exv10w91



 






EXHIBIT 10.91




2003 INCENTIVE AWARD PLAN

EMPLOYEE STOCK OPTION AGREEMENT




          THIS AGREEMENT, dated the Grant Date set forth on the Stock Option Grant Notice (“Grant
Notice”) (the terms of which are incorporated by reference and made a part of this Agreement), is
made by and between Gen-Probe Incorporated, a Delaware corporation, hereinafter referred to as the
“Company,” and the Employee of the Company, or a Subsidiary of the Company, identified on the Grant
Notice and hereinafter referred to as “Optionee.”




          WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its
Common Stock, par value $0.0001 per share; and




          WHEREAS, the Company wishes to carry out The 2003 Incentive Award Plan of Gen-Probe
Incorporated (the “Plan”) (the terms of which are hereby incorporated by reference and made a part
of this Agreement); and




          WHEREAS, the Committee, appointed to administer the Plan, has determined that it would be to
the advantage and best interest of the Company and its stockholders to grant the Stock Option (the
“Option”) provided for herein to the Optionee as an inducement to enter into or remain in the
service of the Company or its Subsidiaries and as an incentive during such service, and has advised
the Company thereof and instructed the undersigned officer to issue said Option.




          NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby
agree as follows:




ARTICLE I



DEFINITIONS



          1.1 General. Wherever the following terms are used in this Agreement they shall have
the meanings specified below, unless the context clearly indicates otherwise.




          1.2 Board. “Board” shall mean the Board of Directors of the Company.




          1.3 Cause. “Cause” shall mean (a) the Optionee’s failure or refusal to perform
specific and lawful directions with respect to the Optionee’s employment with the Company or a
Subsidiary, (b) the commission by the Optionee of a felony or the perpetration by the Optionee of
an act of fraud, dishonesty, or misrepresentation against, or breach of fiduciary duty toward, the
Company or a Subsidiary or (c) any willful act or omission by the Optionee which is injurious in
any material respect to the financial condition or business reputation of the Company or a
Subsidiary.




          1.4 Code. “Code” shall mean the Internal Revenue Code of 1986, as amended from time
to time.




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          1.5 Committee. “Committee” shall mean the Compensation Committee of the Board, or a
subcommittee of the Board, appointed as provided in Section 9.1 of the Plan.




          1.6 Common Stock. “Common Stock” shall mean the Common Stock of the Company, par
value $0.0001 per share.




          1.7 Company. “Company” shall mean Gen-Probe Incorporated, a Delaware corporation.




          1.8 Director. “Director” shall mean a member of the Board, whether such Director is
an Employee or an Independent Director (as defined in the Plan).




          1.9 Employee. “Employee” shall mean any officer or other employee (as defined in
accordance with Section 3401(c) of the Code) of the Company, or of any Subsidiary.




          1.10 Exchange Act. “Exchange Act” shall mean the Securities Exchange Act of 1934, as
amended.




          1.11 Fair Market Value. “Fair Market Value” shall mean, as of any date, the value of
the Common Stock determined as follows:




          (a) If the Common Stock is listed on any established stock exchange or traded on The Nasdaq
National Market or the Nasdaq SmallCap Market, the Fair Market Value of a share of Common Stock
shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as
quoted on such exchange or market (or the exchange or market with the greatest volume of trading in
the Common Stock) on the last market trading day prior to the day of determination, as reported by
The Nasdaq Stock Market or such other source as the Board deems reliable.




          (b) In the absence of such markets for the Common Stock, the Fair Market Value shall be
determined in good faith by the Board.




          1.12 Option. “Option” shall mean the Stock Option granted under this Agreement and
Article IV of the Plan.




          1.13 Optionee. “Optionee” shall mean the Employee granted the Option under this
Agreement and the Plan.




          1.14 Plan. “Plan” shall mean The 2003 Incentive Award Plan of Gen-Probe Incorporated.




          1.15 Retirement. “Retirement” shall mean the Optionee’s resignation after the
Optionee has attained age 60 and completed ten (10) or more years of employment with the Company
and the Subsidiaries.




          1.16 Secretary. “Secretary” shall mean the Secretary of the Company.





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          1.17 Securities Act. “Securities Act” shall mean the Securities Act of 1933, as
amended.




          1.18 Subsidiary. “Subsidiary” shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than the last corporation
in the unbroken chain then owns stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations in such chain.




          1.19 Termination of Employment. “Termination of Employment” shall mean the time when
the employee-employer relationship between the Optionee and the Company or any Subsidiary is
terminated for any reason, with or without Cause, including, but not by way of limitation, a
termination by resignation, discharge, death, disability or Retirement; but excluding (a) a
termination where there is a simultaneous reemployment or continuing employment of the Optionee by
the Company or any Subsidiary or a parent corporation thereof (within the meaning of Section 422 of
the Code), (b) at the discretion of the Committee, a termination which results in a temporary
severance of the employee-employer relationship, and (c) at the discretion of the Committee, a
termination which is followed by the simultaneous establishment of a consulting relationship by the
Company or a Subsidiary with the former employee. The Committee, in its absolute discretion, shall
determine the effect of all matters and questions relating to Termination of Employment, including,
but not by way of limitation, the question of whether a Termination of Employment resulted from a
discharge for Cause, and all questions of whether particular leaves of absence constitute
Terminations of Employment; provided, however, that, if this Option is designated
as an Incentive Stock Option, unless otherwise determined by the Administrator in its discretion, a
leave of absence, change in status from an employee to an independent contractor or other change in
the employee-employer relationship shall constitute a Termination of Employment if, and to the
extent that, such leave of absence, change in status or other change interrupts employment for the
purposes of Section 422(a)(2) of the Code and the then applicable regulations and revenue rulings
under said Section. Notwithstanding any other provision of the Plan or this Agreement, the Company
or any Subsidiary has an absolute and unrestricted right to terminate the Optionee’s employment at
any time for any reason whatsoever, with or without Cause, except to the extent expressly provided
otherwise in writing.




