exv10w108






Exhibit 10.108




EMPLOYMENT AGREEMENT




     THIS EMPLOYMENT AGREEMENT (the “Agreement”) is made as of
                                     , 200      (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
                                      (the
“Executive”).



     The parties hereto agree as follows:




	1.	 	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.

	 
	2.	 	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 or her 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.

	 
	3.	 	Salary, Bonus and Benefits. 







	 	(a)	 	Salary. During the period of the Executive’s employment, Gen-Probe
shall pay Executive 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.

	 
	 	(b)	 	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 Executive’s employment, based upon performance.

	 
	 	(c)	 	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.	 	Expense Reimbursement. The Executive shall be entitled to receive prompt
reimbursement for all reasonable and customary expenses incurred by Executive 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
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 in the 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.

	 
	5.	 	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 Executive in connection with such action, suit or proceeding.

	 
	6.	 	Termination. The Executive may terminate his or her 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 or her termination, such notice shall
specifically and expressly state the grounds which Executive 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 7 below, to the extent applicable, shall immediately
cease, except that the Executive will be entitled, through the date of termination, to payment
of Executive’s 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





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	 	 	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 or her 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 or her 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 or her 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 Executive is not able to perform his or her
usual duties for Gen-Probe for a period in excess of six (6) consecutive calendar months.

	 
	7.	 	Severance Benefits in Certain Events. 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:







	 	(a)	 	Salary.







(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



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and continuing for an aggregate period of six (6) months (the “Salary Continuation
Period”), except that any payments that would otherwise have been made before the
sixtieth (60th) day after the date of termination of the Executive’s employment
(the “First Payment Date”) shall be made on the First Payment Date.




(ii) If the termination under this Section 7 occurs in connection with a Change
in Control, then the Executive shall receive a lump sum payment as described in
this Section 7(a)(ii). For purposes of this Agreement, “Change in Control” shall
have the meaning set forth on Attachment “1” to this Agreement (hereby
incorporated by reference). A termination shall be “in connection with” a Change
in Control if the termination occurs within the period six (6) months prior to or
eighteen (18) months after a Change in Control (and in the event that the
termination occurs during the six (6) months prior to a Change in Control,
subject to the consummation of the Change in Control and the transaction
constituting a change in the ownership or effective control of Gen-Probe or a
change in the ownership of a substantial portion of the assets of Gen-Probe, as
described in Treasury Regulation Section 1.409A-3(i)(5)). The lump sum payment
will be payable on the later of (A) five (5) days after the Change in Control, or
(B) sixty (60) days after the date of the termination of employment. If the
termination occurred within the six (6) months prior to a Change in Control, the
amount of the lump sum payment pursuant to this Section 7(a)(ii) shall be equal
to six (6) months’ base salary (and shall be in addition to the installment
payments described in Section 7(a)(i)); if the termination occurs within eighteen
(18) months after a Change in Control, the amount of the lump sum payment
pursuant to this Section 7(a)(ii) shall be equal to twelve (12) months’ base
salary.




	 	(b)	 	Bonus. If the termination under this Section 7 occurs in connection
with a Change in Control, then the Executive shall be entitled to receive, in lieu of
the bonus provided in Section 3(b) and in addition to the salary payment described in
Section 7(a) above, an amount equal to the greater of (i) the Executive’s targeted
level bonus in the year of the termination, or (ii) the Executive’s highest
discretionary bonus in the preceding three years. The amount payable shall be paid in
a lump sum at the same time as the salary compensation paid under subsection (a)(ii)
above. No bonus compensation shall be payable under this Section 7 unless the
termination occurs in connection with a Change in Control.

