AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
Originally Effective
February 13, 2007
First Amendment Effective March 1, 2008
Second Amendment and Restatement Effective October 31,
2008
Third Amendment and Restatement Effective May 18,
2009
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is made by and
between Gen-Probe Incorporated , a Delaware corporation with
offices at 10210 Genetic Center Drive, San Diego, California 92121
(“Gen-Probe”), and Carl W. Hull (the
“Executive”).
The
parties hereto agree as follows:
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1.
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Amendment and Restatement of
Employment Agreement . The Employment Agreement between
Gen-Probe and Executive dated February 12, 2007, as previously
amended as of March 1, 2008 and October 31, 2008, is
hereby amended and restated as set forth herein as of May 18,
2009 (the “Amendment Effective Date”).
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2.
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Term of Employment
. This Agreement shall
be immediately effective. This Agreement, and Executive’s
employment hereunder, shall be for a term of three years from
May 18, 2009. 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 7 and
8 of this Agreement.
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3.
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Position and Duties
. The Executive shall
serve as President and Chief Operating Officer of Gen-Probe until
May 18, 2009, on which date the Executive shall be appointed
as President and Chief Executive Officer of Gen-Probe. The
Executive shall have responsibilities and authority commensurate
with his position. 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. Executive’s participation on the board of
directors of any “for profit” organization will be
subject to approval by the Board of Directors of
Gen-Probe.
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4.
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Salary, Bonus and
Benefits .
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(a)
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Salary . Commencing May 18, 2009,
Gen-Probe shall pay Executive an annual base salary of $635,000.
Executive’s base salary may be increased by the Compensation
Committee of 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 Compensation
Committee. The base salary shall not be decreased during the term
of this Agreement.
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(b)
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Bonus . In addition, at the discretion of
the Compensation Committee, the Executive will be awarded incentive
compensation, in the form of a cash bonus for each fiscal year
during his employment, based upon performance. Executive’s
target bonus shall be seventy-five percent (75%) of his base
salary; however, the actual bonus shall be set at the discretion of
the Compensation Committee, subject to the terms of such bonus
plans as Gen-Probe may adopt from time-to-time.
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(c)
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Stock Options/Restricted
Stock .
In addition, Executive may be awarded stock options, restricted
stock awards and other equity compensation awards by
Gen-Probe’s Compensation Committee, with such terms and
conditions as the Compensation Committee may determine in its sole
discretion.
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(d)
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Life Insurance
. Gen-Probe will obtain
and pay for a term life insurance policy providing for payment of
$1,000,000 in benefits to the Executive’s designated
beneficiaries should the Executive die during the term of this
Agreement. This policy shall be in addition to any coverage
provided by Gen-Probe’s group life insurance plan pursuant to
subsection (g), below.
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(e)
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Disability Insurance
. Gen-Probe will obtain
and pay for a long-term disability insurance policy providing for
payment at a rate of no less than $200,000 per annum to Executive
should Executive suffer a long-term disability during the term of
this Agreement. This policy shall be in addition to any coverage
provided by Gen-Probe’s group disability insurance plan
pursuant to subsection (g), below.
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(f)
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AD& D Insurance
. Gen-Probe will obtain
and pay for an AD&D insurance policy providing for a benefit to
Executive (or his beneficiaries) of $400,000 (airplane) or
$200,000 (automobile or walking) should Executive suffer accidental
death or accidental disability during the term of this
Agreement.
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(g)
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Other Benefits
. The Executive shall
be entitled to participate in the employee benefit programs
(including but not limited to medical, dental, life and disability
insurance, 401(k) retirement plan, and vacation program), as
adopted and maintained by Gen-Probe. Gen-Probe shall reimburse the
Executive for reasonable attorney’s fees incurred in
connection with this Agreement, in an amount not in excess of
$5,000. The Executive may receive such other and additional
benefits as the Compensation Committee or Board may determine from
time to time in its sole discretion.
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5.
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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. To the extent that reimbursements made pursuant to this
Agreement, including under Section 8(c), 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
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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 5 will not be subject to liquidation or exchange for
another benefit.
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6.
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Indemnification
. Gen-Probe shall
indemnify the Executive to the maximum extent permitted by law, by
the by-laws of Gen-Probe and by the Indemnification Agreement dated
February 13, 2007, between the Executive and Gen-Probe, as it
may be amended (the “Indemnification Agreement”), 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.
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7.
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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 described in Section 8 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.
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As used in this Agreement,
“Good Reason” shall mean any of the following events
that are not consented to in writing by the Executive: (i) the
removal of the Executive from his position as President and Chief
Executive Officer; (ii) a substantial and material diminution
in the Executive’s duties and responsibilities hereunder;
(iii) a reduction of the Executive’s base salary or
target bonus percentage by 10% or greater; (iv) 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;
(v) the failure of Gen-Probe to obtain a satisfactory
agreement from any successor to Gen-Probe to assume and agree to
perform this Agreement; or (vi) a material breach by Gen-Probe
of its obligations under this Agreement after notice in writing
from the Executive within 30 days of the occurrence of the
applicable event and a reasonable opportunity over a 30-day period
for Gen-Probe to cure or substantially mitigate any material
adverse effect of such breach and provided that the
Executive’s termination occurs within six (6) months
following the date of occurrence of the applicable event. 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 six (6) months of
notice of the event.
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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
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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; (v) the death of the Executive; or
(vi) 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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8.
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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, 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 the following severance benefits:
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(a)
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Salary .
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(i) Unless
the Executive’s termination under this Section 8 occurs
within eighteen (18) months after a Change in Control (as
defined below), 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 twenty
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