Unassociated Document


    

      Exhibit
4(d)

      


      THIRD
AMENDMENT TO

      THE
NEOPROBE CORPORATION 401(k) PLAN

      


      Background
Information

      


      
        
          	
                  A.

                	
                  Neoprobe
      Corporation (the “Company”) maintains the Neoprobe Corporation 401(k)
      Plan, effective January 1, 2005 (the
“Plan”).

                


        

      

      


      
        	
                B.

              	
                The
      Company desires to amend the Plan to (1) change the Plan Trustee to
      AST  Capital Trust Company of Delaware (“AST”), (2) amend
      certain Plan provisions to reflect changes to the trust provisions of the
      Plan, (3) provide for a separate Trust agreement with AST, (4) reflect
      administrative practices regarding the calculation of matching
      contributions, (5) incorporate the ability to charge expenses to Plan
      participants’ directed accounts, and (6) add an automatic enrollment
      feature to the Plan.

              


      

      


      
        
          	
                  C.

                	
                  The
      Company has the power to amend and modify the Plan pursuant to Section
      13.01 of the Plan.

                


        

      

      


      
        Plan
Amendments

      

      


      
        	
                1.

              	
                Effective
      June 1, 2007, Section 2.76 of the Plan is amended by the addition of the
      following as the second sentence of the
section:

              


      

      


      
        	
                 
      

              	
                “Effective
      June 1, 2007, the Trust provisions are generally set forth in a separate
      Trust agreement entered into by and between the Company and AST Capital
      Trust Company of Delaware,
Trustee.”

              


      

      


      
        
          	
                  2.

                	
                  Effective
      June 1, 2007,  Section 2.77 is amended by the addition of a
      second paragraph, as set forth
below:

                


        

      

      


      
        	
                 
      

              	
                “Notwithstanding
      any other provision of this Plan, effective June 1, 2007, Trustee shall
      mean AST Capital Trust Company of
Delaware.”

              


      

      


      
        
          	
                  3.

                	
                  Effective
      June 1, 2007, the third paragraph of Section 4.02 is amended and restated
      in its entirety, as set forth
below:

                


        

      

      


      
        	
                 
      

              	
                “Matching
      Contributions shall be made by the Employer and allocated to the Matching
      Contribution Account of a Participant provided, however, such Matching
      Contributions shall be made no later than the time prescribed by law for
      filing the Employer’s Federal income tax return (including extensions) for
      the taxable year with respect to which the Matching Contributions are
      made.”

              


      

      


      
        	
                4.

              	
                Effective
      June 1, 2007, the first paragraph of Section 5.02(a) of the Plan is
      amended and restated in its entirety, as set forth
  below:

              


      


      
        
           


        

        
          1

          
            

          

        

        
           


        

      

      


      
        	
                 
      

              	
                “Amount.  The
      Employer shall automatically deduct and withhold from such Participant’s
      Compensation each payroll period five percent (5%) of such Employee’s
      Compensation and contribute such amount to the Trust Fund on a before-tax
      basis, subject to the limitation of Section
      5.04.  Notwithstanding the foregoing, the Participant may
      execute a Contribution Agreement authorizing the Employer to deduct and
      withhold from such Employee’s Compensation a different percentage of such
      Compensation (including a zero Elective Deferral amount) and contribute
      such amount to the Trust Fund on a before-tax basis, subject to the
      limitation of Section 5.04.  The Participant may also make a
      special salary deferral election of 100% of any bonus.  Elective
      Deferral Contributions shall be held in a Participant’s Elective Deferral
      Account and shall be fully vested and non-forfeitable at all
      times.  Prior to the time an automatic Elective Deferral
      election first goes into effect, a Participant must receive written notice
      concerning the effect of the automatic Elective Deferral election and
      his/her right to elect a different level of Elective Deferral under the
      Plan, including the right to elect not to defer.  After
      receiving the notice, a Participant must have a reasonable time to enter
      into a new Contribution Agreement before any automatic Elective Deferral
      election goes into effect.”

              


      

      


      
        
          	
                  5.

                	
                  Effective
      June 1, 2007, Section 10.01(c) is amended and restated in its entirety as
      set forth below:

                


        

      

      


      
        	
                 
      

              	
                “As
      directed by the Company, the Trustee shall have the sole responsibility of
      management of the assets held under the Trust, except those assets, the
      management of which has been assigned to an Investment Manager, if any,
      who shall be solely responsible for the management of the assets assigned
      to it, all as specifically provided in the
  Plan.”

              


      

      


      
        
          	
                  6.

                	
                  Effective
      June 1, 2007, Section 11.01 is amended and restated in its entirety as set
      forth below:

                


        

      

      


      “11.01 Basic
Responsibilities.

