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Exhibit 10.2.36
RESTRICTED STOCK PURCHASE AGREEMENT
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November 25, 1996
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NEOPROBE CORPORATION, a Delaware corporation having its principal place of
business at 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000-0000
(the "Company"); and
XXXXXX X. XXXXXXXXX, M.D., PH.D., an individual who resides at ________,
Columbus, Ohio 432__ (the "Executive")
agree as follows:
PREAMBLE
1. The Executive is an executive officer of the Company who is employed by the
Company pursuant to a letter agreement dated July 19, 1996, which he
accepted on July 24, 1996.
2. Pursuant to the terms of the letter agreement, the Company wishes to offer
the Executive an opportunity to purchase 10,000 shares of its common stock,
par value $.001 per share ("Common Stock").
3. The fair market value of the Common Stock is demonstrated by the closing
price on the NASDAQ National Market System of such securities on July 24,
1996, which was $12.125.
4. The Executive and the Company intend that the transactions provided for in
this Agreement will be governed by the provisions of Section 83(a) of the
Internal Revenue Code of 1986.
TERMS
Section 1. PURCHASE AND SALE. On the terms and subject to the conditions
set forth in this Agreement, the Executive hereby subscribes for and agrees to
purchase Ten Thousand (10,000) shares of Common Stock (the "Restricted Stock")
for and in consideration of a payment to the Company by the Executive of one
thousandths of a dollar ($.001) per share. Concurrently with the execution of
this Agreement, the Executive has delivered to the Company his check drawn on
sufficient funds and payable to the order of the Company in the amount of Ten
Dollars ($10.00) receipt of which is acknowledged by the Company. The Executive
agrees to deliver to the President of the Company any certificates representing
the Restricted Stock together with stock powers duly endorsed in blank promptly
upon receipt thereof from the transfer agent of the Company.
Section 2. TRANSFER RESTRICTIONS.
(a) In consideration of the difference between the purchase price of the
Restricted Stock set forth in Section 1 above and its fair market value without
the restrictions and risk of forfeiture set forth herein, the Executive agrees
that unless and until the Restricted Stock vests and becomes transferable as
provided in Section 4 below, the Executive may neither transfer, sell, assign
nor pledge any of the Restricted Stock.
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(b) The Executive understands the Restricted Stock has not been registered
under the Securities Act of 1933 on the ground that the sale provided for in
this Agreement and the issuance of securities hereunder is exempt from
registration under the Securities Act of 1933 pursuant to Section 4(2) thereof,
but the Company's reliance on such exemption is predicated on the Executive's
representations set forth in this Section 2 and that in order to obtain such
exemption, the transfer of such securities is restricted by this paragraph and
the legend set forth below. The Executive will not offer for sale, sell or
otherwise transfer any Restricted Stock, even after it has vested and has become
transferable under Section 4 below, unless such securities have been registered
under the Securities Act of 1933 or such securities or their offer, sale or
transfer are exempt from such registration and the Company has received an
opinion of counsel, in form and substance reasonably satisfactory to the
Company, to that effect.
(c) 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 November
21, 1996. These securities have not been registered under the Securities
Act of 1933. These securities may not be offered for sale, sold or
otherwise transferred unless they are registered under the Securities Act
of 1933 or they or such offer, sale or transfer are exempt from such
registration and the issuer has received an opinion of counsel reasonably
satisfactory to the issuer, in form and substance, to that effect.
(d) The Executive is purchasing the Restricted Stock for his own account
and not for other persons and for investment and not with a view to the
distribution of any of the Restricted Stock. The Executive understands that no
market may exist for the resale of the Restricted Stock.
(e) The Executive has been furnished with the Company's Prospectus dated
April 2, 1996, its subsequent quarterly reports to the Securities and Exchange
Commission, its 1995 Annual Report to Stockholders and the Proxy Statement for
its 1996 Annual Meeting of Stockholders. The Executive has had an opportunity to
ask questions and receive answers from the Company regarding those documents,
the terms and conditions of the offering of the Restricted Stock and the
business, properties, financial condition and prospects of the Company and to
obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify the accuracy of any information furnished to the Executive.
(f) The Executive is not purchasing Restricted Stock as a result of or
subsequent to (i) any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio or (ii) any seminar or meeting whose attendees, including
the Executive, had been invited by any general advertising or general
solicitation.
