AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.23
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of the
12TH day of March 2007, by and between Xxxxxxx Xxxxx (“Employee”) and Third Wave
Technologies, Inc., a Delaware corporation (the “Company”).
WHEREAS, the Company and the Employee are parties to an Employment Agreement dated as of March
10, 2005;
WHEREAS, the Company and the Employee desire to enter into this Agreement to amend and restate
the original Agreement in its entirety and to set forth in this Agreement the conditions under
which the Employee is to be employed by the Company.
NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth,
and other good and valuable consideration, receipt of which is hereby acknowledged, the parties
agree as follows:
1. Employment. The Company hereby agrees to employ Employee as its Senior Vice
President and Chief Financial Officer and Employee hereby agrees to serve the Company in such
position, all subject to the terms and provisions of this Agreement. Employee agrees (a) to devote
his full-time professional efforts, attention and energies to the business of the Company, and (b)
to perform such reasonable responsibilities and duties customarily attendant to the position of
Senior Vice President and Chief Financial Officer. Nothing in this Agreement will prevent Employee
from engaging in additional activities in connection with (i) serving on corporate, civic and
charitable boards and committees, (ii) delivering lectures and fulfilling speaking engagements,
(iii) managing personal investments; and (iv) engaging in charitable activities and community
affairs.
2. Term of Employment. Employee’s employment will continue until terminated as
provided in Section 6 below (the “Employment Term”).
3. Compensation. During the Employment Term, Employee shall receive the following
compensation.
3.1 Base Salary. Employee’s annual base salary on the date of this Agreement
is $275,000, payable in accordance with the normal payroll practices of the Company (“Base
Salary”). Employee’s Base Salary will be subject to annual review by the Compensation
Committee and the Board of Directors of the Company. During the Employment Term, on each
anniversary date of this Agreement, the Company shall review the Base Salary amount to
determine any increases. In no event shall the Base Salary be less than the Base Salary
amount for the immediately preceding twelve (12) month period other than as permitted in
Section 6.1(c) hereunder.
3.2 Annual Bonus Compensation. Employee shall be eligible to receive an annual
cash bonus as determined by the Company’s CEO and approved by the Compensation Committee in
its sole discretion each calendar year. Employee’s target annual bonus percentage that he
is eligible to earn for each calendar year shall be forty percent (40%) of his Base Salary
as of January 1 of the applicable new calendar year. Any such bonus shall be based upon the
| compensation principles of the Company in effect at the time the CEO determines and the Compensation Committee approves the amount of any bonus to be awarded, and except as set forth in Section 7 hereof, Employee shall not be entitled to receive an annual bonus for any calendar year (including the bonus referenced above) unless he remains employed with the Company through December 31 of the applicable calendar year, provided, however, that if Employee is terminated with Cause or resigns without Good Reason, no bonus will be due. |
3.3 Long Term Incentive Plan. Employee shall participate in the Company’s Long
Term Incentive Plans (“LTIP”) and shall be deemed a “Tier 1 Employee” thereunder.
Employee’s benefits under the LTIP shall be determined pursuant to the terms of the LTIP,
and such benefits may not be terminated or diminished without the written consent of the
Employee.
3.4 Equity Incentives and Other Long Term Compensation. The Company, upon the
approval of the Compensation Committee, may grant Employee from time to time options or
rights to purchase shares of the Company’s common stock, or other forms of equity, both as a
reward for past individual and corporate performance, and as an incentive for future
performance. Such options or other rights, if awarded, will be pursuant to the Company’s
then current stock plan and in accordance with the Company’s Statement of Policy with
Respect to Equity Award Approvals in effect from time to time. All options and other equity
rights granted to Employee shall vest in equal installments over the four-year period
commencing with the date of grant of such options or rights, subject to the acceleration of
vesting (i) as described in Section 7.1(d) and 7.2(b) hereof and (ii) as may be set forth in
the grant agreements issued by the Company, as amended, provided, that in the event of a
conflict between any grant agreement and this Agreement, this Agreement shall control.
