AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of the
7th day of November 2007, by and between Xxxxx X. Xxx (“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
12, 2007;
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, the receipt and legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Employment. The Company hereby agrees to employ Employee as its Vice President,
Corporate Secretary and General Counsel 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
Employee’s 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 Vice President and General Counsel. Employee may engage 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, provided that such activities do not
interfere with Employee’s performance of Employee’s duties under this Agreement.
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 Two Hundred Twenty Thousand Dollars ($220,000), 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/or the Board of Directors of the Company.
During the Employment Term, on or about 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 be considered for
an annual bonus as may be determined by the Company’s CEO and approved by the Compensation
Committee in its and their sole discretion each calendar year. The initial target annual
bonus percentage that Employee is eligible to earn for the initial calendar year hereunder
is anticipated to be up to an available thirty-five percent (35%) of Employee’s Base Salary,
to be awarded in the sole discretion of the Company’s CEO and approved by the Compensation
Committee (pro-rated, as applicable, for a partial calendar year period), and such
percentage shall be subject to modification in the initial or subsequent calendar years in
the sole discretion of the CEO and the Compensation Committee. 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 expressly set forth in Section 7 hereof, Employee shall not be eligible to
receive an annual bonus for any calendar year unless Employee remains employed with the
Company through December 31 of the applicable calendar year and through the date on which
such bonus is approved by the Compensation Committee, provided, however, that in any event,
if Employee is terminated with Cause or resigns without Good Reason, or is given or gives
notice of either, no bonus will be due thereafter under any circumstance. For the avoidance
of doubt, Employee acknowledges and agrees that it has no contractual right under this
Agreement to any annual bonus payment or any target bonus percentage, and that any bonus
that is paid to Employee shall be at the sole discretion of the CEO and the Compensation
Committee.
3.3 Long Term Incentive Plan. Employee shall participate in the Company’s Long
Term Incentive Plans (“LTIPs”) at the level and to the extent determined by the Compensation
Committee in its sole discretion. Employee’s benefits under the LTIPs shall be determined
pursuant to the terms of the plan documents for such LTIPs.
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 6.3 hereof, (ii) as described in Section 7.2(c) hereof,
and (iii) 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
(other than Section 6.3 and Section 7.2(c) of this Agreement), the grant agreement shall
control.
4. Benefits.
4.1 Benefits. Employee will be entitled to participate in all benefit programs
that are generally provided to similarly situated employees of the Company (such as sick
leave, insurance (e.g., medical, life and long-term disability), profit-sharing, retirement,
and other benefit programs), in accordance with any plan documents applicable to such
benefit programs and all rules and policies of the Company related to such benefit programs.
The benefits generally provided to employee and others similarly situated is subject to
change from time to time in the Company’s sole discretion.
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. Unused vacation in any calendar year is lost at the end of
such year and does not rollover to the next year. The foregoing vacation days shall be in
addition to standard paid holiday days for employees of the Company.
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5. Business Expenses. Upon submission of a satisfactory accounting by Employee,
consistent with current policies of the Company (as may be modified by the Company from time to
time in its sole discretion), 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 Employee’s employment
pursuant to this Agreement at any time without Good Reason (as defined below) with
at least sixty (60) 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 Employee’s 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; or (ii) the
occurrence of a material breach by the Company of any of its obligations to Employee
under this Agreement, provided the Employee gives the Company written notice of such
material breach and thirty (30) days to cure such material breach.
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:
(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 Employee is convicted of a
felony;
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(v) the Employee is convicted of a misdemeanor the circumstances of
which involve fraud, dishonesty or moral turpitude and which is
substantially related to the circumstances of Employee’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;
(v) any material breach or violation of the Company’s Code of
Business Conduct; or
(vi) 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. In the event of the death or Disability (defined
herein) of Employee during the Employment Term, (i) Employee’s employment and this Agreement
shall immediately and automatically terminate, (ii) the Company shall pay Employee (or in
the case of death, employee’s designated beneficiary) Base Salary and accrued but unpaid
bonuses, in each case up to the date of termination, and (iii) all equity awards granted to
Employee, whether stock options or stock purchase rights under the Company’s equity
compensation plan, or other equity awards, that are unvested at the time of termination
shall immediately become fully vested and exercisable upon such termination. Neither
Employee, her beneficiary nor estate shall be entitled to any severance benefits set forth
in Section 7 if terminated pursuant to this Section 6.3. 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 Employee’s 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 Employee’s job, with or
without a reasonable accommodation.
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 Employee’s 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
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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) six (6) months of Employee’s then current Base Salary, (ii) any
accrued but unpaid Base Salary as of the termination date; and (iii) any accrued,
earned, awarded and vested, but unpaid, bonus and/or LTIP awards as of the
termination date.
(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) six (6) 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.
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 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 Company consummates
a merger or consolidation 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
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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; or (v) the
Company consummates a sale or disposition of (in one transaction or a series of
related transactions) all or substantially all of its assets.
