Exhibit 10.4
THE HOLOGIC, INC.
AMENDED AND
RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
Amended and Restated
December 11, 2008
THE HOLOGIC, INC.
AMENDED AND
RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
ARTICLE I - PURPOSE; EFFECTIVE
DATE
1.1 Purpose . The
purpose of this HOLOGIC, INC. AMENDED AND RESTATED SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN (hereinafter, the “Plan”) is
to permit a select group of management or highly compensated
employees of Hologic, Inc. (and its selected subsidiaries and/or
affiliates) to defer the receipt of income which would otherwise
become payable to them. It is intended that this Plan, by providing
these eligible employees an opportunity to defer the receipt of
income, will assist in the retaining and attracting individuals of
exceptional ability and by providing an additional opportunity to
save for retirement beyond Code limitations imposed on qualified
retirement plans. This Plan is intended to be
“unfunded” for purposes of the Employee Retirement
Income Security Act of 1974, as amended
(“ERISA”).
1.2 Effective Date .
This Plan was originally adopted by the Company effective as of
October 15, 2006. The Plan, as amended and restated herein,
shall be effective as of December 1, 2008 (the “Effective
Date”). It is the intent that all of the amounts deferred and
benefits provided under this Plan will comply with the terms of
Section 409A of the Code and the final Treasury Regulations
promulgated thereunder.
1.3 Unfunded Plan .
This plan is an unfunded top-hat plan maintained primarily to
provide deferred compensation benefits for a “select group of
management or highly-compensated employees” within the
meaning of Sections 201, 301, and 401 of ERISA, and therefore is
exempt from the provisions of Parts 2, 3 and 4 of Title I of
ERISA.
ARTICLE II -
DEFINITIONS
For the purpose of this Plan, the
following terms shall have the meanings indicated, unless the
context clearly indicates otherwise:
2.1 Account(s) .
“Account(s)” means the notional account or accounts
maintained on the books of the Company used solely to calculate the
amount payable to each Participant under this Plan and shall not
constitute a separate fund of assets. Account(s) shall be deemed to
exist from the time amounts are first credited to such Account(s)
until such time that the entire Account balance has been
distributed in accordance with this Plan. The Accounts available
for each Participant shall be identified as:
(a) Deferral Account;
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(b) In-Service Account;
and,
(c) Retention Account.
2.2 Beneficiary .
“Beneficiary” means the person, persons or entity as
designated by the Participant, entitled under Article VI to receive
any Plan benefits payable after the Participant’s
death.
2.3 Board .
“Board” means the Board of Directors of the
Company.
2.4 Change of Control
. “Change of Control” means:
(a) a change in the ownership or
effective control of the Company or in the ownership of a
substantial portion of the assets of the Company, as defined and
determined under Section 409A(a)(2)(A)(v) of the Code and
Treasury Regulation Section 1.409A-3(i)(5). Without in any way
limiting the scope of the preceding sentence, a Change of Control
shall be deemed to occur on the date upon which one of the
following events occurs:
i. any one person (as such term is
used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), or more than
one person acting as a group (as determined under Treasury
Regulation Section 1.409A-3(i)(5)(v)(B)), acquires ownership
of stock of the Company that, together with stock held by such
person or group, constitutes more than 50% of either the total fair
market value or total voting power of the stock of the Company.
However, if any one person, or more than one person acting as a
group, is considered to own more than 50% of the total fair market
value or total voting power of the stock of the Company, the
acquisition of additional control of the Company by the same person
or persons is not considered to cause a change of control of the
Company; or
ii. any one person (as such term is
used in the Exchange Act), or more than one person acting as a
group (as determined under Treasury Regulation
Section 1.409A-3(i)(5)(v)(B)), acquires (or has acquired
during the 12-month period ending on the date of the most recent
acquisition by such person or persons) ownership of stock of the
Company possessing 35% or more of the total voting power of the
Company. However, if any one person, or more than one person acting
as a group, is considered to own more than 35% of the total voting
power of the stock of the Company, the acquisition of additional
control of the Company by the same person or persons is not
considered to cause a change of control of the Company;
or
iii. a majority of members of the
Board is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or
election; or
iv. any one person (as such term is
used in the Exchange Act), or more than one person acting as a
group (as determined under Treasury Regulation
Section 1.409A-3(i)(5)(v)(B)), acquires (or has acquired
during the 12-month period ending on the date of the most
recent
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acquisition by such person or persons) assets
from the Company that have a total gross fair market value equal to
or more than 40% of the total gross fair market value of all of the
assets of the Company immediately prior to such acquisition or
acquisitions. For this purpose, gross fair market value means the
value of the assets of the Company, or the value of the assets
being disposed of, determined without regard to any liabilities
associated with such assets.
2.5 Code .
“Code” means the Internal Revenue Code of 1986, as
amended, and any successor thereto.
2.6 Committee .
“Compensation Committee” means the Compensation
Committee appointed by the Board to administer the Plan pursuant to
Article VII.
