AMENDED & RESTATED EMPLOYMENT AGREEMENT
EXHIBIT 10.1
AMENDED & RESTATED
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of March 7, 2007, is by and between
Xxxxxx X. Xxxxxxx (the “Employee”) and Digene Corporation, a Delaware corporation (the “Company”).
This Agreement shall be effective as of the end of the seven-day revocation period described in
Section 15 of this Agreement (the “Effective Date”).
WHEREAS, the Employee desires to reduce his roles with the Company, change his status to one
of part-time employment with the Company for a specified period, and then to resign from all
positions with the Company, and the Company agrees to make such changes to the Employee’s
employment status, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, intending to be legally bound hereby, the Employee and the Company agree as
follows:
1. Employment.
(a) Positions with the Company. The Employee currently holds the offices of Senior
Vice President, Science and Technology and Chief Scientific Officer of the Company. The Employee
hereby resigns, effective as of the Effective Date, from the office of Senior Vice President,
Science and Technology. As of the Effective Date, the Employee shall continue in the position of
Chief Scientific Officer of the Company, and shall hold that position until December 31, 2007.
From January 1, 2008 until the end of the Term, the Employee shall be a Scientific Advisor to the
Company.
(b) Time Commitment. From the Effective Date until December 31, 2007, the Employee
shall be a part-time employee, devoting 25% of a full-time position to his employment efforts for
the Company. From January 1, 2008 until December 31, 2008 such time commitment shall be 15% and
from January 1, 2009 until the end of the Term such time commitment shall be 10%.
2. Term. Subject to the provisions for earlier termination as provided herein, the
term of this Agreement will be for a period beginning on the Effective Date and ending on December
31, 2009. The period of the Employee’s employment under this Agreement, as it may be terminated as
provided herein, is hereinafter referred to as the “Term.” The expiration of the Term (and the
termination of this Agreement at the expiration of the Term in accordance with this Section 2)
shall not be a termination as set forth in Section 5 hereof and shall not entitle the Employee to
receive any payments as provided for in Section 6 hereof.
3. Duties and Responsibilities. In his capacity as a part-time employee, the Employee
will not be required to be based at the Company’s Gaithersburg, Maryland facilities, but will
continue, until December 31, 2007, to handle the responsibilities of Chief Scientific Officer, and
thereafter, until the end of the Term, will perform in the role of Scientific Advisor to the
Company. In each such role, the Employee’s responsibilities will include public speaking events,
representing the Company in the scientific community, representing the Company in the
field of human papillomavirus (HPV) testing and meetings, with reasonable advance notice, with
the Company’s Sales and Marketing, Research & Development, executive officers, the Board of
Directors (the “Board”) and other personnel of the Company. The Company may establish a Scientific
Advisory Board during the Term, and the Employee will participate as a member of such Scientific
Advisory Board, if requested by the Chief Executive Officer (“CEO”) during the Term as part of his
position responsibilities. In addition, during the Term, the Employee shall perform such duties
and functions as the Board may from time to time reasonably determine which are consistent with the
applicable position of Chief Scientific Officer or Scientific Advisor and the part time nature of
his employment as referred to in Section 1(b) above, and he shall comply with the policies and
reasonable directions of the Board and shall discharge his responsibilities in a competent and
faithful manner, consistent with sound business practices.
The Employee shall not, directly or indirectly, without the approval of the Board, engage or
become financially interested in any other business activity which, in the reasonable judgment of
the Board, conflicts with the duties of the Employee hereunder, whether or not such activity is
pursued for gain, profit or pecuniary advantage. The Employee shall also not, during the Term and
during the one-year non-compete period contemplated by Section 8(a) of this Agreement, serve as a
board member or advisory board member, deliver lectures, fulfill speaking engagements or otherwise
participate in any public event sponsored, presented or arranged by a competitor of the Company.
The “competitors” of the Company for purposes of this paragraph shall match the Competing
Businesses as defined in Section 8(a) of this Agreement.
