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Exhibit 10.2.42
SEVERANCE AGREEMENT
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THIS AGREEMENT, effective on the last date executed below, is entered
into between NEOPROBE CORPORATION, 000 Xxxxx Xxxxx Xxxxx, Xxxxxx, Xxxx, xx
behalf of itself, its officers, directors, shareholders, employees and agents
(in their individual and representative capacities), and its parent, affiliated,
predecessor, successor, subsidiary and other related companies, and each of
them, jointly and severally (herein singularly and collectively called the
"Company"), and XXXXX X. XXXXXXXX, 0000 Xxxxxxxxxxx Xxxxx, Xxxxxx, Xxxx, xx
behalf of himself and his heirs, executors, guardians, administrators,
successors and assigns, and each of them, jointly and severally (herein
singularly and collectively called "Xxxxxxxx"), who agree to be bound by all of
the terms and conditions hereof.
WHEREAS, the Parties desire to fully and completely settle and dispose
of any and all claims of whatever kind or nature which Xxxxxxxx ever had, may
now have or may hereafter have against the Company, whether known or unknown,
the Parties hereto agree as follows:
1. The Company agrees to pay Xxxxxxxx the sum of Forty-One Thousand
Two Hundred Fifty Dollars ($41,250.00), which represents any and all backpay,
severance pay, front pay, wages, vacation pay, benefits, attorneys' fees, costs,
interest, damages (whether compensatory, exemplary, punitive or otherwise) and
other monies to which Xxxxxxxx may now or may hereafter be entitled from the
Company, except as otherwise specifically set forth in Paragraphs 2 through 5 of
this Agreement. The amount being paid hereunder shall be subject to deduction
for the applicable federal, state and local social security, wage, withholding
and similar taxes. The amount being paid hereunder shall be paid in six (6)
semi-monthly installments, of Six Thousand Eight Hundred Seventy-Five Dollars
($6,875.00) each, in accordance with the Company's regular payroll practices,
commencing on or after the tenth (10th) day following Xxxxxxxx'x execution of
this Agreement.
2. Xxxxxxxx acknowledges receipt of notice of his right to elect
continued health care coverage in accordance with the provisions of the federal
Consolidated Omnibus Budget & Reconciliation Act, as amended ("COBRA"). In the
event that Xxxxxxxx exercises his COBRA right to continue coverage under the
Company's group health insurance policy, the Company agrees to pay the premiums
for such coverage through December 31, 1997. Thereafter, if Xxxxxxxx wishes to
continue such coverage for the remainder of the fifteen (15) month COBRA period,
he must do so at his own expense.
3. The Company agrees that Xxxxxxxx shall receive all monies to which
he is entitled under the Neoprobe, Inc. 401(k) Plan in accordance with the terms
thereof.
4. Xxxxxxxx'x coverage under the Company's disability, travel and life
insurance plans shall terminate as of October 10, 1997, and he may have the
right to convert such coverage to his own individual plan if provided for under,
and in accordance with, the terms of, such plans.
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5. The Company agrees not to contest any claim for unemployment
benefits which Xxxxxxxx might file as a result of his separation from the
Company on October 10, 1997. However, the Company expressly waives any
commitment that it is warranting or guaranteeing Xxxxxxxx'x receipt of such
unemployment benefits inasmuch as that determination is solely within the
province of the Ohio Bureau of Employment Services.
6. Xxxxxxxx waives any and all rights to reinstatement or to future
employment with the Company, which he ever had, may now have or may hereafter
have, whether known or unknown to Xxxxxxxx at the time of execution of this
Agreement. Xxxxxxxx further agrees not to apply for employment or reemployment
with the Company.
7. Xxxxxxxx waives any and all rights to participation in any Company
benefit plan which he ever had, may now have or may hereafter have, whether
known or unknown to Xxxxxxxx at the time of execution of this Agreement, with
the exception of those benefits provided in Paragraphs 2 through 5 of this
Agreement.
8. Xxxxxxxx agrees not to file any charges, claims, suits, complaints
or grievances against the Company with any federal, state or local governmental
agency, or in any court of law, with respect to any aspect of his employment by,
or separation of employment from, the Company, or with respect to any other
matter whatsoever, whether known or unknown to Xxxxxxxx at the time of execution
of this Agreement, with the exception of any claim that the Company breached its
commitments under Paragraphs 1 through 5 of this Agreement.
9. Xxxxxxxx acquits, releases and forever discharges the Company of and
from all, and in all manner of, actions and causes of action, suits, debts,
claims and demands whatsoever, in law or in equity, which he ever had, may now
have or may hereafter have with respect to any aspect of his employment by, or
separation of employment from, the Company, or with respect to any other matter
whatsoever, whether known or unknown to Xxxxxxxx at the time of execution of
this Agreement, with the exception of any claim that the Company breached its
commitments under Paragraphs 1 through 5 of this Agreement.
