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Exhibit 10.2.49
SEPARATION AGREEMENT
OCTOBER 21, 1998
NEOPROBE CORPORATION, a Delaware corporation with its principal place of
business at 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000-0000 (the
"Company"), and
XXXX X. XXXXXXXXX, who resides at 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (the
"Executive")
hereby agree as follows:
PREAMBLE:
1. Executive has been employed by the Company as its Chairman of the Board and
at various times as its Chief Executive and Chief Scientific Officer under an
Employment Agreement between it and the Executive effective as of January 1,
1996 ("Employment Agreement").
2. The term of the Employment Agreement will expire on December 31, 1998 and the
Board of Directors of the Company has determined that the term will not be
extended.
3. The Company has offered to make a substantial separation payment to the
Executive on the terms set forth below in exchange for his resignation from all
offices with the Company, the execution and delivery of a general release and
certain other promises set forth below.
TERMS:
1. In consideration of the promises made by Company as set forth below:
(a) Executive hereby agrees to resign as a director, officer and
employee of the Company effective as of the close of business
on December 31, 1998 and to execute and deliver to the Company
his resignation in the form of Exhibit A hereto on that day;
(b) Executive hereby agrees to execute and deliver to the Company,
on December 31, 1998, his general release in the form of
Exhibit B hereto;
(c) On or before December 31, 1998, Executive shall return to the
Company, (i) all of its documents, and other tangible items in
written, magnetic or other form, which contain confidential
information concerning the Company, and any copies thereof ,
that are in his possession or under his control and; and (ii)
all other Company property within his possession or under his
control, including, but not limited to, office keys,
identification badges, credit cards and computer equipment and
software;
(d) Executive acknowledges and confirms that the Proprietary
Information Agreement between the Company and him, which
affirmed his obligation not to disclose the
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Company's trade secrets, confidential or proprietary
information, is in full force and effect and will remain in
full force and effect after termination of his employment;
(e) Executive shall not disparage the Company, its affiliates or
their respective businesses, business methods, technologies,
directors, officers, employees or agents, and Executive shall
not cause, instigate, solicit nor encourage any third party,
to file, maintain or prosecute any action or claim of any type
against Company, its affiliates or its officers or agents; and
(f) Executive agrees that if a subpoena or other legal document is
served upon him requiring production or disclosure of
information or documents concerning the Company or any of its
employees or property, he shall promptly notify the Company's
General Counsel and provide her with copies of any subpoena or
other legal document. Executive shall thereafter make such
documents available to the Company for inspection and copying
at a reasonable time and place designated by the Company prior
to their production under the subpoena. If the subpoena or
other legal process requires Executive to testify or make
written or oral statements, Executive agrees to meet,
telephonically or in person, with attorneys designated by
Company, at a reasonably convenient time and place designated
by Company prior to the testimony, for the purpose of
discussing such testimony; Nothing herein shall give Company
the right to control or dictate the content of any testimony,
or any documents produced pursuant to subpoena or other lawful
process; Executive shall provide all information lawfully
required of him; If the Company requires any information or
testimony from Executive in connection with any claim made
against Company, or any claims made by Company against persons
or entities not a party to this Agreement, Executive agrees to
cooperate fully with Company, including: (i) appearing at any
trial, hearing, deposition or arbitration; (ii) meeting
telephonically or in person with attorneys designated by
Company, at a reasonably convenient time and place designated
by Company and prior to the testimony, for the purpose of
discussing such testimony and any other matters relating to
the claim; and (iii) providing Company with any documentation
in his custody or under his control; The Company agrees to pay
Executive for any reasonable travel, telephone, photocopy and
other out-of-pocket expenses incurred as a result of any
requests made by Company under this Paragraph (f); The
provisions of this Paragraph (f) shall not apply to any legal
action brought under this Agreement.
