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Exhibit 10.2.55
AGREEMENT, RELEASE AND WAIVER
THIS AGREEMENT, RELEASE AND WAIVER (the "Agreement") is a contract
between the undersigned employee ("you") who is being involuntarily and without
cause, separated from employment on March 31, 2000 (the "Effective Date of
Termination") and your employer, Neoprobe Corporation ("Neoprobe").
WHEREAS, Neoprobe is eliminating substantially all in-house sales and
marketing activities and as a result your job is affected;
WHEREAS, the Parties desire to fully and completely settle and dispose
of any and all claims of whatever kind or nature which you ever had, may now
have or may hereafter have against Neoprobe, whether known or unknown;
NOW THEREFORE, the Parties hereto agree as follows:
1. BENEFITS: In consideration for signing this Agreement, you will receive
the following benefits (the "Severance Benefits").
X. XXXXXXXXX PAY: Neoprobe agrees to pay you a lump sum payment
of $200,417 which is equal to thirteen (13) months based on
your current annual salary. Unless otherwise instructed by
you, this amount shall be paid on April 15, 2000.
B. NEOPROBE PROPERTY: You shall be entitled to retain the
following Neoprobe property: desk lamp and the "Personal
Computer" provided to you by Neoprobe, provided that you
certify in writing to Neoprobe that you have deleted all
confidential and proprietary Neoprobe information according to
instructions provided to you by Neoprobe. Once Neoprobe
receives the certification, the computer shall not be
considered "Neoprobe property" within the meaning of Paragraph
10(ii) below. As used herein the term "Personal Computer"
means the CPU, Monitor, Key Board, Printer and Mouse. Employee
and Neoprobe shall mutually agree to the timing of the removal
of the above-described items from the premises of Neoprobe.
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
("COBRA"). In the event that you exercise your COBRA right to continue
coverage under Neoprobe's group health insurance policy, Neoprobe
agrees to continue to pay a portion of the premiums for such coverage
in the amount of $564.03 per month through December 31, 2000. Your
portion of the premiums will be $75.00 per month during this period.
Thereafter, if you wish to continue such coverage for the remainder of
the 9 month COBRA period, you must do so completely at your own
expense.
3. CHANGE OF CONTROL SEVERANCE. You will be entitled to receive additional
severance benefits as follows:
In the event of a "Change of Control" (as that term is defined in the
Severance Agreement dated October 23, 1998, a copy of which is attached
as Exhibit A) of Neoprobe occurs within eight (8) months of the
Effective Date of Termination, you shall be entitled to receive an
additional severance payment of $92,500, equal to six (6) months of
your annual base salary as of the Effective Date of Termination.
Unless otherwise agreed to by the Parties, the severance payment
described in this Paragraph 4 shall be paid in a lump sum within
fifteen (15) days of the Change of Control event. Unless otherwise
agreed to by the Parties, the severance payment described in this
Paragraph 3 shall be paid in a lump sum within fifteen (15) days of the
Change of Control event. Any Change of Control transaction begun during
the period described in Paragraph 3 and which is completed within four
(4) months thereafter shall be considered to be within the applicable
period stated in this Paragraph 3. As an example, if a Change of
Control transaction described in Paragraph 3 began on October 31, 2000
but did not close until February 1, 2001, you would be entitled to
receive the severance payment specified in Paragraph 3.
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4. CHANGE OF CONTROL LIFE AND HEALTH BENEFITS. In the event of a Change of
Control of Neoprobe as described in Paragraph 3 above, you shall be
eligible to continue to participate in the life and health insurance
programs of Neoprobe or participate in the life and health insurance
programs of the controlling Person for the remainder of COBRA period
available to you if any; provided that Neoprobe makes no
representations that it will have a group health plan or that the
controlling Person will agree to include you under its group health
plan; further provide that Neoprobe will use its best efforts to
require the controlling Person to honor the provisions of this
Paragraph 4.
5. 401(k) PLAN. You shall receive all monies to which Employee is entitled
under Neoprobe's 401(k) Plan in accordance with the terms thereof.
6. UNEMPLOYMENT BENEFITS. Neoprobe agrees not to contest any claim for
unemployment benefits, which Employee might file as a result of
Employee's separation from Neoprobe on March 31, 2000. However,
Neoprobe expressly waives any commitment that it is warranting or
guaranteeing Employee's receipt of such unemployment benefits inasmuch
as that determination is solely within the province of the Ohio Bureau
of Employment Services.
7. STOCK OPTIONS. Neoprobe agrees that you shall be eligible to exercise
any stock options to which Employee may be entitled under the Neoprobe
Stock Purchase Plan in accordance with the terms thereof.
8. INSURANCE. Employee's coverage under Neoprobe's disability insurance
plan shall terminate as of March 31, 2000, 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 terminate as of December 31,
2000 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.
9. RELEASE. In consideration for the Severance Benefits specified
in Paragraph 1 above as well as the other benefits set forth herein,
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 "Releases"), 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. With the
exception of any action that the law prevents an employee from waiving
by agreement, your covenants and releases set forth in this Agreement
include a waiver of any and all rights or remedies which you ever had,
may now have or may hereafter have against Neoprobe in tort or in
contract, or under any present or future federal, state or local
statute or law, including, but not limited to: any action or cause of
action asserted or which could have been asserted under Ohio's Laws
Against Discrimination, O.R.C. Chapter 4112; O.R.C. Section 4101.17;
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., as amended by the Older
Workers Benefit Protection Act; 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; 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
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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. 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) subject to the provisions of
Paragraph 1(B) herein, all other Neoprobe property within Employee's
possession including, but not limited to, office keys, identification
badges or passes, Neoprobe credit cards, and computer equipment and
software.
11. NEOPROBE PROPRIETARY INFORMATION AGREEMENT. Whether or not you sign
this Agreement, you, as a terminating employee, are reminded that the
Proprietary Information Agreement (the "Proprietary Agreement") entered
into between Neoprobe and yourself remains in full force and effect
after termination of your employment. Under the Proprietary 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.
12. 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 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 Paragraph 11, 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
Paragraph 11. You acknowledge that you have carefully considered the
nature and extent of the restrictions upon him and the rights and
remedies conferred to Neoprobe under this Paragraph 10 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.
13. BREACH. If you agree that if you violate any part of this Agreement or
your Proprietary Agreement, you will not be entitled to the Severance
Benefits described herein. 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.
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14. 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 his immediate family, to his
attorney, or as may be required by law. Neoprobe agrees that it will
not reveal the existence of this Agreement, nor any terms thereof, to
any person, entity, or organization, except to employees of Neoprobe
who have a need to know or as may be required by law.
15. PERIOD OF REVIEW AND OTHER CONSIDERATIONS:
A. DATE OF RECEIPT. You acknowledge that you received this
Agreement on or prior to February 28, 2000.
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 21 days in which to review and consider signing this
Agreement. In the event you execute this Agreement within less
than 21 days of the date of its delivery to you, you
acknowledge that such decision was entirely voluntary and that
he has had the opportunity to consider this Agreement for the
entire 21-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, including the Severance Agreement
dated October 23, 1998 attached as Exhibit A. This Agreement
does not, however, supersede the Proprietary Information
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 agree to notify in writing, the Human Resources
Dept., 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 suc 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.
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NEOPROBE CORPORATION EMPLOYEE
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxx X. Xxxx Xxxxxxx X. Xxxxxx
President & CEO
Dated: March 2, 2000 Dated: 3/2/00
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