4. Compensation.
(a) Base Salary. During the Term, the Employee shall
receive from the Company (or, at the
Company’s option, any subsidiary or affiliate thereof) an annual base salary equal to: (i)
$500,000 for the period from February 5, 2007 until December 31, 2007; (ii) $200,000 for the period
from January 1, 2008 until December 31, 2008; and (iii) $100,000 for the period from January 1,
2009 until December 31, 2009. The Employee acknowledges that such compensation paid after February
5, 2007 is being paid as consideration for the services to be rendered during the Term as a
part-time employee, for performance of his other obligations hereunder, including the
post-termination non-compete covenant set forth in Section 8(a) and for the release of claims set
forth in Section 14 of this Agreement. Such salary shall be paid in accordance with the Company’s
standard payroll practices.
(b) Bonus. The Employee shall not be entitled to
participate in any bonus program of the
Company.
(c) Outstanding Equity Awards. Until termination of his
employment with the Company, the
existing stock options, Restricted Stock Units and Performance Shares Awards made to the Employee
under the Amended and Restated Equity Incentive Plan (the “Plan”) shall continue to vest and, in
the case of outstanding stock option awards, be exercisable, in accordance with the terms of such
awards. In accordance with the Plan, the Employee shall have three (3) months after termination of
employment with the Company to exercise any stock options vested as of such date of termination.
Unvested stock options and Restricted Stock Units shall terminate as of the date of termination,
subject to the provisions of Section 6(b) of this Agreement. If the Term of this Agreement is
terminated for any reason prior to the conclusion of
the performance period for any outstanding Performance Shares Awards, such unvested and
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unearned Performance Shares Awards will terminate and be forfeited as of the date of termination.
(d) Benefits. Until December 31, 2007, the Employee
shall be entitled to continue to
participate, at the Company’s expense, in such employee benefit plans or programs of the Company in
which he is participating as of the Effective Date. Such benefits, and the method by which the
Company shall meet this obligation are set forth on Schedule A to this Agreement.
Notwithstanding any of the foregoing, if, during the period in which the Employee remains eligible
for health, dental and vision benefits under COBRA (the “COBRA Benefits”) as set forth on
Schedule A, the Employee establishes his primary residency in the United Kingdom and
becomes eligible for national health insurance in such country, the Company shall be deemed to have
satisfied this obligation with respect to such COBRA Benefits by providing supplemental health
insurance benefits under the policy applicable to Digene officers resident in the United Kingdom
for the balance of the Term. If, during such period of coverage, the Employee relocates to
establish his primary residency in any other country, the Company’s obligations to provide these
COBRA Benefits shall cease. Effective as of the Effective Date, the Employee shall be eligible to
continue to maintain an account in the Company’s 401(k) Plan, as long as his balance equals or
exceeds $5,000, and may continue to contribute up to the allowed 401(k) Plan limits, but will no
longer be eligible for a Company match in accordance with the provisions of the Company’s 401(k)
Plan. The Employee is not eligible to transfer his 401(k) Plan account until after termination of
employment or attaining the age of 59 1/2, whichever comes first.
(e) Reimbursement for Expenses. The Company shall
reimburse the Employee, in a manner
consistent with the regular practices of the Company, for any and all reasonable and necessary
business expenses incurred by the Employee in connection with the performance of his duties, upon
presentation of proper vouchers by the Employee to support said expenses.
5. Termination. The Employee’s employment by the Company hereunder shall terminate
on
the occurrence of:
(a) Disability or Death. In the event of the
Employee’s death during the Term, the Employee’s
employment shall be deemed to terminate on the date of the Employee’s death. In the event of the
Employee’s Disability during the Term, the Company, at its option, may terminate the employment of
the Employee under this Agreement immediately by giving the Employee written notice to that effect.
For the purpose hereof, the term “Disability” shall mean the Employee’s physical or mental
inability to perform his essential duties and responsibilities hereunder, with reasonable
accommodation, for a period of at least ninety (90) consecutive days. Disability shall be
reasonably determined by the Compensation Committee of the Board of Directors (the “Compensation
Committee”) or its designee in accordance with past practice. In the case of Disability, until the
Company terminates the Employee’s employment hereunder in accordance with the foregoing, the
Employee shall be entitled to receive compensation provided for herein notwithstanding any such
physical or mental inability to perform his duties hereunder.
