exv10w82



 





Exhibit 10.82

Gen-Probe Incorporated

Amendment to
Deferred Issuance Restricted Stock Conversion Agreement

and

Deferred Issuance Restricted Stock Election Agreement

(The 2003 Incentive Award Plan)



This Amendment (the
“Amendment”) to the Deferred Issuance Restricted Stock Conversion
Agreement (“Conversion Agreement”) and Deferred Issuance Stock Election Agreement
(the “Election Agreement”) entered into by and between Gen-Probe Incorporated (the
“Company”) and Henry L. Nordhoff
(“Employee”) is effective as of
February 1, 2005.



     Whereas,
pursuant to Article VII of The 2003 Incentive Award Plan of
Gen-Probe Incorporated (the “Plan”), on
June 1, 2004 and August 15, 2003 the Company
granted Employee awards of the Company’s restricted stock totaling 40,000 shares of
the Company’s common stock (together the “Restricted Stock
Awards”).



     Whereas, the Restricted Stock Awards were evidenced by and subject to
the terms of the Restricted Stock Award Grant Notice dated June 1, 2004 and
Restricted Stock Award Agreement attached thereto and the Amended and Restated
Restricted Stock Award Grant Notice dated August 12, 2004 and the Restricted Stock
Award Agreement attached thereto.



     Whereas,
effective as of September 10, 2004 (the “Conversion Date”), the
40,000 shares of Company common stock subject to the Restricted Stock Awards were
converted into a Deferred Issuance Restricted Stock Award for 40,000 shares of the
Company’s common stock, which converted award became governed by the terms and
conditions set forth in the Conversion Agreement (the
“Deferred Issuance Award”).



     Whereas,
effective as of September 10, 2004, the Restricted Stock Award
Agreements were amended and restated in the form of a Deferred Issuance Restricted
Stock Award Agreement (the “Deferred Issuance Award
Agreement”).



     Whereas, pursuant to the terms of the Conversion Agreement and the
Employee’s Election Agreement, the shares of common stock subject to the Deferred
Issuance Award were to first become issuable upon the earlier of (i) Employee’s
Termination of Service (as defined in the Deferred Issuance Award Agreement), or (ii)
the date or dates of issuance selected by Employee pursuant to an irrevocable prior
election in accordance with the Election Agreement.



     Whereas, in October, 2004 Congress passed the American Jobs Creation
Act of 2004 (the “AJCA”), which included the adoption of new Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”).



     Whereas, Code Section 409A provides that deferred compensation
arrangements (including, in this case, the Deferred Issuance Award) that do not
comply with, among other things, the distribution requirements of Code Section 409A,
are subject to an additional 20% tax, plus interest, on the distribution.




 









 







     Whereas, Code Section 409A provides that the payment of the deferred
compensation must not occur prior to: (i) separation from service (but “key
employees” of publicly traded companies must wait an additional six months), (ii)
disability, (iii) death, (iv) a fixed date (or dates) specified at the time of
deferral, (v) a change in control, or (vi) the occurrence of an unforeseeable
emergency; and



     Whereas, Employee is a “key employee” for purposes of the distribution
limitations contained in Code Section 409A and as defined in Code Section 416(i).



     Now, Therefore, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and Employee hereby agree as follows:





	 	1.  	Subject to the vesting schedule evidenced in the Conversion
Agreement, the shares of
common stock subject to the Deferred Issuance Award shall become first issuable
upon
the earlier of: (i) the Employee’s Termination of Service (as defined in the
Deferred
Issuance Award Agreement), or (ii) the date or dates of issuance selected by
Employee
pursuant to his irrevocable prior election in accordance with the Election
Agreement;
provided, however, that notwithstanding the foregoing or any provision contained
in the
Conversion Agreement, the Deferred Issuance Award Agreement or the Election
Agreement to the contrary, the shares issuable pursuant to Employee’s Deferred
Issuance
Award shall be issued to Employee in a manner that complies with the
requirements of
Section 409A of the Code, which may include, without limitation, deferring the
issuance
of such shares for six (6) months after Employee’s Termination of Service;
provided,
further, that nothing in this sentence shall require the issuance of shares to
Employee
earlier than they would otherwise be issued under the terms of the Conversion
Agreement
or the Election Agreement.
	 
	 	2.  	Employee acknowledges receipt of, and understands and agrees
to the terms of, the
Conversion Agreement (as amended by this Amendment), the Election Agreement (as
amended by this Amendment), the Deferred Issuance Award Agreement and the Plan.
Employee further acknowledges that effective as of the date first stated above,
the
Conversion Agreement (as amended by this Amendment), the Election Agreement (as
amended by this Amendment), the Deferred Issuance Award Agreement and the Plan
set
forth the entire understanding between Employee and the Company regarding the
acquisition of shares subject to the converted Deferred Issuance Award and
supersedes all
prior oral and written agreements on that subject without exception. Employee
acknowledges and agrees that he has had an opportunity to obtain the advice of
counsel
prior to executing this Amendment and fully understands all provisions of this
Amendment.
	 
	 	3.  	This Amendment shall be administered, interpreted and
enforced under the laws of the
State of California without regard to conflicts of laws principles thereof.
Employee
agrees upon request to execute any further documents or instruments necessary or
desirable in the sole determination of the Company to carry out the purposes or
intent of
this Amendment.




 









 






	 	4.  	This Amendment may not be modified, amended or terminated except by an
instrument
in writing, signed by Employee and by a duly authorized representative of the
Company.
	 
	 	5.  	If all or any part of this Amendment or the Plan is declared
by any court or governmental
authority to be unlawful or invalid, such unlawfulness or invalidity shall not
invalidate
any portion of this Amendment or the Plan not declared to be unlawful or
invalid. Any
section of this Amendment (or part of such a section) so declared to be unlawful
or
invalid shall, if possible, be construed in a manner which will give effect to
the terms of
such section or part of a section to the fullest extent possible while remaining
lawful and
valid.





     In Witness Whereof, this Amendment is executed by the parties hereto effective as
of the first date set forth above.



	 	 	 
	Gen-Probe Incorporated	 	
Henry L. Nordhoff
	By:  /s/   R.
William Bowen


                       R. William Bowen	 	
/s/   Henry L. Nordhoff


	Title: Vice President and General Counsel	 	 
	Date:  2-7-05

	 	
Date:  3-23-05