2.7 Company .
“Company” means Hologic, Inc., a Delaware corporation,
and any directly or indirectly affiliated subsidiary
corporations.
2.8 Compensation .
“Compensation” means the base salary payable to
Participant and bonus or incentive compensation earned by a
Participant with respect to employment services performed for the
Company by the Participant and considered to be “wages”
for purposes of federal income tax withholding. For purposes of
this Plan only, Compensation shall be calculated before reduction
for any amounts deferred by the Participant pursuant to the
Company’s tax qualified plans which may be maintained under
Section 401(k) or Section 125 of the Code, but shall
exclude “wages” associated with the exercise of stock
options by Participant or income arising from other equity
instruments (e.g., stock units, restricted stock units or
restricted stock) awarded to a Participant. Inclusion of any other
forms of compensation, including commissions payable, is subject to
Committee approval.
2.9 Deferral Election
. “Deferral Election” means an irrevocable written
commitment made by a Participant to defer a portion of his/her
Compensation as set forth in Article III, and as permitted by the
Committee in its sole discretion. The Deferral Election shall apply
to each payment of Compensation and/or Performance-Based
Compensation payable to a Participant, and shall specify the
Account or Accounts to which the Compensation deferred shall be
credited. Such designation shall be made in the form of a whole
percentage or an exact stated dollar amount. Such Deferral Election
shall be made on an Election Form and at a time deemed acceptable
to the Committee.
2.10 Deferral
Period . “Deferral Period” means each calendar
year, except that if a Participant first becomes eligible after the
beginning of a calendar year, the initial Deferral Period shall be
the date the Participant first becomes eligible to participate in
this Plan through and including December 31
st
of that calendar
year. For purposes of deferrals related to Participant’s
annual bonus or other Performance-Based Compensation,
“Deferral Period” shall mean the Company’s fiscal
year.
2.11 Determination
Date . “Determination Date” means each business
day.
2.12 Disability .
“Disability means the Participant is: (i) unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less
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than 12 months, or (ii) by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than 12 months, receiving income
replacement or other disability benefits for a period of not less
than 3 months under an accident and health plan covering employees
of the participant’s employer.
2.13 Distribution
Election . “Distribution Election” means the
form of payment for benefits payable from each Account under this
Plan, as elected by the Participant on an enrollment form
prescribed by the Committee (an “Enrollment
Form”).
2.14 Financial
Hardship . “Financial Hardship” means the
occurrence of any of the following events:
(a) a severe financial hardship to
the Participant resulting from an illness of accident of the
Participant, the Participant’s spouse, a Beneficiary, of the
Participant’s dependent (as defined in Section 152 of
the Code, without regard to Sections 152(b)(1), (b)(2), and
(d)(1)(B);
(b) loss of the Participant’s
property due to casualty (including the need to rebuild a home
following damage to a home not otherwise covered by insurance, for
example, not as a result of a natural disaster); or
(c) other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond
the control of the Participant, which may include, if applicable,
(x) the imminent foreclosure of or eviction from the
Participant’s primary residence, (y) the need to pay for
medical expenses of the Participant or funeral expenses of the
Participant’s spouse, a Beneficiary, or the
Participant’s dependent (as defined in Section 152 of
the Code without regard to Section 152 (b)(1), (b)(2), and
(d)(1)(B). Except as otherwise provided in this clause (c), the
purchase of a home and the payment of college tuition are not
Financial Hardship.
The determination of whether a
Financial Hardship exists shall be determined by the Committee
after addressing the facts and circumstances of each case and other
requirements of the applicable Treasury Regulations.
2.15 Interest .
“Interest” means the amount credited to or charged
against a Participant’s Account(s) on each Determination
Date, which shall be based on the Valuation Funds chosen by the
Participant as provided in Section 2.24, below and in a manner
consistent with Section 4.3, below. Such credits or charges to
a Participant’s Account may be either positive or negative to
reflect the increase or decrease in value of the Account in
accordance with the provisions of this Plan.
2.16 Participant .
“Participant” means any individual who is eligible,
pursuant to Section 3.1, below, to participate in this Plan,
and who either, has elected to defer Compensation under this Plan
in accordance with Article III, below, or who is determined by the
Committee in their sole discretion as being eligible to receive a
Retention Contribution under this Plan. Such individual shall
remain a Participant in this Plan for the period of deferral, or
credit, and until such time as all benefits payable under this Plan
have been paid in accordance with the provisions hereof.
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2.17 Performance-Based
Compensation . “Performance-Based Compensation”
means Compensation the amount of which, or the entitlement to which
is contingent on the satisfaction of pre-established organizational
or individual performance criteria that relate to a particular
Performance Period and are not certain to be met at the time the
Deferral Election is made.
2.18 Performance
Period . “Performance Period” means a
continuous period of service with the Company comprising one entire
plan year with respect to which Performance-Based Compensation is
earned.
2.19 Plan .
“Plan” means this Amended and Restated Supplemental
Executive Retirement Plan, as amended from time to time.