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(b) Termination for Cause. The Company may, with the
approval of a majority of the Board,
terminate the employment of the Employee hereunder at any time during the Term and effective
immediately for “justifiable cause” (a “Termination for Cause”) by giving Employee written notice
of such Termination for Cause. For the purposes of the Agreement, the term “justifiable cause”
means: (i) the Employee’s conviction of a felony (which, through lapse of time or otherwise, is
not subject to appeal); (ii) the Employee’s willful and substantial misconduct; (iii) the
Employee’s repeated, after written notice from the Company and a reasonable opportunity to cure,
neglect of duties or failure to act which can reasonably be expected to affect materially and
adversely the business or affairs of the Company or any subsidiary or affiliate; (iv) except in the
normal course of business in the performance of his duties or as otherwise authorized by the
Company, any material disclosure by the Employee to any person, firm or corporation other than the
Company, its subsidiaries and its and their directors, officers, employees or professional
advisors, of any confidential information or trade secret of the Company or any of its
subsidiaries; (v) the Employee’s repeated pursuit, after written notice from the Company and a
reasonable opportunity to cure, of activities or personal or professional conduct or action that in
the reasonable sole judgment of the Board is contrary to the best interests of the Company; (vi)
any material breach by the Employee of this Agreement or, to the extent applicable, the Non
Competition, Non Disclosure and Developments Agreement between the Employee and the Company; (vii)
any conduct or action by the Employee prohibited under the policies of the Company published by the
Company and made available to all employees, including, without limitation, policies regarding
sexual harassment, xxxxxxx xxxxxxx, corporate disclosure, substance abuse and conflicts of
interest; or (viii) the engaging by the Employee in any business other than the business of the
Company and its subsidiaries which, in the reasonable sole judgment of the Board, materially
interferes with the performance of his duties hereunder, and the Employee does not cease such other
business or modify his business activities after notice from the Company and a reasonable
opportunity to cease such business or modify his business activities so that such activities do not
materially interfere with the performance of his duties hereunder.
(c) Termination Without Cause. The Company may terminate
the employment of the Employee
hereunder at any time without “justifiable cause” (a “Termination Without Cause”) by giving the
Employee written notice of such termination at least thirty (30) days prior to the effective date
of such termination. Any termination of employment of the Employee hereunder, otherwise than as a
result of death, Disability, a Termination for Cause or a Voluntary Termination will be deemed to
be a “Termination Without Cause.” A termination by Employee as a result of any breach or violation
of this Agreement by the Company, which breach or violation is not cured by the Company within
twenty (20) days after receipt of written notice thereof, shall be deemed a termination by Employee
for “Good Reason”, and upon any termination by the Employee for Good Reason, Employee shall be
entitled to receive the same severance benefits and payments as would be receivable by him in the
case of a Termination Without Cause.
(d) Voluntary Termination. Any voluntary resignation by
the Employee under this Agreement
(other than for “Good Reason” as defined below) will be deemed to be a “Voluntary Termination.” A
Voluntary Termination will be deemed to be effective immediately upon Employee’s written notice of
his resignation to the Company.
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6. Effect of Termination of Employment.
(a) Voluntary Termination; Termination for Cause; Termination
for Death or Disability. Upon
termination of the Employee’s employment hereunder pursuant to a Voluntary Termination, a
Termination for Cause or Death or Disability, neither the Employee nor his beneficiaries or estate
will have any further rights or claims against the Company under this Agreement except the right to
receive: (i) the unpaid portion of his then-current base salary provided for in Section 4(a)
hereof, computed on a pro rata basis to the date of termination; and (ii) reimbursement for any
unreimbursed expenses as provided in Section 4(e) hereof. Nothing in this Agreement shall restrict
or limit the right of the Compensation Committee or the Board to determine whether the forfeiture
provisions of any of the Company’s stock option or incentive compensation plans apply to vested
stock options or stock awards held by the Employee at the time of any Termination for Cause. In
the event of any Voluntary Termination or Termination for Cause, the non-compete covenant set forth
in Section 8(a) of this Agreement shall continue in full force and effect until December 31, 2009.
