Unassociated Document


    
       

      Exhibit
4(e)

      


      FOURTH
AMENDMENT TO THE

      NEOPROBE
CORPORATION 401(k) PLAN (the “Plan”)

      


      Pursuant to the authority of Section
13.01 of the Plan, Neoprobe Corporation (the “Employer”) hereby amends the Plan
to conform the Plan to final regulations under Code Section 415 that were
released in April 2007.  Unless otherwise set forth below, this
amendment shall be effective as of the first limitation year beginning on or
after July 1, 2007.

      


      12.         Section
2.07 is amended by the addition of the following final paragraph:

      


      Annual
additions for purposes of Section 415 of the Code shall not include restorative
payments. A restorative payment is a payment made to restore losses to a Plan
resulting from actions by a fiduciary for which there is reasonable risk of
liability for breach of a fiduciary duty under ERISA or under other applicable
federal or state law, where participants who are similarly situated are treated
similarly with respect to the payments. Generally, payments are restorative
payments only if the payments are made in order to restore some or all of the
plan’s losses due to an action (or a failure to act) that creates a reasonable
risk of liability for such a breach of fiduciary duty (other than a breach of
fiduciary duty arising from failure to remit contributions to the Plan). This
includes payments to a plan made pursuant to a Department of Labor order, the
Department of Labor’s Voluntary Fiduciary Correction Program, or a
court-approved settlement, to restore losses to a qualified defined contribution
plan on account of the breach of fiduciary duty (other than a breach of
fiduciary duty arising from failure to remit contributions to the Plan).
Payments made to the Plan to make up for losses due merely to market
fluctuations and other payments that are not made on account of a reasonable
risk of liability for breach of a fiduciary duty under ERISA are not restorative
payments and generally constitute contributions that are considered annual
additions.

      


      13.              Section
2.15 is amended by the addition of the following final provisions:

      


      Effective
January 1, 2008, in determining the amount or allocation of any contribution
that is based on Compensation, only Compensation paid to a Participant for
services rendered to the Employer while employed as an Eligible Employee shall
be taken into account.  Further, notwithstanding anything to the
contrary herein, severance amounts paid after severance from employment shall be
excluded from Compensation.  For purposes of this Section, “severance
amounts” are any amounts paid by the later of 2 1/2 months after severance from
employment or by the end of the limitation year that includes the date of such
severance from employment, excluding payments of regular compensation for
services during the Employee’s regular working hours, or compensation for
services outside the Employee’s regular working hours (such as overtime or shift
differential), commissions, bonuses, or other similar payments if such payments
would have been made prior to a severance from employment if the Employee had
continued in employment with the employer.


      
        
           


        

        
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      For
purposes of this Section, an Employee has a “severance from employment” when the
Employee ceases to be an employee of the employer maintaining the Plan, and an
Employee does not have a “severance from employment” if, in connection with a
change of employment, the individual’s new employer maintains such Plan with
respect to the individual. The determination of whether an Employee ceases to be
an employee of the employer maintaining the Plan is based on all of the relevant
facts and circumstances.

      


      14.         Section
2.16 is amended by the addition of the following final provisions:

      


      Effective
for Limitation Years beginning on or after July 1, 2007, the definition of
Compensation for purposes of Section 4.06 shall be Compensation as set forth in
Section 2.15, with the following exceptions:

      


      (i)           Compensation
shall be based on the amount actually paid or made available to the Participant
(or, if earlier, includible in the gross income of the Participant) during the
Limitation Year, regardless of date of participation;

      


      (ii)          Compensation
shall not include amounts paid as compensation to anonresident alien, as defined
in Code Section 7701(b)(1)(B), who is not aParticipant in the Plan to the extent
the compensation is excludable fromgross income and is not effectively connected
with the conduct of a trade or business within the United States.

      


      15.         Section
4.06(b) is amended by the addition of the following final
paragraph:

      


      Provided,
however, that for Limitation Years beginning on or after July 1, 2007 in
correcting an amount that exceeds the Maximum Permissible Amount, the Employer
may only correct such excess in accordance with the Employee Plans Compliance
Resolution System (EPCRS), or any successor thereto, and may not use any other
correction method.

      


      The remainder of the Plan remains
unchanged.

      


      This amendment has been executed this
30th day of December, 2008.


      
        
           


        

        
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                                    EMPLOYER:

                                  
	 
      
	
                                    NEOPROBE
      CORPORATION

                                  
	 
      	
                                     
      

                                  
	
                                    By:

                                  	
                                    /s/ Brent L. Larson

                                  
	 
      	 
      
	
                                    Its:

                                  	
                                    Vice President, Finance and
    CFO

                                  
	 
      	 
      


                          

                        

                      

                    

                  

                

              

            

          

        

      


      
        
           


        

        
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