2. In consideration of the promises made by Executive as set forth above:
(a) Company shall pay Executive a total amount of $137,750 as a
separation payment, in 12 equal semi-monthly installments of
$11,479.17, in accordance with its normal payroll practices,
commencing with its first payroll period in January, 1999 and
ending with its last payroll period in June 1999 and subject
to all applicable federal, state and local tax, FICA and other
payroll deductions;
(b) Company shall not oppose a claim for Ohio unemployment
compensation filed by Executive, but shall report in response
to OBES inquiry any amounts paid under this Agreement;
(c) The Company hereby confirms that the Employment Agreement
between it and the Executive is in full force and effect on
the date hereof and will remain in full force and effect until
December 31, 1998 when it will expire by its own terms;
provided, however, that the Company hereby relieves the
Executive from the duty under Section 1 thereof to devote
substantially all of his working time to the position he holds
with the Company and
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agrees that he need not report to the Company's offices on a
regular basis during the remainder of 1998; the Company hereby
agrees that it will not terminate the employment of the
Executive under the Employment Agreement without cause before
the end of its term;
(d) On the Company's first pay day in 1999, the Company shall pay
Executive all accrued but unused vacation pay owed to him as
of December 31, 1998, in a lump sum; the Company will not
charge any vacation time against the Executive after the date
hereof and he shall continue to accrue vacation time at the
applicable rate under the Employment Agreement from the date
hereof through December 31, 1998;
(e) Executive's coverage under the Company's health, disability,
travel and life insurance plans will terminate at the close of
business on December 31, 1998; After December 31, 1998,
Executive shall be able to purchase health insurance benefits
from the Company on a COBRA basis, but shall be solely
responsible for the cost thereof; Executive may have the right
to convert other coverages to his own individual plan, if
provided for under, and in accordance with, the terms of, such
plans;
(f) The Company will use its best efforts to assign to the
Executive any life insurance policy on the life of the
Executive on or before December 31, 1998, without recourse to
or warranty by the Company and the Executive shall accept such
assignments and shall be solely responsible for any payments
of premium on such policies, including any past due premiums;
and
(g) Executive was granted stock options under the Company's Stock
Option Plan; Company hereby agrees that all options which are
vested and exercisable as of the date hereof shall continue to
be vested and exercisable, subject to the express terms
thereof.
3. It is understood and agreed by all parties that this Agreement is a
settlement of doubtful and disputed claims and it or the fact of
settlement does not constitute an admission of liability or wrongdoing
on the part of Company, under any state or federal statute, common law
or regulation. It purely represents an offer of compromise.
4. The parties hereto agree that this Agreement is privileged, and, except
to the extent necessary to enforce this Agreement, neither party may
use any part of this Agreement as evidence, nor request that any part
be admitted into evidence, in any proceeding of any character, judicial
or otherwise, now pending or otherwise instituted.
5. All parties intend that this Agreement will be legally binding upon
themselves, their relatives or affiliates (by blood or legal
relationship), estates, heirs, personal representatives and assigns.
6. The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this
instrument shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
7. Both parties agree that such parties shall hold all events,
transactions and occurrences involving the other party and the terms,
provisions and conditions of this Agreement as strictly confidential
information, which shall not be reported, divulged, publicized or in
any way revealed to any person, corporation, agency or entity not a
party to this agreement, except attorneys and immediate family or
otherwise as required by law or the regulations of the Securities and
Exchange Commission and for purposes of reporting taxes or filing for
unemployment compensation. The parties shall prepare
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a mutually acceptable joint press release regarding Executive's
employment and his resignation, which press release shall be utilized
for public dissemination. Company may file a copy of this Agreement
with the Securities and Exchange Commission and make disclosures
concerning this Agreement as required by its regulations.
8. Executive understands that Section 1 above requires delivery of a
General Release that includes a release of claims under the Age
Discrimination in Employment Act and the Older Workers Benefit
Protection Act. He understands that neither this Agreement nor the
General Release will waive rights or claims that arise after the date
of the execution of the General Release . Further, Executive
acknowledges he has been advised by the Company that he may consult
with legal counsel regarding this Agreement and the General Release.
9. Executive acknowledges he may have at least twenty-one (21) days to
review and consider this Agreement if he desires; and, as a result,
enters into this Agreement willingly and voluntarily. To the extent
that Executive has taken less than twenty-one (21) days to consider
this Agreement, Executive acknowledges that he has had sufficient time
to consider this Agreement and to consult with counsel and that he does
not desire additional time.
10. Executive is aware that he has seven (7) days beyond that date of the
General Release (December 31, 1998) during which he may revoke the
General Release by giving the Company written notice. Such notice
should be delivered to Xxxxxxxx Xxxxxx, Vice President and General
Counsel, at Neoprobe Corporation 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxx 00000-0000. Upon such notification by Executive, this
Agreement and the General Release will become null and void and shall
have no force or effect as to either party and, Executive will forfeit
all money and other benefits of this Agreement and the General Release.
11. Executive further agree that any breach or threatened breach by
Executive of this Agreement cannot be remedied solely by the recovery
of damages and Neoprobe shall therefore be entitled to an injunction
against such breach or threatened breach without posting any bond or
other security. Nothing herein, however, shall be construed as
prohibiting Neoprobe from pursuing, in law or equity, any remedy for
such breach or threatened breach, including the recovery of damages.
