EX-10.1






Exhibit 10.1




EMPLOYMENT AGREEMENT




     This Employment Agreement is made and entered into effective as of January 19, 2009 (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 Frederick
O. Cope of Westerville, Ohio (the “Employee”).



     WHEREAS, the Company and the Employee wish to establish terms, covenants, and conditions for
the Employee’s 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 Vice-President, Pharmaceutical Research and Clinical
Development 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 President and CEO.
While serving in such executive level position or positions, the Employee shall report to,
be responsible to, and shall take direction from the President and CEO 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 that are assigned to him. The Employee shall observe and abide
by the reasonable corporate policies and decisions of the Company in all business matters
disclosed to employee.
	 
	 	 	 	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 that 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 twelve (12) months, commencing February
15, 2009 and terminating February 14, 2010.
	 
	 	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 Two Hundred Thousand Dollars ($200,000)
per year, payable in semi-monthly or monthly installments as requested by the Employee.
Further, the Company agrees to review the Employee’s base salary by January 1, 2010.
	 
	 	B.	 	Bonus. The Compensation, Nominating and Governance Committee (the “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 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 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 Second Amended and Restated 2002 Stock Incentive Plan (the
“2002 Plan”). 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 twenty (20) 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 or a similar job for a continuous period of six
(6) 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 for a period of at least six (6) months. 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. The Company shall pay for any requested
examination. 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




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	 	 	 	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 twelve (12) months after such termination or
the full un-expired 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 in accordance with
paragraph A of Section 3 above. 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.






	 	 	 	Notwithstanding the foregoing, if the Company reasonably determines that any of the
benefits described in this paragraph C may not be exempt from federal income tax, then
for a period of six (6) months after the date of the Employee’s termination, the
Employee shall pay to the Company an amount equal to the stated taxable cost of such
coverages. After the expiration of the six-month period, the Employee shall receive from
the Company a reimbursement of the amounts paid by the Employee.
	 
	 	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 nine (9) months or the
full un-expired 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.




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	 	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 One Hundred Fifty Thousand Dollars ($150,000) 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, the amount of Three
Hundred Thousand Dollars ($300,000) 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 this benefits under paragraph
C of Section 3 above for the longer of twelve (12) months or the full un-expired 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. Notwithstanding the foregoing, before the
Employee may resign pursuant to Section 4(G)(c) above, the Employee shall deliver to
the Company a written notice of the Employee’s intent to terminate his employment
pursuant to Section 4(G)(c), and the Company shall have been given a reasonable
opportunity to cure any such act, omission or condition within Thirty (30) days after
the Company’s receipt of such notice.
	 
	 	 	 	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 




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	 	 	 	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 gamma radiation
detection 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 




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	 	 	 	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. 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:

	 	/s/ David C. Bupp
	 	 
	 	/s/ Frederick O. Cope
	 	 
	 

	 	 
	 	 	 	 	 	 
	 

	 	David C. Bupp, President and CEO
	 	 	 	Frederick O. Cope	 	 






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Exhibit A




February 4, 2009 — February 27, 2009 — employed by OSU

Member — Emory University Scientific Advisory Board

Ad Hoc Member — FDA Scientific Advisory Panel

Part owner — Clue Genomics (50%)

Part owner — Theractics (20%)

Member — Board of Scientific Counselors, Premier Micronutrient




NEOP                     

Fred Cope                     




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