AGREEMENT
EXHIBIT 10.99
AGREEMENT
THIS AGREEMENT (hereinafter “Agreement”) is made and entered into by and between Xxxxx X.
Xxxxx, Ph.D. (hereinafter “XX. XXXXX”), on the one hand, and Gen-Probe Incorporated, its parents,
subsidiaries, related entities, predecessors, successors, officers, directors, agents, employees
and assigns (hereinafter collectively “GEN-PROBE”), on the other hand.
1. Resignation of Employment. XX. XXXXX hereby resigns from all positions of
employment with GEN-PROBE and its affiliates, including but not limited to his position as
Executive Vice President, Research & Development, as of April 16, 2007 (the “Resignation Date”).
XX. XXXXX’ employment with GEN-PROBE shall terminate, for all purposes, as of the Resignation Date.
2. Consideration to Xx. Xxxxx and Tax Liability.
a. Compensation. GEN-PROBE agrees to pay XX. XXXXX severance benefits at a rate equal
to his current Base Salary (less applicable withholding taxes) for the period commencing on the
Resignation Date and continuing through July 16, 2008. These severance payments shall be paid on
GEN-PROBE’s regular paydays in accordance with the Company’s customary payroll practices. XX.
XXXXX will not be entitled to any compensation of any kind whatsoever other than that expressly set
forth in this Paragraph 2(a), provided, however, that he shall be entitled to any stock options
previously granted to him and vested as of the Resignation Date, in accordance with the terms of
the applicable plans and agreements.
b. Health Care and Life Insurance Coverage. GEN-PROBE shall provide XX. XXXXX with
continued health care coverage under GEN-PROBE’s medical plan, without charge, to XX. XXXXX and his
eligible dependents until the earlier of (i) July 16, 2008 or (ii) the first date that XX. XXXXX is
covered under another employer’s health benefit program providing substantially the same or better
benefit options to XX. XXXXX without exclusion for any pre-existing medical condition. The period
of time medical coverage continues under this agreement will be counted as coverage time under
COBRA. GEN-PROBE will pay the premium for continued life insurance coverage, if any, that XX.
XXXXX may have elected under GEN-PROBE’s Life Insurance and Supplemental Life Insurance plan,
subject to payment by XX. XXXXX of the portion of such premium not contributed by GEN-PROBE under
such plan, through July 16, 2008.
c. Transition Services. GEN-PROBE agrees to provide XX. XXXXX with transition support
services during the first three months of the Salary Continuation Period. At XX. XXXXX’ option,
GEN-PROBE agrees to provide XX. XXXXX, in lieu of such services, the sum of $5,000, minus
applicable taxes.
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d. No Other Consideration or Obligation. XX. XXXXX acknowledges and agrees that, upon
performance of this Agreement by GEN-PROBE, he will have been paid all salary, overtime, bonuses,
vacation, commissions and other compensation and benefits earned or accrued during his employment
with GEN-PROBE. XX. XXXXX expressly acknowledges that he is not entitled, pursuant to company
policy, prior contracts, other agreements or otherwise, to any other payment, benefit or
consideration of any type whatsoever in connection with the termination of his employment with
Gen-Probe.
e. Tax Matters. All compensation described in this Paragraph 2 will be subject to
GEN-PROBE’s collection of all applicable federal, state and local income and employment withholding
taxes. XX. XXXXX specifically agrees, upon the advice of counsel, that he alone is and will be
fully responsible for the payment of any and all amounts any governmental or tax authorities may
claim are due, if any, on the consideration paid to him pursuant to this Agreement. XX. XXXXX
further acknowledges that GEN-PROBE is relying on, among other things, this specific promise in
entering into this Agreement. XX. XXXXX agrees to release, indemnify and hold harmless GEN-PROBE,
from any and all claims by XX. XXXXX or any local, state or federal government agency for any
unpaid taxes. Gen-Probe shall issue and file an IRS Form 1099 regarding payments under this
Paragraph 2.
