EXHIBIT 10.28
TERMINATION AGREEMENT
This Termination Agreement dated as of October 4, 1999 is
entered into by and between:
Hologic, Inc., a Massachusetts corporation, having a place of
business at 00 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000-0000
("Hologic") and
Vivid Technologies, Inc., a Delaware corporation, (f/k/a
Vivitech, Inc,), having a place of business at 00X Xxxxxxxx Xxx,
Xxxxxx, XX 00000 ("Vivid").
CONSIDERATION UNDERLYING THIS AGREEMENT
WHEREAS, the parties entered into a License and Technology
Agreement dated as of June 22, 1989, as amended by a First
Amendment to License and Technology Agreement dated as of September
25, 1996 (as so amended, the "License Agreement"); and
WHEREAS, Vivid and EG&G, Inc. have entered into an Agreement
and Plan of Merger dated October 4, 1999, ("Merger Agreement"),
pursuant to which Vivid will merge with a subsidiary of EG&G, Inc.
and become wholly owned subsidiary of EG&G, Inc. (the "Merger");
and
WHEREAS, the Parties which to provide for termination of the
License Agreement upon consummation of the Merger ("Effective
Date"); and
NOW THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, and intending to
be legally bound, the parties agree as follows:
Capitalized terms used herein and not otherwise defined shall have
the same respective meanings as those terms set forth in the
License Agreement.
In accordance with paragraph 12(a) of the License Agreement,
Hologic and Vivid mutually agree to terminate the License
Agreement, subject to the terms and conditions of this Agreement.
The royalty provision of paragraph 5 of the License Agreement shall
be accelerated as of October 1, 1999 and Vivid shall pay to Hologic
on the Effective Date, by federal funds wire transfer in
immediately available funds, an amount equal to the sum of (i) Two
Million Dollars ($2,000,000).
As consideration for the payment to Hologic referred to in
paragraph 3, hereof, the perpetual, exclusive, worldwide license to
utilize the Base Technology and Know-how to design, develop,
improve, enhance, manufacture, market and sell the Original Product
shall survive this termination and be held by Vivid as a paid-up,
perpetual, exclusive, worldwide license as of October 1, 1999,
subject to payment of any royalties accrued for periods ending
prior to said date. All other license rights granted by Hologic to
Vivid under the License Agreement shall terminate on the Effective
Date.
The confidentiality provision of paragraph 10, the indemnification
provisions of paragraph 13, and the non-competition provision of
paragraph 17 of the License Agreement shall survive this
termination.
This Termination Agreement shall only take effect upon the
occurrence of the Effective Date, in the event the Merger is not
consummated for any reason on or before April 30, 2000, Vivid shall
be immediately responsible for royalties, as required under the
License Agreement, for the quarters ending December 31, 1999 and
March 31, 2000, and the payment referred to in paragraph 3 above
shall be reduced by those amounts (the resulting amount shall be
referred to as the "Net Amount"). The Net Amount shall bear
interest at a rate of 9% per annum from May 1, 2000 until the date
paid. In the event the Merger Agreement is terminated for any
reason or the Merger is not consummated by October 30, 2000, this
Termination Agreement shall be null and void and shall have no
further force or effect, Vivid shall provide Hologic with prompt
notice of any termination of the Merger Agreement. In the event
this Termination Agreement is terminated, Vivid shall be
responsible for any outstanding royalties under the License
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
HOLOGIC, INC. VIVID TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Title: President & COO Title: Chief Financial Officer