ARTICLE II



GRANT OF OPTION



     2.1 Grant of Option. In consideration of the Optionee’s agreement to remain in the
employ of the Company or its Subsidiaries and for other good and valuable consideration, effective
as of Date of Grant set forth on the Grant Notice, the Company irrevocably grants to the Optionee
the option to purchase any part or all of an aggregate of the number of shares of Common Stock set
forth on the Grant Notice, upon the terms and conditions set forth in this Agreement. The Option
shall be either an Incentive Stock Option or a Non-Qualified Stock Option, as set forth on the
Grant Notice.



     2.2 Purchase Price. The purchase price of the shares of Common Stock subject to the
Option per share shall be as set forth on the Grant Notice, without commission or other charge;
provided, however, that if this Option is designated as an Incentive Stock Option



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the price per share of the shares subject to the Option shall not be less than the greater of (i)
100% of the Fair Market Value of a share of Common Stock on the Date of Grant, or (ii) 110% of the
Fair Market Value of a share of Common Stock on the Date of Grant in the case of an Optionee then
owning (within the meaning of Section 424(d) of the Code) more than 10% of the total combined
voting power of all classes of stock of the Company or any Subsidiary or parent corporation thereof
(within the meaning of Section 422 of the Code).




          2.3 Consideration to the Company. In consideration of the granting of the Option by
the Company, the Optionee agrees to render faithful and efficient services to the Company or any
Subsidiary, with such duties and responsibilities as the Company shall from time to time prescribe.
Nothing in the Plan or this Agreement shall confer upon the Optionee any right to continue in the
employ of the Company or any Subsidiary or shall interfere with or restrict in any way the rights
of the Company and its Subsidiaries, which are hereby expressly reserved, to discharge the Optionee
at any time for any reason whatsoever, with or without Cause.




ARTICLE III



PERIOD OF EXERCISABILITY



          3.1 Commencement of Exercisability.




          (a) Subject to Sections 3.3 and 5.11, the Option shall become exercisable in such amounts and
at such times as are set forth on the Grant Notice.




          (b) No portion of the Option which has not become exercisable at Termination of Employment
shall thereafter become exercisable, except as may be otherwise provided by the Committee.




          3.2 Duration of Exercisability. The installments provided for in Section 3.1(a) and
the Grant Notice are cumulative. Each such installment which becomes exercisable pursuant to
Section 3.1 shall remain exercisable until it becomes unexercisable under Section 3.3.




          3.3 Expiration of Option. The Option may not be exercised to any extent by anyone
after the first to occur of the following events:




          (a) The expiration of seven (7) years from the Date of Grant; or




          (b) If this Option is designated as an Incentive Stock Option and the Optionee owned (within
the meaning of Section 424(d) of the Code), at the time the Option was granted, more than ten
percent (10%) of the total combined voting power of all classes of stock of the Company or any
Subsidiary or parent corporation thereof (within the meaning of Section 422 of the Code), the
expiration of five (5) years from the date the Option was granted; or




          (c) The expiration of thirty (30) days following the date of the Optionee’s Termination of
Employment, unless such Termination of Employment occurs by reason of the Optionee’s discharge for
Cause, or by reason of the Optionee’s death, Retirement or disability (within the meaning of
Section 22(e)(3) of the Code); or





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          (d) The expiration of one (1) day following the date of the Optionee’s Termination of
Employment by reason of the Optionee’s discharge for Cause; or




          (e) The expiration of six (6) months following the date of the Optionee’s Termination of
Employment by reason of the Optionee’s death or disability (within the meaning of Section 22(e)(3)
of the Code); or




          (f) The expiration of one (1) year following the date of the Optionee’s Termination of
Employment by reason of the Optionee’s Retirement.




          3.4 Special Tax Consequences. The Optionee acknowledges that, to the extent that the
aggregate Fair Market Value of stock with respect to which “incentive stock options” (within the
meaning of Section 422 of the Code, but without regard to Section 422(d) of the Code), including
the Option, are exercisable for the first time by the Optionee during any calendar year (under the
Plan and all other incentive stock option plans of the Company, any Subsidiary and any parent
corporation thereof (within the meaning of Section 422 of the Code)) exceeds $100,000, the Option
and such other options shall be treated as not qualifying under Section 422 of the Code but rather
shall be taxed as non-qualified stock options. The Optionee further acknowledges that the rule set
forth in the preceding sentence shall be applied by taking options into account in the order in
which they were granted. For purposes of these rules, the Fair Market Value of stock shall be
determined as of the time the option with respect to such stock is granted.




ARTICLE IV



EXERCISE OF OPTION



          4.1 Person Eligible to Exercise. Subject to Section 5.2, during the lifetime of the
Optionee, only the Optionee may exercise the Option or any portion thereof. After the death of the
Optionee, any exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by the Optionee’s personal representative or by any
person empowered to do so under the Optionee’s will or under the then applicable laws of descent
and distribution.




          4.2 Partial Exercise. Any exercisable portion of the Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time prior to the time when
the Option or portion thereof becomes unexercisable under Section 3.3; provided,
however, that each partial exercise shall be for not less than ten (10) shares and shall be
for whole shares only.




          4.3 Manner of Exercise. The Option, or any exercisable portion thereof, may be
exercised solely by delivery to the Secretary or the Secretary’s office of all of the following
prior to the time when the Option or such portion thereof becomes unexercisable under Section 3.3:




          (a) An Exercise Notice in writing signed by the Optionee or the other person then entitled to
exercise the Option or portion thereof, stating that the Option or portion thereof is thereby
exercised, such notice complying with all applicable rules established by the Committee.