      


      The
Trustee shall have the following categories of responsibilities:

      


      (a)            Consistent
with the funding policy and method determined by the Company, and as directed by
the Company, to invest (subject to Participant direction of investment), manage,
and control the Plan assets subject, however, to the direction of any Investment
Manager appointed to manage all or a portion of the assets of the
Plan;


      
        
           


        

        
          2

          
            

          

        

        
           


        

      

      


      (b)            At
the direction of the Administrator, to pay benefits required under the Plan to
be paid to Participants, or, in the event of their death, to their
beneficiaries;

      


      (c)            To
maintain records of receipts and disbursements and furnish to the Employer,
and/or Administrator, for each Fiscal Year a written annual report pursuant to
Section 11.10.”

      


      
        
          	
                  7.

                	
                  Effective
      June 1, 2007, Section 11.02 is amended and restated in its entirety as set
      forth below:

                


        

      

      


      “11.02 Investment Powers and
Duties.

      


      (a)            The
Trustee, as directed by the Company, shall invest and reinvest the Trust Fund to
keep the Trust Fund invested without distinction between principal and income
and in such securities or property, real or personal, wherever situated, as the
Company shall deem advisable, including, but not limited to, stocks, common or
preferred, bonds and mortgages, mutual funds, common trust funds including
common trust funds and collective funds of the Trustee and/or any of its
affiliates or other fiduciary and/or any of its affiliates, collective
investment funds, and group annuity or deposit administration contracts and
other evidences of indebtedness or ownership, and real estate or any interest
therein.  The Company shall at all times in directing the Trustee to
make investments of the Trust Fund consider, among other factors, the short and
long-term financial needs of the Plan.  Such investments shall not be
restricted to securities or other property of the character expressly authorized
by the applicable law for trust investments; however, the Company in making
investment decisions and in directing the Trustee shall give due regard to any
limitations imposed by the Code or ERISA so that at all times the Plan may
qualify as a qualified 401(k) profit sharing plan and trust.

      


      By way of
illustration but not limitation, the Company may direct the Trustee to invest
the funds of the Trust in such securities and properties as the Company may
determine and shall not be restricted by any applicable laws prescribing forms
of property which may be held or acquired by a Trustee.

      


      The
Trustee, as directed by the Company, may purchase Qualifying Employer Securities
or Qualifying Employer Real Property from the Employer or from any other
source.  All such purchases must be made at fair market
values.

      


      (b)            The
Trustee, as directed by the Company, may employ a bank or trust company pursuant
to the terms of its usual and customary bank agency agreement, under which the
duties of such bank or trust company shall be of a custodial, clerical and
recordkeeping nature.


      
        
           


        

        
          3

          
            

          

        

        
           


        

      

      


      (c)            Reserved.”

      


      
        
          	
                  8.

                	
                  Effective
      June 1, 2007, Section 11.03 is amended and restated in its entirety as set
      forth below:

                


        

      

      


      “11.03
Participant
Direction.

      


      Each
Participant (and any Employee who rolls an Eligible Rollover Distribution into
this Plan if pursuant to Section 11.05(a) an Employee is eligible to make an
Eligible Rollover Distribution into this Plan) may elect to direct the
investment of his Account in any of the alternative investment funds established
by the Trustee, as directed by the Company, as part of the overall Trust
Fund.

      


      Provided,
however, a Participant may only elect to direct investment with respect to his
Elective Deferral Account.

      


      A
Participant may elect to direct investments with respect to all current or
future contributions or with respect to his accumulated balance.  If
the Participant does not provide direction on the investment of the Account (or
a portion of the Account), the Trustee, as directed by the Company, will invest
it as it has been directed and as is determined by the Company under the funding
policy of the Plan, until such time as the Participant elects to direct the
investment of his Account or portion thereof.

      


      A
Participant must submit written instructions to the Company for every change in
selection of investment options.

      


      All
charges and fees related to an individual Participant’s investment activities
may be charged to the Participant’s Account as set forth in Section
11.09.

      


      The
Participant may change investment selection daily.

      


      If a
Participant has elected to direct the investment of his Account and a tender
offer is made for any shares of stock held in the Participant’s Account, the
Participant shall make the decision as to whether to tender the shares by
submitting timely written instructions to the Trustee.”

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      
        
          	
                  9.

                	
                  Effective
      June 1, 2007, Section 11.07 of the Plan is amended and restated in its
      entirety, as set forth below:

                


        

      

      


      “11.07
Other
Powers.