3. General Release.
a. In exchange for the consideration described herein, XX. XXXXX on his own behalf and on
behalf of his heirs and assigns, hereby voluntarily, completely and irrevocably releases and
discharges Gen-Probe, including Gen-Probe’s officers, directors, shareholders, employees,
attorneys, insurers, agents, successors, assigns and all related representatives and organizations
(all collectively referred to herein as “GEN-PROBE”), from any and all obligations, liabilities,
claims and causes of action of any kind whatsoever, arising out of or related to XX. XXXXX’
employment with GEN-PROBE or termination of that employment, including but not limited to, any and
all claims or causes of action for wrongful termination, breach of contract, acting in bad faith,
negligent or intentional infliction of emotional distress, negligent or intentional
misrepresentation, negligent or intentional interference with contract or prospective economic
advantage, violation of any employment policies, defamation in any form, any discrimination on the
basis of race, sex, age, national origin, veteran status, mental or physical disability, religion,
sexual orientation, pregnancy status, marital status and/or any other employment-related claim or
cause of action brought under state or federal law or pursuant to any administrative proceeding
statutory claims.
b. XX. XXXXX understands that various state and federal laws prohibit employment
discrimination based on age, race, color, sex, religion, national origin, marital status, ancestry,
handicap, disability, medical condition and other factors, and prohibits harassment of any sort
based on any of those factors. XX. XXXXX understands and agrees that by signing this Agreement, he
is waiving (among other things) any rights he has or may have had to pursue any and all available
remedies against GEN-PROBE under these employment discrimination laws and/or any other
employment-related causes of action, including, without limitation, claims arising under: the Age
Discrimination in Employment Act as amended, 29 U.S.C. § 621 et seq.; Title VII of the Civil Rights
Act of 1964, as amended by the Civil Rights
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Act of 1991, 42 U.S.C. § 2000 et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Family and Medical Leave Act of
1993, 29 U.S.C. § 2601 et seq.; the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et
seq.; the False Claims Act , 31 U.S.C. § 3729 et seq.; the Fair Labor Standards Act, 29 U.S.C. §
215 et seq., as well as claims under the California Fair Employment and Housing Act, Cal. Govt.
Code § 12900 et seq.; or under the California Labor Code), known or unknown, existing or potential,
with respect to XX. XXXXX’ employment with Gen-Probe.
c. This Release is intended to be interpreted as broadly as possible and to apply to any and
all claims available to XX. XXXXX in any forum.
d. The release set forth above includes the waiver of all unknown Claims, including an express
waiver of XX. XXXXX’ rights under California Civil Code section 1542, which provides:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which if known by him would have materially affected his
settlement with the debtor.
XX. XXXXX has read and understands section 1542, and agrees to waive all rights under section 1542.
XX. XXXXX expressly agrees and understands that this Agreement shall apply to all unknown and
unsuspected claims, despite the fact that he may later discover facts in addition to or different
from those which he now believes to be true.
4. Older Workers’ Benefit Protection Act. This Agreement is intended to release and
discharge any claims by XX. XXXXX under the Age Discrimination and Employment Act. To satisfy the
requirements of the Older Workers’ Benefit Protection Act, the parties agree as follows:
a. XX. XXXXX acknowledges that he has read and understands the terms of this Agreement.
b. XX. XXXXX acknowledges that he has been advised to consult with an attorney, if desired,
concerning this Agreement and has received all advice he deems necessary concerning this Agreement.
c. XX. XXXXX acknowledges that he has been given 21 days to consider whether to enter into
this Agreement, and has taken as much of this time as he deems necessary to consider whether to
enter into this Agreement.
d. For a seven day period following the execution of this Agreement, XX. XXXXX may revoke this
Agreement by delivering a written revocation to the following person: Xxxxx X. De Xxxx, Vice
President, Human Resources, Gen-Probe Incorporated, 00000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, XX
00000. This Agreement shall not become effective and enforceable until the revocation period has
expired (the “Effective Date”).
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e. XX. XXXXX acknowledges that he is entering into this Agreement freely and voluntarily and
without coercion, duress, fraud or undue influence of any kind whatever.
5. Promise Not to Prosecute. XX. XXXXX agrees that he will not prosecute or allow to
be prosecuted on his behalf, in any court or other forum, whether state or federal, any claim or
demand of any type related to the matters released above, it being the intention of the parties
that with the execution of this Agreement, except for the payments and benefits described in this
Agreement, GEN-PROBE will be absolutely, unconditionally and forever discharged of and from all
obligations to or on behalf of XX. XXXXX and his successors. XX. XXXXX agrees that in the event
any released Claim is instituted by him or on his behalf, this Agreement shall constitute an
affirmative defense to such Claim sufficient to warrant the immediate dismissal, with prejudice, of
such Claim.
6. No Pending Claims. XX. XXXXX represents he has no pending claim with the Equal
Employment Opportunity Commission or Department of Fair Employment and Housing. To the extent such
claims exist, XX. XXXXX will take all actions in his power to withdraw, effective upon signing this
Agreement, any and all allegations of wrongdoing made against GEN-PROBE filed with or reported to
any governmental agency, including any and all claims submitted to the Department of Fair
Employment and/or the Equal Employment Opportunity Commission.
