AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.82
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (the “Amendment”) is entered into as of October 31,
2008 (the “Effective Date”), between Xxxx X. Xxxx (the “Executive”) and Gen-Probe Incorporated, a
Delaware corporation (“Gen-Probe”).
RECITALS
WHEREAS, on February 13, 2007, the Executive and Gen-Probe entered into an Employment
Agreement, which agreement was amended and restated effective as of March 1, 2008 (as amended and
restated, the “Agreement”) which sets forth the terms of the Executive’s employment with Gen-Probe
and provides for benefits upon the occurrence of certain terminations of Executive’s employment;
and
WHEREAS, the parties wish to amend certain provisions of the Agreement to reflect recent
changes affecting the taxation of deferred compensation arrangements under Section 409A of the
Internal Revenue Code of 1986, as amended, pursuant to the terms and conditions set forth below.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the mutual agreements contained herein,
the parties hereby agree as follows effective as of the Effective Date. Except as otherwise
defined herein, capitalized terms shall have the meanings assigned to them in the Agreement.
1. The following shall be added at the end of Section 4:
“To the extent that reimbursements made pursuant to this Agreement are subject to the
provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), (a) the
reimbursement shall be made no later than December 31 of the calendar year following the year in
which the expense was incurred, (b) the amount of expenses reimbursed in one year shall not affect
the amount eligible for reimbursement in any subsequent year, and (c) the Executive’s right to
reimbursement under this Section 4 will not be subject to liquidation or exchange for another
benefit.”
2. The initial text of Section 7 preceding Section 7(a) shall be amended in its entirety to
read as follows:
“If Gen-Probe terminates the Executive’s employment for reasons other than for Cause, or if
the Executive terminates his employment for Good Reason, and such termination constitutes a
“separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h) (a
“Separation from Service”), the Executive shall be entitled to receive as liquidated damages, the
following severance benefits:”
3. Section 7(a) of the Agreement shall be amended in its entirety to read as follows:
“(a) Salary.
(i) Unless the Executive’s termination under this Section 7 occurs within eighteen (18) months
after a Change in Control, 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 following termination
and continuing for an aggregate period of twelve (12) months (the “Salary Continuation Period”),
except that any payments that would otherwise have been made before the sixtieth (60th) day after
the date of termination of the Executive’s employment (the “First Payment Date”) shall be made on
the First Payment Date.
(ii) If the termination under this Section 7 occurs in connection with a Change in Control,
then the Executive shall receive a lump sum payment as described in this Section 7(a)(ii). For
purposes of this Agreement, “Change in Control” shall have the meaning set forth on Attachment “1”
to this Agreement (hereby incorporated by reference). A termination shall be “in connection with”
a Change in Control if the termination occurs within the period six (6) months prior to or eighteen
(18) months after a Change in Control (and in the event that the termination occurs during the six
(6) months prior to a Change in Control, subject to the consummation of the Change in Control and
the transaction constituting a change in the ownership or effective control of Gen-Probe or a
change in the ownership of a substantial portion of the assets of Gen-Probe, as described in
Treasury Regulation Section 1.409A-3(i)(5)). The lump sum payment will be payable on the later of
(A) five (5) days after the Change in Control, or (B) sixty (60) days after the date of the
termination of employment. If the termination occurred within the six (6) months prior to a Change
in Control, the amount of the lump sum payment pursuant to this Section 7(a)(ii) shall be equal to
six (6) months’ base salary (and shall be in addition to the installment payments described in
Section 7(a)(i)); if the termination occurs within eighteen (18) months after a Change in Control,
the amount of the lump sum payment pursuant to this Section 7(a)(ii) shall be equal to eighteen
(18) months’ base salary.”
4. Section 7(b) of the Agreement shall be amended in its entirety to read as follows:
“(b) Bonus. If the 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 two 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 a lump sum at the same time as the salary compensation paid under
subsection (a)(ii) above. No bonus compensation shall be payable under this Section 7 unless the
termination occurs in connection with a Change in Control.”
5. Section 7(g) of the Agreement shall be amended in its entirety to read as follows:
“Notwithstanding any provision to the contrary in this Agreement, if Executive is deemed by
Gen-Probe at the time of his Separation from Service to be a “specified employee” for purposes of
Section 409A(a)(2)(B)(i) of the Code, to the extent delayed commencement of any portion of the
benefits to which Executive is entitled under this Agreement is required in order to
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avoid a prohibited distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of
Executive’s benefits shall not be provided to Executive prior to the earlier of (i) the expiration
of the six-month period measured from the date of the Executive’s Separation from Service or (ii)
the date of Executive’s death. Upon the first business day following the expiration of the
applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to this Section
7(g) shall be paid in a lump sum to Executive (or the Executive’s estate or beneficiaries), and any
remaining payments due under the Agreement shall be paid as otherwise provided herein. For
purposes of Section 409A of the Code, Executive’s right to receive the payments of compensation
pursuant to the Agreement shall be treated as a right to receive a series of separate payments and
accordingly, each payment shall at all times be considered a separate and distinct payment.”
6. Except as set forth herein, all other terms and conditions of the Agreement shall remain in
full force and effect.
7. This Amendment shall be governed by the law of the State of California as such laws are
applied to agreements between California residents entered into and to be performed entirely within
the State of California.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the Effective Date.
| EXECUTIVE | ||||||
| /s/ Xxxx X. Xxxx | ||||||
| Xxxx X. Xxxx | ||||||
| GEN-PROBE INCORPORATED | ||||||
| By: | /s/ Xxxxx De Xxxx | |||||
| Its: Senior Vice President, Human Resources | ||||||
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