(b) Termination Without Cause. Upon termination of the
Employee’s employment hereunder
pursuant to a Termination Without Cause, neither the Employee nor his beneficiaries or estate will
have any further rights or claims against the Company under this Agreement except the right to
receive, subject to Section 6(d) of this Agreement: (i) the payment and other rights provided for
in Section 6(a)(i) and (ii) of this Agreement; (ii) severance payments in the form of semi-monthly
payments of an amount equal to the remainder of the Employee’s annual base salary for the remainder
of the Term, to the extent not paid prior to the termination date, and (iii) the acceleration of
vesting of all then-outstanding unvested stock options and Restricted Stock Units. For the
avoidance of doubt, the only outstanding Restricted Stock Units Award as of the Effective Date is
the award made on June 8, 2006 for 10,000 Restricted Stock Units, which is scheduled to vest on
June 8, 2009 and the only outstanding unvested stock option awards are those set forth on
Schedule B attached hereto; and the acceleration provisions of this Section 6(b)(iii) does
not apply to any outstanding Performance Shares Awards, which shall only vest and be earned in
accordance with the terms of such awards, and only if Employee is employed at the end of the
applicable Performance Period (as defined in each applicable Performance Shares Award). The
Employee shall have three (3) months after the date of termination to exercise all vested stock
options, and stock options not exercised in such three-month period shall expire and be terminated.
In the event of a Termination Without Cause, the non-compete covenant set forth in Section 8(a) of
this Agreement shall continue in full force and effect until December 31, 2009, conditioned upon
the Company making all payments and providing all benefits to Employee that Employee is entitled to
receive under this Section 6(b). Employee shall have no duty to mitigate with respect to any
failure by the Company to provide the payments and benefits described in this Section 6(b).
(c) Forfeiture of Rights. In the event that, subsequent to
termination of employment
hereunder, the Employee (i) breaches any of the provisions of Sections 7, 8, 9 or 14 hereof or (ii)
directly or indirectly makes any defamatory public statements or disclosures with respect to the
business or securities of the Company, all payments and benefits to which the Employee may
otherwise be entitled pursuant to Section 6(a) or 6(b) hereof shall immediately terminate and be
forfeited, and any portion of such amounts as may have been paid to the Employee shall forthwith be
returned to the Company. The provisions of this Section 6(c) shall
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not be applicable to any statements or disclosures made by the Employee under oath in any
legal proceeding or under any legal compulsion, provided, however, that the Employee shall notify
the Company immediately when he becomes aware that any such statements or disclosures may be
required to be made by him in any legal proceeding or under any legal compulsion, and shall
endeavor to the best of his ability to provide the Company with the opportunity to seek a
protective order regarding such legal proceeding or other legal requirement pertaining to compelled
statements or disclosures by the Employee.
(d) Compliance with Code Section 409A.
Notwithstanding anything to the contrary herein,
payments under this Article 6 shall comply with the applicable requirements of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”). In the event that the Employee is a
“specified employee” within the meaning of Code Section 409A(a)(2)(B)(i), the Company shall, in the
event of a Termination Without Cause, determine whether the aggregate of (1) the payments under
Section 6(b)(ii) and (iii) and (2) payments, if any, under any other Company-provided separation
pay arrangement, represent the payment of non-qualified deferred compensation subject to the
requirements of Code Section 409A (including the requirement of a six-month delay in the
commencement of payments as described in Code Section 409A(a)(2)(B)(i)). If such determination is
made, then the payments described in Section 6(b)(ii) and (iii) which would otherwise be paid
during the six-month period beginning on the day following the Employee’s termination of employment
described in Section 6(b) shall instead be paid to the Employee in a single lump sum payment within
five (5) business days after the end of such six-month period. The lump sum payment shall be
adjusted for simple interest that accrues during the initial six-month period following Employee’s
termination of employment at the applicable Federal rate provided for in Code Section 7872(f)(2).