(g) The Executive has such knowledge and experience in financial and
business matters that he, together with his purchaser representatives (if any),
is capable of evaluating the merits and risks of investing in the Restricted
Stock. The Executive has determined that the Restricted Stock is a suitable
investment for him and that he could bear the complete loss of his investment in
the Restricted Stock.
Section 3. FORFEITURE. The Executive will forfeit the Restricted Stock
purchased by him under this Agreement if it has not vested and become
transferable on the earliest of (i) the termination of his employment with the
Company, whether by death, disability, discharge (with or without cause) or
resignation; or (ii) January 7, 1997. Upon the occurrence of such forfeiture all
of the Executive's right, title and interest in and to any shares of Restricted
Stock which have been forfeited shall be terminated; the Company shall cause the
certificates representing the forfeited shares to be canceled or transferred
free and clear of all restrictions to its treasury and the Company shall pay to
the Executive one thousandths of a dollar ($.001) per share for each share so
forfeited.
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Section 4. VESTING PROVISIONS. If the Restricted Stock has not previously
been forfeited under Section 3 above, it shall vest and become transferable on
January 6, 1997, if, and only if, the Executive has been an employee of the
Company continuously during the time beginning on the date of this Agreement and
ending on January 3, 1997. When the Restricted Stock vests and becomes
transferable, the Company shall promptly deliver a certificate (free of all
adverse claims and transfer restrictions other than the restrictions imposed by
paragraphs (b) and (c) of Section 2 above) representing the Restricted Stock to
the Executive at his address given above and such shares shall no longer be
subject to a risk of forfeiture under Section 3 above.
Section 5. WITHHOLDING. The Company is required to withhold federal, state,
or local taxes on any compensation income realized by the Executive upon the
vesting of the Restricted Stock. If the Company is required to withhold any such
taxes as a result of the vesting of the Restricted Stock, the Executive shall
provide the Company with cash funds equal to the total federal, state, and local
taxes required to be withheld, or make other arrangements satisfactory to the
Company regarding such payment. It is understood that all matters with respect
to the total amount of taxes to be withheld in respect of any such compensation
income shall be determined by the Company in its reasonable discretion.
Section 6. 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, the
Executive 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.
Section 7. EFFECT ON EMPLOYMENT. This Agreement does not create any right
of the Executive to be employed by the Company nor does it create any obligation
on the part of the Company to refrain from terminating the employment of the
Executive.
Section 8. 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. The Executive may not transfer
or assign any of his rights under this Agreement. If any one or more provisions
of this Agreement shall be found to be invalid 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 and
construed in accordance with the laws of the State of Ohio.
SIGNATURES
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, M.D. Ph.D.
NEOPROBE CORPORATION
By: Xxxxx X. Xxxx
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Xxxxx X. Xxxx, President
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AMENDMENT TO RESTRICTED STOCK PURCHASE AGREEMENT
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January 2, 1997
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NEOPROBE CORPORATION, a Delaware corporation having its principal place of
business at 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000-0000 (the
"Company"); and
XXXXXX X. XXXXXXXXX, M.D., PH.D., an individual who resides at ______________,
Columbus, Ohio 432___ (the "Executive")
agree as follows:
P R E A M B L E
1. The Executive is an executive officer of the Company who is employed by the
Company.
2. Pursuant to the terms of his employment, Executive entered into a Restricted
Stock Purchase Agreement with the Company dated November 25, 1996 (the
"Agreement").
3. The Executive and the Company desire to amend the Agreement to provide for
the registration of the shares to be purchased under the Agreement (the
"Restricted Stock") and defer the vesting of such shares until February 14,
1997.
T E R M S
The Agreement is hereby amended as follows:
Section 1. REGISTRATION. Notwithstanding anything in the Agreement to the
contrary, the Company will use commercially reasonable efforts to register the
Restricted Stock under the Securities Act of 1933 by filing a registration
statement on Form S-8 with the Securities and Exchange Commission. When such
registration statement becomes effective and the Restricted Stock vests, the
Company will issue the certificate representing the shares of Restricted Stock
without the restrictive legend described in Section 2 of the Agreement.
Section 2. VESTING. Notwithstanding anything in the Agreement to the
contrary, unless forfeited, the Restricted Stock shall vest on February 14,
1997, instead of January 7, 1997.
S I G N A T U R E S
NEOPROBE CORPORATION
By: /s/ Xxxxx Xxxx
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Xxxxx X. Xxxx, President
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, M.D., Ph.D.
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