4. Benefits.
4.1 Benefits. Employee will be entitled to participate in the sick leave,
insurance (including medical, life and long-term disability), profit-sharing, retirement,
and other benefit programs that are generally provided to employees of the Company similarly
situated, all in accordance with the rules and policies of the Company as to such matters
and the plans established therefore.
4.2 Vacation and Personal Time. The Company will provide Employee with four
(4) weeks of paid vacation each calendar year Employee is employed by the Company, in
accordance with Company policy. The foregoing vacation days shall be in addition to
standard paid holiday days for employees of the Company.
4.3 Indemnification. To the fullest extent permitted by applicable law and as
provided for in the Company’s articles of incorporation and bylaws in effect as of the date
of this Agreement, the Company will, during and after termination of employment, indemnify
Employee (including providing advancement of expenses) for any judgments, fines, amounts
paid in settlement and reasonable expenses, including attorneys’ fees, incurred by Employee
in connection with the defense of any lawsuit or other claim or investigation to which
Employee is made, or threatened to be made, a party or witness by reason of being or having
been an officer, director or employee of the Company or any of its subsidiaries or
affiliates as defined under the Securities and Exchange Act of 1934 (“Affiliates”) or a
fiduciary of any of their benefit plans.
4.4 Liability Insurance. Both during and after termination (for any reason) of
Employee’s employment, the Company shall cause Employee to be covered under a directors and
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officers’ liability insurance policy for his acts (or non-acts) as an officer or
director of the Company or any of its Affiliates. Such policy shall be maintained by the
Company, at its expense, in an amount and on terms (including the time period of coverage
after the Employee’s employment terminates) at least as favorable to the Employee as
policies covering the Company’s Board of Directors.
4.5 Relocation. The Company shall pay the expenses of Employee to relocate his
family to Madison. Covered expenses shall include sales and purchasing commissions and
related closing costs, moving expenses and other documented costs in an amount not to exceed
$75,000 (to the extent not tax deductible by Employee, such amounts shall be grossed up for
taxes).
5. Business Expenses. Upon submission of a satisfactory accounting by Employee,
consistent with current policies of the Company, the Company will reimburse Employee for any
out-of-pocket expenses reasonably incurred by Employee in the furtherance of the business of the
Company.
6. Termination.
6.1 By Employee.
(a) Without Good Reason. Employee may terminate his employment
pursuant to this Agreement at any time without Good Reason (as defined below) with
at least ten (10) business days’ written notice (the “Employee Notice Period”) to
the Company. Upon termination by Employee under this section, the Company may, in
its sole discretion and at any time during the Employee Notice Period, suspend
Employee’s duties for the remainder of the Employee Notice Period, as long as the
Company continues to pay compensation to Employee, including benefits, throughout
the Employee Notice Period.
(b) With Good Reason. Employee may terminate his employment pursuant
to this Agreement with Good Reason (as defined below) at any time within ninety (90)
days after the occurrence of an event constituting Good Reason.
(c) Good Reason. “Good Reason” shall mean any of the following: (i)
Employee’s Base Salary is reduced in a manner that is not applied proportionately to
other senior executive officers of the Company, provided any such reduction shall
not exceed thirty percent (30%) of Employee’s then current Base Salary; (ii)
Employee’s duties, authority or responsibilities are materially reduced or are
materially inconsistent with the scope of authority, duties and responsibilities of
Employee’s position; or (iii) the occurrence of a material breach by the Company of
any of its obligations to Employee under this Agreement.
6.2. By the Company.
(a) With Cause. The Company may terminate Employee’s employment
pursuant to this Agreement for Cause, as defined below, immediately upon written
notice to Employee.
