Exhibit 10.2.48
SCHEDULE IDENTIFYING OMITTED DOCUMENTS
The only particulars in which the attached agreement differs from the
omitted agreements is the name of the employee who is a party to the agreements
and the number of restricted shares subject to the agreements.
Name Number of Restricted Shares
---- ---------------------------
Brent L. Larson 20,000
Patricia A. Coburn 20,000
Lauren V. Vitek 20,000
NEOPROBE CORPORATION
SUITE 400
425 METRO PLACE NORTH
DUBLIN, OHIO 43017-1367
October 23, 1998
Matthew F. Bowman
8123 Linden Leaf Circle
Worthington, Ohio 43235
Congratulations. You have been granted a right to purchase Restricted Stock
under Neoprobe's 1996 Stock Incentive Plan (the "Plan") on the following terms:
1. PURCHASE AND SALE. On the terms and subject to the conditions set forth
in this Agreement, you hereby subscribe for and agree to purchase 40,000 shares
of Common Stock (the "Restricted Stock") for and in consideration of a payment
by you to Neoprobe of $0.001 per share.
2. TRANSFER RESTRICTIONS. The fair market value of Common Stock is
demonstrated by the closing price on the Nasdaq National Market of such
securities on the business day before the date first set forth above which was
$0.53 per share. In consideration of the difference between the purchase price
of the Restricted Stock set forth in paragraph 1 above and its fair market value
without the restrictions and risk of forfeiture set forth herein, you agree
that, unless and until any of the Restricted Stock vests and becomes
transferable as provided in paragraph 4 below, you will neither transfer, sell,
assign nor pledge any of the Restricted Stock. Any certificate representing any
Restricted Stock issued hereunder shall bear the following legend in larger or
other contrasting type or color: "The transfer of these securities is restricted
by, and such securities are subject to a risk of forfeiture, under a Restricted
Stock Purchase Agreement between the registered owner hereof and the Issuer
dated October 23, 1998."
3. FORFEITURE. You will forfeit any portion of the Restricted Stock
purchased under this Agreement that has not vested and become transferable on
the earliest of: (a) the expiration of 10 years from the date of this Agreement,
or (b) (except as otherwise provided in the last sentence of this paragraph 3)
immediately upon the termination of your employment by your Employer under the
Employment Agreement, whether for cause or without cause or because of your
death or disability or by your resignation. If such a forfeiture occurs, all of
your right, title and interest in and to any shares of Restricted Stock which
have not previously vested and became transferable will be terminated, the
certificates representing the forfeited shares will be canceled or transferred
free and clear of all restrictions to Neoprobe's treasury and we will pay you
$0.001 per share for each share of Restricted Stock so forfeited.
Notwithstanding clause (b) of this paragraph 3 no forfeiture shall occur upon
the termination of your employment by your Employer under the Employment
Agreement without cause or because of your death or disability if at the time of
such termination Neoprobe is engaged in active negotiations that could
reasonably be expected to result in a change in control.
4. VESTING PROVISIONS. Any Restricted Stock that has not previously been
forfeited under Section 3 above will vest and become transferable if and when a
Change in Control (as defined below in Section 5) of the Company occurs or upon
the termination of your employment by your Employer under the Employment
Agreement without cause or because of your death or disability if at the time of
such termination Neoprobe is engaged in active negotiations that could
reasonably be expected to result in a Change in Control; provided the Committee
certifies such occurrence in its minutes or another writing promptly thereafter.
Notwithstanding any provision of this Agreement or any provision of the Plan,
including, but not limited to,
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the last sentence of Section 7.1 thereof and Section 8.3 thereof, the provisions
of which are hereby waived by you, the Committee may, if it determines in its
sole discretion that your actions in connection with any Change in Control which
results in the vesting of any shares of Restricted Stock hereunder were not in
accordance with your duties to the Company and its stockholders as a director,
officer or employee of the Company or your actions did not fully support the
determinations of the Board of Directors of the Company in connection therewith,
reduce the number of shares of Restricted Stock which vest under this Agreement
or eliminate such vesting entirely. When any portion of the Restricted Stock
vests and becomes transferable, the Company shall, subject to the provision of
Section 6 below, promptly deliver a certificate (free of all adverse claims and
transfer) representing the number of shares constituting the vested and
transferable portion of the Restricted Stock to you at your address given above
and such shares shall no longer be deemed to be Restricted Stock subject to the
terms and conditions of this Agreement.
