THIS EMPLOYMENT
AGREEMENT (the “Agreement”) is made as of [DATE]
(the “Effective Date”) by and between Gen-Probe
Incorporated, a Delaware corporation with offices at 10210 Genetic
Center Drive, San Diego, California 92121
(“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:
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1.
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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.
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2.
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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.
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Salary, Bonus and
Benefits.
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(a)
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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.
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(b)
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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.
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(c)
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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.
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4.
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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.
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5.
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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.
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6.
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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
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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.
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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, the
Executive shall be entitled to receive as liquidated damages, the
followin
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