(b) Cause. “Cause” shall mean any of the following:
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(i) any willful refusal to perform essential job duties which
continues for more than ten (10) days after notice from the Company;
(ii) any intentional act of fraud or embezzlement by the Employee in
connection with the Employee’s duties or committed in the course of
Employee’s employment;
(iii) any gross negligence or willful
misconduct of the Employee with regard to the Company or any of
its subsidiaries resulting in a material economic loss to the
Company;
(iv) the Participant is convicted of a
felony;
(v) the Participant is convicted of a misdemeanor the circumstances
of which involve fraud, dishonesty or moral turpitude and which is
substantially related to the circumstances of Participant’s job with
the Company;
(iv) any willful and material violation by the Employee of any
statutory or common law duty of loyalty to the Company or any of its
subsidiaries resulting in a material economic loss; or
(v) any material breach by the Employee of this Agreement or any of
the Agreements referenced in Section 8 of this Agreement.
(c) Without Cause. Subject to Section 7.1, the Company may terminate
Employee’s employment pursuant to this Agreement without Cause upon at least thirty
days’ written notice (“Company Notice Period”) to Employee. Upon any termination by
the Company under this Section 6.2(c), the Company may, in its sole discretion and
at any time during the Company Notice Period, suspend Employee’s duties for the
remainder of the Company Notice Period, as long as the Company continues to pay
compensation to Employee, including benefits, throughout the Company Notice Period.
| 6.3 | Death or Disability. Notwithstanding Section 2, in the event of the death or Disability (defined herein) of Employee during the Employment Term, Employee’s employment and this Agreement shall immediately and automatically terminate and the Company shall pay Employee (or in the case of death, Employee’s designated beneficiary) Base Salary, accrued, unpaid bonuses, in each case up to the date of termination. Neither Employee, his beneficiary nor estate shall be entitled to any severance benefits set forth in Section 7 if terminated pursuant to this section. For purposes of this Agreement, “Disability” shall mean any physical incapacity or mental incompetence as a result of which Employee is unable to perform the essential functions of his job for an aggregate of more than six (6) months during any twelve-month period. Employee acknowledges and agrees that given the nature of Employee’s position with the Company it would cause the Company to suffer an undue hardship if required to retain Employee beyond the six (6) month period if Employee remains unable to perform the essential functions of his job, with or without a reasonable accommodation. |
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6.4
Survival. The agreement described in Section 8 hereof
and attached hereto as Schedule A shall survive the termination of this
Agreement.
7. Severance and Other Rights Relating to Termination and Change of Control.
7.1 Termination of Agreement Pursuant to Section 6.1(b) or 6.2(c). If the
Employee terminates his employment for Good Reason pursuant to Section 6.1(b), or the
Company terminates Employee’s employment without Cause pursuant to Section 6.2(c), subject
to the conditions described in Section 7.3 below, the Company will provide Employee the
following payments and other benefits:
(a) The Company shall immediately pay to Employee a lump-sum amount equal to
the sum of (i) twelve (12) months of Employee’s then current Base Salary, (ii) any
accrued but unpaid Base Salary as of the termination date; and (iii) shall pay
Employee any accrued but unpaid bonus as of the termination date, on the same terms
and at the same times as would have applied had Employee’s employment not
terminated; provided, that, if such termination occurs on or within the one year
period following a Change of Control (as defined in Section 7.2(a)), the Company
shall also pay to Employee a pro rata portion of his target bonus.
(b) If Employee elects COBRA coverage for health and/or dental insurance in a
timely manner, the Company shall pay the monthly premium payments for such timely
elected coverage when each premium is due until the earlier of: (i) twelve months
from the date of termination; (ii) the date Employee obtains new employment which
offers health and/or dental insurance that is reasonably comparable to that offered
by the Company; or (iii) the date COBRA continuation coverage would otherwise
terminate in accordance with the provisions of COBRA. Thereafter, health and dental
insurance coverage shall be continued only to the extent required by COBRA and only
to the extent Employee timely pays the premium payments himself.
(c) The Company shall provide Employee an outplacement consulting package up to
a maximum value of Ten Thousand Dollars ($10,000), which shall be selected at the
sole discretion of the Employee. Any payments made for such outplacement consulting
shall be made by the Company directly to the consulting company.
