SECOND AMENDMENT
TO EMPLOYMENT AGREEMENT
This Second
Amendment to Employment Agreement (the “Amendment”) is
entered into as of October ___, 2008 (the “Effective
Date”), between
(the “Executive”) and Gen-Probe Incorporated, a
Delaware corporation (“Gen-Probe”).
WHEREAS, on
, 200___, the Executive and Gen-Probe entered into an Employment
Agreement, which agreement was amended pursuant to a First
Amendment to Employment Agreement (as amended, 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.
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 (provided that (i) Executive notified
Gen-Probe of his or her intent to resign for Good Reason within
90 days of the initial existence of the condition giving rise
to Good Reason (a “Good Reason Condition”) and provides
Gen-Probe with a period of 30 days during which it may remedy
the Good Reason Condition, (ii) Gen-Probe did not remedy the
Good Reason Condition during such period, and (iii) Executive
terminated for Good Reason based on the condition specified in the
notice, and
such
resignation occurs within one year after the initial existence of
such Good Reason Condition), 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:
(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 [Vice Presidents: six (6)][Executive Team: twelve (12)]
months (the “Salary Continuatio
