Exhibit 10.1
AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 2 TO EMPLOYMENT AGREEMENT ("Amendment") is entered into
as of the 25th day of July, 2005 (the "Effective Date"), by and between Xxxxx
Xxxx ("Executive") and Third Wave Technologies, Inc., a Delaware corporation
(the "Company").
WHEREAS, the Company currently employs Executive as its Executive Chairman
pursuant to an Employment Agreement dated as of October 16, 2003, as amended as
of June 14, 2004 (as amended, the "Agreement"); and
WHEREAS, Executive has indicated his desire to resign from his positions
as Executive Chairman and as a Director in order to pursue other personal and
business interests, and the Executive and the Company have mutually agreed to
the resignation by Executive from such Executive Chairman and Director
positions; and
WHEREAS, in consideration of the valuable services which have been
provided by the Executive to the Company and the desire of the Company to
continue to obtain technology advisory services of the Executive, the parties
desire to amend the Agreement on the terms and provisions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter set forth, and other good and valuable consideration, receipt of
which is hereby acknowledged, the parties agree as follows:
1. Resignation from Positions as Executive Chairman and Director;
Non-Executive Employee. Seven (7) days after the Effective Date,
Executive shall cease to be the Executive Chairman and a Director of
the Company, and shall become a non-executive technology advisor to
the Company as further described in Section 2 below. Executive shall
execute and deliver to the Company such written resignations and
other letters or documents as may be reasonably requested by the
Company with respect to Executive's resignation from such positions.
2. Non-Executive Employee Role and Responsibilities. In consideration
of the mutual covenants set forth herein and the benefits, including
the releases, the Company and the Executive agree that Executive
will remain as a non-executive employee of the Company, in the role
of technology advisor, on the terms set forth herein at such times
and locations as are mutually agreed to by the parties:
a. Reasonable travel and other necessary business expenses
incurred by Executive in connection with his advisory services
to the Company shall be promptly reimbursed by the Company.
b. While Executive is employed as a non-executive employee by the
Company, he will be allowed to work on or for other companies
without restriction,
subject to the provisions of the Noncompetition and
Nonsolicitation Agreement between Executive and the Company
dated October 22, 2003 (the "Noncompetition Agreement") and
the Employee Agreement with Respect to Confidential
Information, Invention Assignment and Arbitration dated as of
October 22, 2003 (the "Confidentiality Agreement"), which
shall remain in full force and effect and which shall be
deemed to be incorporated herein by reference, subject to the
following amendments thereto:
i. The provisions of Section 1(b) of the Noncompetition
Agreement shall only apply during the term of
Executive's employment with the Company.
ii. The provisions of Section 2 of the Confidentiality
Agreement shall not apply to Inventions (as defined in
the Confidentiality Agreement) conceived, developed and
reduced to practice by Executive from and after the
Effective Date, if such Inventions do not relate to any
Company business as of any time during the term of
Executive's employment with the Company. For purposes of
this Section 2(b), "Company business" shall include the
Company's existing businesses and any business proposed
by the Company. Executive acknowledges and agrees that
the "Company's business" further includes, without
limitation, all of the Company's inventions,
technologies and patent portfolio, and any and all
improvements thereto and extensions thereof, and that
the foregoing include, without limitation inventions,
technologies and/or patents relating to (x) endonuclease
cleavage or detection, platforms, sample preps, and
applications relating to the Company's Invader
technology, (y) molecular diagnostics, and (z) any
technologies relating to the Company's plan to further
its long range plan of building a robust pipeline of
genetics/pharmacogenetics, infectious disease,
oncology/chromosome analysis, and systems biology
(xxXXX, metabolites, proteins, etc.) products.
Notwithstanding anything to the contrary set forth
herein, for purposes of clarity, Section 2(b) shall not
apply to any Inventions to the extent that Executive is
not considered to be an inventor for purposes of the
U.S. Patent laws. In addition, Executive desires to
write and publish books and/or articles relating
generally to medical health and/or disease. The Company
acknowledges that Executive shall not have any
obligation under Section 2(b) to assign to the Company
any original works of authorship prepared after the
Effective Date for dissemination to the general public
covering issues generally related to medical health
and/or disease, excepting any publications relating to
Invader technology. Notwithstanding the foregoing,
Executive affirms his continuing obligation under
Section 2(e) of the Confidentiality Agreement to assist
the Company in securing its intellectual property
rights, and Executive further agrees to provide
reasonable assistance to the Company in connection with
litigation to defend or prosecute the Company's
intellectual property rights.
