Exhibit 10.23
AGREEMENT
AGREEMENT by and between HOLOGIC, INC., a Delaware corporation (the
"Company"), and Xxx X. Xxxxx (the "Executive"), dated as of the 6th day of
March, 1998.
The Board of Directors of the Company (the "Board"), has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat, or occurrence of a Change of Control
(as defined below) of the Company. The Board believes it is imperative to
diminish the inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control and
to encourage the Executive's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of the Executive will be satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives, the Board has
caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions. (a) The "Effective Date" shall be the first
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date during the "Change of Control Period" (as defined in Section 1(b)) on which
a Change of Control occurs. Anything in this Agreement to the contrary
notwithstanding, if the Executive's employment with the Company is terminated or
the Executive ceases to be an officer of the Company prior to the date on which
a Change of Control occurs, and it is reasonably demonstrated that such
termination of employment (1) was at the request of a third party who has taken
steps reasonably calculated to effect the Change of Control or (2) otherwise
arose in connection with or
anticipation of the Change of Control, then for all purposes of this Agreement
the "Effective Date" shall mean the date immediately prior to the date of such
termination of employment.
(b) The "Change of Control Period" is the period commencing on the
date hereof and ending on the third anniversary of such date; provided, however
that commencing on the date one year after the date hereof, and on each annual
anniversary of such date (such date and each annual anniversary thereof is
hereinafter referred to as the "Renewal Date"), the Change of Control Period
shall be automatically extended without any further action by the Company or the
Executive so as to terminate three years from such Renewal Date; provided,
however, that if the Company shall give notice in writing to the Executive, at
least 60 days prior to the Renewal Date, stating that the Change of Control
Period shall not be extended, then the Change of Control Period shall expire
three years from the last effective Renewal Date.
2. Change of Control. For the purpose of this Agreement, a "Change
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of Control" shall mean:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock"); provided, however, that any
acquisition by the Company or its subsidiaries, or any employee benefit
plan (or related trust) of the Company or its subsidiaries of 20% or more
of Outstanding Company Common Stock shall not constitute a Change in
Control; and provided, further, that any acquisition by a corporation with
respect to which, following such acquisition, more than 50% of
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the then outstanding shares of common stock of such corporation, is then
beneficially owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners of the
Outstanding Company Common Stock immediately prior to such acquisition in
substantially the same proportion as their ownership, immediately prior to
such acquisition, of the Outstanding Company Common Stock, shall not
constitute a Change in Control; or
(b) Any transaction which results in the Continuing Directors (as
defined in the Certificate of Incorporation of the Company) constituting
less than a majority of the Board of Directors of the Company; or
(c) Approval by the stockholders of the Company of (i) a
reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who were the
beneficial owners of the Outstanding Company Common Stock immediately prior
to such reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own, directly or
indirectly, more than 50% of the then outstanding shares of common stock of
the corporation resulting from such a reorganization, merger or
consolidation, (ii) a complete liquidation or dissolution of the Company or
(iii) the sale or other disposition of all or substantially all of the
assets of the Company, excluding a sale or other disposition of assets to a
subsidiary of the Company.
Anything in this Agreement to the contrary notwithstanding, if an event
that would, but for this paragraph, constitute a Change of Control results from
or arises out of a purchase or other
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acquisition of the Company, directly or indirectly, by a corporation or other
entity in which the Executive has a greater than ten percent (10%) direct or
indirect equity interest, such event shall not constitute a Change of Control.
3. Employment Period. Subject to the terms and conditions hereof,
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the Company hereby agrees to continue the Executive in its employ, and the
Executive hereby agrees to remain in the employ of the Company, for the period
commencing on the Effective Date and ending on the last day of the thirty-sixth
month following the month in which the Effective Date occurs (the "Employment
Period").
4. Terms of Employment. (a) Position and Duties. (i) During the
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Employment Period, (A) the Executive's position (including status, offices,
titles and reporting requirements), authority, duties and responsibilities shall
be at least commensurate in all material respects with the most significant of
those held, exercised and assigned at any time during the 90-day period
immediately preceding the Effective Date and (B) the Executive's services shall
be performed at the location where the Executive was employed immediately
preceding the Effective Date or any office or location less than 35 miles from
such location.