      


      The
Trustee, shall have the powers and authorities described in the Trust agreement
provided for in Section 2.76 of this Plan all as are generally described
below:

      


      (a)            As
directed by the Company, purchase, or subscribe for, any securities or other
property and to retain the same.  In conjunction with the purchase of
securities, margin accounts may be opened and utilized;

      


      (b)            As
directed by the Company, to sell, exchange, convey, transfer, grant options to
purchase, or otherwise dispose of any securities or other property held by the
Trustee, by private contract or at public auction.  No person dealing
with the Trustee shall be bound to see to the application of the purchase money
or to inquire into the validity, expediency, or propriety of any such sale or
other disposition, with or without advertisement;

      


      (c)            As
directed by the Company, to vote upon any stocks, bonds, or other securities; to
give general or special proxies or powers of attorney with or without power of
substitution; to exercise any conversion privileges, subscription rights or
other options, and to make any payments incidental thereto; to oppose, or to
consent to, or otherwise participate in, corporate reorganizations or other
changes affecting corporate securities, and to delegate discretionary powers,
and to pay any assessments or charges in connection therewith; and generally to
exercise any of the powers of an owner with respect to stocks, bonds,
securities, or other property all as directed by the Company;

      


       (d)            To
keep such portion of the Trust Fund in cash or cash balances as the Trustee may,
from time to time, deem to be in the best interests of the Plan, without
liability for interest thereon;

      


       (e)            As
directed by the Company, to accept and retain for such time as the Trustee may
deem advisable any securities or other property received or acquired as Trustee
hereunder, whether or not such securities or other property would normally be
purchased as investments hereunder;

      


      (f)            As
directed by the Company, to make, execute, acknowledge, and deliver any and all
documents of transfer and conveyance and any and all other instruments that may
be necessary or appropriate to carry out the powers herein granted;

      


      (g)            As
directed by the Company, to settle, compromise, or submit to arbitration any
claims, debts, or damages due or owing to or from the Plan, to commence or
defend suits or legal or administrative proceedings, and to represent the Plan
in all suits and legal and administrative proceedings;


      
        
           


        

        
          5

          
            

          

        

        
           


        

      

      


      (h)            As
directed by the Company, to employ suitable agents and counsel and to pay their
reasonable expenses and compensation, and such agent or counsel may or may not
be agent or counsel for the Employer.  Notwithstanding the foregoing
sentence, the Trustee, in its discretion and upon written prior notice to the
Company, may engage such attorneys, investment advisors, subcustodians,
accountants and such other advisors, including the services of the custodian as
described below, and, anything contained herein to the contrary notwithstanding,
to engage in such legal or administrative proceedings as are deemed reasonably
required in connection with the administration of the Trust, and to compensate
any persons so engaged at such wages, fees, remuneration, consideration or
otherwise, and upon such terms and conditions as the Trustee shall deem
reasonable under the circumstances.  The Trustee, in its discretion,
may engage a custodian to perform certain duties and responsibilities, including
custodial duties, record maintenance and the production of statements on the
investments held by the custodian.

      


      (i)            To
cause any securities or other property held as part of the Trust Fund to be
registered in the Trustee’s own name or in the name of one or more of its
nominees, including a custodian as custodian for the Trustee, and to hold any
investments in bearer form, or to hold any investment unregistered or in such
form that either will pass by delivery, provided, however, that the books and
records of the Trustee shall at all times show that all such investments are
part of the Trust Fund;

      


       (j)            As
directed by the Company, to apply for and procure from responsible insurance
companies, to be selected by the Company, either for the general benefit of the
Trust Fund or for the particular benefit of a particular Participant, as an
investment of the Trust Fund such annuity, or other Contracts (on the life of
any Participant) as the Company shall deem proper; to exercise, at any time or
from time to time, any and all rights, options and privileges of an absolute
owner which may be granted under such annuity, or other Contracts; to collect,
receive, and settle for the proceeds of all such annuity or other Contracts as
and when entitled to do so under the provisions thereof;

      


      (k)            As
directed by the Company, to invest funds of the Trust in time deposits or
savings accounts bearing a reasonable rate of interest in the Trustee’s
bank;

      


      (l)            As
directed by the Company, to invest in Treasury Bills and other forms of United
States government obligations;


      
        
           


        

        
          6

          
            

          

        

        
           


        

      

      


      (m)            As
directed by the Company, to sell, purchase and acquire put or call options if
the options are traded on and purchased through a national securities exchange
registered under the Securities Act of 1934, as amended, or, if the options are
not traded on a national securities exchange, are guaranteed by a member firm of
the New York Stock Exchange;

      


      (n)            As
directed by the Company, to deposit monies in federally insured savings accounts
or certificates of deposit in banks or savings and loan
associations;

      


      (o)            As
directed by the Company, to pool all or any of the Trust Fund, from time to
time, with assets belonging to any other qualified employee pension benefit
trust created by the Employer or an affiliated company of the Employer, and to
commingle such assets and make joint or common investments and carry joint
accounts on behalf of this Plan and such other trust or trusts, allocating
undivided shares or interests in such investments or accounts or any pooled
assets of the two or more trusts in accordance with their respective
interests.”

