EXHIBIT 10.64
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of November 12,
2002 (the "Effective Date") by and between Gen-Probe Incorporated, a Delaware
corporation with offices at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000 ("Gen-Probe"), and [NAME] (the "Executive").
WHEREAS, the Executive is currently employed as an officer of
Gen-Probe;
WHEREAS, prior to September 15, 2002, Gen-Probe was a wholly-owned
subsidiary of Chugai Pharmaceutical Co., Ltd.;
WHEREAS, Chugai distributed its Gen-Probe shareholdings to its
shareholders in a "spin off" transaction on September 15, 2002; and
WHEREAS, the Board of Directors of Gen-Probe (the "Board"), having
considered the proposed spin-off transaction and other circumstances, deems it
in the best interest of Gen-Probe to offer this Agreement to the Executive and
the Executive desires to enter into this Agreement.
ACCORDINGLY, the parties hereto agree as follows:
1. TERM OF EMPLOYMENT. This Agreement shall be immediately effective. This
Agreement, and Executive's employment hereunder, shall be for an
indefinite term. At any time during the term of this Agreement, either
party may terminate this Agreement, and Executive's employment, in
accordance with the provision of Sections 6 and 7 of this Agreement.
2. POSITION AND DUTIES. The Executive shall serve as [TITLE] of Gen-Probe,
and shall have commensurate responsibilities and authority. The Board
of Directors may from time to time particularly specify the Executive's
duties and authority. The Executive shall not engage in or perform
duties for any other persons or entities that interfere with the
performance of his duties hereunder. Any outside board of director
positions held by the Executive will be subject to approval by the
Board of Directors of Gen-Probe.
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3. SALARY, BONUS AND BENEFITS.
(a) SALARY. During the period of the Executive's employment, Gen-Probe
shall pay him an annual base salary at the rate the Executive is
being paid as of the Effective Date. This base salary may be
adjusted annually by the Board, subject to the terms of this
Agreement and consistent with the Executive's performance and
Gen-Probe's policy regarding adjustments in officer compensation
established from time to time by the Board.
(b) BONUS. In addition, at the Board's discretion, the Executive may be
awarded incentive compensation, in the form of a cash bonus for
each fiscal year during his employment, based upon performance.
(c) BENEFITS. The Executive shall be entitled to participate in the
employee benefit programs (including but not limited to medical,
dental, life and disability insurance, 401K retirement plan, and
vacation program), which may be adopted and maintained by
Gen-Probe. The Executive may receive such other and additional
benefits as the Board may determine from time to time in its sole
discretion.
4. EXPENSE REIMBURSEMENT. The Executive shall be entitled to receive
prompt reimbursement for all reasonable and customary expenses incurred
by him in performing services hereunder, including all expenses of
travel and living expenses while away from home on business or at the
request of, and in the service of Gen-Probe; provided, that such
expenses are incurred and accounted for in accordance with the policies
and procedures established by Gen-Probe.
5. INDEMNIFICATION. Gen-Probe shall indemnify the Executive to the maximum
extent permitted by law and by the by-laws of Gen-Probe if the
Executive is made a party, or threatened to be made a party, to any
threatened or pending legal action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that
the Executive is or was an officer, director or employee of Gen-Probe
or any subsidiary or affiliate thereof, in which capacity the Executive
is or was serving at Gen-Probe's request, against reasonable expenses
(including reasonable attorneys' fees), judgments, fines and settlement
payments incurred by him in connection with such action, suit or
proceeding.
6. TERMINATION. The Executive may terminate his employment hereunder at
any time, with or without Good Reason (as defined below) upon written
notice to Gen-Probe. If Executive contends that Good Reason exists for
his termination, such notice shall specifically and expressly state the
grounds which he contends constitute Good Reason. Gen-Probe may
terminate the Executive's employment hereunder at any time, subject to
the terms of this Agreement, with or without Cause (as defined below)
upon written notice to the Executive. If this Agreement is terminated,
all compensation and benefits other than severance benefits
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described in Section 7 below, to the extent applicable, shall
immediately cease, except that the Executive will be entitled, through
the date of termination, to payment of his salary and benefits under
Gen-Probe benefit programs and plans in accordance with their terms.
As used in this Agreement, "Good Reason" shall mean any of the
following events that are not consented to by the Executive: (i) a
substantial and material diminution in the Executive's duties and
responsibilities hereunder; (ii) the location of the Executive's
assignment on behalf of Gen-Probe is moved to a location more than 30
miles from its present location; (iii) a reduction of more than ten
percent (10%) in the Executive's base salary or in the Executive's
benefits received from Gen-Probe; (iv) the failure of Gen-Probe to
obtain a satisfactory agreement from any other successor to Gen-Probe
to assume and agree to perform this Agreement; or (iv) a material
breach by Gen-Probe of its obligations under this Agreement after
notice in writing from the Executive and a reasonable opportunity for
Gen-Probe to cure or substantially mitigate any material adverse effect
of such breach. The Executive's consent to any event which would
otherwise constitute Good Reason shall be conclusively presumed if the
Executive does not exercise his rights to terminate this Agreement for
Good Reason under this section within ninety (90) days of notice of the
event.
