has breached this Employment Agreement, the Employee shall
be paid a severance payment equal to twice the annual base salary
of Employee as in effect immediately before such termination less
the amount of any payments of salary due to Employee under
paragraph F 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 H 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 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 and
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which was the subject of negotiations that began during the Term
but which continued until after the end of the Term and such
transaction is consumated after the end of the Term, such
transaction shall be deemed to have occurred when the definite
proposal was made for the purposes of the first sentence of this
paragraph H of this Section 3.
4. TERMINATION. The Company may terminate the employment of the Employee
prior to the end of the Term of this Employment Agreement or "for
cause."
A. Termination "for cause" shall be defined as a termination by the
Company of the employment of the Employee occasioned by a willful
breach of a material duty by the Employee in the course of his
employment or willful and continued neglect of his duty as an
employee hereunder.
B. 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. In the event that a benefit plan or Stock Plan which
covers the Employee has specific provisions concerning termination
of employment, then such benefit plan or Stock Plan shall control
the disposition of the benefits or stock options.
C. The parties agree that the employment relationship described
herein shall end at the end of the Term, unless the parties agree,
in writing, to extend the Term. At least six (6) months prior to
the expiration of the Term, the Company shall provide Employee
with written notice that it intends to extend the Term hereof, and
Employee and Company then shall negotiate any changes to this
Employment Agreement for the extension of the Term that they deem
advisable. If the Company does not give such notice to Employee
before July 1, 1999 or if it notifies him at that time that it
does not intend to extend the Term, the Company shall continue to
pay the Employee his salary and benefits through June 30, 2000,
subject to paragraph B of this Section 4 and paragraph F of
Section 3 above, but regardless of whether his employment is
terminated at any time after June 30, 1999 by the end of the Term
or by the Employee's resignation. If the Employee continues to
render services in the Company's employ after the end of the Term
in the absence of such written extension, it is understood that
such continued employment will be "at will," terminable at any
time by either party, but such services shall not constitute a
waiver of the provisions of this paragraph C.
D. Should the Company relocate to another city and Employee decide
not to relocate also, cessation of employment shall be without
cause hereunder. A termination without cause is a termination of
employment before the end of the Term of this Employment Agreement
that is not for cause and not occasioned by the resignation, death
or disability of the Employee.
E. 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
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definite 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.
Such 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
E shall not be deemed to be a termination for cause.
5. RESIGNATION, DEATH OR DISABILITY.
A. If, during the Term of this Employment Agreement, the Employee
resigns for any reason, all salary, benefits and other payments
(except as otherwise provided in paragraph H of Section 3 above
and paragraph C of Section 4 above) shall cease at the time such
resignation becomes effective. In the event that a benefit plan or
Stock Plan which covers the Employee has specific provisions
relative to resignation by an employee, then such benefit plan or
Stock Plan shall control the disposition of the benefits or stock
options.
B. If during the Term of this Employment Agreement, the Employee dies
or his employment is terminated because of his disability (see
Section 4.E. above), 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 six (6) months after such termination
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. In the event that such a benefit
plan or a Stock Plan which covers the Employee has specific
provisions concerning 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 such benefits
or stock options.
C. The language set forth in this Section 5 shall not limit the
Company's right to seek other remedies for damages incurred in the
event Employee fails to comply with the terms of this Employment
Agreement.
6. 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.
7. NON-COMPETITION. Employee agrees that for so long as he is employed by
the Company under this Employment Agreement and for two (2) years
thereafter, the Employee will not
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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 banking or related financial services
industries nor from investing his personal assets in the securities of
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) the 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 7 shall terminate immediately
upon the termination of the employment of the Employee by the Company
without cause or at the end of the Term of this Employment Agreement.
8. 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 nonunion
employment arbitration rules of the American Arbitration Association
("AAA") then in effect. If specific nonunion 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
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arbitration, award, confirmation or judgment in order to assert or
defend any right or obtain any payment under paragraph H of Section 3
above or under this sentence; without regard to the success of the
Employee or his attorney in any such arbitration or proceeding.
