EX-10.1



 





Exhibit 10.1




FORM OF

EMPLOYMENT AGREEMENT




     This
Employment Agreement is made and entered into effective as of
______ ___, ___ (the
“Effective Date”), by and between Neoprobe Corporation, a Delaware Corporation with a place of
business at 425 Metro Place North, Suite 300, Dublin, Ohio 43017-1367 (the “Company”) and ___
of ___ (the “Employee”).



     WHEREAS, the Company and the Employee entered into an Employment Agreement dated as of
______ ___, ___ (the
“___ Employment Agreement”); and



     WHEREAS, the Company and the Employee wish to establish new terms, covenants, and conditions
for the Employee’s continued employment with the Company through this agreement (“Employment
Agreement”).



     NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the parties hereto
agree as follows:




	 	1.	 	Duties. From and after the Effective Date, and based upon the terms and conditions set
forth herein, the Company agrees to employ the Employee and the Employee agrees to be
employed by the Company, as [___] of the Company and in such equivalent,
additional or higher executive level position or positions as shall be assigned to him by
the Company’s Board of Directors. While serving in such executive level position or
positions, the Employee shall report to, be responsible to, and shall take direction from
the Board of Directors of the Company. During the Term of this Employment Agreement (as
defined in Section 2 below), the Employee agrees to devote substantially all of his working
time to the position he holds with the Company and to faithfully, industriously, and to the
best of his ability, experience and talent, perform the duties which are assigned to him.
The Employee shall observe and abide by the reasonable corporate policies and decisions of
the Company in all business matters.
	 
	 	 	 	The Employee represents and warrants to the Company that Exhibit A attached hereto sets forth
a true and complete list of (a) all offices, directorships and other positions held by the
Employee in corporations and firms other than the Company and its subsidiaries and (b) any
investment or ownership interest in any corporation or firm other than the Company
beneficially owned by the Employee (excluding investments in life insurance policies, bank
deposits, publicly traded securities that are less than five percent (5%) of their class and
real estate). The Employee will promptly notify the Board of Directors of the Company of any
additional positions undertaken or investments made by the Employee during the Term of this
Employment Agreement if they are of a type which, if they had existed on the date hereof,
should have been listed on Exhibit A hereto. As long as the Employee’s other positions or
investments in other firms do not create a conflict of interest, violate the Employee’s
obligations under Section 7 below or cause the Employee to neglect his duties hereunder, such
activities and positions shall not be deemed to be a breach of this Employment Agreement.
	 
	 	2.	 	Term of this Employment Agreement. Subject to Sections 4 and 5 hereof, the Term of
this Employment Agreement shall be for a period of ___
months, commencing ______ ___, ___
and terminating ______ ___, ___.
	 
	 	3.	 	Compensation. During the Term of this Employment Agreement, the Company shall pay, and
the Employee agrees to accept as full consideration for the services to be rendered by the
Employee hereunder, compensation consisting of the following:






	 	A.	 	Salary. Beginning on the first day of the Term of this Employment Agreement, the
Company shall pay the Employee a salary of ___ ($___) per year, payable in
semi-monthly or monthly installments as requested by the Employee. Further, the Company
agrees to review the Employee’s salary every twelve (12) months hereafter.
	 
	 	B.	 	Bonus. The Compensation Committee of the Board of Directors will, on an annual
basis, review the performance of the Company and of the Employee and will pay such bonus
as it deems appropriate, in its discretion, to the Employee based upon such review.
Such review and bonus shall be consistent with any bonus plan adopted by the
Compensation Committee, which covers the executive officers and employees of the Company
generally.
	 
	 	C.	 	Benefits. During the Term of this Employment Agreement, the Employee will
receive such employee benefits as are generally available to all employees of the
Company.




 









 






	 	D.	 	Stock Options. The Compensation Committee of the Board of Directors may, from
time-to-time, grant stock options, restricted stock purchase opportunities and such
other forms of stock-based incentive compensation as it deems appropriate, in its
discretion, to the Employee under the Company’s Stock Option and Restricted Stock
Purchase Plan and the 1996 and 2002 Stock Incentive Plan (the “Stock Plans”). The terms
of the relevant award agreements shall govern the rights of the Employee and the Company
thereunder in the event of any conflict between such agreement and this Employment
Agreement.
	 