	 
	 	(c)	 	Health Care and Life Insurance Coverage. Continued health care
coverage under Gen-Probe’s medical plan will be provided, without charge, to the
Executive and his or her eligible dependents until the earlier of (i) one (1) year
following the termination date or (ii) the first date that the Executive is covered
under another employer’s health benefit program providing substantially the same or
better benefit options to the Executive without





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	 	 	 	exclusion for any pre-existing medical condition. The period of time medical coverage
continues under this agreement will be counted as coverage time under COBRA.
Gen-Probe will pay the premium for continued life insurance coverage, if any, that the
Executive may have elected under Gen-Probe’s Life Insurance and Supplemental Life
Insurance plan, subject to payment by the Executive of the portion of such premium not
contributed by Gen-Probe under such plan, during the Salary Continuation Period.







	 	(d)	 	Outplacement Services. Gen-Probe agrees to provide Executive with
outplacement services during the first six months of the Salary Continuation Period.

	 
	 	(e)	 	Tax Matters. All compensation described in this Section 7 will be
subject to Gen-Probe’s collection of all applicable federal, state and local income
and employment withholding taxes. If any excise tax is imposed under Section 4999 in
connection with the compensation described in this Section 7 and/or in connection with
the acceleration upon severance of any stock options granted by Gen-Probe to the
Executive, Executive shall be solely responsible for any such excise tax.

	 
	 	(f)	 	Release of Claims. Gen-Probe’s obligation to make the payments and
provide the benefits under this Section 7 shall be conditioned upon (i) Executive’s
execution of a release of all claims, in standard form and content, within fifty (50)
days following the Executive’s termination of employment and (ii) such release shall
not have been revoked by the Executive within any period permitted under applicable
law. The release shall be mutual and shall also be signed on behalf of Gen-Probe.

	 
	 	(g)	 	Section 409A of the Internal Revenue Code and Specified Employees.
Notwithstanding any provision to the contrary in this Agreement, if Executive is
deemed by Gen-Probe at the time of his Separation from Service to be a “specified
employee” for purposes of Section 409A(a)(2)(B)(i) of the Code, to the extent delayed
commencement of any portion of the benefits to which Executive is entitled under this
Agreement is required in order to avoid a prohibited distribution under Section
409A(a)(2)(B)(i) of the Code, such portion of Executive’s benefits shall not be
provided to Executive prior to the earlier of (i) the expiration of the six-month
period measured from the date of the Executive’s Separation from Service or (ii) the
date of Executive’s death. Upon the first business day following the expiration of
the applicable Code Section 409A(a)(2)(B)(i) period, all payments deferred pursuant to
this Section 7(g) shall be paid in a lump sum to Executive (or the Executive’s estate
or beneficiaries), and any remaining payments due under the Agreement shall be paid as
otherwise provided herein. For purposes of Section 409A of the Code, Executive’s
right to receive the payments of compensation pursuant to the Agreement shall be
treated as a right to receive a series of separate





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	 	 	 	payments and accordingly, each payment shall at all times be considered a separate and
distinct payment.







	8.	 	Miscellaneous. 







	 	(a)	 	Arbitration. Executive and Gen-Probe agree that any and all claims or
disputes that in any way relate to or arise out of Executive’s employment with
Gen-Probe or the termination of such employment (including but not limited to claims
under this Agreement or any other contract, tort claims, and statutory claims of
employment discrimination, retaliation or harassment) shall be resolved exclusively
through final and binding arbitration in San Diego, California. Executive and
Gen-Probe waive any rights to a jury trial in connection with such claims or disputes.
The costs of the arbitration, including the fees of the arbitrator, shall be borne
exclusively by Gen-Probe. Any such arbitration shall take place in San Diego,
California and shall be conducted by a single neutral arbitrator who shall be a
retired federal or state judge, to be appointed by the American Arbitration
Association (“AAA”) in accordance with AAA rules. The applicable procedural rules of
AAA shall govern the arbitration. The arbitrator’s decision shall be delivered in
writing and shall disclose the essential findings and conclusion on which the
arbitrator’s decision is based. The parties shall be permitted to conduct adequate
discovery to allow for a full and fair exploration of the issues in dispute in the
arbitration proceeding. The arbitrator may grant any relief which otherwise would have
been available to the parties in a court proceeding. The decision and award of the
arbitrator shall be final and binding, and judgment upon the arbitrator’s award may be
entered by any court of competent jurisdiction.

	 
	 	(b)	 	Governing Law. This Agreement shall be construed and enforced in
accordance with and be governed by the laws of the State of California.

	 
	 	(c)	 	Entire Agreement. This Agreement sets forth the entire Agreement and
understanding between the Executive and the Company on the subject matter hereof, and
supersedes any other negotiations, agreements, understandings, oral agreements,
representations and past or future practices whether written or oral. No provision of
this Agreement may be amended, supplemented, modified, cancelled, or discharged unless
such amendment, supplement, modification, cancellation or discharge is agreed to, in
writing, signed by the Executive and a duly authorized officer of the Company (other
than the Executive); and no provisions hereof may be waived, except in writing, so
signed by or on behalf of the party granting such waiver.

	 
	 	(d)	 	Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement, which shall remain in full force and effect.





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	 	(e)	 	Notices.  For the purposes of this Agreement, notices, demands and
all other communications provided for in this Agreement shall be in writing and shall
be deemed to have duly given when personally delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid, addressed as
follows:







If to the Executive:




                                        

                                        

                                        




With a copy to:




                                        

                                        

                                        




If to Gen-Probe:




President and Chief Executive Officer

Gen-Probe Incorporated

10210 Genetic Center Drive

San Diego, California 92121




With a copy to:




General Counsel

Gen-Probe Incorporated

10210 Genetic Center Drive

San Diego, California 92121




	 	(f)	 	Successors. Gen-Probe will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or substantially all
the business and/or assets of Gen-Probe, by agreement in form and substance
satisfactory to the Executive, expressly to assume and agree to perform this Agreement
in the same manner and to the same extent that Gen-Probe would be required to perform
it if no such succession had taken place. This Agreement and all rights under the
Agreement shall be binding upon and shall inure to the benefit of and be enforceable
by the party’s personal or legal representatives, executors, administrators, heirs,
and successors.

	 
	 	(g)	 	No Right to Continued Employment. Nothing herein shall be construed
as giving the Executive any rights to continued employment with Gen-Probe, and
Gen-Probe shall continue to have the right to terminate the Executive’s employment at
any time, with or without cause, subject to the provisions of this Agreement.





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     In witness whereof, the parties have executed this Agreement.



	 	 	 	 	 
	Executive:

	 	Gen-Probe Incorporated:


	 

	 	By	 	 
	 

	 	 	 	 
	[Name]

	 	 	 	Diana De Walt

Senior Vice President, Human Resources






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ATTACHMENT “1”




DEFINITION OF “CHANGE IN CONTROL”




          Change in Control. “Change in Control” shall mean a change in ownership or control of the
Company effected through any of the following transactions:



          (a) any person or related group of persons (other than the Company or a person that,
prior to such transaction, directly or indirectly controls, is controlled by, or is under
common control with, the Company) directly or indirectly acquires beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act) of securities possessing more
than fifty percent (50%) of the total combined voting power of the Company’s outstanding
securities by means of any transaction or series of transactions; or



          (b) there is a change in the composition of the Board over a period of thirty-six
(36) consecutive months (or less) such that a majority of the Board members (rounded up to
the nearest whole number) ceases, by reason of one or more proxy contests for the election
of Board members, to be comprised of individuals who either (i) have been Board members
continuously since the beginning of such period or (ii) have been elected or nominated for
election as Board members during such period by at least a majority of the Board members
described in clause (i) who were still in office at the time such election or nomination
was approved by the Board; or



          (c) the stockholders of the Company approve a merger or consolidation of the Company
with any other corporation (or other entity), other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or another entity) more than 66-2/3% of the combined
voting power of the voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; provided, however, that a
merger or consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no person acquires more than 25% of the combined voting
power of the Company’s then outstanding voting securities shall not constitute a Change in
Control; or



          (d) the stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or substantially
all of the Company’s assets.