9. GOVERNING LAW. The Employment Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
10. 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.
11. ENTIRE AGREEMENT.
A. The 1996 Employment Agreement is terminated as of the effective
date of this Employment Agreement, except that the Stock Options
granted to the Employee in the 1996 Employment Agreement or in any
previous employment agreement or by the Compensation Committee
remain in full force and effect, and survive the termination of
the 1996 Employment Agreement and except that the bonus
opportunities granted to the Employee in paragraph 3 of the letter
agreement dated February 16, 1995 remain in full force and effect,
and survive the termination of the 1996 Employment Agreement.
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.
12. 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/ Xxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxx
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Xxxx X. Xxxxxxxxx, Chairman of the Board Xxxxx X. Xxxx
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Exhibit 10.2.45
NEOPROBE CORPORATION
XXXXX 000
000 XXXXX XXXXX XXXXX
XXXXXX, XXXX 00000-0000
May 20, 1998
Xxxxx X. Xxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Congratulations. You have been granted a right to purchase Restricted
Stock under Neoprobe's 1996 Stock Incentive Plan (the "Plan") on the following
terms:
1. PURCHASE AND SALE. On the terms and subject to the conditions set
forth in this Agreement, you hereby subscribe for and agree to purchase 45,000
shares of Common Stock (the "Restricted Stock") for and in consideration of a
payment by you to Neoprobe of $0.001 per share.
2. TRANSFER RESTRICTIONS. The fair market value of Common Stock is
demonstrated by the closing price on the Nadaq National Market of such
securities on the business day before the date first set forth above which was
$5.25 per share. In consideration of the difference between the purchase price
of the Restricted Stock set forth in paragraph 1 above and its fair market value
without the restrictions and risk of forfeiture set forth herein, you agree
that, unless and until any of the Restricted Stock vests and becomes
transferable as provided in paragraph 4 below, you will neither transfer, sell,
assign nor pledge any of the Restricted Stock. Any certificate representing any
Restricted Stock issued hereunder shall bear the following legend in larger or
other contrasting type or color: "The transfer of these securities is restricted
by, and such securities are subject to a risk of forfeiture, under a Restricted
Stock Purchase Agreement between the registered owner hereof and the Issuer
dated May 20, 1998."
3. FORFEITURE. You will forfeit any portion of the Restricted Stock
purchased under this Agreement that has not vested and become transferable on
the earliest of: (a) the expiration of 10 years from the date of this Agreement,
or (b) (except as otherwise provided in the last sentence of this paragrah 3)
immediately upon the termination of your employment by your Employer under the
Employment Agreement, whether for cause or without cause or because of your
death or disability or by your resignation. If such a forfeiture occurs, all of
your right, title and interest in and to any shares of Restricted Stock which
have not previously vested and became transferable will be terminated, the
certificates representing the forfeited shares will be canceled or transferred
free and clear of all restrictions to Neoprobe's treasury and we will pay you
$0.001 per share for each share of Restricted Stock so forfeited.
Notwithstanding clause (b) of this paragraph 3 no forfeiture shall occur upon
the termination of your employment by your Employer under the Employment
Agreement without cause or because of your death or disability if at the time of
such termination Neoprobe is engaged in active negotiations that could
reasonably be expected to result in a change in control.