(ii) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the Executive
agrees to devote his full business time to the business and affairs of the
Company and, to the extent necessary to discharge the responsibilities assigned
to the Executive hereunder, to use the Executive's reasonable best efforts to
perform faithfully and efficiently such responsibilities. During the Employment
Period it shall not be a violation of this Agreement for the Executive to (A)
serve on corporate, civic or charitable boards or committees, (B) deliver
lectures, fulfill speaking engagements or teach at educational institutions and
(C) manage personal investments, so long as such activities do not
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significantly interfere with the performance of the Executive's responsibilities
as an employee of the Company in accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such activities have been
conducted by the Executive prior to the Effective Date, the continued conduct of
such activities (or the conduct of activities similar in nature and scope
thereto) subsequent to the Effective Date, including, without limitation,
activities with respect to Vivid Technologies, Inc., shall not thereafter be
deemed to interfere with the performance of the Executive's responsibilities to
the Company.
(b) Compensation. (i) Base Salary. During the Employment Period,
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the Executive shall receive an annual base salary ("Annual Base Salary"), which
shall be paid at a monthly rate, at least equal to twelve times the highest
monthly base salary paid or payable to the Executive by the Company and its
affiliated companies in respect of the twelve-month period immediately preceding
the month in which the Effective Date occurs. During the Employment Period, the
Annual Base Salary shall be reviewed at least annually and shall be increased at
any time and from time to time as shall be substantially consistent with
increases in base salary awarded in the ordinary course of business to other
peer executives of the Company and its affiliated companies. Any increase in
Annual Base Salary shall not serve to limit or reduce any other obligation to
the Executive under this Agreement. Annual Base Salary shall not be reduced
after any such increase and the term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so increased. As used in this
Agreement, the term "affiliated companies" includes any company controlled by,
controlling or under common control with the Company.
(iii) Annual Bonus. In addition to Annual Base Salary, the
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Executive shall be awarded, for each fiscal year during the Employment Period,
an annual bonus (the "Annual Bonus") in cash at least equal to the average
annualized (for any fiscal year consisting of less
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than twelve full months or with respect to which the Executive has been employed
by the Company for less than twelve full months) bonus (the "Average Annual
Bonus") paid or payable to the Executive by the Company and its affiliated
companies in respect of the three fiscal years immediately preceding the fiscal
year in which the Effective Date occurs. Each such Annual Bonus shall be paid no
later than the end of the third month of the fiscal year next following the
fiscal year for which the Annual Bonus is awarded, unless the Executive shall
elect to defer the receipt of such Annual Bonus pursuant to deferral plans of
the Company.
(iv) Special Bonus. In addition to Annual Base Salary and
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Annual Bonus payable as hereinabove provided, if the Executive remains employed
with the Company and/or its affiliated companies through the first anniversary
of the Effective Date, the Company shall pay to the Executive a special bonus
(the "Special Bonus") in recognition of the Executive's services during the
crucial one-year transition period following the Change of Control in cash equal
to the sum of (A) the Executive's Annual Base Salary and (B) the greater of (x)
the Annual Bonus paid or payable (and annualized for any fiscal year consisting
of less than twelve full months or for which the Executive has been employed for
less than twelve full months) to the Executive for the most recently completed
fiscal year during the Employment Period, if any, and (y) the Average Annual
Bonus (such greater amount hereafter referred to as the "Highest Annual Bonus").
The Special Bonus shall be paid no later than 30 days following the first
anniversary of the Effective Date.
(v) Incentive, Savings and Retirement Plans. In addition to
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Annual Base Salary and Annual Bonus payable as hereinabove provided, the
Executive shall be entitled to participate during the Employment Period in all
incentive, savings and retirement plans, practices, policies and programs
applicable to other peer executives of the Company and its affiliated companies,
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but in no event shall such plans practices, policies and programs provide the
Executive with incentive, savings and retirement benefits opportunities, in each
case, less favorable, in the aggregate, than the most favorable of those
provided by the Company and its affiliated companies for the Executive under
such plans, practices, policies and programs as in effect at any time during the
one-year immediately preceding the Effective Date, or, if more favorable to the
Executive, those provided generally at any time after the Effective Date to
other peer executives of the Company and its affiliated companies.
(vi) Welfare Benefit Plans. During the Employment Period,
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the Executive and/or the Executive's family, as the case may be, shall be
eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company and its
affiliated companies (including, without limitation, medical, prescription,
dental, disability, salary continuance, employee life, group life, accidental
death and travel accident insurance plans and programs) and applicable to other
peer executives of the Company and its affiliated companies, but in no event
shall such plans, practices, policies and programs provide benefits which are
less favorable, in the aggregate, than the most favorable of such plans,
practices, policies and programs in effect at any time during the one-year
period immediately preceding the Effective Date, or, if more favorable to the
Executive, those provided generally at any time after the Effective Date to
other peer executives of the Company and its affiliated companies.