10. Xxxxxxxx'x covenants and releases, as set forth in this Agreement,
include a waiver of any and all rights or remedies which he ever had, may now
have or may hereafter have against the Company in tort or in contract, or under
any present or future federal, state or local statute or law, including, but not
limited to, Ohio's Laws Against Discrimination, O.R.C. Chapter 4112; Title VII
of the 1964 Civil Rights Act, 42 U.S.C. Section 2000e, et seq.; the 1866 Civil
Rights Act, 42 U.S.C. Section 1981; the Civil Rights Act of 1991, PL. 102-166;
the 1967 Age Discrimination in Employment Act, 29 U.S.C. Section 621, et seq.;
the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq.; the Fair
Labor Standards Act of 1938, 29 U.S.C. Section 201, et seq.; the Equal Pay Act,
29 U.S.C. Section 206(d); the Family and Medical Leave Act of 1993, 29 U.S.C.
Section 2601, et seq.; the Occupational Safety and Health Act of 1970, 29 U.S.C.
Section 553, et seq.; the Employee Retirement Income Security Act of 1974, 29
U.S.C. Section 1001, et seq.; the Consolidated Omnibus Budget Reconciliation Act
of 1986, 29 U.S.C. Section 1161, et seq.; Ohio's Workers' Compensation Law; and
any statutory amendments.
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11. Xxxxxxxx intends that this Agreement shall bar each and every
claim, demand and cause of action hereinabove specified, whether known or
unknown to him at the time of execution of this Agreement. As a result, Xxxxxxxx
acknowledges that he might, in the future, discover claims or facts in addition
to or different from those which he now knows or believes to exist with respect
to the subject matters of this Agreement and which, if known or suspected at the
time of executing this Agreement, may have materially affected this settlement.
Nevertheless, Xxxxxxxx hereby waives any right, claim, or cause of action that
might arise as a result of such different or additional claims or facts.
12. By entering into this Agreement, the Company does not admit to the
breach of any contractual or other promises to Xxxxxxxx, and does not admit to
the violation of any federal, state, local or other statute or law, including,
but not limited to, those laws referred to in Paragraph 10 of this Agreement,
and any claimed breaches or violations are hereby specifically denied.
13. Xxxxxxxx agrees that, immediately upon execution of this Agreement
by all Parties hereto, he will return to the Company all Company credit cards,
keys, customer lists and records, policy and procedure manuals, price lists,
business contracts and other documents and information belonging to the Company.
14. Xxxxxxxx recognizes that the Company possesses certain business and
financial information about its operations, information about new or envisioned
products or services, manufacturing methods, product research, product
specifications, records, plans, prices, costs, customer lists, concepts and
ideas, and is the owner of proprietary rights in certain systems, methods,
processes, procedures, technical and non-technical information, inventions,
machinery, research and other things which constitute valuable trade secrets of
the Company. Xxxxxxxx acknowledges that he has been employed in positions in
which he has had access to such information and that the Company has a
legitimate interest in protecting such confidential and proprietary information
in order to maintain and enhance a competitive edge within its industry.
Accordingly, Xxxxxxxx agrees that he will not use or remove, duplicate or
disclose, directly or indirectly, to any persons or entities outside the Company
any information, property, trade secrets or other things of value which have not
been publicly disclosed. In the event that Xxxxxxxx is requested or required in
a judicial, administrative or governmental proceeding to disclose any
information that is the subject matter of this Paragraph 14, he will provide the
Company with prompt written notice of such request and all related proceedings
so that the Company may seek an appropriate protective order or remedy or, as
soon as practicable, waive Xxxxxxxx'x compliance with the provisions of this
Paragraph 14. Xxxxxxxx recognizes that the remedy at law for any breach by him
of this Paragraph 14 will be inadequate and that the damages flowing from such
breach are not readily susceptible to being measured in monetary terms.
Accordingly, upon proof of Xxxxxxxx'x violation of any legally enforceable
provision of this Paragraph 14, the Company shall be entitled to immediate
injunctive relief and may obtain a temporary order restraining any threatened or
further breach. Nothing in this Agreement shall be deemed to limit the remedies
at law or in equity
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available to the Company for any breach by Xxxxxxxx of this Paragraph 14.
Xxxxxxxx has carefully considered the nature and extent of the restrictions upon
him and the rights and remedies conferred upon the Company under this Paragraph
14, and hereby agrees that the same are reasonably designed to eliminate
competition which otherwise would be unfair to the Company, do not stifle the
inherent skill and experience of Xxxxxxxx, would not operate as a bar to his
sole means of support, are fully required to protect the legitimate interests of
the Company and do not confer a benefit upon the Company disproportionate to the
detriment to Xxxxxxxx.
15. Xxxxxxxx agrees that he will not, directly or indirectly, and
without the Company's prior written consent, voluntarily provide information,
documents or testimony to any governmental agency, entity or person (except his
counsel and immediate family) regarding: (a) Xxxxxxxx'x employment with, or
termination of employment from, the Company (except in connection with
Xxxxxxxx'x application for employment with another employer, or his application
for any insurance, retirement, disability or unemployment benefits); (b) any
other person's employment with, or termination of employment from, the Company;
or (c) any information or documents concerning the Company. In the event that a
subpoena or other lawful process is properly served upon Xxxxxxxx requiring
production or disclosure of information or documents concerning the foregoing
matters, Xxxxxxxx shall promptly notify the Company's human resources
department, in writing, and provide it with copies of any subpoena or other
process served upon him. Xxxxxxxx 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. In the event that the
subpoena or other process requires testimony or statements from Xxxxxxxx,
Xxxxxxxx agrees to meet, telephonically or in person, with attorneys or agents
designated by the Company, at a time and place designated by the Company and
prior to the testimony, for the purpose of discussing such testimony. Nothing
herein shall give the Company the right to control or dictate the content of any
testimony given by Xxxxxxxx, or any documents produced by him, pursuant to
subpoena or other lawful process. It is understood that Xxxxxxxx shall provide
all information lawfully required of him. In the event that the Company requires
any information or testimony from Xxxxxxxx in connection with any claim made
against the Company, or any claims made by the Company against persons or
entities not party to this Agreement, Xxxxxxxx agrees to cooperate fully with
the Company, including: (a) appearing at any trial, hearing, deposition or
arbitration; (b) meeting telephonically or in person with attorneys or agents
designated by the Company, at a time and place designated by the Company and
prior to the testimony, for the purpose of discussing such testimony and any
other matters relating to the claim; and (c) providing the Company with any
documentation in Xxxxxxxx'x custody or control. The Company agrees to pay
Xxxxxxxx for any reasonable travel, telephone, photocopy and other out-of-pocket
expenses incurred as a result of any requests made of him by the Company under
this Paragraph 15. The provisions of this Paragraph 15 shall not apply to any
action brought under this Agreement.
16. Xxxxxxxx agrees that no later than October 30, 1997, he shall meet
with a
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representative of the Company's human resources department for the purpose of
making an accounting of all business expenses related to his employment with the
Company, in accordance with the Company's expense reimbursement policy and
practices, for which Xxxxxxxx claims reimbursement from the Company. In the
event that Xxxxxxxx has incurred such expenses for which he was not already
reimbursed by the Company, the Company shall reimburse Xxxxxxxx for the same. If
the amount of any travel advances or reimbursements made to Xxxxxxxx by the
Company exceeds the amount of his business expenses (as herein defined), the
difference shall be deducted by the Company from amounts owing to Xxxxxxxx under
Paragraph 1 of this Agreement. As part of such accounting, Xxxxxxxx shall also
provide the Company with proof, by way of copies of cancelled checks, that he
has paid all of his bills on his Corporate American Express Card. If any bills
have not been paid in full, the amount owing to American Express shall be
deducted by the Company from amounts owing to Xxxxxxxx under Paragraph 1 of this
Agreement and the Company shall thereafter be responsible for paying such
amounts owed to American Express.
17. Xxxxxxxx agrees that he will not reveal the existence of this
Agreement, nor any terms thereof, to any person, entity, or organization, except
to his immediate family, to his attorney, or as may be required by law.
18. In the event that Xxxxxxxx, or any person, entity or organization,
breaches any of his promises made in this Agreement, and the Company defends or
pursues any charge, suit, complaint, claim or grievance as a result thereof,
Xxxxxxxx shall be liable to the Company for all damages, attorneys' fees,
expenses and costs (including discovery costs) incurred by it in defending or
pursuing the same.
19. The Parties agree that this Agreement shall be construed in
accordance with Ohio law, and that any action brought by any party hereunder may
be instituted and maintained only in the appropriate court having jurisdiction
over Franklin County, Ohio.
20. Xxxxxxxx acknowledges that he has been advised of his right to have
at least twenty-one (21) days within which to review and consider this
Agreement, and has been advised of his right to consult with legal counsel with
respect thereto. Xxxxxxxx further acknowledges that he has entered into this
Agreement voluntarily and of his own free will. Xxxxxxxx acknowledges his right
to revoke this Agreement within seven (7) days following his execution hereof,
by giving written notice thereof to the Company. In the event of such
revocation, this Agreement shall become null and void, and no party hereto shall
have any rights or obligations hereunder.
21. The Parties agree that the foregoing constitutes the entire
agreement among them, and that there exist no other agreements, oral or written,
express or implied, relating to any matters covered by this Agreement, or
relating to any other matter whatsoever, whether or not within the knowledge or
contemplation of either of the Parties at the time of execution of this
Agreement. This Agreement may only be changed in writing signed by both Parties
hereto.
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WHEREFORE, the Parties have read all of the foregoing, understand the
same, and agree to all of the provisions contained herein.
NEOPROBE CORPORATION XXXXX XXXXXXXX
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxx, President Xxxxx Xxxxxxxx
Dated: October 9, 1997 Dated: October 9, 1997
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