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Such
notice shall be substantially in the form attached as Attachment III to the Grant Notice (or such
other form as is prescribed by the Committee); and





     (b) (i) Full payment (in cash or by check) for the shares with respect to which the
Option or portion thereof is exercised, to the extent permitted under applicable laws; or




           (ii) With the consent of the Committee, such payment may be made, in whole or in part,
through the delivery of shares of Common Stock which have been owned by the Optionee for at
least six months, duly endorsed for transfer to the Company with a Fair Market Value on the
date of delivery equal to the aggregate exercise price of the Option or exercised portion
thereof; or




           (iii) To the extent permitted under applicable laws, through the delivery of a notice
that the Optionee has placed a market sell order with a broker with respect to shares of
Common Stock then issuable upon exercise of the Option, and that the broker has been
directed to pay a sufficient portion of the net proceeds of the sale to the Company in
satisfaction of the Option exercise price, provided, that payment of such proceeds
is then made to the Company upon settlement of such sale; or




           (iv) With the consent of the Committee, any combination of the consideration provided
in the foregoing subparagraphs (i), (ii) and (iii); and



              (c) A bona fide written representation and agreement, in such form as is prescribed by the
Committee, signed by the Optionee or other person then entitled to exercise such Option or portion
thereof, stating that the shares of Common Stock are being acquired for the Optionee’s own account,
for investment and without any present intention of distributing or reselling said shares or any of
them except as may be permitted under the Securities Act and then applicable rules and regulations
thereunder, and that the Optionee or other person then entitled to exercise such Option or portion
thereof will indemnify the Company against and hold it free and harmless from any loss, damage,
expense or liability resulting to the Company if any sale or distribution of the shares by such
person is contrary to the representation and agreement referred to above. The Committee may, in
its absolute discretion, take whatever additional actions it
deems appropriate to ensure the observance and performance of such representation and
agreement and to effect compliance with the Securities Act and any other federal or state
securities laws or regulations. Without limiting the generality of the foregoing, the Committee
may require an opinion of counsel acceptable to it to the effect that any subsequent transfer of
shares acquired on an Option exercise does not violate the Securities Act, and may issue
stop-transfer orders covering such shares. Share certificates evidencing Common Stock issued on
exercise of the Option shall bear an appropriate legend referring to the provisions of this
subsection (c) and the agreements herein. The written representation and agreement referred to in
the first sentence of this subsection (c) shall, however, not be required if the shares to be
issued pursuant to such exercise have been registered under the Securities Act, and such
registration is then effective in respect of such shares; and




             (d) Full payment to the Company (or other employer corporation) of all amounts which, under
federal, state or local tax law, it is required to withhold upon exercise of





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the Option. With the
consent of the Committee, (i) shares of Common Stock owned by the Optionee for at least six months
duly endorsed for transfer or (ii) shares of Common Stock issuable to the Optionee upon exercise of
the Option, having a Fair Market Value at the date of Option exercise equal to the statutory
minimum sums required to be withheld, may be used to make all or part of such payment; and




          (e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by
any person or persons other than the Optionee, appropriate proof of the right of such person or
persons to exercise the Option.




          4.4 Conditions to Issuance of Stock Certificates. The shares of Common Stock
deliverable upon the exercise of the Option, or any portion thereof, may be either previously
authorized but unissued shares or issued shares which have then been reacquired by the Company.
Such shares shall be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of Common Stock purchased upon the exercise of
the Option or portion thereof prior to fulfillment of all of the following conditions:




          (a) The admission of such shares to listing on all stock exchanges on which such Common Stock
is then listed; and




          (b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Committee shall, in its absolute discretion, deem
necessary or advisable; and




          (c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Committee shall, in its absolute discretion, determine to be necessary or
advisable; and




          (d) The receipt by the Company of full payment for such shares, including payment of all
amounts which, under federal, state or local tax law, the Company (or other employer corporation)
is required to withhold upon exercise of the Option; and




          (e) The lapse of such reasonable period of time following the exercise of the Option as the
Committee may from time to time establish for reasons of administrative convenience.




          4.5 Rights as Stockholder. The holder of the Option shall not be, nor have any of the
rights or privileges of, a stockholder of the Company in respect of any shares purchasable upon the
exercise of any part of the Option unless and until certificates representing such shares shall
have been issued by the Company to such holder.




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ARTICLE V



OTHER PROVISIONS



          5.1 Administration. The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and application of the
Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions
taken and all interpretations and determinations made by the Committee in good faith shall be final
and binding upon the Optionee, the Company and all other interested persons. No member of the
Committee shall be personally liable for any action, determination or interpretation made in good
faith with respect to the Plan, this Agreement or the Option. In its absolute discretion, the
Board may at any time and from time to time exercise any and all rights and duties of the Committee
under the Plan and this Agreement.




          5.2 Option Not Transferable.




          (a) The Option may not be sold, pledged, assigned or transferred in any manner other than by
will or the laws of descent and distribution or, subject to the consent of the Committee, pursuant
to a “DRO” (as defined in the Plan), unless and until the Option has been exercised, or the shares
underlying such Option have been issued, and all restrictions applicable to such shares have
lapsed. Neither the Option nor any interest or right therein shall be liable for the debts,
contracts or engagements of the Optionee or his or her successors in interest or shall be subject
to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other
means whether such disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy),
and any attempted disposition thereof shall be null and void and of no effect, except to the extent
that such disposition is permitted by the preceding sentence.




          (b) During the lifetime of the Optionee, only the Optionee may exercise the Option (or any
portion thereof), unless it has been disposed of with the consent of the Committee pursuant to a
DRO. After the death of the Optionee, any exercisable portion of an Option may, prior to the time
when such portion becomes unexercisable under the Plan or the Option Agreement, be exercised by the
Optionee’s personal representative or by any person empowered to do so under the deceased
Optionee’s will or under the then applicable laws of descent and distribution.