(b) Payments and Termination Date. 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, Employee terminates Employee’s 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, then (i) Employee shall receive severance pay for a
period of twelve (12) months at Employee’s then current Base Salary, (ii) Employee
shall be entitled to a pro-rata portion of Employee’s annual bonus if the Change of
Control occurs in the last six (6) months of the calendar year, which annual bonus
shall be determined, and the pro-rata portion thereof paid, after the end of the
calendar year in accordance the Company’s normal practices as applied to other
employees who have not terminated their employment with the Company (without the
requirement of Employee’s continued employment) and shall be pro-rated to the later
of (a) the date of the Change of Control, or (b) the date of such termination of
employment (provided that if such termination has not occurred by December 31 of the
year in which such Change of Control occurs, no pro-ration of the annual bonus for
such calendar year shall be required), (iii) Employee shall be entitled to health
and dental COBRA premium payments in accordance with Section 7.1(b) but the period
described in subsection (i) thereof shall be extended from six (6) months to twelve
(12) months, and (iv) the termination shall be treated for purposes of Sections
7.2(b), (c) and (d) as if it occurred on the later of the effective date of such
termination and the effective date of the Change of Control. Any lump-sum severance
payment made to the Employee under Section 7.1(a) during the six (6) months before
the effective date of a Change of Control shall be credited against the severance
payments provided under this Section 7.2(b) on a pro-rata basis.
(c) 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.
(d) LTIP Awards. Any awards granted to Employee under the LTIPs as of
the Change of Control shall be treated as described in the LTIPs.
(e) 280G. Payments and benefits that trigger Sections 280G and 4999 of
the Internal Revenue Code of 1986, as amended (the “Code”), 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.
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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 a signed waiver and release, in a form reasonably satisfactory to the Company, of
all claims Employee may have against the Company up to the date of the termination of
Employee’s employment with the Company, and (if applicable) Employee’s not revoking such
release. Moreover, the Employee’s rights to receive payments and benefits pursuant to
Sections 7.1 and 7.2 (including, without limitation, payments under the Company’s equity
plans and LTIPs) are conditioned on the Employee’s ongoing compliance with Employee’s
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 her 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 7.5, below).
7.5 Benefits Required by Law and Plans. 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.
7.6 Six-Month Payment Delay. Notwithstanding the foregoing provisions of this
Section 7, the payment of any amount that has become earned and vested upon Employee’s
termination of employment shall be delayed until six (6) months following the date of
Employee’s termination of employment if and to the extent required by Section 409A of the
Code.
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 and Invention Assignment attached hereto as Schedule A (the “Confidential
Information Agreement”) (provided, however, that if the Employee has previously signed the
Confidential Information Agreement, and if the Company chooses to not have the Employee sign
a new Confidential Information Agreement in connection with the Employee’s execution of this
Agreement, the previously signed Confidential Information Agreement shall be attached hereto
as Schedule A).
8.2 Agreement Not to Compete. In consideration for all of the payments and
benefits that may be paid or become due to Employee under or in connection with this
Agreement, Employee agrees that for a period of twelve (12) months after termination of
Employee’s employment for any reason, Employee 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 Employee performed for the
Company; (b) in any
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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; provided, however, if Employee is terminated without
Cause pursuant to Section 6.2(c) or if Employee terminates her employment for Good Reason
pursuant to Section 6.1(b), and if Employee is not paid severance pursuant to Section 7.2(b)
in connection with a termination the occurs in proximity with a Change of Control, then the
period set forth in this Section 8.2 shall be reduced to six (6) months after such
termination. Employee acknowledges that in Employee’s position with the Company Employee
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 twelve (12)
months preceding the end, for whatever reason, of Employee’s employment.
(c) Competing Entity. “Competing Entity” means any business entity
engaged in the development, design, manufacture, marketing, distribution or sale of
molecular diagnostics products.
(d) Restricted Area. “Restricted Area” means (i) 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, and (ii) any geographic location in which the Employee was assigned or
within which the Employee conducted business on behalf of the Company within the
twelve (12) months immediately preceding the termination of Employee’s employment
with 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 Employee has certain skills
necessary to the success of the Company, and that the Company has provided and will provide
to Employee certain confidential information that it would not otherwise provide because
Employee 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 (12) months
following the termination of her employment with the Company for any reason, Employee 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.
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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
Employee’s experience and capabilities are such that in the event Employee’s employment with
the Company is terminated, Employee will be able to obtain employment if Employee 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 Employee from becoming so employed.
8.8 Injunctive Relief. Employee understands and agrees that if Employee
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 Employee 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.
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 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. 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 withheld under
applicable law.
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12. 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 Code. Employee and the Company agree
to use reasonable best efforts 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 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.
13. 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
LTIPs, and any stock plans or agreements between Employee and the Company now and hereafter in
effect from time to time except as, and to the extent, specifically described herein. 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
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 Employment Agreement as of the date first written above.
| /s/ Xxxxx X. Xxx | ||||||
| Xxxxx X. Xxx (“Employee”) | ||||||
| Third Wave Technologies, Inc. (“Company”) | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Xxxxx Xxxxxx, President and CEO | ||||||
| Notice Address: | ||||||
| 000 Xxxxx Xxxx Xxxx | ||||||
| Xxxxxxx, Xxxxxxxxx 00000-0000 | ||||||
| Attn: Chief Executive Officer | ||||||
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