EXHIBIT 10.2
AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT ("Amendment") is entered
into as of the ___ day of _________, 2004, by and between XXXX XXXXXX
("Executive") and THIRD WAVE TECHNOLOGIES, INC., a Delaware corporation (the
"Company").
WHEREAS, the Company currently employs Executive pursuant to an
Employment Agreement commencing on September 24, 2001, as amended by Amendment
to Employment Agreement effective as of July 17, 2003 (collectively, the
"Agreement"); and
WHEREAS, the Company and the Executive wish to amend the Agreement on
the terms and provisions set forth herein.
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. Section 1(a) - Position; Duties. Section 1(a) is deleted in its
entirety and the following is substituted therefore:
Company is currently employing and will continue to employ Executive as
President and Chief Operating Officer of the Company hereunder;
provided, however, subject to the authorization of the Board of
Directors of the Company, Executive will be employed as President and
Chief Executive Officer at a date commencing during 2004 to be agreed
to by Executive and Xxxxx Xxxx, the Company's Chairman and current
Chief Executive Officer (the "CEO" or the "Chairman"). From and after
the appointment of the Executive to the position of Chief Executive
Officer, all references in the Agreement to the CEO, shall thereafter
mean and refer to the Chairman.
2. Section 1(c) - Appointment to the Board of Directors. Section 1(c)
is added to the Agreement as follows:
(c) Appointment to the Board of Directors. The Company agrees to
nominate Executive to the Board of Directors of the Company from time
to time as necessary to permit Executive to serve on such Board
throughout the term of this Agreement.
3. Section 4 - Equity Compensation. The last sentence of Section 4 is
deleted in its entirety, and the following is substituted therefore:
All options granted to Executive shall vest in equal installments over
the four-year period commencing with the date of grant of such options,
subject to the acceleration of vesting (i) as described in Section
9(c)(ii) hereof and (ii) in the Option Grant Agreements issued
by the Company, as amended, provided, that in the event of a conflict
between any Option Grant Agreement and Section 9(c)(ii) of this
Agreement, this Agreement shall control.
4. Section 8 - Relocation. Section 8 is deleted in its entirety and the
following is substituted therefore:
The Company acknowledges that the Executive shall be entitled to
maintain his principal residence in Illinois and to perform his duties
hereunder from the State of Illinois. The Executive will have the
flexibility to commute to Madison, Wisconsin as and when necessary as
long as Executive's duties are performed to the reasonable standards
set by the Company's Board of Directors. The Company will also provide
for temporary housing for Executive when Executive is required to
perform his duties in Madison, Wisconsin and reimburse Executive for
expenses associated with commuting to and from Madison, Wisconsin, up
to an aggregate amount of $30,000 per year.
5. Section 9(a)(i) - Death or Disability. Section 9(a)(i) is deleted in
its entirety and the following substituted therefore:
(i) All vested and exercisable stock options may be exercised after
Executive's termination of employment in accordance with the terms and
conditions of the Stock Option Plan and applicable option grant
documents, except that the period during which such options are
exercisable after termination shall be as set forth in Section 9(d).
6. Section 9(c) - Involuntary Termination Other Than for Cause or
Voluntary Termination for Good Reason. The preface to Section 9(c) and
Subsections 9(c)(i), (ii) and (iv) are deleted in their entirety and the
following is substituted therefore:
If Executive is terminated by the Company other than for Cause or
Executive resigns his employment for Good Reason, then as liquidated
damages and in lieu of any other damages or compensation under this
Agreement or otherwise, Executive will receive the payments or other
benefits described in this paragraph; provided; however, that Executive
shall execute and deliver to the Company the form of agreement attached
hereto as Exhibit C pursuant to which: Executive (A) affirms his
agreement not to enter into Competition (as defined in this Agreement)
with the Company for a period of one year following the termination of
Executive's employment and (B) waives and releases any other claims
which Executive may have against the Company.
(i) Executive will receive a severance payment equal to 24 months of
Executive's then current Base Salary, 6/24th of which shall be paid in
a lump sum within 3 business days of the termination date, with the
balance to be paid in 18 equal monthly installments (the first
installment due on the first day of the calendar month following the
month in which termination occurs).
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(ii) In the event Executive is terminated by the Company other than for
Cause or should the Executive resign his employment for Good Reason,
all stock options granted to Executive shall be immediately accelerated
and shall be considered fully vested upon such termination or
resignation. Executive will be entitled to exercise such stock options
in accordance with Section 9(d).