          (c) Notwithstanding the foregoing provisions of this Section 5.2, if designated as a
Non-Qualified Stock Option, the Option may be transferred by the Optionee, in writing and with
prior written notice to the Committee, to any one or more Permitted Transferees (as defined below),
subject to the following terms and conditions: (i) the Option, as transferred to a Permitted
Transferee, shall not be assignable or transferable by the Permitted Transferee other than by will
or the laws of descent and distribution; (ii) the Option, as transferred to a Permitted Transferee,
shall continue to be subject to all the terms and conditions of the Option as applicable to the
Optionee (other than the ability to further transfer the Option); and (iii) the Optionee and the
Permitted Transferee shall execute any and all documents requested by the Committee, including,
without limitation documents to (A) confirm the status of the transferee as a Permitted Transferee,
(B) satisfy any requirements for an exemption for the transfer under




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applicable federal and state securities laws and (C) evidence the transfer. For purposes of
this subsection (c), “Permitted Transferee” shall mean, with respect to the Optionee, any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, including adoptive relationships, any person sharing the Optionee’s household (other
than a tenant or employee), a trust in which these persons (or the Optionee) control the management
of assets, and any other entity in which these persons (or the Optionee) own more than fifty
percent (50%) of the voting interests, or any other transferee specifically approved by the
Committee after taking into account any state or federal tax or securities laws applicable to
transferable Non-Qualified Stock Options.




          5.3 Lock-Up Period. The Optionee hereby agrees that, if so requested by the Company
or any representative of the underwriters (the “Managing Underwriter”) in connection with any
registration of the offering of any securities of the Company under the Securities Act, the
Optionee shall not sell or otherwise transfer any shares of Common Stock or other securities of the
Company during such period as may be requested in writing by the Managing Underwriter and agreed to
in writing by the Company (which period shall not be longer than 180 days) (the “Market Standoff
Period”) following the effective date of a registration statement of the Company filed under the
Securities Act.




          5.4 Restrictive Legends and Stop-Transfer Orders.




          (a) The share certificate or certificates evidencing the shares of Common Stock purchased
hereunder shall be endorsed with any legends that may be required by state or federal securities
laws.




          (b) The Optionee agrees that, in order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make appropriate notations to
the same effect in its own records.




          (c) The Company shall not be required: (i) to transfer on its books any shares of Common
Stock that have been sold or otherwise transferred in violation of any of the provisions of this
Agreement, or (ii) to treat as owner of such shares of Common Stock or to accord the right to vote
or pay dividends to any purchaser or other transferee to whom such shares shall have been so
transferred.




          5.5 Shares to Be Reserved. The Company shall at all times during the term of the
Option reserve and keep available such number of shares of Common Stock as will be sufficient to
satisfy the requirements of this Agreement.




          5.6 Notices. Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of the Secretary, and any notice to be given to the
Optionee shall be addressed to the Optionee at the address given beneath the Optionee’s signature
hereto. By a notice given pursuant to this Section 5.9, either party may hereafter designate a
different address for notices to be given to that party. Any notice which is required to be given
to the Optionee shall, if the Optionee is then deceased, be given to the Optionee’s




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personal representative if such representative has previously informed the Company of such
representative’s status and address by written notice under this Section 5.9. Any notice shall be
deemed duly given when enclosed in a properly sealed envelope or wrapper addressed as aforesaid,
deposited (with postage prepaid) in a post office or branch post office regularly maintained by the
United States Postal Service.




          5.7 Titles. Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.




          5.8 Stockholder Approval. The Plan will be submitted for approval by the Company’s
stockholders within twelve (12) months after the date the Plan was initially adopted by the Board.
The Option may not be exercised to any extent by anyone prior to the time when the Plan is approved
by the stockholders, and if such approval has not been obtained by the end of said twelve month
period, the Option shall thereupon be canceled and become null and void.




          5.9 Notification of Disposition. If this Option is designated as an Incentive Stock
Option, the Optionee shall give prompt notice to the Company of any disposition or other transfer
of any shares of stock acquired under this Agreement if such disposition or transfer is made (a)
within two (2) years from the Date of Grant with respect to such shares or (b) within one (1) year
after the transfer of such shares to him. Such notice shall specify the date of such disposition
or other transfer and the amount realized, in cash, other property, assumption of indebtedness or
other consideration, by the Optionee in such disposition or other transfer.




          5.10 Construction. This Agreement shall be administered, interpreted and enforced
under the laws of the State of California without regard to conflicts of laws thereof.




          5.11 Conformity to Securities Laws. The Optionee acknowledges that the Plan is
intended to conform to the extent necessary with all provisions of the Securities Act and the
Exchange Act and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, and state securities laws and regulations. Notwithstanding anything herein
to the contrary, the Plan shall be administered, and the Option is granted and may be exercised,
only in such a manner as to conform to such laws, rules and regulations. To the extent permitted
by applicable law, the Plan and this Agreement shall be deemed amended to the extent necessary to
conform to such laws, rules and regulations.




          5.12 Amendments. This Agreement may not be modified, amended or terminated except by
an instrument in writing, signed by the Optionee or such other person as may be permitted to
exercise the Option pursuant to Section 4.1 and by a duly authorized representative of the Company.





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2003 INCENTIVE AWARD PLAN

STOCK OPTION AGREEMENT




          THIS AGREEMENT, dated the Grant Date set forth on the Stock Option Grant Notice (“Grant
Notice”) (the terms of which are incorporated by reference and made a part of this Agreement), is
made by and between Gen-Probe Incorporated, a Delaware corporation, hereinafter referred to as the
“Company,” and the Independent Director identified on the Grant Notice and hereinafter referred to
as “Optionee.”