	 	E.	 	Vacation. The Employee shall be entitled to
___ (___) days of vacation during
each calendar year during the Term of this Employment Agreement.
	 
	 	F.	 	Expenses. The Company shall reimburse the Employee for all reasonable
out-of-pocket expenses incurred by him in the performance of his duties hereunder,
including expenses for travel, entertainment and similar items, promptly after the
presentation by the Employee, from time-to-time, of an itemized account of such
expenses.






	 	4.	 	Termination.






	 	A.	 	For Cause. The Company may terminate the employment of the Employee prior to the
end of the Term of this Employment Agreement “for cause.” Termination “for cause” shall
be defined as a termination by the Company of the employment of the Employee occasioned
by the failure by the Employee to cure a willful breach of a material duty imposed on
the Employee under this Employment Agreement within 15 days after written notice thereof
by the Company or the continuation by the Employee after written notice by the Company
of a willful and continued neglect of a duty imposed on the Employee under this
Employment Agreement. In the event of termination by the Company “for cause,” all
salary, benefits and other payments shall cease at the time of termination, and the
Company shall have no further obligations to the Employee.
	 
	 	B.	 	Resignation. If the Employee resigns for any reason, all salary, benefits and
other payments (except as otherwise provided in paragraph G of this Section 4 below)
shall cease at the time such resignation becomes effective. At the time of any such
resignation, the Company shall pay the Employee the value of any accrued but unused
vacation time, and the amount of all accrued but previously unpaid base salary through
the date of such termination. The Company shall promptly reimburse the Employee for the
amount of any expenses incurred prior to such termination by the Employee as required
under paragraph F of Section 3 above.
	 
	 	C.	 	Disability, Death. The Company may terminate the employment of the Employee prior
to the end of the Term of this Employment Agreement if the Employee has been unable to
perform his duties hereunder for a continuous period of Twelve (12) months due to a
physical or mental condition that, in the opinion of a licensed physician, will be of
indefinite duration or is without a reasonable probability of recovery. The Employee
agrees to submit to an examination by a licensed physician of his choice in order to
obtain such opinion, at the request of the Company, made after the Employee has been
absent from his place of employment for at least six (6) months. Any requested
examination shall be paid for by the Company. However, this provision does not abrogate
either the Company’s or the Employee’s rights and obligations pursuant to the Family and
Medical Leave Act of 1993, and a termination of employment under this paragraph C shall
not be deemed to be a termination for cause.
	 
	 	 	 	If during the Term of this Employment Agreement, the Employee dies or his employment is
terminated because of his disability, all salary, benefits and other payments shall cease
at the time of death or disability, provided, however, that the Company shall provide such
health, dental and similar insurance or benefits as were provided to Employee immediately
before his termination by reason of death or disability, to Employee or his family for the
longer of ___ (___) months after such termination or the full unexpired Term of this
Employment Agreement on the same terms and conditions (including cost) as were applicable
before such termination. In addition, for the first six (6) months of disability, the
Company shall pay to the Employee the difference, if any, between any cash benefits
received by the Employee from a Company-sponsored disability insurance policy and the
Employee’s salary hereunder. At the time of any such termination, the Company shall pay
the Employee, the value of any accrued but unused vacation time, and the amount of all
accrued but previously unpaid base salary through the date of such termination. The
Company shall promptly reimburse the Employee for the amount of any expenses incurred
prior to such termination by the Employee as required under paragraph F of Section 3
above.
	 