c. Executive represents that, as of the Effective Date, (i) he
has neither made, nor is aware of, any undisclosed inventions
relating to Company business, and (ii) he has no financial
interest, whether via ownership, contract or otherwise, in any
molecular diagnostics company, other than as previously
disclosed to the Company.
d. The parties acknowledge, understand and agree that the use of
the terms "Executive" and "employee" herein to describe Xxxxx
Xxxx are for convenience only, and shall not affect, imply or
impose any rights, responsibilities or obligations with
respect to his role, responsibilities or obligations with the
Company as a "non-executive employee," except as set forth
herein. The parties also acknowledge, understand and agree
that the term "non-executive employee" shall have the same
meaning as the term "employee" to the extent the term
"employee" may be used in any other agreement or document to
which the Company or the Executive continue to be bound
pursuant to the terms of the Agreement or this Amendment.
e. It is the intention of the Company and Executive that the
Company shall make good faith reasonable efforts to avoid
disclosure to Executive of material non-public information
("Inside Information") while Executive is a non-executive
employee hereunder. The Company agrees that, due to his
limited role as a technology advisor to the Company, Executive
shall be exempt from the provisions of the Company's Xxxxxxx
Xxxxxxx Policy ("Policy") and that Executive shall accordingly
have no obligation to obtain pre-clearance or other prior
consent from the Company before trading in the Company's
securities or refrain from trading during black-out periods
that would otherwise be applicable to employees pursuant to
the Policy. Executive shall have sole responsibility to
consult with his own counsel (at his own expense) regarding
any purchase or sale of any Company security by Executive and
applicable securities laws. The Executive acknowledges that
the Company will have no responsibility for providing advice
to Executive regarding applicable securities law.
3. Termination of Provisions of Employment Agreement. As of the date
hereof, the following provisions of the Agreement shall no longer be
in force or effect:
a. Section 1 - Employment. The parties understand and agree
that Executive's roles and responsibilities as a
non-executive employee shall be as set forth in Section
2 of this Amendment.
b. Section 3.2 - Bonus Compensation and Section 3.3 -
Equity Incentives.
c. Section 4.1 - General Benefits and Section 4.2 - Paid
Time Off (PTO).
d. Section 5 - Business Expenses, provided, however, that Section
5 shall continue with respect to those reasonable and
necessary expenses incurred prior to the date hereof and
through June 30, 2005 as a result of the winding-down of
Executive's Wisconsin housing and for those expenses incurred
in performance of Executive's services as a non-executive
employee. Outstanding expenses with respect to the Wisconsin
housing shall be reconciled, and Executive shall be reimbursed
for such expenses by July 31, 2005.
e. Section 6 - Termination (in its entirety), provided, however:
i. Executive confirms that the Confidentiality Agreement and the
Noncompetition Agreement (both as amended pursuant to Section 2(b)
of this Amendment), shall remain in full force and effect in
accordance with their respective terms. Executive represents and
warrants that he is as of the Effective Date, and shall remain, in
compliance with the Noncompetition Agreement and the Confidentiality
Agreement.
ii. The Company may terminate the Agreement and any further
obligation to pay Executive Base Compensation in the event of
Executive's uncured material breach of the Agreement, the
Non-Competition Agreement, or the Confidentiality Agreement (any one
of which is a "Cause Event"), provided, however, that Executive
shall have 30 days after written notice from the Company to the
Executive specifying such breach within which to cure. For avoidance
of any doubt, the parties agree that the failure to mutually agree
upon any aspects of Executive's role as a technical advisor shall
not constitute a material breach hereunder.
iii. The Executive may resign as a non-executive employee in the
event of the Company's uncured material breach of the Agreement,
which material breach remains uncured 30 days after written notice
from the Executive specifying such breach.
iv. In the event Company terminates the Agreement for any reason
other than as a result of a Cause Event pursuant to subsection (ii),
or the Executive resigns as a non-executive employee pursuant to
subsection (iii) above, Executive shall be entitled to the balance
of his Base Compensation under the Agreement through June 30, 2007.