(d) Employee will receive any awards under the LTIP that are earned (as defined
in any LTIP document), whether vested or unvested, as of the termination date, on
terms and at the times set forth in the LTIP.
(e) Notwithstanding anything in this Section to the contrary, to the
extent that any payments under this Section are considered deferred compensation
subject to Section 409A of the Internal Revenue Code, such payments shall not be
paid for the number of months required under Section 409A following the Employee’s
separation from service. To the extent that any payment is delayed pursuant to this
subsection, it shall be paid on the first day after the end of such required period.
7.2 Change of Control. The Board of Directors of the Company has determined
that it is in the best interests of the Company and its stockholders to assure that the
Company will have the continued dedication of the Employee, notwithstanding the possibility,
threat or
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occurrence of a Change of Control (defined in Section 7.2(a) below). The Board believes it
is imperative to diminish the inevitable distraction of the Employee by virtue of the
personal uncertainties and risks created by a pending or threatened Change of Control and to
encourage the Employee’s full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control, and to provide the Employee with
compensation and benefits arrangements upon a Change of Control which ensure that the
compensation and benefits expectations of the Employee will be satisfied and which are
competitive with those of other similarly-situated companies. Therefore, in order to
accomplish these objectives, the Board has caused the Company to include the provisions set
forth in this Section 7.2.
(a) Change of Control. “Change of Control” shall mean, and shall be
deemed to have occurred if, on or after the date of this Agreement, (i) any “person”
(as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended) or group acting in concert, other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company acting in
such capacity or a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their ownership of stock of the
Company, becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing more than 50% of
the total voting power represented by the Company’s then outstanding Voting
Securities, (ii) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors of the Company and any
new director whose election by the Board of Directors or nomination for election by
the Company’s stockholders was approved by a vote of at least two thirds (2/3) of
the directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof, (iii) the stockholders of the
Company approve a merger or consolidation of the Company with any other corporation
other than a merger or consolidation which would result in the Voting Securities of
the Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the surviving
entity) at least 80% of the total voting power represented by the Voting Securities
of the Company or such surviving entity outstanding immediately after such merger or
consolidation, or (iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by the
Company of (in one transaction or a series of related transactions) all or
substantially all of the Company’s assets.
(b) Acceleration of Vesting of Equity Awards. Vesting of equity awards
granted to Employee, whether stock options or stock purchase rights under the
Company’s equity compensation plan, shall be accelerated upon any Change of Control
to the extent set forth in the applicable grant agreement(s), whether option
agreements or restricted stock purchase agreements, between the Company and
Employee; provided, however, at a minimum, fifty percent (50%) of the then unvested
equity awards granted to Employee shall immediately become fully vested and
exercisable upon such Change of Control. Employee will be entitled to exercise such
equity awards in accordance with such grant agreements.
(c) LTIP Awards. Any awards granted to Employee under the LTIP as of
the Change of Control shall be treated as described in the LTIP.
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(d) If, within twelve (12) months after the effective date of a Change of
Control, or within six (6) months before the effective date of a Change of Control,
the Employee terminates his employment for Good Reason pursuant to Section 6.1(b) or
the Company terminates Employee’s employment without Cause pursuant to Section
6.2(c), subject to the conditions described in Section 7.3 below, the termination
shall be treated for purposes of Section 7.2(b) and (c) as if it occurred on the
later of the effective date of such termination and the effective date of the Change
of Control.
(e) Payments and benefits that trigger Sections 280G and 4999 of the Internal
Revenue Code of 1986, as amended, will be reduced to the extent necessary so that no
excise tax would be imposed if doing so would result in the employee retaining a
larger after-tax amount, taking into account the income, excise and employment taxes
imposed on the payments and benefits.
(f) Notwithstanding anything in this Section to the contrary, to the extent
that any payments under this Section are considered deferred compensation subject to
Section 409A of the Internal Revenue Code, such payments shall not be paid for the
number of months required under Section 409A following the Employee’s separation
from service. To the extent that any payment is delayed pursuant to this
subsection, it shall be paid on the first day after the end of such required period.