          WHEREAS, the Company wishes to afford the Optionee the opportunity to purchase shares of its
Common Stock, par value $0.0001 per share; and




          WHEREAS, the Company wishes to carry out The 2003 Incentive Award Plan of Gen-Probe
Incorporated (the “Plan”) (the terms of which are hereby incorporated by reference and made a part
of this Agreement); and




          WHEREAS, the Board has determined that it would be to the advantage and best interest of the
Company and its stockholders to grant the Stock Option (the “Option”) provided for herein to the
Optionee as an inducement to enter into or remain in the service of the Company and as an incentive
during such service, and has advised the Company thereof and instructed the undersigned officer to
issue said Option.




          NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby
agree as follows:




ARTICLE I



DEFINITIONS



          1.1 General. Wherever the following terms are used in this Agreement they shall have
the meanings specified below, unless the context clearly indicates otherwise.




          1.2 Board. “Board” shall mean the Board of Directors of the Company.




          1.3 Cause. “Cause” shall mean (a) the commission by the Optionee of a felony or the
perpetration by the Optionee of an act of fraud, dishonesty, or misrepresentation against, or
breach of fiduciary duty toward, the Company or a Subsidiary or (b) any willful act or omission by
the Optionee which is injurious in any material respect to the financial condition or business
reputation of the Company or a Subsidiary.




          1.4 Code. “Code” shall mean the Internal Revenue Code of 1986, as amended from time
to time.




          1.5 Committee. “Committee” shall mean the Compensation Committee of the Board, or a
subcommittee of the Board, appointed as provided in Section 9.1 of the Plan.





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          1.6 Common Stock. “Common Stock” shall mean the Common Stock of the Company, par
value $0.0001 per share.




          1.7 Company. “Company” shall mean Gen-Probe Incorporated, a Delaware corporation.




          1.8 Director. “Director” shall mean a member of the Board, whether such Director is
an Employee or an Independent Director (as defined in the Plan).




          1.9 Employee. “Employee” shall mean any officer or other employee (as defined in
accordance with Section 3401(c) of the Code) of the Company, or of any Subsidiary.




          1.10 Exchange Act. “Exchange Act” shall mean the Securities Exchange Act of 1934, as
amended.




          1.11 Fair Market Value. “Fair Market Value” shall mean, as of any date, the value of
the Common Stock determined as follows:




          (a) If the Common Stock is listed on any established stock exchange or traded on The Nasdaq
National Market or the Nasdaq SmallCap Market, the Fair Market Value of a share of Common Stock
shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as
quoted on such exchange or market (or the exchange or market with the greatest volume of trading in
the Common Stock) on the last market trading day prior to the day of determination, as reported by
The Nasdaq Stock Market or such other source as the Board deems reliable.




          (b) In the absence of such markets for the Common Stock, the Fair Market Value shall be
determined in good faith by the Board.




          1.12 Option. “Option” shall mean the Stock Option granted under this Agreement and
Article IV of the Plan.




          1.13 Optionee. “Optionee” shall mean the Independent Director granted the Option
under this Agreement and the Plan.




          1.14 Plan. “Plan” shall mean The 2003 Incentive Award Plan of Gen-Probe Incorporated.




          1.15 Retirement. “Retirement” shall mean the Optionee’s resignation after the
Optionee has attained age 60 or completed ten (10) or more years
of service with the Company
and the Subsidiaries.




          1.16 Secretary. “Secretary” shall mean the Secretary of the Company.




          1.17 Securities Act. “Securities Act” shall mean the Securities Act of 1933, as
amended.





 2.









 








          1.18 Subsidiary. “Subsidiary” shall mean any corporation in an unbroken chain of
corporations beginning with the Company if each of the corporations other than the last corporation
in the unbroken chain then owns stock possessing fifty percent (50%) or more of the total combined
voting power of all classes of stock in one of the other corporations in such chain.




          1.19 Termination of Directorship. “Termination of Directorship” shall mean the time
when the Optionee ceases to be a Director for any reason, including, but not by way of limitation,
a termination by resignation, removal, failure to be reelected, death, disability or retirement.
The Board, in its sole and absolute discretion, shall determine the effect of all matters and
questions relating to Termination of Directorship of the Optionee.




ARTICLE II



GRANT OF OPTION



          2.1 Grant of Option. In consideration of the Optionee’s agreement to remain in the
employ of the Company or its Subsidiaries and for other good and valuable consideration, effective
as of Date of Grant set forth on the Grant Notice, the Company irrevocably grants to the Optionee
the option to purchase any part or all of an aggregate of the number of shares of Common Stock set
forth on the Grant Notice, upon the terms and conditions set forth in this Agreement.




          2.2 Purchase Price. The purchase price of the shares of Common Stock subject to the
Option per share shall be as set forth on the Grant Notice, without commission or other charge.




          2.3 Consideration to the Company. In consideration of the granting of the Option by
the Company, the Optionee agrees to render faithful and efficient services as a Director. Nothing
in the Plan or this Agreement shall confer upon the Optionee any right to continue as a Director.




ARTICLE III



PERIOD OF EXERCISABILITY



          3.1 Commencement of Exercisability.




          (a) Subject to Sections 3.3 and 5.11, the Option shall become exercisable in such amounts and
at such times as are set forth on the Grant Notice.




          (b) No portion of the Option which has not become exercisable at Termination of Directorship
shall thereafter become exercisable, except as may be otherwise provided by the Board.




          3.2 Duration of Exercisability. The installments provided for in Section 3.1(a) and
the Grant Notice are cumulative. Each such installment which becomes exercisable pursuant to
Section 3.1 shall remain exercisable until it becomes unexercisable under Section 3.3.






 3.