7. Unknown or Different Facts or Law. XX. XXXXX acknowledges that he may discover
facts or law different from, or in addition to, the facts or law he knows or believes to exist with
respect to a released claim. He agrees, nonetheless, that this Agreement and the releases
contained in it shall be and remain effective in all respects notwithstanding such different or
additional facts or law.
8. Participation in Litigation. XX. XXXXX agrees that he will not voluntarily
participate in, be a witness in, be a party to, or otherwise voluntarily involve himself in any
potential claim or litigation against GEN-PROBE. XX. XXXXX further agrees that he will not
voluntarily assist or encourage in any manner whatsoever any person, party, or litigant, in any
claim, potential claim or action, against GEN-PROBE.
9. Advice of Counsel. XX. XXXXX and GEN-PROBE acknowledge and agree that they have
been supplied with, have read and have had an opportunity to discuss the terms of this Agreement
with their respective legal counsel. Each party further warrants and agrees that he/it fully
understands the contents and effect of this document, approves and voluntarily accepts the terms
and provisions of the Agreement with full knowledge of their significance, agrees to be bound by
the Agreement.
10. Confidential Information. XX. XXXXX agrees that during his employment he has had
access to confidential information. XX. XXXXX hereby agrees he is bound by the Proprietary
Information and Inventions Agreement, he will not disclose any confidential information acquired
during his employment to any other person or entity and will not use any confidential information
acquired during his employment in any manner detrimental to Gen-Probe’s interests.
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11. No Admission of Liability. It is understood and agreed by the Parties that this
Agreement is not an admission of liability on the part of GEN-PROBE.
12. No Assignment. XX. XXXXX warrants and represents that he has not assigned or
transferred to any person any released matter or any right to any of the consideration provided by
GEN-PROBE pursuant to this Agreement. Notwithstanding the above, the parties agree that XX. XXXXX’
obligations under the Proprietary Information and Inventions Agreement survive this Agreement.
13. Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to XX. XXXXX’ employment with GEN-PROBE, the termination of such employment,
and the other matters addressed in this Agreement. There are no collateral agreements, written or
oral that are not contained in this Agreement. The parties acknowledge and agree that no promises
or representations were made to them which do not appear in this Agreement. This Agreement may
only be modified by a written instrument signed by XX. XXXXX and GEN-PROBE.
14. No Presumption Against Drafter. XX. XXXXX agrees that this Agreement has been
negotiated and that no provision contained herein shall be interpreted against any party because
that party drafted the provision.
15. Severability. Should a court determine that any term of this Agreement is
unenforceable, that term shall be deemed to be deleted. However, the validity and enforceability
of the remaining terms shall not be affected by the deletion of the unenforceable term.
16. Arbitration. Any controversy or dispute relating to, arising out of, or in any
way connected to any provision of this Agreement shall be finally resolved by final and binding
arbitration in accordance with this Paragraph by a single arbitrator who is a former state or
federal judge, to be conducted in San Diego, California. XX. XXXXX and GEN-PROBE waive any rights
to a jury trial in connection with such claims or disputes. Unless the parties agree otherwise,
the arbitration shall be conducted by former state or federal judge appointed by the American
Arbitration Association, or by any similar arbitration provider if AAA is no longer in existence or
unable to appoint a former state or federal judge to serve as arbitrator. The costs of the
arbitration, including the fees of the arbitrator, shall be borne exclusively by Gen-Probe. The
arbitrator’s decision shall be delivered in writing and shall disclose the essential findings and
conclusion on which the arbitrator’s decision is based. The parties shall be permitted to conduct
adequate discovery to allow for a full and fair exploration of the issues in dispute in the
arbitration proceeding. The arbitrator may grant any relief which otherwise would have been
available to the parties in a court proceeding. The decision and award of the arbitrator shall be
final and binding, and judgment upon the arbitrator’s award may be entered by any court of
competent jurisdiction.
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17. Counterparts. This Agreement may be executed in counterparts and shall be binding
on all parties when each has signed either an original or a copy of this Agreement.
The parties acknowledge that they have read this Agreement carefully and fully understand each and
every provision contained herein, and intend to be bound by all of its terms.
| Dated: April 16, 2007 | /s/ Xxxxx X. Xxxxx | |||||
| Xxxxx X. Xxxxx, Ph.D. | ||||||
| Date: April 16, 2007 | Gen-Probe Incorporated | |||||
| By: | /s/ Xxxxx De Xxxx | |||||
| Xxxxx De Xxxx Vice President, Human Resources |
||||||
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