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EXHIBIT 10.2.58
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into effective as of July 1,
2000 (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 00000-0000 (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 entered into an Employment Agreement
dated as of January 1, 1998 (the "1998 Employment Agreement"); and
WHEREAS, the Company and the Employee entered into an Employment Agreement
dated as of July 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 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 Company's 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. The Board of Directors shall not require the
Employee to perform any task that is inconsistent with the office of
President or the position of Chief Executive Officer. 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 OF THIS EMPLOYMENT AGREEMENT. Subject to Sections 4 and 5 hereof,
the Term of this Employment Agreement shall be for a period of eighteen
(18) months, commencing July 1, 2000 and terminating December 31, 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 Three
Hundred Ten Thousand Dollars ($310,000) 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.
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-five (25) 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
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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. 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 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 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 twenty-four (24)
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
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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
Three Hundred Eighty Seven Thousand Five Hundred Dollars ($387,500)
together with the value of any accrued but unused vacation time. 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 Seventy Seven Thousand Five
Hundred Dollars ($77,500) to such amount.
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
Six Hundred Ninety Seven Thousand Five Hundred Dollars ($697,500)
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 Seventy Seven
Thousand Five Hundred Dollars ($77,500) 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.
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
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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 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 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
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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.
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 1999 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 1999 Employment Agreement or in
any previous employment agreement or by the Compensation Committee
remain in full force and effect, and survive Plansthe termination of
the 1999 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 1999 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.
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.
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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/ Xxxxxxx X. Xxxxx /s/ Xxxxx X. Xxxx
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Xxxxxxx X. Xxxxx, Chairman Xxxxx X. Xxxx
Compensation Committee
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EXHIBIT A
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Non-salaried consultant to NuRigs, Ltd.
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