Upon either of the foregoing termination or resignation, or upon
termination of the Agreement on June 30, 2007 by its terms, all
stock options granted to Executive shall be immediately accelerated
and shall be considered fully vested effective as of the date of
such termination or resignation and all stock options shall be open
for exercise until the latest date on which those options would
expire or are eligible to be exercised under the applicable option
grant agreements, determined without regard to such termination or
resignation.
f. Section 7 - Severance, other than Section 7.8. For the
avoidance of doubt, it is acknowledged by the Company and
Executive that the resignation by Executive as Executive
Chairman and appointment as non-executive employee hereunder
does not constitute the termination of or resignation by
Executive from employment by the Company for purposes of the
Company's stock option plans and the stock options grants
issued thereunder. In accordance therewith, all stock options
granted to Executive shall continue to vest in accordance with
their original terms, and shall remain open for exercise until
the latest date on which those options would expire or are
eligible to be exercised under the applicable option grant
agreements. For the avoidance of doubt, this language is not
intended to alter any previous agreement on this subject.
4. Continuation of Certain Provisions of Employment Agreement. For the
avoidance of any doubt, the parties acknowledge and agree that all
other provisions of the Agreement shall remain in full force and
effect, including without limitation:
a. Section 2 - Term of Employment, subject to Section 2 of this
Amendment.
b. Section 3.1 - Base Compensation and Severance Compensation,
which shall continue to be payable in accordance with Section
3.1 through June 30, 2007, subject to the provisions of
Section 3(e) of this Amendment with regard to Base
Compensation. Severance compensation shall remain payable to
Executive notwithstanding the termination by the Company or
resignation by Executive of Executive's services as a
non-executive employee as described in Section 3(e) of this
Amendment.
c. Section 4.3 - Indemnification/Liability Insurance.
d. Section 8, through and including, Section 16.
5. Trading of Company Securities. As provided in Section 2 above, the
parties acknowledge and agree that Executive shall not be subject to
the Policy. Notwithstanding the foregoing, Executive agrees that for
90 days after the Effective Date, he will not sell, or offer to
sell, any Company securities, including pursuant to 10b5-1 Plans.
The Company agrees to cooperate with Executive and to take all such
actions, including the execution, delivery and acknowledgment, of
such documents and instruments, as may be reasonably required by the
Executive in connection with purchases and sales of Company
securities after such 90-day period, and shall cause the Company's
transfer agent to do the same, including, but not limited to, the
removal of any restrictive legends when requested by the Executive,
without cost to Executive, and such other reasonable requests as may
be made by the Executive from time to time hereafter.
6. Release by Company. In consideration for the covenants and
agreements of the Executive set forth in this Amendment, the
Company, for and on behalf of itself and its affiliates and their
respective shareholders, directors, officers, employees, attorneys,
representatives, agents, affiliates, successors and assigns (the
"Company Parties") hereby absolutely and unconditionally releases,
waives and forever discharges the Executive, and his heirs, legal
representatives, executors, successors, and assigns (the "Executive
Parties"), from any and all manner of actions, causes and causes of
action, controversies, covenants, claims, damages, debts, duties,
liabilities or obligations of any nature whatsoever (collectively,
the "Company Claims"), whether known or unknown or suspected or
unsuspected, which the Company Parties or any of them may now or
hereafter own, hold, have or claim to have against the Executive
for, upon or by reason of any manner, cause or thing whatsoever
occurring on or at any time prior to the date of this Amendment
("Company Release"). Without limiting the foregoing, the Company
Parties agree that the Company Release includes Company Claims
whether in contract, tort or otherwise. Notwithstanding anything to
the contrary contained herein, the representations contained in this
Amendment, and the covenants, agreements and obligations of the
Executive to be performed from and after the date hereof under the
Agreement, as amended by this Amendment No. 2 and Amendment No. 1,
the Noncompetition Agreement as amended, and the Confidentiality
Agreement as amended, are not subject to this Company Release.