As used in this Agreement, "Cause" shall mean any of the following
events: (i) any act of gross or willful misconduct, fraud,
misappropriation, dishonesty, embezzlement or similar conduct on the
part of Executive; (ii) the Executive's conviction of a felony or any
crime involving moral turpitude (which conviction, due to the passage
of time or otherwise, is not subject to further appeal); (iii) the
Executive's misuse or abuse of alcohol, drugs or controlled substances
and failure to seek and comply with appropriate treatment; (iv) willful
and continued failure by the Executive to substantially perform his
duties under this Agreement (other than any failure resulting from
disability or from termination by the Executive for Good Reason) as
determined by a majority of the Board after written demand from the
Board of Directors for substantial performance is delivered to the
Executive, and the Executive fails to resume substantial performance of
his duties on a continuous basis within 30 days of such notice; (vi)
the death of the Executive; or (vii) the Executive becoming disabled
such that he is not able to perform his usual duties for Gen-Probe for
a period in excess of six (6) consecutive calendar months.
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7. SEVERANCE BENEFITS IN CERTAIN EVENTS. If Gen-Probe terminates the
Executive's employment for reasons other than Cause, or if the
Executive terminates his employment for Good Reason, the Executive
shall be entitled to receive as liquidated damages, the following
severance benefits:
(a) SALARY. The Executive shall continue to receive his base salary, at
the rate in effect at the time of his termination of employment, in
monthly installments commencing the first day of the first month
following termination and continuing for an aggregate period of
twelve (12) months (the "Salary Continuation Period"); provided,
however, that if termination under this Section 7 occurs in
connection with a Change in Control, then the Executive shall
receive a single lump sum payment, payable within 10 days of
termination, equal to eighteen (18) months' base salary.
For purposes of this Agreement, "Change in Control" shall have the
meaning set forth on Attachment "1" to this Agreement (hereby
incorporated by reference). For purposes of this Agreement, a
termination shall be "in connection with" a Change in Control if
termination occurs within the period six (6) months prior to or
eighteen (18) months after a Change in Control.
(b) BONUS. If termination under this Section 7 occurs in connection
with a Change in Control then the Executive shall be entitled to
receive, in lieu of the bonus provided in Section 3(b) and in
addition to the salary payment described in Section 7(a), above, an
amount equal to 1.5 times the greater of (i) the Executive's
targeted level bonus in the year of the termination, or (ii) the
Executive's highest discretionary bonus in the preceding three
years. The amount payable shall be paid in the same manner as and
on the same schedule as the salary compensation paid under
subsection (a) above. No bonus compensation shall be payable under
this section 7 unless termination occurs in connection with a
change in control.
(c) HEALTH CARE AND LIFE INSURANCE COVERAGE. Continued health care
coverage under Gen-Probe's medical plan will be provided, without
charge, to the Executive and his eligible dependents until the
earlier of (i) one (1) year following the termination date or (ii)
the first date that the Executive is covered under another
employer's health benefit program providing substantially the same
or better benefit options to the Executive 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 the Executive may have elected
under Gen-Probe's Life Insurance and Supplemental Life Insurance
plan, subject to payment by the Executive of the portion of such
premium not contributed by Gen-Probe under such plan, during the
Salary Continuation Period.
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(d) 401(K) PLAN. The Executive's interest in any unvested contributions
made by Gen-Probe to the Executive's 401(k) account shall vest as
of the date of termination.
(e) OUTPLACEMENT SERVICES. Gen-Probe agrees to provide Executive with
outplacement services during the first six months of the Salary
Continuation Period.
(f) TAX MATTERS. All compensation described in this Section 7 will be
subject to Gen-Probe's collection of all applicable federal, state
and local income and employment withholding taxes. If any excise
tax is imposed under Section 4999 in connection with the
compensation described in this Section 7 and/or in connection with
the acceleration upon severance of any stock options granted by
Gen-Probe to the Executive, Executive shall be solely responsible
for any such excise tax.
(g) RELEASE OF CLAIMS. Gen-Probe's obligation to make the payments and
provide the benefits hereunder shall be conditioned upon
Executive's execution of a release of all claims, in standard form
and content. The release shall be mutual and shall also be signed
on behalf of Gen-Probe.