(iv) Executive will receive an amount equal to 1/12th of 7.6% of
Executive's Base Salary payable each month (the first installment due
on the first day of the calendar month following the month in which
termination occurs) in twelve (12) monthly installments, or a monthly
amount equal to 1/12th of such greater percentage as may be in effect
for senior employees of the Company immediately prior to Executive's
termination; which amount is intended, but not required, to be used by
Executive to acquire such medical, dental, hospitalization, accident,
disability, life insurance and any other benefits as the Executive may
determine.
7. Section 9(c) - Involuntary Termination Other Than for Cause or
Voluntary Termination for Good Reason Section 9(c)(vii) is added as follows:
Executive will receive an outplacement consulting package up to a
maximum value of $15,000 that shall be selected at the discretion of
the Executive.
8. Section 9(d)- Exercise Period upon Termination. Section 9(d) is
hereby added as follows:
(d) Notwithstanding anything contained herein or in the Option
Grant Agreements to the contrary, Executive's vested Non-Qualified
Stock Options (whether vested by their original terms or by
acceleration upon termination for other than for Cause or resignation
for Good Reason) shall be open for exercise until the latest date on
which those options would expire or are eligible to be exercised under
the Option Grant Agreements, determine without regard to such
termination or resignation; provided, however, that in the event of a
conflict between any Option Grant Agreement and Section 9(d) of this
Agreement, this Agreement shall control. Executive and the Company
acknowledge and agree that such extended exercise period shall not
apply to any Incentive Stock Options, the exercise periods for which
shall continue be governed by the terms of the Option Grant Agreements.
Executive understands and agrees that any extended exercise period
granted to Incentive Stock Options issued to Executive on or prior to
July 17, 2003 converted those Incentive Stock Options into
Non-Qualified Stock Options.
9. Section 10 - Cause; Good Reason. Sections 10(b) (ii), (vii) and
(viii) are deleted in their entirety and the following are substituted
therefore, and Sections (b)(ix), (x) and (xi) are added to this Agreement:
(ii) The Company (A) fails to continue to retain Executive as its Chief
Operating Officer, or (B) by December 31, 2004 and thereafter, fails to
appoint and retain Executive
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as its Chief Executive Officer, as contemplated herein; provided,
however, after Executive is appointed as Chief Executive Officer, the
failure to retain Executive as Chief Operating Officer shall no longer
constitute Good Reason hereunder.
(vii) In the event that Xxxxx Xxxx is no longer the CEO of the Company
and Executive is not appointed as CEO within six-months of the
announcement of For's stepping down as CEO.
(viii) A resignation by Executive following the occurrence of a Change
in Control (as defined in the Indemnification Agreement attached hereto
as Exhibit A).
(ix) The Company fails to nominate Executive to the Board of Directors
of the Company by December 31, 2004, or Executive is not thereafter
nominated for re-election to the Board during the term of this
Agreement.
(x) The Executive is not elected to the Board of Directors of the
Company by December 31, 2004, or Executive is not re-elected to the
Board of Directors during the term of this Agreement.
(xi) The Compensation Committee of the Board of Directors fails to
adopt an amendment to the Option Grant Agreements issued to Executive
in accordance with the terms of this Agreement within 30 days
hereafter.
10. Counterparts. This Amendment 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.
11. Full Force and Effect. Except as amended hereby, the Agreement
remains in full force and effect and is hereby ratified, confirmed and approved.
(SIGNATURES CONTINUE ON THE NEXT PAGE)
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The parties hereto have executed this Amendment No. 2 to Employment
Agreement as of the date first written above.
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XXXX XXXXXX
THIRD WAVE TECHNOLOGIES, INC.
By:
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Xxxxx Xxxx, Chief Executive Officer
Confirmed and Agreed:
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Xxxx Xxxx
Chairman, Third Wave Technologies, Inc.
Compensation Committee of the
Board of Directors
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Exhibit C
TERMINATION AGREEMENT
This Termination Agreement confirms the termination of Xxxx Xxxxxx (the
"Executive") from employment with Third Wave Technologies, Inc. (the "Company")
effective _____________, 200___. The Company shall provide Executive with the
severance payments and other benefits (the "Severance") described in Executive's
Employment Agreement dated as of September 19, 2001, as amended from time to
time thereafter (the "Employment Agreement"), and in consideration therefore,
Executive agrees to the terms set forth in this Termination Agreement. The terms
are as follows:
1. Executive hereby confirms his agreement not to enter into
Competition (as defined in the Employment Agreement) with the Company for a
period of one year following the termination of Executive's employment in
accordance with the terms and conditions set forth in the Employment Agreement.