7.3 Conditions Precedent to Payment of Severance. The Company’s obligations to
Employee described in Sections 7.1 and 7.2 are contingent on Employee’s delivery to the
Company of his signed waiver and release, in a form reasonably satisfactory to the Company,
of all claims he may have against the Company up to the date of the termination of his
employment with the Company, and (if applicable) his not revoking such release. Moreover,
the Employee’s rights to receive payments and benefits pursuant to Sections 7.1 and 7.2 are
conditioned on the Employee’s ongoing compliance with his obligations as described in
Section 8 hereof. Any cessation by the Company of any such payments and benefits shall be
in addition to, and not in lieu of, any and all other remedies available to the Company for
Employee’s breach of his obligations described in Section 8 hereof.
7.4 No Severance Benefits. Employee is not entitled to any severance benefits
if this Agreement is terminated pursuant to Sections 6.1(a) or 6.2(a) of this Agreement;
provided however, Employee shall be entitled to (i) Base Salary prorated through the
effective date of such termination; (ii) Bonuses for which the payment date occurs prior to
the effective date of such termination; and (iii) medical coverage and other benefits
required by law and plans (as provided in Section 7.6, below).
7.5 Benefits Required by Law and Plans; Vacation Time Pay. In the event of the
termination of Employee’s employment, Employee will be entitled to medical and other
insurance coverage, if any, as is required by law and, to the extent not inconsistent with
this Agreement, to receive such additional benefits as Employee may be entitled under the
express terms of applicable benefit plans (other than bonus or severance plans) of the
Company, its subsidiaries and Affiliates.
7.6 Exercise Period of Equity Awards after Termination. Unless it would
subject the Employee to adverse tax consequences under Section 885 of the American Jobs
Creation Act of 2004, Pub. Law Xx. 000-000, 000 Xxxx. 0000 (xxx Xxx), which added § 409A to
the Internal Revenue Code (Code), notwithstanding anything contained herein or in the equity
grant
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agreements to the contrary, in the event of Employee’s termination with the Company,
Employee’s vested equity awards shall be open for exercise until the earlier of (i) two
years from the date of termination or (ii) the latest date on which those equity awards
expire or are eligible to be exercised under the grant agreements, determined without regard
to such termination or resignation; provided further that such extended exercise period
shall not apply in the event the Employee resigns without Good Reason or is terminated by
the Company for Cause, in which case, the exercise periods shall continue to be governed by
the terms of the grant agreements.
8. Restrictions.
8.1 The Confidential Information Agreement. Simultaneously with the execution
of this Agreement, Employee will sign the Employee Agreement with Respect to Confidential
Information, Invention Assignment and Arbitration attached hereto as Schedule A (the
“Confidential Information Agreement”).
8.2 Agreement Not to Compete. In consideration for all of the payments and
benefits that may become due to Employee under this Agreement, Employee agrees that for a
period of twelve (12) months after termination of his employment for any reason, he will
not, directly or indirectly, without the Company’s prior written consent, (a) perform for a
Competing Entity in any Restricted Area any of the same services or substantially the same
services that he performed for the Company; (b) in any Restricted Area, advise, assist,
participate in, perform services for, or consult with a Competing Entity regarding the
management, operations, business or financial strategy, marketing or sales functions or
products of the Competing Entity (the activities in clauses (a) and (b) collectively are,
the “Restricted Activities”); or (c) solicit or divert the business of any Restricted
Customer. Employee acknowledges that in his position with the Company he has had and will
have access to knowledge of confidential information about all aspects of the Company that
would be of significant value to the Company’s competitors.
8.3 Additional Definitions.
(a) Customer. “Customer” means any individual or entity for whom the
Company has provided services or products or made a proposal to perform services or
provide products.
(b) Restricted Customer. “Restricted Customer” means any Customer with
whom/which Employee had contact on behalf of the Company during the 12 months
preceding the end, for whatever reason, of his employment.