12. All parties affirm that the only consideration for signing this
Agreement are the terms stated herein, that no other promises or
agreement of any kind have been made to or with any of the parties or
any other person or entity whatsoever, and that they fully understand
the meaning and intent of this instrument. This Agreement and the
exhibits hereto and the agreements and instruments required to be
executed and delivered hereunder set forth the entire agreement of the
parties with respect to the subject matter hereof and supersede and
discharge all prior agreements (written or oral) and negotiations and
all contemporaneous oral agreements concerning such subject matter and
negotiations. There are no oral conditions precedent to the
effectiveness of this Agreement.
13. This Agreement shall be governed by the laws of the State of Ohio and
any disputes shall adjudicated within the exclusive jurisdiction and
venue of the courts of the State of Ohio and the United States seated
in Franklin County, Ohio. If any provision of this Agreement including,
but not limited to, the waiver of claims under any particular statute,
should be deemed unenforceable, the remaining provisions shall, to the
extent possible, be carried into effect, taking into account the
general purpose and spirit of this Agreement.
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SIGNATURES:
EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ AND FULLY UNDERSTANDS ALL THE
PROVISIONS OF THIS AGREEMENT AND THE GENERAL RELEASE ATTACHED HERETO, AND HE IS
ENTERING INTO THIS AGREEMENT VOLUNTARILY. EXECUTIVE ACKNOWLEDGES THAT THE
PAYMENT HE IS RECEIVING IN EXCHANGE FOR EXECUTING THIS AGREEMENT IS GREATER THAN
THAT WHICH HE WOULD BE ENTITLED TO IN THE ABSENCE OF THIS AGREEMENT. EXECUTIVE
HAS NOT RELIED UPON ANY REPRESENTATION OR STATEMENT, WRITTEN OR ORAL, NOT SET
FORTH IN THIS AGREEMENT.
EXECUTIVE
/s/ Xxxx X. Xxxxxxxxx
----------------------------
Xxxx X. Xxxxxxxxx
NEOPROBE CORPORATION
By: /s/ Xxxxx X. Xxxx
-------------------------
Xxxxx X. Xxxx, President
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XXXX X. XXXXXXXXX
0000 XXXX XXXXXX
XXXXXXXX, XXXX 00000
December 31, 1998
Neoprobe Corporation
000 Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxx 00000-0000
Dear Sirs:
I hereby resign as a director, officer and employee of Neoprobe Corporation
effective as of the close of business today, December 31, 1998.
Very truly yours,
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
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GENERAL RELEASE
The undersigned, Xxxx X. Xxxxxxxxx, who resides at 0000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxx 00000 ("Xx. Xxxxxxxxx") does hereby release
Neoprobe Corporation, a Delaware corporation with its principal place of
business at 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000-0000, its
parent, subsidiary and affiliated entities and their respective directors,
officers, employees, attorneys and agents and all of the successors, assigns and
personal representatives of such persons (the "Neoprobe Parties"),
From any and all claims, causes of action and rights that Xx. Xxxxxxxxx has or
may have against any of the Neoprobe Parties, individually, jointly or in any
representative or fiduciary capacity, whether or not Xx. Xxxxxxxxx knows of
them, and discharges the Neoprobe Parties, individually and jointly and in any
representative or fiduciary capacity, from any further obligation or liability
to Xx. Xxxxxxxxx, including but not limited to, any claims which arose out of
the employment relationship between Xx. Xxxxxxxxx and Neoprobe Corporation or
its termination;
For and in consideration of the amounts payable to Xx. Xxxxxxxxx under the
Separation Agreement dated October 21, 1998, between Neoprobe Corporation and
Xx. Xxxxxxxxx (the "Separation Agreement"), the receipt and sufficiency of which
are hereby acknowledged.
This General Release specifically discharges any claims or charges of
discrimination, including age discrimination, that Xx. Xxxxxxxxx has or may have
against the Neoprobe Parties under any federal, state or local statute, law,
rule or regulation, including, but not limited to, any claim or cause of action
asserted or which could be asserted under any of the following laws as they now
exist or may be amended in the future:
Ohio Revised Code Chapter 4112 concerning discrimination;
Ohio's Workers' Compensation Law;
Ohio Whistleblowers Protection Act;
Title VII of the 1964 Civil Rights Act;
The 1866 Civil Rights Act;
The Civil Rights Act of 1991;
The Age Discrimination in Employment Act;
The Older Workers Benefit Protection Act;
The Americans with Disabilities Act;
The Fair Labor Standards Act of 1938;
The Equal Pay Act;
The Family and Medical Leave Act of 1993;
The Occupational Safety and Health Act of 1970;
The Employee Retirement Income Security Act of 1974;
The Consolidated Omnibus Budget Reconciliation Act of 1986;
Common law claims for wrongful discharge, unjust dismissal, or
constructive discharge;
Common law claims for breach of any oral or written employment
contract; and
Common law Claims for libel, slander or defamation.