5. CHANGE IN CONTROL. For the purpose of this Agreement, a Change in
Control of the Company has occurred when: (a) any person (defined for the
purposes of this Section 3 to mean any person within the meaning of Section
13(d) of the Securities Exchange Act of 1934 (the "Exchange Act")), other than
Neoprobe or an employee benefit plan created by its Board of Directors for the
benefit of its employees, 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.
6. RIGHTS; STOCK DIVIDENDS. Except for the restrictions on transfer set
forth in Section 2 and the possibility of forfeiture set forth in Section 3,
upon the issuance of a certificate representing shares of Restricted Stock, you
will have all other rights in such shares, including the right to vote such
shares and receive dividends other than dividends on or distributions of shares
of any class of stock issued by the Company which dividends or distributions
shall be delivered to the Company under the same restrictions on transfer and
possibility of forfeitures as the shares of Restricted Stock from which they
derive.
7. TAXATION. Both you and we intend that the transactions provided for in
this Agreement will be governed by the provisions of Section 83(a) of the
Internal Revenue Code of 1986. You will have taxable income upon the vesting of
Restricted Stock. At that time, you must pay to the Company an amount equal to
the required federal, state, and local tax withholding less any withholding
otherwise made from your salary or bonus. You must satisfy any relevant
withholding requirements before the Company issues certificates representing
vested shares of Restricted Stock to you.
8. EMPLOYMENT AGREEMENT. This Agreement is not an employment agreement and
nothing contained herein gives you any right to continue to be employed by or
provide services to the Company or affects the right of the Company to terminate
your employment or other relationship with you.
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9. PLAN CONTROLS. This Agreement is a Restricted Stock Purchase Agreement
(as such term is defined in the Plan) under Article 7 of the Plan. The terms of
this Agreement are subject to, and controlled by, the terms of the Plan, as it
is now in effect or may be amended from time to time hereafter, which are
incorporated herein as if they were set forth in full. Except as otherwise
expressly set forth herein, any words or phrases defined in the Plan have the
same meanings in this Agreement. The Company will provide you with a copy of the
Plan promptly upon your written or oral request made to its principal financial
officer.
10. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Columbus,
Ohio, in accordance with the nonunion employment arbitration rules of the
American Arbitration Association ("AAA") then in effect. If specific nonunion
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
will indemnify you against, and hold you harmless from, any attorney's fees,
court costs and other expenses incurred by you 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 hereunder after the occurrence of a Change in
Control of the Company or under this sentence; without regard to the success of
you or your attorney in any such arbitration or proceeding.
11. MISCELLANEOUS. This Agreement sets forth the entire agreement of the
parties with respect to the subject matter hereof and it supersedes and
discharges all prior agreements (written or oral) and negotiations and all
contemporaneous oral agreements concerning such subject matter. This Agreement
may not be amended or terminated except by a writing signed by the party against
whom any such amendment or termination is sought. If any one or more provisions
of this Agreement shall be found to be illegal or unenforceable in any respect,
the validity and enforceability of the remaining provisions hereof shall not in
any way be affected or impaired thereby. This Agreement shall be governed by the
laws of the State of Delaware.
Please acknowledge your acceptance of this Agreement by signing the
enclosed copy in the space provided below and returning it promptly to the
Company.
NEOPROBE CORPORATION
By: /s/ David C. Bupp
-----------------------------
David C. Bupp, President
Accepted and Agreed to as of
the date first set forth above:
/s/ Matthew F. Bowman
- - -----------------------------------
Matthew F. Bowman
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