(c) Competing Entity. “Competing Entity” means any business entity
engaged in the development, design, manufacture, marketing, distribution or sale of
molecular diagnostics.
(d) Restricted Area. “Restricted Area” means any geographic location
where if Employee were to perform any Restricted Activities for a Competing Entity
in such a location, the effect of such performance would be competitive to the
Company.
8.4 Reasonable Restrictions on Competition Are Necessary. Employee
acknowledges that reasonable restrictions on competition are necessary to protect the
interests of the Company. Employee also acknowledges that he has certain skills necessary
to the success of the Company, and that the Company has provided and will provide to him
certain confidential
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information that it would not otherwise provide because he has agreed not to compete with
the business of the Company as set forth in this Agreement.
8.5 Restrictions Against Solicitations. Employee further covenants and agrees
that during Employee’s employment by the Company and for a period of twelve months following
the termination of his employment with the Company for any reason, he will not, except with
the prior consent of the Company’s Chief Executive Officer, directly or indirectly, solicit
or hire, or encourage the solicitation or hiring of, any person who is an employee of the
Company for any position as an employee, independent contractor, consultant or otherwise,
provided that the foregoing shall not prevent Employee from serving as a reference.
8.6 Affiliates. For purposes of this Section 8, the term “Company” will be
deemed to include the Company and its Affiliates.
8.7 Ability to Obtain Other Employment. Employee hereby represents that his
experience and capabilities are such that in the event his employment with the Company is
terminated, he will be able to obtain employment if he so chooses during the period of
non-competition following the termination of employment described above without violating
the terms of this Agreement, and that the enforcement of this Agreement by injunction, as
described below, will not prevent him from becoming so employed.
8.8 Injunctive Relief. Employee understands and agrees that if he violates any
provision of this Section 8, then in any suit that the Company may bring for that violation,
an order may be made enjoining him from such violation, and an order to that effect may be
made pending litigation or as a final determination of the litigation. Employee further
agrees that the Company’s application for an injunction will be without prejudice to any
other right of action that may accrue to the Company by reason of the breach of this Section
8.
8.9 Section 8 Survives Termination. The provisions of this Section 8 will
survive termination of this Agreement.
8.10 Condition of Payments. The provisions of this Section 8 regarding the
restrictions on Employee shall be conditioned on Company making the payments to Employee as
contemplated by Section 7.1 above. If Employee is terminated due to a disability pursuant
to Section 6.3 or if Employee voluntarily resigns without Good Reason, in which case
Employee will not be eligible to receive the severance payments set forth in Section 7.1,
Employee shall not be bound by the agreement not to compete in Section 8.2. Employee, will,
however, remain bound at all times by the Confidential Information Agreement and the
restriction on solicitation in Section 8.5.
9. Arbitration. Unless other arrangements are agreed to by Employee and the Company,
any disputes arising under or in connection with this Agreement, other than a dispute in which the
primary relief sought is an equitable remedy such as an injunction, will be resolved by binding
arbitration to be conducted pursuant to the Agreement for Arbitration Procedure of Certain
Employment Disputes attached as Schedule B hereof.
10. Assignments; Transfers; Effect of Merger. No rights or obligations of the Company
under this Agreement may be assigned or transferred by the Company except that such rights or
obligations may be assigned or transferred pursuant to a merger or consolidation, or pursuant to
the sale or transfer of all or substantially all of the assets of the Company, provided that the
assignee or transferee
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is the successor to all or substantially all of the assets of the Company. This Agreement will not
be terminated by any merger, consolidation or transfer of assets of the Company referred to above.