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4. VESTING PROVISIONS. Any Restricted Stock that has not previously
been forfeited under Section 3 above will vest and become transferable if and
when a change in control of the Company occurs or upon the termination of your
employment by your Employer under the Employment Agreement without cause or
because of your death or disability if at the time of such termination Neoprobe
is engaged in active negotiations that could reasonably be expected to result in
a change in control; provided the Committee certifies such occurrence in its
minutes or another writing promptly thereafter. Notwithstanding any provision of
this Agreement or any provision of the Plan, including, but not limited to, the
last sentence of Section 7.1 thereof and Section 8.3 thereof, the provisions of
which are hereby waived by you, the Committee may, if it determines in its sole
discretion that your actions in connection with any change in control which
results in the vesting of any shares of Restricted Stock hereunder were not in
accordance with your duties to the Company and its stockholders as a director,
officer or employee of the Company or your actions did not fully support the
determinations of the Board of Directors of the Company in connection therewith,
reduce the number of shares of Restricted Stock which vest under this Agreement
or eliminate such vesting entirely. When any portion of the Restricted Stock
vests and becomes transferable, the Company shall, subject to the provision of
Section 6 below, promptly deliver a certificate (free of all adverse claims and
transfer) representing the number of shares constituting the vested and
transferable portion of the Restricted Stock to you at your address given above
and such shares shall no longer be deemed to be Restricted Stock subject to the
terms and conditions of this Agreement.
5. RIGHTS; STOCK DIVIDENDS. Except for the restrictions on transfer set
forth in Section 2 and the possibility of forfeiture set forth in Section 3,
upon the issuance of a certificate representing shares of Restricted Stock, you
will have all other rights in such shares, including the right to vote such
shares and receive dividends other than dividends on or distributions of shares
of any class of stock issued by the Company which dividends or distributions
shall be delivered to the Company under the same restrictions on transfer and
possibility of forfeitures as the shares of Restricted Stock from which they
derive.
6. TAXATION. Both you and we intend that the transactions provided for
in this Agreement will be governed by the provisions of Section 83(a) of the
Internal Revenue Code of 1986. You will have taxable income upon the vesting of
Restricted Stock. At that time, you must pay to the Company an amount equal to
the required federal, state, and local tax withholding less any withholding
otherwise made from your salary or bonus. You must satisfy any relevant
withholding requirements before the Company issues certificates representing and
vested shares of Restricted Stock to you.
7. EMPLOYMENT AGREEMENT. The terms of your employment by the Company
are governed exclusively by the Employment Agreement. This Agreement is not an
employment agreement and nothing contained herein gives you any right to
continue to be employed by or provide services to the Company or affects the
right of the Company to terminate your employment or other relationship with
you.
8. PLAN CONTROLS. This Agreement is a Restricted Stock Purchase
Agreement (as such term is defined in the Plan) under Article 7 of the Plan. The
terms of this Agreement are subject to, and controlled by, the terms of the
Plan, as it is now in effect or may be amended from time to time hereafter,
which are incorporated herein as if they were set forth in full. Any words or
phrases defined in the Plan have the same meanings in this Agreement. The
Company will provide you
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with a copy of the Plan promptly upon your written or oral request made to its
principal financial officer.
9. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Columbus, Ohio, in accordance with the nonunion employment arbitration rules of
the American Arbitration Association ("AAA") then in effect. If specific
nonunion 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 will indemnify you against, and hold you harmless from, any attorney's
fees, court costs and other expenses incurred by you 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 hereunder after the occurrence of a change in
control of the Company or under this sentence; without regard to the success of
the Employee or his attorney in any such arbitration or proceeding.
10. MISCELLANEOUS. This Agreement sets forth the entire agreement of
the parties with respect to the subject matter hereof and it supersedes and
discharges all prior agreements (written or oral) and negotiations and all
contemporaneous oral agreements concerning such subject matter. This Agreement
may not be amended or terminated except by a writing signed by the party against
whom any such amendment or termination is sought. If any one or more provisions
of this Agreement shall be found to be illegal or unenforceable in any respect,
the validity and enforceability of the remaining provisions hereof shall not in
any way be affected or impaired thereby. This Agreement shall be governed by the
laws of the State of Delaware.
Please acknowledge your acceptance of this Agreement by signing the
enclosed copy in the space provided below and returning it promptly to the
Company.
NEOPROBE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxxx, Chairman of the Board
Accepted and Agreed to as of
the date first set forth above:
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
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