Exhibit 99(e)(8)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated and entered into this 19th
day of February, 2002 by and between Xxxxxxx X. Xxxxxxxxxx (the "Executive") and
Digene Corporation ("Digene" or the "Company").
WHEREAS, the Executive's position requires that he be trusted with
extensive confidential information and trade secrets of the Company and that he
develop a thorough and comprehensive knowledge of all details of the Company's
business, including, but not limited to, information relating to research,
development, inventions, engineering, manufacturing, purchasing, accounting,
marketing, distribution and sales of the Company's products and services; and
WHEREAS, the Executive and the Company desire to formalize the terms
and conditions of the Executive's employment and desire to amend, restate and
supersede all previous agreements or understandings between them to the extent
they relate to the Executive's continued employment by the Company.
NOW, THEREFORE, in consideration of the promises hereafter contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Position and Responsibilities. The Executive agrees to serve as
President, Chief Operating Officer, Chief Financial Officer and Director of the
Company. The Executive shall at all times report to, and Executive's activities
shall at all times be subject to the direction and control of, the Board of the
Company and the Executive shall exercise such powers and comply with and
perform, faithfully and to the best of Executive's ability, such directions and
duties in relation to the business and affairs of the Company and/or its Board
of Directors (the "Board") as may from time to time be vested in or requested of
Executive. The Executive shall devote all of Executive's business time and
efforts to the performance of Executive's duties consistent with Executive's
position hereunder; provided that the first part of this sentence shall not
preclude Executive from (x) participating in civic duties or (y) serving as a
member of the board of directors of any other company if the Company consents in
writing to such service (such consent not to be unreasonably withheld), in each
such case to the extent that such activities do not materially impair
Executive's ability to perform Executive's duties hereunder. If Executive shall
be elected to offices of the Company or any of its subsidiaries or affiliates,
he shall serve in such positions without further compensation than provided for
in this Agreement. The Executive shall perform Executive's services under this
Agreement at such locations as may be required by the Company within a
twenty-five mile radius of the Company's headquarters as of the date of this
Agreement, subject to reasonable business travel requirements.
2. Compensation: Salary, Bonus and Other Benefits. In consideration of the
services to be rendered by the Executive, the Company shall provide the
Executive with the following compensation (the "Compensation") while he is
employed by the Company pursuant to this Agreement:
(a) Salary. The Company will pay to the Executive a semi-monthly salary
of $12,708.34 (the "Base Salary"), at an annualized rate of $305,000, subject to
increase thereafter as may be agreed by the Board in its sole discretion. Such
Base Salary shall be payable in accordance with the Company's customary payroll
practices, as may be established or modified from time to time.
(b) Benefits. The Executive will be eligible to participate in the
Company's benefit plans, policies or practices, as may be established or amended
from time to time, to the same extent as, and subject to the same terms,
conditions and limitations applicable to, other Company employees of similar
rank and tenure. The Company may alter, add to, modify or terminate its employee
benefits plans, policies or practices at any time with or without notice.
(c) Annual Bonus. The Executive will be eligible to receive an annual
discretionary bonus based upon the attainment of certain goals to be established
by the Board. Such bonus will be determined by the Board in its sole discretion
and be subject to the terms and conditions of the Company's policies regarding
bonuses.
(d) Expenses. The Company shall pay or reimburse the Executive for all
reasonable business expenses incurred or paid by the Executive in the
performance of his responsibilities hereunder in accordance with the Company's
prevailing policy and practice relating to reimbursements as established, or
modified from time to time. The Executive must provide documentation of these
expenses to the Company's satisfaction in order to receive reimbursement.
3. Restrictive Covenants. As a condition and in consideration of entering
into this Agreement and the Executive's continued employment by the Company, the
Executive will execute, prior to or simultaneously with the execution hereof,
the Noncompetition, Nondisclosure and Developments Agreement attached hereto as
Exhibit A (the "Noncompetition Agreement"). The Noncompetition Agreement will
remain in effect in accordance with its respective terms after the cessation of
the Executive's employment with the Company and after the termination or
expiration of this Agreement, regardless of the reason for such cessation,
termination or expiration.
4. Termination of Employment. The Executive's employment with the Company
and this Agreement may be terminated as set forth in this Section 4.
(a) At the Company's Election Without Cause. The Company, upon written
notice, may terminate the Executive's employment at any time without Cause (as
such term is defined in Section 4(b) hereof). In the event the Executive's
employment is terminated under this Section 4(a), the Executive will receive the
following:
(i) Salary continuation at the Executive's then current Base Salary for a
period of twelve (12) months after the date of termination of his employment,
payable in accordance with the Company's regular payroll practices as
established or modified from time to time;
(ii) Should the Executive elect to continue medical and dental insurance
coverage in accordance with the provisions of the Consolidated Omnibus Budget
Reconciliation Act of
1985 ("COBRA"), the Company shall pay the Executive's monthly premium payments
until the earlier of: (A) the date twelve (12) months after his termination of
employment; (B) the date the Executive obtains other employment; or (C) the date
the Executive's COBRA continuation coverage would terminate in accordance with
the provisions of COBRA; and
(iii) A payment equal to the bonus paid to the Executive for the fiscal
year prior to the fiscal year in which the employment of the Executive is
terminated to be paid in a lump-sum within thirty (30) days after the
termination date of Executive's employment (the payments described in this
Section 4(a)(i-iii) are collectively the "Severance Payments").
(iv) The Executive shall have no right to receive any other severance,
compensation or benefits, including payment of legal fees and expenses, if he is
terminated without Cause under this Section 4(a), other than the Severance
Payments, and any Compensation set forth in Section 2 of this Agreement accrued
but unpaid through the last date of Executive's employment, except as otherwise
may be required by any applicable law.
(v) The Severance Payments are contingent upon the Executive's full
compliance with his obligations under the Noncompetition Agreement, and if the
Executive breaches any such obligations, the Company may immediately cease all
Severance Payments. The Executive agrees that such a cessation shall be in
addition to, and not an alternative to, any other remedies in law or in equity
available to the Company, including the right to seek specific performance or an
injunction. The Executive's receipt of the Severance Payments is further
contingent upon his executing and delivering, all in form and substance
satisfactory to the Company: (i) if the Executive is then a member of the Board,
a resignation from the Board; (ii) a resignation from any office the Executive
may then hold with the Company; (iii) a separation agreement and comprehensive
release of claims and (iv) satisfactory evidence to the Company that the
Executive has returned all Company property, confidential information and
documentation to the Company.
(b) At the Company's Election For Cause. The Company may, immediately
and without notice, terminate the Executive's employment for Cause. "Cause"
shall mean any one or more of the following: (i) Executive's conviction of, or
entering a plea of nolo contendere to, a felony; (ii) Executive's theft, fraud
or embezzlement; (iii) Executive's breach of fiduciary duty after Executive has
been given written notice of such breach and failed to cure it within fifteen
days after such written notice (provided such breach is capable of cure); (iv)
Failure of the Executive to perform his material duties on behalf of the Company
after Executive has been given written notice of such failure and failed to cure
it within fifteen days after such written notice (provided such failure is
capable of cure); and/or (v) Executive's breach of this Agreement and/or the
Noncompetition Agreement. In the event of a termination for Cause under this
Section 4(b), the Executive shall have no right to receive any severance,
compensation or other benefits, including payment of legal fees and expenses,
other than any Compensation set forth in Section 2 of this Agreement accrued but
unpaid through the date of Executive's termination, except as otherwise may be
required by any applicable law.
(c) At the Executive's Election without Good Reason. The Executive may
terminate his employment with the Company and this Agreement without Good
Reason, by giving at least thirty (30) days' advance written notice to the
Company. In the event of termination at the Executive's election without Good
Reason under this Section 4(c), the
Executive shall not be entitled to any severance, compensation or other
benefits, including payment of legal fees and expenses, other than any
Compensation set forth in Section 2 of this Agreement accrued but unpaid through
the termination date of Executive's employment, except as otherwise may be
required by any applicable law.
(d) At the Executive's Election with Good Reason. The Executive may
terminate his employment with the Company and this Agreement, for Good Reason by
giving at least thirty (30) days' advance written notice to the Company. In the
event of termination at the Executive's election for Good Reason under this
Section 4(d), the Executive shall be entitled to the severance, compensation or
other benefits pursuant to the same terms and conditions as if Executive had
been terminated without Cause in accordance with Section 4(a) above. For the
purposes of this Agreement, Good Reason shall mean, without the Executive's
prior written consent, (i) the reduction of the Executive's compensation, after
the Company has been given written notice of such reduction by the Executive and
failed to remedy it within fifteen days after such written notice (provided such
reduction is capable of cure); (ii) the material reduction of the Executive's
responsibilities, duties, authority or benefits, after the Company has been
given written notice of such reduction by the Executive and failed to remedy it
within fifteen days after such written notice (provided such reduction is
capable of cure) or (iii) the Company's requirement that the Executive relocate
more than twenty-five miles from the location of the Company's headquarters as
of the date of this Agreement.
(e) By Death or Disability. Executive's employment with the Company and
this Agreement will terminate if Executive dies or suffers physical incapacity
or mental incompetence. For the purposes of this Agreement, the Executive shall
be deemed to have suffered physical incapacity or mental incompetence if, due to
a disability as defined by the Americans with Disabilities Act of 1990, as
amended, the Executive is unable to perform the essential functions of his job
with or without reasonable accommodation for a period of 90 consecutive days. If
this Agreement terminates due to the death, physical incapacity or mental
incompetence of Executive, Executive shall be entitled to the severance,
compensation or other benefits pursuant to the same terms and conditions as if
Executive had been terminated without Cause in accordance with Section 4(a)
above.
5. Taxes and Section 280G. All payments set forth in this Agreement
shall be subject to applicable federal, state and local withholding and payroll
taxes. In addition, the Severance Payments set forth in Section 4(a) hereof
shall be reduced (to the minimum extent necessary, as determined by the Company)
so that no portion of any payments pursuant to this Agreement or any other
agreement constitutes an "excess parachute payment" within the meaning of
Section 280(G) of the Internal Revenue Code of 1986, as amended.
6. Successors and Assigns. The Company shall have the right to assign this
Agreement and to delegate all duties, obligations and rights hereunder to any
successor, affiliate or parent or to any person, firm or corporation that
acquires the Company or substantially all of its assets and/or stock, or with or
into which the Company may consolidate or merge. This Agreement shall be binding
upon and inure to the benefit of any successor of the Company, its assets or its
businesses (whether direct or indirect, by purchase, merger, consolidation or
otherwise) and any assign of the Company. The Executive agrees that this
Agreement is personal to him and may not be assigned by him.
7. Entire Agreement. The Executive hereby acknowledges and agrees that he
is not a party to any other employment agreement or severance agreement and that
the Employee Patent and Confidential Information Agreement between Executive and
the Company (the "Confidential Information Agreement") is hereby cancelled, void
and of no further force or effect. This Agreement, including the Noncompetition
Agreement, constitutes the entire agreement between the parties regarding the
subject matter hereof, and supersedes and cancels all prior employment
agreements, promises, offers, representations and understandings by or between
the parties, whether written or oral, regarding the subject matter hereof
including, without limitation the Confidential Information Agreement.
8. Waiver/Modification. No waiver by either party of any breach by the
other or any provision hereof shall be deemed to be a waiver of any later or
other breach thereof or as a waiver of any other provision of this Agreement.
This Agreement and its terms may not be waived, changed, discharged or
terminated orally or by any course of dealing between the parties, but only by
an instrument in writing signed by the party against whom any waiver, change,
discharge or termination is sought. No modification or waiver by the Company
shall be effective without the specific written consent of such modification or
waiver by the Executive and an authorized member of the Board other than the
Executive.
9. Section Headings/Counterparts. The section headings used in this
Agreement are included solely for convenience and shall not affect, or be used
in connection with, the interpretation of this Agreement. The language of this
Agreement will be construed as a whole and not in favor or against any party.
This Agreement may be executed in counterparts, all of which shall be considered
one and the same agreement.
10. Severability/Reformation. In the event any provision of this Agreement,
or any part thereof, is determined to be legally invalid, void or voidable as
against the public policy or otherwise, the affected provision shall be stricken
from the Agreement, and the remaining terms of the Agreement and its
enforceability shall remain unaffected thereby. Moreover, if one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to scope, activity, subject or otherwise so as to be
unenforceable at law, such provision or provisions shall be construed by the
appropriate judicial body by limiting or reducing it or them, so as to be
enforceable to the maximum extent compatible with the applicable law as it shall
then appear.
11. Notices. All notices hereunder shall be in writing and shall be
delivered in person or mailed by certified or registered mail, return receipt
requested, addressed as follows:
If to the Company, to: Digene Corporation
0000 Xxxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
If to the Executive, at the Executive's address set forth on the
signature page hereto. Notices shall be deemed to be given when delivered in
person, on the date notice is provided by facsimile with a confirmation of such
facsimile, or three days after deposit in the mail as set forth above.
12. Governing Law. This Agreement shall in all respects be interpreted,
enforced and governed under the laws of the State of Maryland without giving
effect to the principles of conflicts of law thereof.
13. Survival of Certain Provisions. Provisions of this Agreement shall
survive any termination of employment or termination or expiration of this
Agreement (for any reason) if so provided herein or if necessary or desirable to
fully accomplish the purposes of such provision. Without limiting the foregoing,
Sections 3, 4(a), 5, 6, 10 and 12 hereof, and the Noncompetition Agreement
expressly survive any termination of the Executive's employment and any
termination or expiration of this Agreement (for any reason).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties hereby execute this Employment
Agreement as of the date first written above, as an instrument under seal.
DIGENE CORPORATION
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name (Printed): Xxxx Xxxxx
Title: Chairman & CEO
/s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------------------
Executive
Address: 0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX
00000