	 	D.	 	Termination without Cause. A termination without cause is a termination of the
employment of the Employee by the Company that is not “for cause” and not occasioned by
the resignation, death or disability of the














 






	 	 	 	Employee. If the Company terminates the employment of the Employee without cause,
(whether before the end of the Term of this Employment Agreement or, if the Employee is
employed by the Company under paragraph E of this Section 4 below, after the Term of this
Employment Agreement has ended) the Company shall, at the time of such termination, pay to
the Employee the severance payment provided in paragraph F of this Section 4 below
together with the value of any accrued but unused vacation time and the amount of all
accrued but previously unpaid base salary through the date of such termination and shall
provide him with all of his benefits under paragraph C of Section 3 above for the longer
of      (    ) months or the full unexpired Term of this Employment Agreement. The
Company shall promptly reimburse the Employee for the amount of any expenses incurred
prior to such termination by the Employee as required under paragraph F of Section 3
above.
	 
	 	 	 	If the Company terminates the employment of the Employee because it has ceased to do
business or substantially completed the liquidation of its assets or because it has
relocated to another city and the Employee has decided not to relocate also, such
termination of employment shall be deemed to be without cause.
	 
	 	E.	 	End of the Term of this Employment Agreement. Except as otherwise provided in
paragraphs F and G of this Section 4 below, the Company may terminate the employment of
the Employee at the end of the Term of this Employment Agreement without any liability
on the part of the Company to the Employee but, if the Employee continues to be an
employee of the Company after the Term of this Employment Agreement ends, his employment
shall be governed by the terms and conditions of this Agreement, but he shall be an
employee at will and his employment may be terminated at any time by either the Company
or the Employee without notice and for any reason not prohibited by law or no reason at
all. If the Company terminates the employment of the Employee at the end of the Term of
this Employment Agreement, the Company shall, at the time of such termination, pay to
the Employee the severance payment provided in paragraph F of this Section 4 below
together with the value of any accrued but unused vacation time and the amount of all
accrued but previously unpaid base salary through the date of such termination. The
Company shall promptly reimburse the Employee for the amount of any reasonable expenses
incurred prior to such termination by the Employee as required under paragraph F of
Section 3 above.
	 
	 	F.	 	Severance. If the employment of the Employee is terminated by the Company, at
the end of the Term of this Employment Agreement or, without cause (whether before the
end of the Term of this Employment Agreement or, if the Employee is employed by the
Company under paragraph E of this Section 4 above, after the Term of this Employment
Agreement has ended), the Employee shall be paid, as a severance payment at the time of
such termination, the amount of ___ ($___) together with the value of any
accrued but unused vacation time.
	 
	 	G.	 	Change of Control Severance. In addition to the rights of the Employee under the
Company’s employee benefit plans (paragraphs C of Section 3 above) but in lieu of any
severance payment under paragraph F of this Section 4 above, if there is a Change in
Control of the Company (as defined below) and the employment of the Employee is
concurrently or subsequently terminated (a) by the Company without cause, (b) by the
expiration of the Term of this Employment Agreement, or (c) by the resignation of the
Employee because he has reasonably determined in good faith that his titles,
authorities, responsibilities, salary, bonus opportunities or benefits have been
materially diminished, that a material adverse change in his working conditions has
occurred, that his services are no longer required in light of the Company’s business
plan, or the Company has breached this Employment Agreement, the Company shall pay the
Employee, as a severance payment, at the time of such termination, ___
($___), together with the value of any accrued but unused vacation time, and
the amount of all accrued but previously unpaid base salary through the date of
termination and shall provide him with all of the Employee benefits under paragraph C of
Section 3 above for the longer of ___ (___) months or the full unexpired Term of
this Employment Agreement. The Company shall promptly reimburse the Employee for the
amount of any expenses incurred prior to such termination by the Employee as required
under paragraph F of Section 3 above.
	 