(vii) Expenses. During the Employment Period, the Executive
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shall be entitled to receive prompt reimbursement for all reasonable expenses
incurred by the Executive upon submission of appropriate accountings in
accordance with the most favorable policies, practices and procedures of the
Company and its affiliated companies in effect at any time during the one-
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year period immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect at any time thereafter with respect to other peer
executives of the Company and its affiliated companies.
(viii) Fringe Benefits. During the Employment Period, the
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Executive shall be entitled to fringe benefits in accordance with the most
favorable plans, practices, programs and policies of the Company and its
affiliated companies in effect at any time during the one-year period
immediately preceding the Effective Date or, if more favorable to the Executive,
as in effect at any time thereafter with respect to other peer executives of the
Company and its affiliated companies.
(ix) Office and Support Staff. During the Employment Period,
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the Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to exclusive personal secretarial and
other assistance, at least equal to the most favorable of the foregoing provided
to the Executive by the Company and its affiliated companies at any time during
the one-year period immediately preceding the Effective Date or, if more
favorable to the Executive, as provided at any time thereafter with respect to
other peer executives of the Company and its affiliated companies.
(x) Vacation. During the Employment Period, the Executive
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shall be entitled to paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and its affiliated companies as
in effect at any time during the one-year period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect at any time
thereafter with respect to other peer incentives of the Company and its
affiliated companies.
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5. Termination of Employment. (a) Death or Disability. The
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Executive's employment shall terminate automatically upon the Executive's death
during the Employment Period. If the Company determines in good faith that the
Disability of the Executive has occurred during the Employment Period (pursuant
to the definition of "Disability" set forth below), it may give to the Executive
written notice in accordance with Section 12(b) of this Agreement of its
intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties. For
purposes of this Agreement, "Disability" means the absence of the Executive from
the Executive's duties with the Company on a full-time basis for 180 consecutive
business days as a result of incapacity due to mental or physical illness which
is determined to be total and permanent by a physician selected by the Company
or its insurers and acceptable to the Executive or the Executive's legal
representative (such agreement as to acceptability not to be withheld
unreasonably).
(b) Cause. The Company may terminate the Executive's employment
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during the Employment Period for "Cause". For purposes of this Agreement,
"Cause" means (i) an act or acts of personal dishonesty taken by the Executive
and intended to result in substantial personal enrichment of the Executive at
the expense of the Company, (ii) repeated violations by the Executive of the
Executive's obligations under Section 4(a) of this Agreement (other than as a
result of incapacity due to physical or mental illness) which are demonstrably
willful and deliberate on the Executive's part, which are committed in bad faith
or without reasonable belief that such violations are in the best interests of
the Company and which are not remedied in a
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reasonable period of time after receipt of written notice from the Company or
(iii) the conviction of the Executive of a felony involving moral turpitude.
(c) Good Reason. The Executive's employment may be terminated during
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the Employment Period by the Executive for Good Reason. For purposes of this
Agreement, "Good Reason" means:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position (including
status, offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of this Agreement, or any
other action by the Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice thereof
given by the Executive;
(ii) any failure by the Company to comply with any of the
provisions of Section 4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which
is remedied by the Company promptly after receipt of notice thereof given
by the Executive;
(iii) the Company's requiring the Executive to be based at
any office or location other than that described in Section 4(a)(i)(B)
hereof;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this
Agreement; or
(v) any failure by the Company to comply with and satisfy
Section 11(c) of this Agreement.
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For purposes of this Section 5(c), any good faith determination of
"Good Reason" made by the Executive shall be conclusive.
(d) Notice of Termination. Any termination by the Company for
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Cause or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 12(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than
fifteen days after the giving of such notice). The failure by the Executive or
the Company to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any right
of the Executive or the Company hereunder or preclude the Executive or the
Company from asserting such fact or circumstance in enforcing the Executive's or
the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means the date of
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receipt of the Notice of Termination or any later date specified therein, as the
case may be; provided however, that (i) if the Executive's employment is
terminated by the Company other than for Cause, death or Disability, the Date of
Termination shall be the date on which the Company notifies the Executive of
such termination and (ii) if the Executive's employment is terminated by reason
of death or Disability, the Date of Termination shall be the date of death of
the Executive or the Disability Effective Date, as the case may be.
6. Obligations of the Company upon Termination.
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(a) Death. If the Executive's employment is terminated by reason
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of the Executive's death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than for (i) payment of the sum of the following
amounts: (A) the Executive's Annual Base Salary through the Date of Termination
to the extent not theretofore paid, (B) the product of (I) the Highest Annual
Bonus and (II) a fraction, the numerator of which is the number of days in the
current fiscal year through the Date of Termination, and the denominator of
which is 365, (C) the Special Bonus, if due to the Executive pursuant to Section
4(b)(iv), to the extent not theretofore paid, and (D) any compensation
previously deferred by the Executive (together with any accrued interest or
earnings thereon) and any accrued bonus amounts or vacation pay, in each case,
to the extent not yet paid by the Company (the amounts described in
subparagraphs (A), (B), (C) and (D) are hereafter referred to as "Accrued
Obligations" and shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination),
(ii) for the remainder of the Employment Period, or such longer period as any
plan, program, practice or policy may provide, the Company shall continue
benefits to the Executive and/or the Executive's family at least equal to those
which would have been provided in accordance with the applicable plans, programs
practices and policies described in Section 4(b)(v) of this Agreement as if the
Executive's employment had not been terminated in accordance with the most
favorable plans, practices, programs or policies of the Company and its
affiliated companies as in effect and applicable generally to other peer
executives and their families during the one year period immediately preceding
the Effective Date or, if more favorable to the Executive, as in effect at any
time thereafter with respect to other peer executives of the Company and its
affiliated companies and their families (such continuation of such benefits for
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the applicable period herein set forth shall be hereinafter referred to as
"Welfare Benefit Continuation") (for purposes of determining eligibility of the
Executive for retiree benefits pursuant to such plans, practices, programs and
policies, the Executive shall be considered to have remained employed until the
end of the Employment Period and to have retired on the last day of such
period), and (iii) payment to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination of
an amount equal to the sum of the Executive's Annual Base Salary and the Highest
Annual Bonus. Subject to the provisions of Section 9 hereof, but, otherwise,
anything herein to the contrary notwithstanding, the Executive's family shall be
entitled to receive benefits at least equal to the most favorable benefits
provided by the Company and any of its affiliated companies to surviving
families of peer executives of the Company and such affiliated companies under
such plans, programs, practices and policies relating to family death benefits,
if any, as in effect with respect to other peer executives and their families at
any time during the one year period immediately preceding the Effective Date or,
if more favorable to the Executive and/or the Executive's family, as in effect
on the date of the Executive's death with respect to other peer executives of
the Company and its affiliated companies and their families.
(b) Disability. If the Executive's employment is terminated by reason of
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the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for (i)
payment of the Accrued Obligations (which shall be paid in a lump sum in cash
within 30 days of the Date of Termination), (ii) the timely payment and
provision of the Welfare Benefit Continuation, and (iii) payment to the
Executive in a lump sum in cash within 30 days of the Date of Termination of an
amount equal to the sum of the Executive's Annual Base Salary and the Highest
Annual Bonus. In addition,
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the Company shall transfer to the Executive the insurance policy written with
respect to the Executive under the Company's Group Term Life Insurance Policy
for Executive Officers and the right to the full cash surrender value thereof.
Subject to the provisions of Section 9 hereof, but, otherwise, anything herein
to the contrary notwithstanding, the Executive shall be entitled after the
Disability Effective Date to receive disability and other benefits at least
equal to the most favorable of those provided by the Company and its affiliated
companies to disabled executives and/or their families in accordance with such
plans, programs, practices and policies relating to disability, if any, as in
effect with respect to other peer executives and their families at any time
during the one year period immediately preceding the Effective Date or, if more
favorable to the Executive and/or the Executive's family, as in effect at any
time thereafter with respect to other peer executives of the Company and its
affiliated companies and their families.
(c) Cause, Other than for Good Reason. If the Executive's employment
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shall be terminated by the Company for Cause or by the Executive other than for
Good Reason (and other than by reason of his death or disability) during the
Employment Period, this Agreement shall terminate without further obligations to
the Executive other than the obligation to pay to the Executive Annual Base
Salary through the Date of Termination, plus the amount of any compensation
previously deferred by the Executive and any accrued bonus amounts or vacation
pay, in each case, to the extent theretofore unpaid. In such case, such amounts
shall be paid to the Executive in a lump sum in cash within 30 days of the Date
of Termination. The Executive shall, in such event, also be entitled to any
benefits required by law that are not otherwise provided by this Agreement.
(d) Good Reason; Other Than for Cause or Disability. If, during the
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Employment Period, the Company shall terminate the Executive's employment other
than for Cause, death or
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Disability, or if the Executive shall terminate employment under this Agreement
for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
A. all Accrued Obligations; and
B. the amount (such amount shall be hereinafter referred to as
the "Severance Amount") equal to one dollar ($1.00) less than the product
of (I) three (3) and (II) the Executive's "base amount" as defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the
"Code"); and
(ii) the Company shall timely pay and provide the Welfare Benefit
Continuation provided, however, that if the Executive becomes reemployed
with another employer and is eligible to receive medical or other welfare
benefits under another employer provided plan, the medical or other welfare
benefits described herein shall be secondary to those provided under such
other plan during such applicable period of eligibility; and
(iii) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive and/or the Executive's family
any other amounts or benefits required to be paid or provided or which the
Executive and/or the Executive's family is eligible to receive pursuant to
this Agreement and under any plan, program, policy or practice or contract
or agreement of the Company and its affiliated companies as in effect and
applicable generally to other peer executives of the Company and its
affiliated companies and their families (such
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other amounts and benefits shall be hereinafter referred to as the "Other
Benefits"); and
(iv) all unvested options or stock appreciation rights which Executive
then holds to acquire securities from the Company shall be immediately and
automatically exercisable as of the Effective Date, and the Executive shall
have the right to exercise any such options or stock appreciation rights
for a period of one year after the Date of Termination. Notwithstanding the
foregoing, until two years from the date of this Agreement, such options
and/or stock appreciation rights shall not be accelerated if such
acceleration would result in the failure of a transaction which has been
approved by the Continuing Directors (as defined in the Company's charter)
and entered into by the Company to qualify as a pooling for accounting
purposes; and
(v) the Company shall transfer to the Executive the insurance policy
written with respect to the Executive under the Company's Group Term Life
Insurance Policy for Executive Officers and the right to the full cash
surrender value thereof.
7. Non-exclusivity of Rights. Except as provided in Section 6, nothing
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in this Agreement shall prevent or limit the Executive's continuing or future
participation in any benefit, bonus, incentive or other plans, programs,
policies or practices, provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor shall anything herein
limit or otherwise affect such rights as the Executive may have under any other
agreements with the Company or any of its affiliated companies. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan, policy, practice or program of the
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Company or any of its affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program except as explicitly modified by this Agreement.
8. Full Settlement. (a) The Company's obligation to make the payments
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provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to the Executive under any of the provisions of this Agreement and, except as
provided in Section 6(d)(ii), such amounts shall not be reduced whether or not
the Executive obtains other employment. The Company agrees to pay promptly as
incurred, to the full extent permitted by law, all legal fees and expenses which
the Executive may reasonably incur as a result of any contest (regardless of the
outcome thereof) by the Company, the Executive or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement, unless a
court of competent jurisdiction determines that the Executive made such effort
in bad faith), plus in each case interest at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code").
(b) If there shall be any dispute between the Company and the Executive
(i) in the event of any termination of the Executive's employment by the
Company, whether such termination was for Cause, or (ii) in the event of any
termination of employment by the Executive, whether Good Reason existed, then,
unless and until there is a final, nonappealable
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judgment by a court of competent jurisdiction declaring that such termination
was for Cause or that the determination by the Executive of the existence of
Good Reason was not made in good faith, the Company shall pay all amounts, and
provide all benefits, to the Executive and/or the Executive's family or other
beneficiaries, as the case may be, that the Company would be required to pay or
provide pursuant to Section 6(d) as though such termination were by the Company
without Cause, or by the Executive with Good Reason; provided, however, that the
Company shall not be required to pay any disputed amount pursuant to this
paragraph except upon receipt of an undertaking by or on behalf of the Executive
to repay all such amounts to which the Executive is ultimately adjudged by such
court not to be entitled.
9. Certain Reduction in Payments by the Company.
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(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by the Company to
or for the benefit of the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement (a "Payment"), would be
nondeductible by the Company for Federal income tax purposes because of Section
280G of the Code or would subject the Executive to the excise tax imposed by
Section 4999 of the Code, then the aggregate present value of amounts payable or
distributable to or for the benefit of the Executive pursuant to this Agreement
(such payments or distributions pursuant to this Agreement are hereinafter
referred to as "Agreement Payments") shall be reduced (but not below zero) to
the Reduced Amount. The "Reduced Amount" shall be one dollar less than an
amount expressed in present value which maximizes the aggregate present value of
Agreement Payments but which does not result in any of the amount paid to the
Executive being not deductible by reason of Section 280G of the Code or subject
to the excise
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tax imposed by Section 4999 of the Code. For purposes of this Section 9,
present value shall be determined in accordance with Section 280G(d)(4) of the
Code.
(b) All determinations required to be made under this Section 9 shall be
made by Xxxxxx Xxxxxxxx LLP (or its successor) unless such firm shall be the
accounting firm of the individual, entity or group effecting the Change of
Control or any affiliate of the Company at the Date of Termination, in which
case such determinations shall be made by an accounting firm of national
standing agreed to by the Company and the Executive, or, if the Company does not
so agree within 10 days of the Date of Termination, such an accounting firm
shall be selected by the Executive (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the Executive within 15
business days of the date such firm is selected or such earlier time as is
requested by the Company and an opinion to the Executive that he has substantial
authority not to report any Excise Tax on his Federal income tax return with
respect to any Agreement Payments. Any such determination by the Accounting Firm
shall be binding upon the Company and the Executive. Within five business days
of the determination by the Accounting Firm as to the Reduced Amount, the
Company shall pay to or distribute to or for the benefit of the Executive such
amounts as are then due to the Executive under this Agreement.
(c) As a result of the uncertainty in the application of Section 280G of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Agreement Payments will have been made by the
Company which should not have been made ("Overpayment") or that additional
Agreement Payments which will not have been made by the Company could have been
made ("Underpayment"), in each case, consistent with the calculations required
to be made hereunder. In the event that the Accounting Firm, based upon the
assertion of a deficiency by the Internal Revenue Service against the Executive
which the
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Accounting Firm believes has a high probability of success determines that an
Overpayment has been made, any such Overpayment paid or distributed by the
Company to or for the benefit of the Executive shall be treated for all purposes
as a loan ab initio to the Executive which the Executive shall repay to the
Company together with interest at the applicable Federal rate provided for in
Section 7872(f)(2) of the Code. In the event that the Accounting Firm, based
upon controlling precedent or other substantial authority, determines that an
Underpayment has occurred, any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive together with interest at the
applicable Federal rate provided for in Section 7872(f)(2) of the Code.
10. Confidential Information. The Executive shall hold in a fiduciary
------------------------
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its affiliated
companies and which shall not be or become public knowledge (other than by acts
by the Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the Company or as
may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 10 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
11. Successors. (a) This Agreement is personal to the Executive and
----------
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will
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or the laws of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise. In addition, the
Executive shall be entitled, upon exercise of any outstanding stock options or
stock appreciation rights of the Company, to receive in lieu of shares of the
Company's stock, shares of such stock or other securities of such successor as
the holders of shares of the Company's stock received pursuant to the terms of
the merger, consolidation or sale.
12. Miscellaneous. (a) This Agreement shall be governed by and construed
-------------
in accordance with the laws of the Commonwealth of Massachusetts, without
reference to principles of conflict of laws. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal
representatives.
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(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Xxx X. Xxxxx
If to the Company:
Hologic, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Executive Officer
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
(d) The Company may withhold from any amounts payable under this Agreement
such Federal, state or local taxes as shall be required to be withheld pursuant
to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision hereof shall not be deemed to be a waiver of such
provision or any other provision thereof.
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(f) This Agreement contains the entire understanding of the Company and
the Executive with respect to the subject matter hereof and by entering into
this Agreement the Executive waives all rights he may have under the Company's
separation policy, provided that if the Company's separation policy would
provide greater benefits to the Executive than this Agreement, than the
Executive may elect to receive benefits under the Company's separation policy in
lieu of the benefits provided hereunder.
(g) The Executive and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between the Executive
and the Company, prior to the Effective Date, the employment of the Executive by
the Company is "at will" and may be terminated by either the Executive or the
Company at any time. Moreover, if prior to the Effective Date, the Executive's
employment with the Company terminates, then the Executive shall have no further
rights under this Agreement. Notwithstanding anything contained herein, if,
during the Employment Period, the Executive shall terminate employment with the
Company other than for Good Reason, the Executive shall have no liability to the
Company.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and, pursuant
to the authorization from its Board of Directors, the Company has caused these
presents to be executed in its name on its behalf, all as of the day and year
first above written.
HOLOGIC, INC.
By: /s/ S. Xxxxx Ellenhogen
---------------------------------
Name: S. Xxxxx Ellenhogen
Title: Chairman & CEO
EXECUTIVE
/s/ Xxx X. Xxxxx
-------------------------------------
Xxx X. Xxxxx
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