Exhibit 10.9

September 19, 2001

 

Al Ellsworth

1100 W. Crescent

Park Ridge, IL  60068

 

Re:          RetentionPlan

 

Dear Al:

 

                As you may be aware the BP 13Dfiling indicates that multiple options for the divestiture of BP’s holdings inVysis will be reviewed. Such options may include a merger or sale of thebusiness.  Therefore, in order to helpencourage your continued focused attention on the on-going success of Vysis,Inc (“Vysis”) and its affiliates (“the Company”) and to encourage you to remainemployed by the Company during a potential period of transition which mayresult in a change in control of Vysis, the Board of Directors of Vysis hasauthorized the establishment of a Retention Plan which will include payment toyou of a “Retention Bonus”.  ThisRetention Bonus will be payable in the event a Change in Control (as definedbelow) occurs and if certain other minimal terms and conditions are met.  The following describes your Retention BonusPlan and the terms and conditions relating to the Retention Bonus payment:

 

                1.             If you satisfy the terms and conditions described below,the Company will pay you a RetentionBonus in an amount equal to 6 (six) months of your annual base salary (notincluding any bonus or incentive payments or other types of compensation whatsoever)in effect immediately prior to the closing date of a Change in Control, asdefined in the Vysis, Inc. Severance Program adopted by Vysis, Inc. on August17, 2001 (the “Transaction Closing Date”).

 

                2.             In order to receive payment of the Retention Bonus, youmust remain employed by the Company for ninety (90) days after the TransactionClosing Date (the “Payment Date”); provided, however, that if your employmentis terminated (i) by the Company for reasons other than Cause or (ii) by deathor disability, after the Transaction Closing Date but before the Payment Date,you will nonetheless receive payment of the Retention Bonus.  For this purpose, the term “Cause” shallmean any of the following:  (A) you haveengaged in willful conduct involving misappropriation, dishonesty, or seriousmoral turpitude which is demonstrably and materially injurious to the Companyor (B) you are convicted of a felony.

 

                3.             The Retention Bonus shall be paid to you on the PaymentDate, provided that you remain employed on that date.  If your employment is terminated by the Company before thePayment Date for reasons of death or disability or for reasons other thanCause, the Retention Bonus shall be paid to you on the day your employment isterminated.

 

                4.             The Retention Bonus will be subject to such deductionsas may be required to be made pursuant to law, government regulations or orderor by agreement with you.

 

                5.             If you find it necessary to bring any legal action forthe enforcement of this agreement, or because of an alleged dispute, breach ordefault in connection with any of the provisions of this agreement, and if youare the prevailing party in such action, Vysis shall reimburse you for yourreasonable attorneys' fees and any other costs that you incur in connectionwith such action.  Any payments pursuantto this paragraph 5 shall be in addition to any other relief to which you maybe entitled as a result of such action.

 

6.             Theparties hereto agree to maintain the existence of this Agreement and the termsthereof confidential and shall not disclose them to any third parties (otherthan Vysis management officials and administrative personnel necessary toeffectuate the terms of this Agreement and/or counsel for the parties, theirrespective tax advisors and accountants and Employee’s immediate family),except as required by law.

 

                7.             The Company’s obligations under this Agreement shall begoverned by the laws of the State of Illinois. If a Change of Control has not occurred by August 17, 2002, thisAgreement shall automatically terminate as of such date.

 

                Ifyou have any questions regarding the foregoing, please contact Bill Murray.

 

Sincerely,

 
|   |   |   |   | /s/ John L. Bishop |   |   |   |
|--------|--------|--------|--------|--------------------|--------|--------|--------|
|   |   |   |   |               |   |   |   |
|   |   |   |   | John  L. Bishop    |   |   |   |
|   |   |   |   | President  and CEO |   |   |   |

 

JLB/ld

 

 
| Agreed:  /s/ Al Ellsworth |
|--------------------------------|
|                           |
| Employee  Name: Al Ellsworth   |
|                           |
| Date:  September 25, 2001 |