This General Release, is not intended to and, does not release any right held by
Xx. Xxxxxxxxx, or discharge any obligation of any of the Neoprobe Parties: under
any check payable to Xx. Xxxxxxxxx'x order which was properly issued within the
last 6 months; for compensation for current periods; to indemnify or defend Xx.
Xxxxxxxxx under the charter or by-laws of Neoprobe Corporation or any of its
parent, subsidiary or affiliated entities or under any policy of liability or
errors and omissions insurance; that is a vested benefit under any
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employee benefit plan; under any stock option or restricted stock purchase
agreement that is vested and exercisable, subject to the express terms thereof;
or under the Separation Agreement.
Xx. Xxxxxxxxx hereby covenants and agrees with each of the Neoprobe Parties that
he will not, directly or indirectly, commence or maintain any action, suit or
proceeding concerning any matter as to which he has granted a release herein.
Xx. Xxxxxxxxx represents and warrants to each of the Neoprobe Parties that he
has duly executed and delivered this General Release, which constitutes his
valid and legally binding obligation and is enforceable against him in
accordance with the terms hereof and that he has not assigned, transferred,
conveyed or encumbered any claim, cause of action or right that he has or may
have against any of the Neoprobe Parties.
Xx. Xxxxxxxxx intends this General Release to be legally binding upon himself,
his family, heirs, attorneys and agents, and his and their successors, assigns
and personal representatives.
Xx. Xxxxxxxxx understands that this General Release includes a release of claims
under the Age Discrimination in Employment Act and the Older Workers Benefit
Protection Act. He understands that this General Release does not waive rights
or claims that arise after the date of its execution shown below. Further, Xx.
Xxxxxxxxx acknowledges he was advised by the Company that he may consult with
legal counsel regarding the Separation Agreement and this General Release.
Xx. Xxxxxxxxx acknowledges he has had at least twenty-one (21) days to review
and consider this General Release; and, as a result, enters into this General
Release willingly and voluntarily. To the extent that he has taken less than
twenty-one (21) days to consider this General Release, he acknowledges that he
has had sufficient time to consider this General Release and to consult with
counsel and that he does not desire additional time.
Xx. Xxxxxxxxx is aware as of that he has seven (7) days beyond the date of
execution of this General Release shown below during which he may revoke the
General Release by giving the Company written notice. Such notice should be
delivered to Xxxxxxxx Xxxxxx, Vice President and General Counsel, at Neoprobe
Corporation 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000-0000. Upon such
notification by Xx. Xxxxxxxxx, this General Release and the Separation Agreement
will become null and void and shall have no force or effect as to any party,
and, Xx. Xxxxxxxxx will forfeit all money and other benefits of this General
Release and the Separation Agreement.
This General Release may not be changed or terminated orally, but may only be
changed or terminated by and instrument in writing signed by the party against
whom the enforcement of such change or termination is sought.
The validity, performance and enforcement of this General Release are governed
by the law of the State of Ohio.
IN WITNESS WHEREOF, Xx. Xxxxxxxxx has executed and delivered this General
Release on this 31st day of December, 1998.
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BY SIGNING THIS GENERAL RELEASE, YOU LOSE RIGHTS YOU MAY HAVE TO BRING A LAWSUIT
OR RECEIVE A RECOVERY ON ANY CLAIM AGAINST NEOPROBE CORPORATION ITS ASSOCIATES
BASED ON ANY ACTIONS, FAILURES TO ACT, STATEMENTS, OR EVENTS THAT OCCURRED
BEFORE THE DATE OF THIS GENERAL RELEASE, INCLUDING CLAIMS CONCERNING YOUR
EMPLOYMENT WITH NEOPROBE OR ITS TERMINATION.
YOU ACKNOWLEDGE THAT THE PAYMENT YOU ARE RECEIVING IN EXCHANGE FOR EXECUTING
THIS GENERAL RELEASE IS GREATER THAN THAT WHICH YOU WOULD BE ENTITLED TO IN THE
ABSENCE OF THIS GENERAL RELEASE.
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
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