In the event of any such merger, consolidation or transfer of assets, the provisions of this
Agreement will be binding upon the surviving or resulting corporation or the person or entity to
which such assets are transferred. The Company agrees that concurrently with any merger,
consolidation or transfer of assets referred to above, it will cause any successor or transferee
unconditionally to assume, either contractually or as a matter of law, all of the obligations of
the Company hereunder in a writing promptly delivered to the Employee. This Agreement will inure
to the benefit of, and be enforceable by or against, Employee or Employee’s personal or legal
representatives, executors, administrators, successors, heirs, distributees, designees and
legatees. None of Employee’s rights or obligations under this Agreement may be assigned or
transferred by Employee other than Employee’s rights to compensation and benefits, which may be
transferred only by will or operation of law. If Employee should die while any amounts or benefits
have been accrued by Employee but not yet paid as of the date of Employee’s death and which would
be payable to Employee hereunder had Employee continued to live, all such amounts and benefits
unless otherwise provided herein will be paid or provided in accordance with the terms of this
Agreement to such person or persons appointed in writing by Employee to receive such amounts or, if
no such person is so appointed, to Employee’s estate.
11. No Set-off, No Mitigation Required. Except as expressly provided otherwise in
this Agreement, the obligation of the Company to make any payments provided for hereunder and
otherwise to perform its obligations hereunder will not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have against Employee or
others. In no event will Employee be obligated to seek other employment or take other action by
way of mitigation of the amounts payable to Employee under any of the provisions of this Agreement,
and such amounts will not be reduced (except as otherwise specifically provided herein) whether or
not Employee obtains other employment.
12. Taxes. The Company shall have the right to deduct from any payments made pursuant
to this Agreement any and all federal, state, and local taxes or other amounts required by law to
be withheld.
13. 409A Compliance. The intent of Employee and the Company is that the severance and
other benefits payable to Employee under this Agreement not be deemed “deferred compensation”
under, or otherwise fail to comply with, Section 409A of the Internal Revenue Code. Employee and
the Company agree to use reasonable best effors to amend the terms of this Agreement from time to
time as may be necessary to avoid the imposition of penalties or additional taxes under Section
409A of the Internal Revenue Code; provided, however, any such amendment will provide Employee
substantially equivalent economic payments and benefits as set forth herein and will not in the
aggregate, materially increase the cost to, or liability of, the Company hereunder.
14. Miscellaneous. No amendment, modification or waiver of any provisions of this
Agreement or consent to any departure thereof shall be effective unless in writing signed by the
party against whom it is sought to be enforced. This Agreement contains the entire Agreement that
exists between Employee and the Company with respect to the subjects herein contained and replaces
and supercedes all prior agreements, oral or written, between the Company and Employee with respect
to the subjects herein contained. Nothing herein shall affect any terms in the Confidential
Information Agreement, the Agreement for Arbitration Procedure of Certain Employment Disputes, the
LTIP, and any stock plans or agreements between Employee and the Company now and hereafter in
effect from time to time. If any provision of this Agreement is held for any reason to be
unenforceable, the remainder of this Agreement shall remain in full force and effect. Each section
is intended to be a severable and independent section within this Agreement. The headings in this
Agreement are intended solely for
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convenience of reference and shall be given no effect in the construction or interpretation of this
Agreement. This Agreement is made in the State of Wisconsin and shall be governed by and construed
in accordance with the laws of said State. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which together shall constitute
one and the same instrument. All notices and all other communications provided for in this
Agreement shall be in writing and shall be considered duly given upon personal delivery, delivery
by nationally reputable overnight courier, or on the third business day after mailing from within
the United States by first class certified or registered mail, return receipt requested, postage
prepaid, all addressed to the address set forth below each party’s signature. Any party may change
its address by furnishing notice of its new address to the other party in writing in accordance
herewith, except that any notice of change of address shall be effective only upon receipt.
The parties hereto have executed this Amended and Restated Employment Agreement as of the date
first written above.
| /s/ Xxxxxxx Xxxxx | |||||
| Xxxxxxx Xxxxx (“Employee”) | |||||
| Third Wave Technologies, Inc. (“Company”) | |||||
| By: | /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx, President and CEO | |||||
| Notice Address: | |||||
| 000 Xxxxx Xxxx Xxxx | |||||
| Xxxxxxx, Xxxxxxxxx 00000-0000 | |||||
| Attn: Chief Executive Officer | |||||
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