EX-10.79







	 	 	 	 	 



Exhibit 10.79




Gen-Probe Incorporated

Second Amendment to

Deferred Issuance Restricted Stock Conversion Agreement

and

Deferred Issuance Restricted Stock Election Agreement

(The 2003 Incentive Award Plan)





     This Second 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 October 31, 2008.



     Whereas, 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”) pursuant to Article VII of the 2003 Incentive Award Plan of Gen-Probe
Incorporated (the “Plan”).



     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 agreements evidencing the Restricted
Stock Awards 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”), and effective February 1, 2005, the Company and the Employee entered into an
amendment to the Conversion Agreement and Election Agreement (the “Prior Amendment”) to amend the
distribution terms of the Conversion Agreement and the Election Agreement to provide that such
provisions would not create any adverse tax consequences pursuant to Code Section 409A.



     Whereas, in April 2007, final regulations were issued with respect to Code Section
409A, and the Company and the Employee wish to amend certain provisions of the Conversion Agreement
and the Election Agreement, as amended by the Prior Amendment, pursuant to the terms and conditions
set forth below.



 









 





     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),
provided that such termination constitutes a “separation from service” within the meaning of
Treasury Regulation Section 1.409A-1(h), 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. Accordingly, to the extent
delayed commencement of any portion of the issuance is required in order to avoid a prohibited
distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of the issuance shall not be
provided to the Employee prior to the earlier of the expiration of the six-month period measured
from the date of the Termination of Service or the date of the Employee’s death. Upon the first
business day following the expiration of the applicable Code Section 409A(a)(2)(B)(i) deferral
period, any issuance deferred pursuant to this Section shall be issued to the Employee. Nothing in
this Section 1 shall require the issuance of shares to Employee earlier than they would otherwise
be issued under the terms of the Conversion Agreement, the Prior Amendment 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	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/s/ Henry L. Nordhoff	 	 
	 

	 	 	 	 	 	 

	 	 
	By:

	 	/s/ Diana De Walt
 
 Diana
De Walt	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Title: Senior Vice President, Human Resources  	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date: October 31, 2008	 	 	 	Date: October 17, 2008