 









          3.3 Expiration of Option. The Option may not be exercised to any extent by anyone
after the first to occur of the following events:




          (a) The expiration of seven (7) years from the Date of Grant; or




          (b) The expiration of three (3) months from the date of the Optionee’s Termination of
Directorship, unless such Termination of Directorship occurs by reason of the Optionee’s death,
Retirement or disability (within the meaning of Section 22(e)(3) of the Code); or




          (c) The expiration of twelve (12) months following the date of the Optionee’s Termination of
Directorship by reason of the Optionee’s death, Retirement, or disability (within the meaning of
Section 22(e)(3) of the Code).




ARTICLE IV



EXERCISE OF OPTION



          4.1 Person Eligible to Exercise. Subject to Section 5.2, during the lifetime of the
Optionee, only the Optionee may exercise the Option or any portion thereof. After the death of the
Optionee, any exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by the Optionee’s personal representative or by any
person empowered to do so under the Optionee’s will or under the then applicable laws of descent
and distribution.




          4.2 Partial Exercise. Any exercisable portion of the Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time prior to the time when
the Option or portion thereof becomes unexercisable under Section 3.3; provided,
however, that each partial exercise shall be for not less than ten (10) shares and shall be
for whole shares only.




          4.3 Manner of Exercise. The Option, or any exercisable portion thereof, may be
exercised solely by delivery to the Secretary or the Secretary’s office of all of the following
prior to the time when the Option or such portion thereof becomes unexercisable under Section 3.3:




          (a) An Exercise Notice in writing signed by the Optionee or the other person then entitled to
exercise the Option or portion thereof, stating that the Option or portion thereof is thereby
exercised, such notice complying with all applicable rules established by the Board. Such notice
shall be substantially in the form attached as Attachment III to the Grant Notice (or such other
form as is prescribed by the Board); and





      (b) (i) Full payment (in cash or by check) for the shares with respect to which the
Option or portion thereof is exercised, to the extent permitted under applicable laws; or




         (ii) With the consent of the Board, such payment may be made, in whole or in part,
through the delivery of shares of Common Stock which have been



 4.









 






owned by the Optionee for at
least six months, duly endorsed for transfer to the Company with a Fair Market Value on the
date of delivery equal to the aggregate exercise price of the Option or exercised portion
thereof; or




        (iii) To the extent permitted under applicable laws, through the delivery of a notice
that the Optionee has placed a market sell order with a broker with respect to shares of
Common Stock then issuable upon exercise of the Option, and that the broker has been
directed to pay a sufficient portion of the net proceeds of the sale to the Company in
satisfaction of the Option exercise price, provided, that payment of such proceeds
is then made to the Company upon settlement of such sale; or




        (iv) With the consent of the Board, any combination of the consideration provided in
the foregoing subparagraphs (i), (ii) and (iii); and



          (c) A bona fide written representation and agreement, in such form as is prescribed by the
Board, signed by the Optionee or other person then entitled to exercise such Option or portion
thereof, stating that the shares of Common Stock are being acquired for the Optionee’s own account,
for investment and without any present intention of distributing or reselling said shares or any of
them except as may be permitted under the Securities Act and then applicable rules and regulations
thereunder, and that the Optionee or other person then entitled to exercise such Option or portion
thereof will indemnify the Company against and hold it free and harmless from any loss, damage,
expense or liability resulting to the Company if any sale or distribution of the shares by such
person is contrary to the representation and agreement referred to above. The Board may, in its
absolute discretion, take whatever additional actions it deems appropriate to ensure the observance
and performance of such representation and agreement and to effect compliance with the Securities
Act and any other federal or state securities laws or regulations. Without limiting the generality
of the foregoing, the Board may require an opinion of counsel acceptable to it to the effect that
any subsequent transfer of shares acquired on an Option exercise does not violate the Securities
Act, and may issue stop-transfer orders covering such shares. Share certificates evidencing Common
Stock issued on exercise of the Option shall bear an appropriate legend referring to the provisions
of this subsection (c) and the agreements herein. The written representation and agreement
referred to in the first sentence of this subsection (c) shall, however, not be required if the
shares to be issued pursuant to such exercise have been registered under the Securities Act, and
such registration is then effective in respect of such shares; and




          (d) Full payment to the Company (or other employer corporation) of all amounts which, under
federal, state or local tax law, it is required to withhold upon exercise of the Option. With the
consent of the Board, (i) shares of Common Stock owned by the Optionee for at least six months duly
endorsed for transfer or (ii) shares of Common Stock issuable to the Optionee upon exercise of the
Option, having a Fair Market Value at the date of Option exercise equal to the statutory minimum
sums required to be withheld, may be used to make all or part of such payment; and




          (e) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by
any person or persons other than the Optionee, appropriate proof of the right of such person or
persons to exercise the Option.




 5.









 








          4.4 Conditions to Issuance of Stock Certificates. The shares of Common Stock
deliverable upon the exercise of the Option, or any portion thereof, may be either previously
authorized but unissued shares or issued shares which have then been reacquired by the Company.
Such shares shall be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of Common Stock purchased upon the exercise of
the Option or portion thereof prior to fulfillment of all of the following conditions:




          (a) The admission of such shares to listing on all stock exchanges on which such Common Stock
is then listed; and




          (b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Board shall, in its absolute discretion, deem
necessary or advisable; and




          (c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Board shall, in its absolute discretion, determine to be necessary or advisable;
and




          (d) The receipt by the Company of full payment for such shares, including payment of all
amounts which, under federal, state or local tax law, the Company (or other employer corporation)
is required to withhold upon exercise of the Option; and




          (e) The lapse of such reasonable period of time following the exercise of the Option as the
Board may from time to time establish for reasons of administrative convenience.