	 	 	 	For the purpose of this Employment Agreement, a Change in Control of the Company has
occurred when: (a) any person (defined for the purposes of this paragraph G to mean any
person within the meaning of Section 13(d) of the Securities Exchange Act of 1934 (the
“Exchange Act”)), other than Neoprobe, an employee benefit plan created by its Board of
Directors for the benefit of its employees, or a participant in a transaction approved by
its Board of Directors for the principal purpose of raising additional capital, either
directly or indirectly, acquires beneficial ownership (determined under Rule 13d-3 of the
Regulations promulgated by the Securities and Exchange Commission under Section 13(d) of
the Exchange Act) of securities issued by Neoprobe having thirty percent (30%) or more of
the voting power of all the voting securities issued by














 






	 	 	 	Neoprobe in the election of Directors at the next meeting of the holders of voting
securities to be held for such purpose; (b) a majority of the Directors elected at any
meeting of the holders of voting securities of Neoprobe are persons who were not nominated
for such election by the Board of Directors or a duly constituted committee of the Board
of Directors having authority in such matters; (c) the stockholders of Neoprobe approve a
merger or consolidation of Neoprobe with another person other than a merger or
consolidation in which the holders of Neoprobe’s voting securities issued and outstanding
immediately before such merger or consolidation continue to hold voting securities in the
surviving or resulting corporation (in the same relative proportions to each other as
existed before such event) comprising eighty percent (80%) or more of the voting power for
all purposes of the surviving or resulting corporation; or (d) the stockholders of
Neoprobe approve a transfer of substantially all of the assets of Neoprobe to another
person other than a transfer to a transferee, eighty percent (80%) or more of the voting
power of which is owned or controlled by Neoprobe or by the holders of Neoprobe’s voting
securities issued and outstanding immediately before such transfer in the same relative
proportions to each other as existed before such event. The parties hereto agree that for
the purpose of determining the time when a Change of Control has occurred that if any
transaction results from a definite proposal that was made before the end of the Term of
this Employment Agreement but which continued until after the end of the Term of this
Employment Agreement and such transaction is consummated after the end of the Term of this
Employment Agreement, such transaction shall be deemed to have occurred when the definite
proposal was made for the purposes of the first sentence of this paragraph G of this
Section 4.
	 
	 	H.	 	Benefit and Stock Plans. In the event that a benefit plan or Stock Plan which
covers the Employee has specific provisions concerning termination of employment, or the
death or disability of an employee (e.g., life insurance or disability insurance), then
such benefit plan or Stock Plan shall control the disposition of the benefits or stock
options.






	 	5.	 	Proprietary Information Agreement. Employee has executed a Proprietary Information
Agreement as a condition of employment with the Company. The Proprietary Information
Agreement shall not be limited by this Employment Agreement in any manner, and the Employee
shall act in accordance with the provisions of the Proprietary Information Agreement at all
times during the Term of this Employment Agreement.
	 
	 	6.	 	Non-Competition. Employee agrees that for so long as he is employed by the Company under
this Employment Agreement and for one (1) year thereafter, the Employee will not:






	 	A.	 	enter into the employ of or render any services to any person, firm, or
corporation, which is engaged, in any part, in a Competitive Business (as defined
below);
	 
	 	B.	 	engage in any directly Competitive Business for his own account;
	 
	 	C.	 	become associated with or interested in through retention or by employment any
Competitive Business as an individual, partner, shareholder, creditor, director,
officer, principal, agent, employee, trustee, consultant, advisor, or in any other
relationship or capacity; or
	 
	 	D.	 	solicit, interfere with, or endeavor to entice away from the Company, any of its
customers, strategic partners, or sources of supply.






	 	 	 	Nothing in this Employment Agreement shall preclude Employee from taking employment in the
banking or related financial services industries nor from investing his personal assets in
the securities or any Competitive Business if such securities are traded on a national stock
exchange or in the over-the-counter market and if such investment does not result in his
beneficially owning, at any time, more than one percent (1%) of the publicly-traded equity
securities of such Competitive Business. “Competitive Business” for purposes of this
Employment Agreement shall mean any business or enterprise which:






	 	a.	 	is engaged in the development and/or commercialization of products and/or systems
for use in intraoperative detection of cancer, or
	 
	 	b.	 	reasonably understood to be competitive in the relevant market with products
and/or systems described in clause a above, or
	 
	 	c.	 	the Company engages in during the Term of this Employment Agreement pursuant to a
determination of the Board of Directors and from which the Company derives a material
amount of revenue or in which the Company has made a material capital investment.














