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Exhibit 10.2.35
NEOPROBE CORPORATION
SUITE 000
000 XXXXX XXXXX XXXXX
XXXXXX, XXXX 00000-1367
June 5, 1996
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 30,000 shares
of Common Stock (the "Restricted Stock") for and in consideration of a payment
by you to Neoprobe of $0.001 per share. We are parties to a Restricted Stock
Purchase Agreement dated June 22, 1993. Under the terms of such agreement the
shares of restricted issueable thereunder will be forfeited unless they vest
before July 1, 1996. Pursuant to the terms of the employment agreement between
us and you dated as of January 1, 1996 (the "Employment Agreement") we have
agreed to enter into this Agreement, the form of which is Exhibit B to the
Employment Agreement. You have agreed upon the execution and mutual delivery of
the Employment Agreement to surrender to us the shares of restricted stock
issued pursuant to the Restricted Stock Purchase Agreement dated June 22, 1993
and that the payment due to you for such shares is hereby assigned by you to the
Company as payment for the issuance of the Restricted Stock hereunder, the
receipt and sufficiency of which are hereby acknowledged by us. We have agreed
that the certificates representing the shares of restricted stock issued under
the Restricted Stock Purchase Agreement dated June 22, 1993 shall be deemed to
be certificates representing the shares of Restricted Stock issuable hereunder
and that the Secretary of the Company may continue to hold the certificates
representing the Restricted Stock together with stock powers duly endorsed in
blank.
2. TRANSFER RESTRICTIONS. The fair market value of Common Stock is
demonstrated by the closing price on the Nasdaq National Market of such
securities on the business day before the date first set forth above which was
$18 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 June 5, 1996."
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 paragraph 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 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.
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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
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Xxxx X. Xxxxxxxxx,
Chairman of the Board
Accepted and Agreed to as of
the date first set forth above:
/s/ Xxxxx Xxxx
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Xxxxx X. Xxxx
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