2. In consideration for the Severance and the covenants of the Company
set forth in the Employment Agreement, Executive, for and on behalf of himself
and his heirs, successors, executors and assigns hereby absolutely and
unconditionally releases, waives and forever discharges the Company, its parent
and affiliated entities, its predecessors, successors and assigns, and their
respective officers, members, partners, shareholders, directors, employees,
representatives, agents and other affiliates, from any and all claims or
liabilities of any nature whatsoever, whether known or unknown, in connection
with his affiliation with the Company, the termination of his affiliation with
the Company and any additional wages, vacation pay or other paid time off, other
compensation and payments (whether in contract, tort or otherwise) (the
"Release"), including but not limited to: (i) for wrongful termination or breach
of the covenant of good faith and fair dealing; (ii) under Title VII of the
Civil Rights Act of 1964, as amended; (iii) under the Civil Rights Act of 1991,
as amended; (iv) under any Collective Bargaining Agreement; (v) the Wage Payment
Act, Chap. 109 Wis. Stats.; (vi) the Illinois Wage Payment and Collection Act,
820 ILCS 115/11 et seq.; (vii) under the Americans with Disabilities Act of
1990, as amended; (viii) under any Wisconsin or Illinois law prohibiting
discrimination; (ix) under any other Federal, and state and local laws, orders
or regulations in any way relating to the employment relationship, termination
or discrimination; (x) under common law and (xi) the Age Discrimination
Employment Act ("ADEA"), and the Older Worker Benefit Protection Act, as
amended. Excluded from this Termination Agreement are the Severance, any claims
or administrative charges that cannot be waived by law and claims relating to
health insurance continuation rights under the terms of COBRA, rights to vested
retirement benefits, if any, and rights pursuant to Option Grant Agreements.
3. Executive will not xxx the Company for any matter for which the
Release has been given (except to enforce rights granted under paragraph 1,
above).
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4. Executive will immediately return to the Company all Company
property, including but not limited to, all reports, memoranda, records,
computerized information, keys, credit cards, computers, manuals and other
property which Executive prepared or received in connection with his affiliation
with the Company. Executive agrees not to retain any copies, duplicates or
portions of such information.
5. The Company agrees not to contest any claim for unemployment filed
after ______________, 200__.
6. This Termination Agreement shall be construed, interpreted and
applied in accordance with the laws of the State of Wisconsin, without regard to
its conflicts of laws rules. In the event the Company takes any action to
enforce any term or provision of this Agreement or defend any matter released,
Executive will be liable to the Company for all of its costs, expenses and
reasonable attorneys' fees.
7. If any portion of this Termination Agreement is held invalid by
operation of law or otherwise, the remaining terms of this Termination Agreement
shall not be effected.
8. Executive agrees that he has been provided with twenty-one days from
the date he received this Agreement within which to consider its terms.
Executive acknowledges that he has consulted with an attorney of his choice, and
has negotiated the terms of this Agreement and Executive has also had the
opportunity to consult with other professional persons unrelated to the Company
regarding the terms of this Agreement. Executive's signature below indicates
that he is entering into this Agreement freely, knowingly and voluntarily with a
full understanding of its terms. Further, the terms of this Agreement cannot
become effective or enforceable until seven (7) days following the date of its
execution, during which time Executive may revoke the Agreement by notifying the
Company in writing. Executive understands that any rights or claims he may have
under the ADEA that arise after the date of this Agreement is executed are not
waived by him.
9. All rights, privileges and remedies afforded the Company are
cumulative and not exclusive; the exercise of any one shall not be deemed a
waiver of any other right, privilege or remedy.
10. Executive represents and warrants that he has read and understands
all terms of this Agreement, executes it knowingly and voluntarily with full
knowledge of its significance and with the intent to be bound by it. Executive
represents and warrants that he has been or had the opportunity to be
represented by legal counsel of his choice in connection with this Agreement who
has explained it and advised that it is a legally binding contract. This
document contains the entire agreement between Executive and the Company and the
terms hereof cannot be modified except in writing signed by both Executive and
the Company.
11. The parties hereto agree that signatures transmitted by facsimile
shall be legally binding.
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IN WITNESS WHEREOF, the parties hereto have entered into this
Termination Agreement as of the date and year set forth below.
Third Wave Technologies, Inc.
By:
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Its:
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Date:
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AGREED TO AND ACCEPTED:
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Xxxx Xxxxxx Date
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