 












	 	 	 	The covenant set forth in this Section 6 shall terminate immediately upon the substantial
completion of the liquidation of assets of the Company or the termination of the employment
of the Employee by the Company without cause or at the end of the Term of this Employment
Agreement.
	 
	 	7.	 	Arbitration. Any dispute or controversy arising under or in connection with this
Employment Agreement shall be settled exclusively by arbitration in Columbus, Ohio, in
accordance with the non-union employment arbitration rules of the American Arbitration
Association (“AAA”) then in effect. If specific non-union employment dispute rules are not
in effect, then AAA commercial arbitration rules shall govern the dispute. If the amount
claimed exceeds $100,000, the arbitration shall be before a panel of three arbitrators.
Judgment may be entered on the arbitrator’s award in any court having jurisdiction. The
Company shall indemnify the Employee against and hold him harmless from any attorney’s
fees, court costs and other expenses incurred by the Employee in connection with the
preparation, commencement, prosecution, defense, or enforcement of any arbitration, award,
confirmation or judgment in order to assert or defend any right or obtain any payment under
paragraph C of Section 4 above or under this sentence; without regard to the success of the
Employee or his attorney in any such arbitration or proceeding.
	 
	 	8.	 	Governing Law. The Employment Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
	 
	 	9.	 	Validity. The invalidity or unenforceability of any provision or provisions of this
Employment Agreement shall not affect the validity or enforceability of any other provision
of the Employment Agreement, which shall remain in full force and effect.
	 
	 	10.	 	Compliance with Section 409A of the Internal Revenue Code. If, when the Employee’s
employment with the Company terminates, the Employee is a “specified employee” as defined
in Section 409A(a)(1)(B)(i) of the Internal Revenue Code, and if any payments under this
Employment Agreement, including payments under Section 4, will result in additional tax or
interest to the Employee under Section 409A(a)(1)(B) (“Section 409A Penalties”), then
despite any provision of this Employment Agreement to the contrary, the Employee will not
be entitled to payments until the earliest of (a) the date that is at least six months
after termination of the Employee’s employment for reasons other than the Employee’s death,
(b) the date of the Employee’s death, or (c) any earlier date that does not result in
Section 409A Penalties to the Employee. As soon as practicable after the end of the period
during which payments are delayed under this provision, the entire amount of the delayed
payments shall be paid to the Employee in a lump sum. Additionally, if any provision of
this Employment Agreement would subject the Employee to Section 409A Penalties, the Company
will apply such provision in a manner consistent with Section 409A of the Internal Revenue
Code during any period in which an arrangement is permitted to comply operationally with
Section 409A of the Internal Revenue Code and before a formal amendment to this Employment
Agreement is required.














 












	 	11.	 	Entire Agreement.






	 	A.	 	The 2004 Employment Agreement is terminated as of the effective date of this
Employment Agreement, except that awards under the Stock Plans granted to the Employee
in the 2004 Employment Agreement or in any previous employment agreement or by the
Compensation Committee remain in full force and effect, and survive the termination of
the 1999, 2001 and 2004 Employment Agreements and remain in full force and effect, and
survive the termination of the 2004 Employment Agreement.
	 
	 	B.	 	This Employment Agreement constitutes the entire understanding between the
parties with respect to the subject matter hereof, superseding all negotiations, prior
discussions, and preliminary agreements. This Employment Agreement may not be amended
except in writing executed by the parties hereto.






	 	12.	 	Effect on Successors of Interest. This Employment Agreement shall inure to the benefit
of and be binding upon heirs, administrators, executors, successors and assigns of each of
the parties hereto. Notwithstanding the above, the Employee recognizes and agrees that his
obligation under this Employment Agreement may not be assigned without the consent of the
Company.




IN WITNESS WHEREOF, the parties hereto have executed and delivered this Employment Agreement as of
the date first written above.




	 	 	 
	  NEOPROBE CORPORATION

	 	EMPLOYEE
	 
	 	 
	By:                                                             

          [Name][Title]

	 	                                                            

[Name][Title]