7. Release by Executive.
a. In consideration for the covenants and agreements of the Company set
forth in the Employment Agreement, Executive, for and on behalf of himself and
the Executive Parties, hereby absolutely and unconditionally releases, waives
and forever discharges the Company Parties from any and all manner of actions,
causes and causes of action, controversies, covenants, claims, damages, debts,
duties, liabilities or obligations of any nature whatsoever (collectively, the
"Executive Claims"), whether known or unknown or suspected or unsuspected, which
the Executive Parties or any of them may now or hereafter own, hold, have or
claim to have against the Company for, upon or by reason of any manner, cause or
thing whatsoever occurring on or at any time prior to the date of this Amendment
(the "Executive Release"). Without limiting the foregoing, the Executive Parties
agree that the Executive Release include Executive Claims, whether in contract,
tort or otherwise. Without limiting the foregoing, Executive agrees that the
Executive Release includes claims (i) for wrongful termination or breach of the
covenant of good faith and fair dealing, (ii) under Title VII of the Civil
Rights Act of 1964, as amended, (iii) under the Civil Rights Act of 1991, as
amended, (iv) under any Collective Bargaining Agreement, (v) under the Wage
Payment Act, Chap. 109 Wis. Stats., as amended, (vi) under the California Fair
Employment and Housing Act, as amended, (vii) under the California Labor Code,
as amended, (viii) under the American with Disabilities Act of 1990, as amended,
(ix) under any Wisconsin or California law prohibiting discrimination; (x) under
any other Federal, and state and local laws, orders or regulations in any way
relating to the employment relationship, termination or discrimination, (xi)
under common law, and (xii) under the Age Discrimination Employment Act
("ADEA"), and the Older Worker Benefit Protection Act, as amended.
Notwithstanding anything to the contrary contained herein, the covenants,
agreements and obligations of the Company to be performed from and after the
date hereof under the Agreement, as amended by this Amendment No. 2 and
Amendment No. 1, the Noncompetition Agreement as amended, and the
Confidentiality Agreement as amended are not subject to this Executive Release.
b. Executive agrees that he has been provided with twenty-one days from
the date he received this Amendment within which to consider its terms.
Executive acknowledges that he has consulted with an attorney of his choice, and
has negotiated the terms of this Amendment and Executive has also had the
opportunity to consult with other professional persons unrelated to the Company
regarding the terms of this Amendment. Executive's signature below indicates
that he is entering into this Amendment freely, knowingly and voluntarily with a
full understanding of its terms. Further, the terms of this Amendment cannot
become effective or enforceable until seven (7) days following the date of its
execution, during which time Executive may revoke the Amendment by notifying the
Company in writing. Executive understands that any rights or claims he may have
under the ADEA that arise after the date of this Amendment is executed are not
waived by him.
8. Waiver. The parties acknowledge that they each may have released claims
that are presently unknown and that the releases contained in this Amendment are
(subject to their terms) intended to and will fully, finally, and forever
discharge all such claims, whether now asserted or unasserted, known or unknown.
EACH PARTY EXPRESSLY UNDERSTANDS AND AGREES TO WAIVE THE PROVISIONS OF, AND
RELINQUISH ALL RIGHTS AND BENEFITS AFFORDED BY, CALIFORNIA CIVIL CODE SECTION
1542, WHICH PROVIDES IN FULL AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
In making this waiver, the parties hereto acknowledge that they may hereafter
discover facts in addition to or different from those that they now believe to
be true with respect to the subject matters releases herein, but they agree that
they have taken that possibility into account in reaching this Amendment and
that, notwithstanding the discovery or existence of any such additional or
different facts, as to which they expressly assume the risk, they fully,
finally, and forever settle and release, on the terms set forth in this
Amendment, any and all such released claims, known or unknown, suspected or
unsuspected, contingent or non-contingent, whether or not concealed or hidden,
that the party had, has or may have in the further, upon any theory of law or
equity, including, but not limited to, conduct that is negligent, intentional,
with or without malice, or a breach of any duty, law or rule, without regard to
the subsequent discovery or existence of such different or additional facts.
9. Equipment. Within 60 days after the date of this Amendment, Executive
may elect to purchase from the Company, and if so elected, the Company shall
sell to Executive, at book value, the laptop and printer provided by the Company
to Executive for home office use.
10. Full Force and Effect. Except as amended hereby, the Agreement remains
in full force and effect and is hereby ratified, confirmed and approved.
11. Conflicts between this Amendment and other Agreements. In the event of
any conflict between this Amendment No. 2 and any other prior agreement between
Executive and the Company, the terms of this Amendment No. 2 shall govern.
12. Board Approval. The authorized signatories hereby represent and
warrant on behalf of the Company that this Amendment, including, without
limitation, the waiver and exemption from the Policy set forth in Section 2(e)
hereof, has been approved by the Board of Directors of the Company.
13. Counterparts. This Amendment may be executed in two or more
counterparts, each of which is deemed an original but all of which together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 2
to Employment Agreement as of the date first written above.
________________________________________
Xxxxx Xxxx
Third Wave Technologies, Inc.
By:_____________________________________
Its:____________________________________
Confirmed and Agreed:
__________________________________________
Xxxxxx Xxxxxxx
Chairman, Third Wave Technologies, Inc.
Compensation Committee of the Board of Directors
