exv10w28



 





EXHIBIT
10.28




AMENDMENT 1 TO EMPLOYMENT AGREEMENT




     THIS AMENDMENT 1 TO EMPLOYMENT AGREEMENT (“Amendment”) is entered into effective as of the
7thth day of November, 2007, by and between Jorge Garces (“Employee”) and Third Wave
Technologies, Inc., a Delaware corporation (“Company”).



     WHEREAS, the Company currently employs Employee pursuant to an Employment Agreement dated as
of March 12, 2007 (the “Agreement”); and



     WHEREAS, the Company and the Employee wish to amend the Agreement as set forth herein.



     NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth,
and other good and valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties agree as follows:



     1. Defined Terms. Capitalized terms used and not otherwise defined in this Amendment
shall have the meanings ascribed to them in the Agreement.



     2. Amendments to Provide Acceleration of Vesting of Equity Awards upon Death or
Disability.



          A. The last sentence of Section 3.4 of the Agreement shall be, and hereby is, deleted in its
entirety and replaced with the following sentence:





All options and other equity rights granted to Employee shall vest
in equal installments over the four-year period commencing with the
date of grant of such options or rights, subject to the acceleration
of vesting (i) as described in Section 6.3 hereof, (ii) as described
in Section 7.2(c) hereof, and (iii) as may be set forth in the grant
agreements issued by the Company, as amended, provided, that in the
event of a conflict between any grant agreement and this Agreement
(other than Section 6.3 and Section 7.2(c) of this Agreement), the
grant agreement shall control.



          B. The first sentence of Section 6.3 of the Agreement shall be, and hereby is, deleted in its
entirety and replaced with the following sentence:





In the event of the death or Disability (defined herein) of Employee
during the Employment Term, (i) Employee’s employment and this
Agreement shall immediately and automatically terminate, (ii) the
Company shall pay Employee (or in the case of death, employee’s
designated beneficiary) Base Salary and accrued but unpaid bonuses,
in each case up to the date of termination, and (iii) all equity
awards granted to Employee, whether stock options or stock purchase
rights under the Company’s equity compensation plan, or other equity
awards, that



 









 






are unvested at the time of termination shall immediately become
fully vested and exercisable upon such termination.



          3. Amendments Relating to Severance Benefits in Connection with a Change of Control.
Section 7.2(b) of the Agreement shall be, and hereby is, deleted in its entirety and replaced with
the following:





Payments and Termination Date. If, within twelve (12)
months after the effective date of a Change of Control, or within
six (6) months before the effective date of a Change of Control,
Employee terminates Employee’s employment for Good Reason pursuant
to Section 6.1(b) or the Company terminates Employee’s employment
without Cause pursuant to Section 6.2(c), subject to the conditions
described in Section 7.3 below, then (i) Employee shall receive
severance pay for a period of twelve (12) months at Employee’s then
current Base Salary, (ii) Employee shall be entitled to a pro-rata
portion of Employee’s annual bonus if the Change of Control occurs
in the last six (6) months of the calendar year, which annual bonus
shall be determined, and the pro-rata portion thereof paid, after
the end of the calendar year in accordance the Company’s normal
practices as applied to other employees who have not terminated
their employment with the Company (without the requirement of
Employee’s continued employment) and shall be pro-rated to the later
of (a) the date of the Change of Control, or (b) the date of such
termination of employment (provided that if such termination has not
occurred by December 31 of the year in which such Change of Control
occurs, no pro-ration of the annual bonus for such calendar year
shall be required), (iii) Employee shall be entitled to health and
dental COBRA premium payments in accordance with Section 7.1(b) but
the period described in subsection (i) thereof shall be extended
from six (6) months to twelve (12) months, and (iv) the termination
shall be treated for purposes of Sections 7.2(b), (c) and (d) as if
it occurred on the later of the effective date of such termination
and the effective date of the Change of Control. Any lump-sum
severance payment made to the Employee under Section 7.1(a) during
the six (6) months before the effective date of a Change of Control
shall be credited against the severance payments provided under this
Section 7.2(b) on a pro-rata basis.



          4. Amendments to Clarify Language of Section 7.3. The second sentence of Section 7.3
of the Agreement shall be, and hereby is, deleted in its entirety and replaced with the following
sentence:





Moreover, the Employee’s rights to receive payments and benefits
pursuant to Sections 7.1 and 7.2 (including, without limitation, the
right to payments under the Company’s equity plans and LTIPs)



2









 






are conditioned on the Employee’s ongoing compliance with his
obligations as described in Section 8 hereof.



          5. Counterparts. This Amendment may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the same instrument.




          6. Full Force and Effect. Except as amended hereby, the Agreement remains in full
force and effect and is hereby ratified, confirmed and approved.




[signatures appear on next page]




3









 








          The parties hereto have executed this Amendment as of the date first written above.




	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	/s/
Jorge Garces	 	 
	 	 	Jorge Garces	 	 
	 
	 	 	 	 	 	 
	 	 	Third Wave Technologies, Inc.	 	 
	 
	 	 	 	 	 	 
	 	 	By:	 	/s/
Kevin T. Conroy

	 	 
	 

	 	 	 	Kevin T. Conroy, President and CEO
	 	 







4