          4.5 Rights as Stockholder. The holder of the Option shall not be, nor have any of the
rights or privileges of, a stockholder of the Company in respect of any shares purchasable upon the
exercise of any part of the Option unless and until certificates representing such shares shall
have been issued by the Company to such holder.




ARTICLE V



OTHER PROVISIONS



          5.1 Administration. The Board shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and application of the
Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions
taken and all interpretations and determinations made by the Board in good faith shall be final and
binding upon the Optionee, the Company and all other interested persons. No member of the Board
shall be personally liable for any action, determination or interpretation made in good faith with
respect to the Plan, this Agreement or the Option. In its absolute discretion, the Board may at
any time and from time to time exercise any and all rights and duties of the Board under the Plan
and this Agreement.




          5.2 Option Not Transferable.




 6.









 








          (a) The Option may not be sold, pledged, assigned or transferred in any manner other than by
will or the laws of descent and distribution or, subject to the consent of the Board, pursuant to a
“DRO” (as defined in the Plan), unless and until the Option has been exercised, or the shares
underlying such Option have been issued, and all restrictions applicable to such shares have
lapsed. Neither the Option nor any interest or right therein shall be liable for the debts,
contracts or engagements of the Optionee or his or her successors in interest or shall be subject
to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other
means whether such disposition be voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy),
and any attempted disposition thereof shall be null and void and of no effect, except to the extent
that such disposition is permitted by the preceding sentence.




          (b) During the lifetime of the Optionee, only the Optionee may exercise the Option (or any
portion thereof), unless it has been disposed of with the consent of the Board pursuant to a DRO.
After the death of the Optionee, any exercisable portion of an Option may, prior to the time when
such portion becomes unexercisable under the Plan or the Option Agreement, be exercised by the
Optionee’s personal representative or by any person empowered to do so under the deceased
Optionee’s will or under the then applicable laws of descent and distribution.




          (c) Notwithstanding the foregoing provisions of this Section 5.2, if designated as a
Non-Qualified Stock Option, the Option may be transferred by the Optionee, in writing and with
prior written notice to the Board, to any one or more Permitted Transferees (as defined below),
subject to the following terms and conditions: (i) the Option, as transferred to a Permitted
Transferee, shall not be assignable or transferable by the Permitted Transferee other than by will
or the laws of descent and distribution; (ii) the Option, as transferred to a Permitted Transferee,
shall continue to be subject to all the terms and conditions of the Option as applicable to the
Optionee (other than the ability to further transfer the Option); and (iii) the Optionee and the
Permitted Transferee shall execute any and all documents requested by the Board, including, without
limitation documents to (A) confirm the status of the transferee as a Permitted Transferee, (B)
satisfy any requirements for an exemption for the transfer under applicable federal and state
securities laws and (C) evidence the transfer. For purposes of this subsection (c), “Permitted
Transferee” shall mean, with respect to the Optionee, any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, any person sharing the Optionee’s household (other than a tenant or employee), a
trust in which these persons (or the Optionee) control the management of assets, and any other
entity in which these persons (or the Optionee) own more than fifty percent (50%) of the voting
interests, or any other transferee specifically approved by the Board after taking into account any
state or federal tax or securities laws applicable to transferable Non-Qualified Stock Options.




          5.3 Lock-Up Period. The Optionee hereby agrees that, if so requested by the Company
or any representative of the underwriters (the “Managing Underwriter”) in connection with any
registration of the offering of any securities of the Company under the Securities Act, the
Optionee shall not sell or otherwise transfer any shares of Common Stock or other securities of the
Company during such period as may be requested in writing by the Managing Underwriter




 7.









 







and agreed to
in writing by the Company (which period shall not be longer than 180 days) (the “Market Standoff
Period”) following the effective date of a registration statement of the Company filed under the
Securities Act.




          5.4 Restrictive Legends and Stop-Transfer Orders.




          (a) The share certificate or certificates evidencing the shares of Common Stock purchased
hereunder shall be endorsed with any legends that may be required by state or federal securities
laws.




          (b) The Optionee agrees that, in order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate “stop transfer” instructions to
its transfer agent, if any, and that, if the Company transfers its own securities, it may make
appropriate notations to the same effect in its own records.




          (c) The Company shall not be required: (i) to transfer on its books any shares of Common
Stock that have been sold or otherwise transferred in violation of any of the provisions of this
Agreement, or (ii) to treat as owner of such shares of Common Stock or to accord the right to vote
or pay dividends to any purchaser or other transferee to whom such shares shall have been so
transferred.




          5.5 Shares to Be Reserved. The Company shall at all times during the term of the
Option reserve and keep available such number of shares of Common Stock as will be sufficient to
satisfy the requirements of this Agreement.




          5.6 Notices. Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of the Secretary, and any notice to be given to the
Optionee shall be addressed to the Optionee at the address given beneath the Optionee’s signature
hereto. By a notice given pursuant to this Section 5.6, either party may hereafter designate a
different address for notices to be given to that party. Any notice which is required to be given
to the Optionee shall, if the Optionee is then deceased, be given to the Optionee’s personal
representative if such representative has previously informed the Company of such representative’s
status and address by written notice under this Section 5.6. Any notice shall be deemed duly given
when enclosed in a properly sealed envelope or wrapper addressed as aforesaid, deposited (with
postage prepaid) in a post office or branch post office regularly maintained by the United States
Postal Service.




          5.7 Titles. Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.




          5.8 Stockholder Approval. The Plan will be submitted for approval by the Company’s
stockholders within twelve (12) months after the date the Plan was initially adopted by the Board.
The Option may not be exercised to any extent by anyone prior to the time when the Plan is approved
by the stockholders, and if such approval has not been obtained by the end of said twelve month
period, the Option shall thereupon be canceled and become null and void.




          5.9 Notification of Disposition. If this Option is designated as an Incentive Stock
Option, the Optionee shall give prompt notice to the Company of any disposition or other




 8.