(e) Tax Withholdings. All payments under this
Article 6 shall be made subject to applicable
tax withholdings.
7. Confidentiality. Except in the normal course of business in the performance of his
duties, the Employee shall not, during the Term of this Agreement, or at any time following the end
of the Term of this Agreement, directly or indirectly, disclose or permit to be known, to any
person, firm or corporation, any confidential information acquired by him during the course of, or
as an incident to, his employment hereunder, relating to the Company, the directors of the Company,
or any client of the Company, including, but not limited to, the business affairs of each of the
foregoing. Such confidential information shall include, but shall not be limited to, proprietary
technology, trade secrets, patented processes, research and development data, know-how, formulae,
pricing policies, the substance of agreements with customers and others, and arrangements, customer
lists and any other documents embodying such confidential information.
All information and documents relating to the Company shall be the exclusive property of the
Company, and the Employee shall use his best efforts to prevent any publication or disclosure
thereof. Upon termination of Employee’s employment with the Company, all documents records,
reports, writings and other similar documents containing confidential information then in the
Employee’s possession or control shall be returned to and left with the Company.
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Confidential information under the provisions of this Section 7 shall not include (i)
information in the public domain or known generally in the industry (other than by reason of any
breach by the Employee of this Section 7), and (ii) information that is not treated by the Company
as confidential or is disclosed by the Company to third parties without a duty of confidentiality
imposed on such third parties.
8. Restrictive Covenant.
(a) The Employee hereby acknowledges and recognizes that, during
the Term, the Employee will
be privy to trade secrets and confidential proprietary information critical to the Company’s
business and, accordingly the Employee agrees that, in consideration of the benefits to be received
by him hereunder, the Employee will not, from and after the date hereof until the first anniversary
of the termination of the Term, or, if longer, until December 31, 2009 (the “Restrictive Period”)
if required by the provisions of Section 6(a) or Section 6(b) of this Agreement, (i) directly or
indirectly engage in the development, production, marketing or sale of products that compete (or,
upon commercialization, would compete) with products of the Company being developed in the areas
covered by the Assigned IP (as defined in Section 9(a))(so long as such development has not been
abandoned by the Company), produced, marketed or sold at the time of the Employee’s termination
with any of the entities or corporations set forth on Schedule C to this Agreement, or any
subsidiary or successor of the Company or any such entity (hereinafter a “Competing Business”),
whether such engagement shall be as an owner, partner, investor, employee, officer, director,
affiliate, consultant, speaker, lecturer or other participant in any Competing Business; (ii)
assist others in engaging in any Competing Business in the manner described in clause (i) above; or
(iii) induce other employees of the Company or any subsidiary thereof to terminate their employment
with the Company or any subsidiary thereof or engage in any Competing Business. The ownership of
not more than 5% of the stock of any entity having a class of equity securities actively traded on
a national securities exchange or any minority interest in any private entity shall not be deemed,
in and of itself, to violate the prohibitions of this Section 8(a). The Employee and the CEO of
the Company shall discuss in good faith any potential future addition to Schedule C in
accordance with its terms. The Employee agrees to discuss with the Company CEO during the Term any
employment or consulting positions with a potential commercial competitor prior to entering into an
employment or consulting arrangement with such entity.
(b) During the Term of the Employee’s employment hereunder
and for five (5) years thereafter,
(i) the Employee shall not disparage, deprecate, or make any comments or take any other actions,
directly or indirectly, that will reflect adversely on the Company or its officers, directors,
employees or agents or adversely affect their business reputation or goodwill, and (ii) the Company
shall not disparage, deprecate, or make any comments or take any other actions, directly or
indirectly, that will reflect adversely on the Employee or adversely affect his business or
professional reputation.
(c) The Employee understands that the foregoing restrictions may
limit the ability of the
Employee to earn a livelihood in a business similar to the business of the Company, but
nevertheless believes that the Employee has received and will receive sufficient consideration and
other benefits, as an employee of the Company and as otherwise provided
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herein, to justify such restrictions which, in any event (given the education, skills and
ability of the Employee), the Employee believes would not prevent the Employee from earning a
living.
(d) If any portion of the restrictions set forth in this Section 8 should, for any reason
whatsoever, be declared invalid by a court of competent jurisdiction, the validity or
enforceability of the remainder of such restrictions shall not thereby be adversely affected. The
Employee declares that the territorial, time limitations and scope of activities restricted as set
forth in this Section 8 are reasonable and properly required for the adequate protection of the
business of the Company. In the event that any such territorial, time limitation and scope of
activities restricted is deemed to be unreasonable by a court of competent jurisdiction, the
Company and the Employee agree to the reduction of the territorial, time limitation or scope to the
area or period which such court shall have deemed reasonable.
(e) Except as otherwise provided in Section 6(b) of this Agreement, the existence of any claim
or cause of action by the Employee against the Company shall not constitute a defense to the
enforcement by the Company of the foregoing restrictive covenants, but such claim or cause of
action shall be litigated separately.
9. Company Right to Inventions. The Employee will promptly disclose, grant and assign
to the Company, for its sole use and benefit (including its subsidiaries) any and all inventions,
improvements, technical information and suggestions in any way relating to the commercial and
scientific aspects of HPV, CT, GC, HBV, HSV, CF, endometrial cancer, hybrid capture, DISO, HDA,
Luminex, automation of Digene tests, Digene patent and patent applications as of the Effective
Date, and Digene intellectual property and work products as of the Effective Date (“Assigned IP”)
which the Employee may develop or acquire during the Term (whether or not if during working hours),
together with all patent applications, letters patent, copyrights and reissues thereof that may at
any time be granted for or upon any such invention, improvement or technical information related to
Assigned IP. In connection therewith: (i) the Employee shall, without charge, but at the expense
of the Company, promptly at all times hereafter execute and deliver such applications, assignments,
descriptions and other instruments as may be necessary or proper in the opinion of the Company to
vest title to any such inventions, improvements, technical information, patent applications,
patents, copyrights or reissues thereof in the Company and to enable it to obtain and maintain the
entire right and title thereto throughout the world; and (ii) the Employee shall render to the
Company, at its expense (including payment for the time involved in case the Employee is not then
in its employ at the post-Term consulting rate of $500.00 per hour (the “Consulting Rate”)), all
such assistance as it may require in the prosecution of applications of said patents, copyrights or
reissues thereof, in the prosecution or defense of interferences which may be declared involving
any said applications, patents or copyrights and in any litigation in which the Company may be
involved relating to any such patents, inventions, improvements or technical information. The
provisions of this Section 9 will survive any termination of this Agreement or the termination of
the Employee’s employment with the Company.
10. Impact on Other Agreements. The provisions of Sections 7, 8 and 9 of this
Agreement shall control over and shall supersede similar provisions contained in other agreements
between the Employee and the Company, entered into prior to the Effective Date; provided,
however, that, with respect to the assignment of inventions or other intellectual
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property, the provisions of such prior agreements control with respect to any intellectual
property assignments that arose prior to the Effective Date, and with respect to any
confidentiality or non-disclosure obligations, the provisions of such prior agreements shall
continue in full force and effect as set forth in any such prior agreement.
11. Representations and Agreements of Employee. The Employee represents and warrants
that he is free to enter into this Agreement and to perform the duties required hereunder, and that
there are no employment contracts or understandings, restrictive covenants or other restrictions,
whether written or oral, preventing the performance of his duties hereunder.
12. Impact on Change in Control Employment Agreement. Without the need for any
further action on the part of the Employee or the Company, effective on the Effective Date, the
Change in Control Employment Agreement, dated February 17, 2006, between the Company and the
Employee shall terminate and be of no further force and effect.
13. Cooperation with Litigation. The Employee will cooperate with any reasonable
request of the Company to participate in the preparation for, response to, prosecution of and/or
defense of any pending, actual or threatened litigation involving the Company. The Company will
reimburse the Employee for all reasonable out-of-pocket expenses he incurs as a result of such
cooperation (including for the time involved in case the Employee is not then in its employ at the
post-Term Consulting Rate).
14. General Release of Claims. The Employee, for himself and his heirs, executors,
administrators and assigns, if any, and anyone purporting to claim by or through the Employee, does
hereby waive, release and forever discharge the Company, its subsidiaries, predecessors,
successors, assigns, employee benefit plans and trusts, if any, and each of their past, present and
future managers, members, directors, officers, partners, agents, employees, attorneys,
representatives, fiduciaries, plan sponsors, administrators and trustees, if any, (hereinafter
collectively “the Released Parties”), of and from any and all actions, causes of action, claims
(including without limitation, any claim for wrongful discharge or breach of contract and claims
under the federal, state or local employment discrimination law such as Title VII of the Civil
Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and other
similar laws) suits, demands, rights, damages, accounts, judgments, wages, commissions, executions,
debts, obligations, attorneys’ fees, costs and all other liabilities of any kind or description
whatsoever, either at law or in equity, whether known or unknown, suspected or unsuspected and
whether or not based on his employment or the termination of his employment, that the Employee ever
had, now has or may have or claim to have in the future against any of the Released Parties for or
by reason of any cause, matter or event whatsoever, from the beginning of time to the date of this
Agreement. The Employee further agrees that he will not bring any law suit or arbitration against
any of the Released Parties for any claims hereby released. Notwithstanding anything to the
contrary set forth in this paragraph, this Release shall not apply to claims relating to the
validity or enforcement of this Agreement, claims for any accrued benefit under the terms of any
employee benefit plan within the meaning of the Employee Retirement Income Security Act maintained
by the Company (except that it will apply to any severance benefits that otherwise might be payable
outside of the Agreement) or claims for indemnification or defense to which the Employee is
entitled under the Certificate of Incorporation, the Bylaws and/or any insurance policy of the
Company or its subsidiaries.
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15. Voluntary Execution by Employee. (a) The Employee has carefully read and
understands the provisions of this Agreement; (b) he has been given the opportunity to examine this
Agreement for a period of 21 calendar days; (c) he is advised by the Company that he should consult
with his personal attorney before deciding whether to accept this Agreement; and (d) his signature
to this Agreement signifies that this Section 15 has been complied with, and that if this
Agreement is signed by the Employee before the expiration of the 21 day consideration period, the
Employee is voluntarily waiving his right to consider the Agreement for the entire 21 day period.
The Parties recognize that the Employee shall have seven days after the Employee returns a signed
copy of this Agreement to revoke the Agreement by submitting a signed revocation notice to the
Company. Upon the expiration of that seven day period, this Agreement shall become effective.
16. Public Disclosure. The Company and the Employee shall provide each other with a
reasonable opportunity to review and provide comments to any press release or other public
disclosure made by the Company or by the Employee or a future employer of the Employee related to
this Agreement or to the employment relationship between the Company and the Employee.
17. Enforcement. It is the desire and intent of the parties hereto that the
provisions of this Agreement be enforceable to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought. Accordingly, to the
extent that a restriction contained in this Agreement is more restrictive than permitted by the
laws of any jurisdiction where this Agreement may be subject to review and interpretation, the
terms of such restriction, for the purpose only of the operation of such restriction in such
jurisdiction, will be the maximum restriction allowed by the laws of such jurisdiction and such
restriction will be deemed to have been revised accordingly herein.
18. Remedies; Survival.
(a) The Employee acknowledges and understands that the provisions
of the covenants contained
in Sections 7, 8 and 9 hereof, the violation of which cannot be accurately compensated for in
damages by an action at law, are of crucial importance to the Company, and that the breach or
threatened breach of such provisions would cause the Company irreparable harm. In the event of a
breach or threatened breach by the Employee of the provisions of Sections 7, 8 or 9 hereof, the
Company will be entitled to seek an injunction restraining the Employee from such breach. Nothing
herein contained will be construed as prohibiting the Company from pursuing any other remedies
available for any breach or threatened breach of this Agreement.
(b) Notwithstanding anything contained in this Agreement to the
contrary, the provisions of
Sections 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17 and this Section 18 will survive the expiration or
other termination of this Agreement until, by their terms, such provisions are no longer operative.
(c) In the event of any controversy, dispute or claim arising out
of or related to this
Agreement or the Employee’s employment by the Company, the parties shall negotiate in good faith in
an attempt to reach a mutually acceptable settlement of such dispute. If
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negotiations in good faith do not result in a settlement of any such controversy, dispute or
claim, it shall be finally settled by expedited binding arbitration, conducted in Baltimore,
Maryland, in accordance with the National Rules of the American Arbitration Association governing
employment disputes. The costs and expenses of such arbitration shall be borne by the
non-prevailing party. If the Employee is the prevailing party, the Company shall pay or reimburse
Employee for all reasonable attorneys’ fees and costs incurred by Employee under any such
arbitration proceeding. Nothing herein shall prevent the Company from seeking injunctive relief as
provided for in Section 18(a) of this Agreement.
19. Notices. Any notices required or permitted to be given hereunder shall be
sufficient if in writing, and if delivered by hand, or sent by registered or certified mail, return
receipt requested, or overnight delivery using a national courier service, or by facsimile or
electronic transmission, with confirmation as to receipt, to the Company at the address set forth
below and to the Employee at the address set forth in the personnel records of the Company, or such
other address as either party may from time to time designate in writing to the other, and shall be
deemed given as of the date of the delivery or mailing:
with a copy to:
Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx, Xx., Esquire
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx, Xx., Esquire
20. Severability. If any of the covenants contained in this Agreement, any part of
any such covenant, are hereafter construed to be invalid or unenforceable, the same shall not
affect the remainder of the covenant or covenants, or the remainder of the Agreement, which shall
be given full effect, without regard to the invalid portions.
21. Non-Waiver. The waiver or breach of any term or condition of this Agreement shall
not be deemed to constitute a waiver or breach of any other term or condition.
22. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with respect to its subject matter, and no modification or waiver of any provision hereof shall be
valid unless it is in writing and signed by all of the parties hereto. Subject to Section 10
hereof, this Agreement supersedes all prior agreements or understandings between the parties with
respect to the subject matter hereof, including, without limitation, that certain Employment
Agreement, dated February 17, 2006, between the Employee and the Company.
23. Assignment. This Agreement and the rights and obligations of the parties hereto
shall bind and inure to the benefit of any successor or successors by reorganization, merger or
consolidation and any assignee of all or substantially all of its business and properties,
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but, except as to any such successor or assignee of the Company, neither this Agreement nor
any rights or benefits hereunder may be assigned or transferred by either party without the prior
written consent of the other party.
24. Binding Effect. This Agreement and all of the provisions hereof shall be binding
upon the legal representatives, heirs, distributees, successors and assigns of the parties hereto.
25. Choice of Law and Forum Selection. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland without reference to principles of
conflicts of laws. Any action brought in connection with this Agreement, shall be brought in the
federal or state courts located in the City of Baltimore, State of Maryland, and the parties hereto
hereby irrevocably consent to the jurisdiction of such courts.
26. Headings. The Section headings appearing in this Agreement are for purposes of
easy reference and shall not be considered a part of this Agreement or in any way modify, amend, or
affect its provisions.
27. Construction. The language of this Agreement shall be construed in accordance
with its fair meaning and not for or against any party. The parties acknowledge that each party
and its counsel have reviewed and had the opportunity to participate in the drafting of this
Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor
of non-drafting parties shall not apply to the interpretation of this Agreement or any portion of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| XXXXXX X. XXXXXXX | ||||||
| /s/ Xxxxxx X. Xxxxxxx | ||||||
| DIGENE CORPORATION | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer |
|||||
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