      


      
        
          	
                  10.

                	
                  Effective
      June 1, 2007, Section 11.08 of the Plan is amended and restated in its
      entirety, as set forth below:

                


        

      

      


      
        “11.08 Duties Regarding
Contributions and Payments.

      

      


      At the
direction of the Administrator, the Trustee shall, from time to time, in
accordance with the terms of the Plan:  (a) accept contributions to
Plan, including but not limited to, contributions by the Employer; the Trustee
is not obligated to collect any contributions from the Employer or to see that
such funds are deposited according to the provisions of the Plan; and (b) make
payments out of the Trust Fund as directed by the Company; except as otherwise
provided herein, the Trustee shall not be responsible in any way for the
application of such payments.  Any distributions made from the Trust
shall be in cash, securities, or other property as the Company shall
determine.  If payment is in securities, the securities to be used in
making such payment shall be those which the Administrator shall in his sole
discretion determine, and such securities shall be valued for the purpose of
such payment at the value thereof as of the date of such payment.”

      


      
        
          	
                  11.

                	
                  Effective
      June 1, 2007, Section 11.09 of the Plan is amended and restated in its
      entirety, as set forth below:

                


        

      

      


      
        “11.09
Trustee’s Compensation and
Expenses and Taxes.

      

      


      The
Trustee shall be paid such reasonable compensation as shall from time to time be
agreed upon in writing by the Company and the Trustee under the terms of the
Trust agreement as provided for in Section 2.76 of this Plan.


      
        
           


        

        
          7

          
            

          

        

        
           


        

      

      


      All
expense of administration may be paid out of the Trust Fund unless such expenses
are paid by the Employer.  Such expenses shall include any expenses
incident to the functioning of the Administrator, or any person or persons
retained or appointed by any Named Fiduciary incident to the exercise of their
duties under the Plan, including, but not limited to, fees of accountants,
counsel, Investment Managers, agents (including nonfiduciary agents) appointed
for the purpose of assisting the Administrator or the Trustee in carrying out
the instructions of Participants as to the directed investment of their
accounts, and other specialists and their agents, and other costs of
administering the Plan.  Additionally, expenses which are directly
attributable to a specific Participant shall be charged directly against the
Participant’s Account.  Such expenses include but are not limited to a
loan, to a hardship distribution or to the bankruptcy of a
Participant.  Until paid, any and all expenses shall constitute a
liability of the Trust Fund.”

      


      
        
          	
                  12.

                	
                  Effective
      June 1, 2007, Section 11.10 of the Plan is amended and restated in its
      entirety, as set forth below:

                


        

      

      


      “11.10
Annual
Report.

      


      “The
Trustee shall furnish to the Company a written statement of account as set forth
in the Trust agreement as provided for in Section 2.76 of the
Plan.”

      


      
        
          	
                  13.

                	
                  Effective
      June 1, 2007, Section 11.12 of the Plan is amended and restated in its
      entirety, as set forth below:

                


        

      

      


      
        “11.12
Apportionment, Resignation,
Removal and Succession of Trustee.

      

      


      The
appointment, resignation, removal and succession of Trustee provisions are set
forth under the terms of the Trust agreement as provided for in Section 2.76 of
the Plan.”

      


      
        
          	
                  14.

                	
                  Effective
      June 1, 2007, Section 11.13 of the Plan is amended and restated in its
      entirety, as set forth below:

                


        

      

      


      “11.13
Liability of
Trustee.

      


      The
liability and indemnification of the Trustee is as set forth under the terms of
the Trust agreement as provided for in Section 2.76 of the Plan.”

      


      The remainder of the Plan remains
unchanged.


      
        
           


        

        
          8

          
            

          

        

        
           


        

      

      


      This amendment has been executed on
this 4th day of  April, 2007.

      


      
        
          
            
              
                
                  
                    
                      	
                              COMPANY:

                            
	 
      
	
                              Neoprobe Corporation

                            
	 
      	 
      
	
                              By:

                            	
                              /s/ Brent L. Larson

                            
	 
      	 
      
	
                              Its:

                            	
                              VP/Finance CFO

                            
	 
      	 
      


                    

                  

                

              

            

          

        

      


      
        
           


        

        
          9