 







transfer
of any shares of stock acquired under this Agreement if such disposition or transfer is made (a)
within two (2) years from the Date of Grant with respect to such shares or (b) within one (1) year
after the transfer of such shares to him. Such notice shall specify the date of such disposition
or other transfer and the amount realized, in cash, other property, assumption of indebtedness or
other consideration, by the Optionee in such disposition or other transfer.




          5.10 Construction. This Agreement shall be administered, interpreted and enforced
under the laws of the State of California without regard to conflicts of laws thereof.




          5.11 Conformity to Securities Laws. The Optionee acknowledges that the Plan is
intended to conform to the extent necessary with all provisions of the Securities Act and the
Exchange Act and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, and state securities laws and regulations. Notwithstanding anything
herein to the contrary, the Plan shall be administered, and the Option is granted and may be
exercised, only in such a manner as to conform to such laws, rules and regulations. To the extent
permitted by applicable law, the Plan and this Agreement shall be deemed amended to the extent
necessary to conform to such laws, rules and regulations.




          5.12 Amendments. This Agreement may not be modified, amended or terminated except by
an instrument in writing, signed by the Optionee or such other person as may be permitted to
exercise the Option pursuant to Section 4.1 and by a duly authorized representative of the Company.





 9.









 









Gen-Probe Incorporated 

Stock Option Grant Notice

(2003 Equity Incentive Plan)



Gen-Probe Incorporated (the “Company”), pursuant to its 2003 Equity Incentive Plan
(the “2003 Plan”), hereby grants to Optionholder an option to purchase the number of shares of the
Company’s Common Stock set forth below. This option is subject to all of the terms and conditions
as set forth herein and in the Stock Option Agreement, the 2003 Plan and the Notice of Exercise,
all of which are attached hereto and incorporated herein in their entirety.




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Optionholder:
	 	 	 	 	 	 
	 	 	 	 	 
	Date of Grant:
	 	 	 	 	 	 
	 	 	 	 	 
	Vesting Commencement Date:
	 	 	 	 	 	 
	 	 	 	 	 
	Number of Shares Subject to Option:

	 	 	 	shares	 	 
	 

	 	 	 	 	 	 
	Exercise Price Per Share:

	 	$
                     per share	 	 	 	 
	Expiration Date:
	 	 	 	 	 	 
	 	 	 	 	 





	 	 	 	 	 
	Type of Grant:

	 	o Incentive Stock Option
	 	o Nonstatutory Stock Option
	 
	 	 	 	 
	Exercise Schedule:

	 	þ Same as Vesting Schedule	 	 
	 
	 	 	 	 
	Vesting Schedule:
	 	 	 	 
	 
	 	 	 	 
	Payment:	 	By one or a combination of the following items (described in the Stock Option Agreement):
	 
	 	 	 	 
	 

	 	By cash or check	 	 
	 	 	Pursuant to a Regulation T Program if the Shares are publicly traded





Additional Terms/Acknowledgements: The undersigned Optionholder acknowledges receipt of, and
understands and agrees to, this Grant Notice, the Stock Option Agreement and the 2003 Plan.
Optionholder further acknowledges that as of the Date of Grant, this Grant Notice, the Stock Option
Agreement and the 2003 Plan set forth the entire understanding between Optionholder and the Company
regarding the acquisition of stock in the Company and supersede all prior oral and written
agreements on that subject with the exception of (i) options previously granted and delivered to
Optionholder under the 2003 Plan, and (ii) the following agreements only:




	 	 	 	 	 
	 

	 	 	 	 
	Other Agreements:

	 	þ None.	 	 
	 

	 	o See Attached Sheet.	 	 
	 
	 	 	 	 
	Gen-Probe Incorporated

	 	     Optionee	 	 






	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	Signature
	 	 	 	Signature	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title:

	 	 	 	 	 	Date:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 





Attachments: Stock Option Agreement, 2003 Equity Incentive Plan and Notice of Exercise




 









 








Notice of Exercise




Gen-Probe Incorporated

10210 Genetic Center Drive

San Diego, California 92121-1589

Attention: Corporate Secretary




          Re:   Exercise of Stock Option




Ladies and Gentlemen:



1.
Exercise of Option. The undersigned Optionee,                                         , was granted an option
(the “Option”) to purchase shares of the Common Stock, par value $0.0001 per share (“Common
Stock”), of Gen-Probe Incorporated, a Delaware corporation (the “Company”), effective as of
                    , pursuant to a Stock Option Grant Notice dated                      (the “Grant Notice”).
The undersigned hereby elects to exercise the Option as follows:





	(a)	 	The undersigned hereby elects to exercise the Option as to
                     shares of the Common
Stock, in accordance with Section 3.1 of the Stock Option Agreement (the “Shares”).
	 
	(b)	 	This date of this exercise is                                       ,         .




2. Payment. The undersigned has enclosed herewith                      (representing full payment for such
Shares in accordance with Section 4.3 of the Option Agreement). The undersigned authorizes payroll
withholding and otherwise will make adequate provision for the tax withholding obligations of the
Company, if any, with respect to such exercise.



3. Binding Effect. The undersigned agrees that the Shares are being acquired in accordance with
and subject to the terms, provisions and conditions of the Option Agreement set forth therein, to
all of which the undersigned hereby expressly assent. This Agreement shall inure to the benefit of
and be binding upon the heirs, executors, administrators, successors and assigns of the
undersigned.



The undersigned understands that he or she is purchasing the Shares pursuant to the terms of the
Option Agreement, a copy of which the undersigned has received and carefully read and understands.




	 	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	 





Receipt of the above is hereby acknowledged




GEN-PROBE INCORPORATED,

a Delaware corporation




By:                                        



Title: