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Exhibit 10.2.43
AGREEMENT, RELEASE AND WAIVER
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NOTICE: YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS
AGREEMENT.
This Agreement, Release and Waiver (the "Agreement") is a contract
between the undersigned employee ("you") who is being involuntarily separated
from employment on February 16, 1998 and your employer, Neoprobe Corporation
("Neoprobe").
1. BENEFITS. In consideration for signing this Agreement, Release and
Waiver, you will receive the following benefits (the "Severance
Benefits").
A. Neoprobe agrees to pay you your regular salary, in the gross
amount of Three Thousand Six Hundred Forty-Five Dollars and
Eighty-Three Cents ($3,645) per week, for a period of
twenty-four (24) weeks, in accordance with Neoprobe's regular
payroll practices. Such payments shall commence on the first
pay day after seven (7) days have elapsed following your
execution of this Agreement.
B. Neoprobe agrees to pay you the gross amount of Fourteen
Thousand Five Hundred Eighty Three Dollars ($14,583.00), which
represents all accrued but unused vacation pay owed to you.
Such payment shall be made in a lump sum on the first pay day
after seven (7) days have elapsed following your execution of
this Agreement.
C. Neoprobe agrees to engage Drake, Beam, Xxxxx ("DBM") to
provide outplacement services to you to assist you in securing
other employment. However, Neoprobe's obligation hereunder
shall be limited to the payment of DBM's fees for such
services, as agreed upon between Neoprobe and DBM. Neoprobe
shall not be considered as a guarantor nor as warranting the
results of the services provided, and you agree to hold
Neoprobe harmless from, and waive any claims against Neoprobe,
in connection with the services provided to you by DBM.
2. COBRA. You acknowledge receipt of notice of your right to elect
continued health care coverage in accordance with the provisions of the
federal Consolidated Omnibus Budget & Reconciliation Act, as amended.
amended ("COBRA"). In the event that you exercise your COBRA right to
continue coverage under Neoprobe's group health insurance policy,
Neoprobe agrees to pay the premiums for such coverage through August
31, 1998. Thereafter, if you wish to continue such coverage for the
remainder of the twelve (12) month COBRA period, you must do so at your
own expense.
3. 401(K) PLAN. You shall receive all monies to which you are entitled
under Neoprobe's 401(k) Plan in accordance with the terms thereof.
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4. UNEMPLOYMENT BENEFITS. Neoprobe agrees not to contest any claim for
unemployment benefits which you might file as a result of your
separation from Neoprobe on February 16, 1998. However, Neoprobe
expressly waives any commitment that it is warranting or guaranteeing
your receipt of such unemployment benefits inasmuch as that
determination is solely within the province of the Ohio Bureau of
Employment Services.
5. LETTER OF REFERENCE. Neoprobe agrees to provide you with a letter of
reference in the form of the draft letter attached hereto as Exhibit A.
6. STOCK OPTIONS. Neoprobe agrees that you shall be eligible to exercise
any stock options to which you may be entitled under the Neoprobe Stock
Purchase Plan in accordance with the terms thereof.
7. INSURANCE. Your coverage under Neoprobe's disability insurance plan
shall terminate as of February 17, 1998, and you may have the right to
convert such coverage to your own individual plan if provided for
under, and in accordance with, the terms of, such plan. Your coverage
under Neoprobe's life insurance plan shall continue for the period set
forth in Section 1(A) hereinabove, and you may have the right to
convert such coverage to your own individual plan if provided for
under, and in accordance with, the terms of, such plan.
8. WAIVER OF RIGHT TO NEOPROBE BENEFITS. You waive any and all rights to
participation in any Neoprobe benefit plan which you ever had, may now
have or may hereafter have, whether known or unknown to you at the time
of execution of this Agreement, with the exception of those benefits
provided in this Agreement.