8. MISCELLANEOUS.
(a) ARBITRATION. Executive and Gen-Probe agree that any and all claims
or disputes that in any way relate to or arise out of Executive's
employment with Gen-Probe or the termination of such employment
(including but not limited to claims under this Agreement or any
other contract, tort claims, and statutory claims of employment
discrimination, retaliation or harassment) shall be resolved
exclusively through final and binding arbitration in San Diego,
California. Executive and Gen-Probe waive any rights to a jury
trial in connection with such claims or disputes. The costs of the
arbitration, including the fees of the arbitrator, shall be borne
exclusively by Gen-Probe. Any such arbitration shall take place in
San Diego, California and shall be conducted by a single neutral
arbitrator who shall be a retired federal or state judge, to be
appointed by Judicial Arbitration and Mediation Services ("JAMS")
in accordance with JAMS rules. The applicable procedural rules of
JAMS shall govern the arbitration. 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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(b) GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and be governed by the laws of the State of
California.
(c) ENTIRE AGREEMENT. This Agreement sets forth the entire Agreement
and understanding between the Executive and the Company on the
subject matter hereof, and supersedes any other negotiations,
agreements, understandings, oral agreements, representations and
past or future practices whether written or oral. No provision of
this Agreement may be amended, supplemented, modified, cancelled,
or discharged unless such amendment, supplement, modification,
cancellation or discharge is agreed to, in writing, signed by the
Executive and a duly authorized officer of the Company (other than
the Executive); and no provisions hereof may be waived, except in
writing, so signed by or on behalf of the party granting such
waiver.
(d) VALIDITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect.
(e) NOTICES. For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in
writing and shall be deemed to have duly given when personally
delivered or mailed by United States certified or registered mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
[ADDRESS]
If to Gen-Probe:
President and Chief Executive Officer
Gen-Probe Incorporated
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
With a copy to:
Vice President, Administration
Gen-Probe Incorporated
00000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
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(f) SUCCESSORS. Gen-Probe will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all
or substantially all the business and/or assets of Gen-Probe, by
agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that Gen-Probe would be required to
perform it if no such succession had taken place. This Agreement
and all rights under the Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the party's personal
or legal representatives, executors, administrators, heirs, and
successors.
(g) NO RIGHT TO CONTINUED EMPLOYMENT. Nothing herein shall be construed
as giving the Executive any rights to continued employment with
Gen-Probe, and Gen-Probe shall continue to have the right to
terminate the Executive's employment at any time, with or without
cause, subject to the provisions of this Agreement.
In witness whereof, the parties have executed this Agreement.
Executive: Gen-Probe Incorporated:
____________________________ By __________________________
[NAME] Xxxxx X. Xxxxxxxx
Chairman, President and
Chief Executive Officer
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ATTACHMENT "1"
DEFINITION OF "CHANGE IN CONTROL"
Change in Control. "Change in Control" shall mean a change in ownership
or control of the Company effected through any of the following transactions:
(a) any person or related group of persons (other than the Company
or a person that, prior to such transaction, directly or indirectly controls, is
controlled by, or is under common control with, the Company) directly or
indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under
the Exchange Act) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities by means of
any transaction or series of transactions; or
(b) there is a change in the composition of the Board over a
period of thirty-six (36) consecutive months (or less) such that a majority of
the Board members (rounded up to the nearest whole number) ceases, by reason of
one or more proxy contests for the election of Board members, to be comprised of
individuals who either (i) have been Board members continuously since the
beginning of such period or (ii) have been elected or nominated for election as
Board members during such period by at least a majority of the Board members
described in clause (i) who were still in office at the time such election or
nomination was approved by the Board; or
(c) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation (or other entity), 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 or another entity) more than 66-2/3% of the combined voting
power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; provided, however,
that a merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no person acquires more than 25% of
the combined voting power of the Company's then outstanding voting securities
shall not constitute a Change in Control; or
(d) 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 all or substantially all of the Company's assets.
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Schedule to Exhibit 10.64
The preceding form of Employment Agreement was entered into between the Company
and the following individuals:
NAME TITLE EXECUTION DATE
Xxxxx Xxxxxx Executive Vice President - Sales and Operations November 12, 2002
Xxxxx X. Xxxxxx Executive Vice President - Development November 12, 2002
Xxxxxx X. Xxxxxx Executive Vice President and Chief Scientist November 12, 2002
R. Xxxxxxx Xxxxx Vice President and General Counsel November 12, 2002
Xxxx Xxxx Xxxxxxxx Vice President - Regulatory, Quality &
Government Affairs November 12, 2002
Xxxxx X. Xxxxxxx Executive Vice President - Commercialization,
Molecular Light Technology Limited January 1, 2004
Xxxxx X. Xxxxx Vice President - Strategic Planning and Business
Development November 12, 2002
Xxxx Xxxxxxxx Vice President, Finance and Chief Financial Officer November 12, 2002
Xxxxx X. Xxxxxx Vice President - Administration November 12, 2002