9. RELEASE. In consideration for the Severance Benefits specified in
Section 1 above, you hereby release and discharge Neoprobe Corporation,
its subsidiaries, affiliates, successors and assigns and their
respective directors, officers, employees and agents (hereinafter
collectively referred to as "Releasees"), both individually and in
their official capacity, from all claims, actions and causes of action
of any kind, which you, or your agents, executors, heirs, or assigns
ever had, now have, or may have, whether known or unknown, as a result
of your employment by or termination of employment from Neoprobe. This
release includes, but is not limited to, the following: any action or
cause of action asserted or which could have been asserted under 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
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Law; any claims for wrongful discharge, unjust dismissal, or
constructive discharge; any claims for breach of any alleged oral,
written or implied contract of employment; any claims for emotional
distress or other torts; any claims for salary, severance payments,
bonuses or other compensation of any kind; any claims for benefits;
claims for libel, slander defamation and attorneys' fees; and any other
claims under federal, state, or local statute, law, rule or regulation.
BY SIGNING THIS AGREEMENT, YOU GIVE UP ANY RIGHT YOU MAY HAVE TO BRING
A LAWSUIT OR RECEIVE A RECOVERY ON ANY CLAIM AGAINST NEOPROBE AND THOSE
ASSOCIATED WITH NEOPROBE BASED ON ANY ACTIONS, FAILURES TO ACT,
STATEMENTS, OR EVENTS OCCURRING PRIOR TO THE DATE OF THIS AGREEMENT,
INCLUDING CLAIMS THAT IN ANY WAY ARISE FROM OR RELATE TO YOUR
EMPLOYMENT WITH NEOPROBE OR THE TERMINATION OF THAT EMPLOYMENT, WITH
THE EXCEPTION OF ANY CLAIM THAT NEOPROBE BREACHED ITS COMMITMENTS UNDER
THIS AGREEMENT.
10. FUTURE RELATIONSHIP WITH NEOPROBE. In further consideration of the
Severance Benefits, you agree to waive reinstatement of employment
and/or future employment with Neoprobe, and agree not to apply for,
solicit, seek or otherwise attempt to obtain employment with Neoprobe
without first obtaining written authorization from the office of
Neoprobe's Director, Human Resources. You further agree that should any
such employment application be made by you to Neoprobe without first
obtaining such written authorization, Neoprobe shall have no obligation
to process that application or to hire you, and the failure to process
that application or to hire you shall not constitute a violation any
state, federal or local law, order, regulation or common law doctrine.
11. NO FUTURE LAWSUITS. In addition to all other obligations you may have
under the terms of this Agreement, you also separately and
independently covenant and agree that you will not xxx Releasees upon
any of the claims that you have released in Section 9 of this
Agreement, and/or upon a claim arising out of any employment
application which you may make in violation of Section 10 of this
Agreement. You further agree not to assist any other person or entity
in bringing any lawsuit against Neoprobe in any state or federal court
unless such restriction is prohibited by law.
12. NOTICE FOR IMPACTED EMPLOYEES. You acknowledge that on or prior to
February 16, 1998, you received from Neoprobe a list of (a) the job
titles and ages of employees from Neoprobe who were selected
involuntarily for separation from Neoprobe on February 16, 1998; and
(b) the job titles and ages of employees who were not selected for
separation (hereafter such list shall collectively be referred to as
the "Notice for Impacted Employees").
13. CONFIDENTIALITY OF NOTICE. You agree that the contents of the Notice
for Impacted
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Employees shall be kept confidential and shall not be disclosed to any
person or entity, except to your attorney, legal advisor or spouse or
except as required by law.
14. COOPERATION. You understand that following your termination of
employment, Neoprobe may need your continued cooperation and
involvement with various pieces of litigation and other legal matters
which are pending at such time or which may arise thereafter. In
further consideration of Severance Benefits, you agree at Neoprobe's
request from time to time, to cooperate with Neoprobe in its efforts to
defend and/or pursue any such litigation or other legal matters. You
will provide this assistance to Neoprobe at no additional remuneration
beyond the Severance Benefits. When performing these services at
Neoprobe's request, except where prohibited by law, Neoprobe will
reimburse you for reasonable travel, lodging and lost income that you
incur upon submission of documented expenses acceptable to Neoprobe. By
way of illustration and not by way of limitation, the types of services
that may be requested of you under this Section 14 include: attending
strategy sessions, attending preparations for trial, appearing at
depositions, executing affidavits and testifying at trials.
15. RETURN OF NEOPROBE PROPERTY. Whether or not you sign this Agreement,
you, as a terminating employee, are reminded that you must return to
Neoprobe, (i) all Neoprobe documents, and other tangible items, and any
copies, that are in your possession or control and which contain
confidential information in written, magnetic or other form and shall
have not given such documents, items, or copies to anyone other than
another Neoprobe employee; and (ii) all other Neoprobe property within
your possession including, but not limited to, office keys,
identification badges or passes, Neoprobe credit cards, and computer
equipment and software.
16. NEOPROBE EMPLOYEES' AGREEMENT. Whether or not you sign this Agreement,
you, as a terminating employee, are reminded that the Neoprobe
Employees' Agreement (the "Employee's Agreement") entered into between
Neoprobe and yourself remains in full force and effect after
termination of your employment. Under the Employees' Agreement, you
have a continuing obligation to maintain the confidentiality of all
confidential, proprietary and trade secret information which you
obtained during your employment with Neoprobe.
17. DUTY OF CONFIDENTIALITY. You recognize that Neoprobe 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
Neoprobe. You acknowledge that you have been employed in positions in
which you have had access to such information and that Neoprobe has a
legitimate interest in protecting such confidential and proprietary
information in order to maintain
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and enhance a competitive edge within its industry. Accordingly, you
agree that you will not use or remove, duplicate or disclose, directly
or indirectly, to any persons or entities outside Neoprobe any
information, property, trade secrets or other things of value which
have not been publicly disclosed. In the event that you are requested
or required in a judicial, administrative or governmental proceeding to
disclose any information that is the subject matter of this Section 17,
you will provide Neoprobe with prompt written notice of such request
and all related proceedings so that Neoprobe may seek an appropriate
protective order or remedy or, as soon as practicable, waive your
compliance with the provisions of this Section 17. You acknowledge that
you have carefully considered the nature and extent of the restrictions
upon you and the rights and remedied conferred under Neoprobe under
this Section 17 and hereby agree that the same are reasonably designed
to eliminate competition which otherwise would be unfair to Neoprobe,
do not stifle the inherent skill and experience of you, would not
operate as a bar to your sole means of support, are fully required to
protect the legitimate interests of Neoprobe and do not confer a
benefit upon Neoprobe disproportionate to the detriment of you.
18. BREACH. You agree that if you violate any part of this Agreement or
your Employees' Agreement, you will not be entitled to the Severance
Benefits described in Section 1. You further agree that any breach or
threatened breach by you 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 all its available rights, in law or
equity for such breach or threatened breach, including the recovery of
damages. In the event that you breach any of the promises made in this
Agreement, and Neoprobe defends or pursues any charge, suit, complaint,
claim or grievance as a result thereof, you shall be liable to Neoprobe
for all damages, attorneys' fees, expenses and costs (including
discovery costs) incurred by Neoprobe in defending or pursuing the
same.
19. DISCLOSURE OF NEOPROBE INFORMATION PURSUANT TO LEGAL PROCESS. You agree
that you will not, directly or indirectly, and without Neoprobe's prior
written consent, voluntarily provide information, documents or
testimony to any governmental agency, entity or person (except to your
legal counsel and immediate family) regarding: (a) your employment
with, or termination of employment from, Neoprobe (except in connection
with your application for employment with another employer, or your
application for any insurance, retirement, disability or unemployment
benefits); (b) any other person's employment with, or termination of
employment from, Neoprobe; or (c) any information or documents
concerning Neoprobe. In the event that a subpoena or other lawful
process is properly served upon you requiring production or disclosure
of information or documents concerning the foregoing matters, you shall
promptly notify Neoprobe's Human Resources department, in writing, and
provide it with copies of any subpoena or other process served upon
you. In the event that the subpoena or other process requires
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testimony or statements from you, you agree to meet, telephonically or
in person, with attorneys or agents designated by Neoprobe, at a time
and place designated by Neoprobe and prior to the testimony, for the
purpose of discussing such testimony. Nothing herein shall give
Neoprobe the right to control or dictate the content of any testimony
given by you, or any documents produced by you, pursuant to subpoena or
other lawful process. It is understood that you shall provide all
information lawfully required of you.
20. CONFIDENTIALITY OF THIS AGREEMENT. You agree that you will not reveal
the existence of this Agreement, nor any terms thereof, to any person,
entity, or organization, except to your immediate family, to your
attorney, or as may be required by law.
22. PERIOD OF REVIEW AND OTHER CONSIDERATIONS
A. DATE OF RECEIPT. You acknowledge that you received this
Agreement on or prior to February 16, 1998.
B. ATTORNEY CONSULTATION. You acknowledge that you have had the
opportunity to consult an attorney of your choice concerning
this Agreement, Release and Waiver.
C. PERIOD OF REVIEW. You acknowledge that you have been given at
least 45 days in which to consider signing this Agreement and
to review the list of (a) the job titles and ages of employees
who were selected for this separation program; and (b) the job
titles and ages of employees who were not selected for this
separation program. In the event you execute this Agreement
within less than 45 days of the date of its delivery to you,
you acknowledge that such decision was entirely voluntary and
that you have had the opportunity to consider this Agreement
for the entire 45 day period but decided to waive that
opportunity.
D. ENTIRE AGREEMENT. This Agreement, Release and Waiver, sets
forth the entire agreement between Neoprobe and yourself and
supersedes and renders null and void any and all prior or
contemporaneous oral or written understandings, statements,
representations or promises. This Agreement does not, however,
supersede the Employees' Agreement which remains in full force
and effect.
E. GOVERNING LAW. This Agreement shall be construed and governed
by the laws of the State of Ohio and adjudicated within the
exclusive jurisdiction of the courts having jurisdiction over,
Franklin County, Ohio.
F. REVOCATION OF AGREEMENT, RELEASE AND WAIVER. You understand
that you have the right to revoke this Agreement within seven
(7) days of your signing it, and that this Agreement shall not
become effective or enforceable until this seven (7) day
period has expired. To revoke this Agreement, Release and
Waiver, you
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agree to notify in writing; Xxxxx X. Xxxxxx, Director, Human
Resources, Neoprobe Corporation, 000 Xxxxx Xxxxx Xxxxx, Xxxxx
000, Xxxxxx, XX 00000. Unless so revoked, this Agreement will
be effective at 5:00 p.m. on such seventh day. You agree that
if you exercise your right to revoke this Agreement within
seven (7) days, your termination of employment will
nevertheless occur, you will not be entitled to the Severance
Benefits, and you will immediately return to Neoprobe any
consideration you have already received.
YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ AND FULLY UNDERSTAND ALL THE
PROVISIONS OF THIS AGREEMENT, RELEASE AND WAIVER, AND YOU ARE ENTERING INTO THIS
AGREEMENT VOLUNTARILY. YOU ACKNOWLEDGE THAT THE CONSIDERATION YOU ARE RECEIVING
IN EXCHANGE FOR EXECUTING THIS AGREEMENT IS GREATER THAN THAT WHICH YOU WOULD BE
ENTITLED TO IN THE ABSENCE OF THIS AGREEMENT. YOU HAVE NOT RELIED UPON ANY
REPRESENTATION OR STATEMENT, WRITTEN OR ORAL, NOT SET FORTH IN THIS AGREEMENT.
WHEREFORE, the parties have read all of the foregoing, understand the
same, and agree to all of the provisions contained herein.
NEOPROBE CORPORATION XXXXXXX X. XXXXXXXXXX, Ph.D.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx, PhD.
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Xxxxx X. Xxxx
President
Dated: February 23, 1998 Dated: February 23, 1998
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