2.20 Retention
Contribution . “Retention Contribution” means
the annual discretionary contribution, if any, made by the Company
to the Participant’s Retention Account under
Section 4.4, below.
2.21 Retirement .
“Retirement” means the termination of a
Participant’s employment with the Company, for reasons other
than death or Disability, on or after the earlier of:
(a) attainment of age 55 with at least ten (10) years of
continuous service with the Company; or (b) attainment of age
sixty-five (65).
2.22 Specified
Employees . “Specified Employees” means
“key employees,” as defined in Section 416(i) of
the Code without regard to paragraph (5) thereof, of the
Company.
2.23 Termination of
Employment . A “Termination of Employment”
occurs where the Participant ceases performing any bona fide
services for the Company, irrespective of whether the Participant
is receiving or scheduled to receive salary continuation,
severance, employee benefits or similar payments or benefits
following the cessation of services.
2.24 Valuation Funds .
“Valuation Funds” means one or more of the hypothetical
investment funds or indices managed by an investment manager that
are selected by the Committee. These Valuation Funds are used
solely to calculate the Interest that is credited to each
Participant’s Account(s) in accordance with Article IV,
below, and does not represent, nor should it be interpreted to
convey any beneficial interest or ownership on the part of the
Participant in any asset or other property of the Company.
Participants may allocate their Account(s) between Valuation Funds.
Exhibit A attached hereto sets forth the available Valuation Funds
which may be amended from time to time in the sole and absolute
discretion of the Committee.
ARTICLE III - ELIGIBILITY AND
PARTICIPATION
3.1 Eligibility and
Participation .
(a) Eligibility .
Eligibility to participate in the Plan shall be limited to those
senior management employees of the Company who have annual
compensation equal to or in excess of $200,000 or who are
designated as eligible to participate by the Committee from time to
time.
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(b) Participation . An
individual’s participation in the Plan shall be effective
upon notification to the individual by the Committee or its
designee of his/her eligibility to participate, and the earlier of
a contribution under this Plan being made on behalf of the
Participant by the Company or the completion and submission of an
Enrollment Form, Allocation Form (as defined in
Section 3.2(b), below), and a Distribution Election to the
Committee no later than fifteen (15) days prior to the
beginning of the Deferral Period.
(c) First-Year
Participation . When an individual first becomes eligible
to participate in this Plan, a Deferral Election may be submitted
to the Committee within thirty (30) days after the Committee
notifies the individual of eligibility to participate. Such
Deferral Election will be effective only with regard to
Compensation earned and payable following submission of the
Deferral Election to the Committee.
3.2 Form of Deferral
Election . A Participant may irrevocably elect to make a
Deferral Election no later than fifteen (15) days prior to the
beginning of the Deferral Period by submitting the Enrollment Form
permitted by the Committee. A Deferral Election with respect to any
bonus or Performance-Based Compensation which is based on services
performed over a period of at least twelve (12) months shall
be made no later than six (6) months prior to the end of such
performance period, provided that: (i) the election to defer
is made before the compensation has become readily ascertainable
and (ii) the Participant was employed at the time the
performance criteria were established. The Deferral Election shall
specify the following:
(a) Deferral Amounts;
Accounts . A Deferral Election shall be made with respect
to each payment of Compensation payable by the Company to a
Participant during the Deferral Period, and shall designate the
portion of each deferral that shall be allocated among either the
Deferral or In-Service Accounts. In addition, no amounts shall be
deferred into an In-Service Account once payments have commenced
under the terms of this Plan and until such time as the entire
Account Balance has been completely distributed. The Participant
shall set forth the amount of his salary to be deferred as a whole
percentage amount of Compensation, and with respect to the deferral
of bonus Compensation or Performance-Based Compensation, a stated
dollar amount or a whole percentage amount above a stated dollar
amount.
(b) Allocation to Valuation
Funds . The Participant shall specify in a separate form
(known as the “Allocation Form”) filed with the
Committee, the Participant’s initial allocation of the
amounts deferred into each Account among the various available
Valuation Funds.
(c) Maximum Deferral .
The maximum amount of Compensation that may be deferred shall be no
more than seventy-five percent (75%) of base salary and one
hundred percent (100%) of annual bonus or Performance-Based
Compensation.
3.3 Period of
Commitment . Any Deferral Election made by a Participant
with respect to Compensation shall remain in effect for the next
succeeding Deferral Period, and shall remain in effect for all
future Deferral Periods unless revoked or amended in writing by the
Participant and delivered to the Committee no later than fifteen
(15) days prior to the beginning of a subsequent Deferral
Period, except that if a Participant suffers a Disability or
terminates employment with Company prior to the
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end of the Deferral Period, the Deferral Period
shall end as of the date of Disability or Termination of
Employment. Furthermore, a Deferral Election may be temporarily
revoked by operation of Section 5.5, below.
3.4 Modification of Deferral
Election . Except as provided in Sections 3.3, above, and
5.5 below, a Deferral Election shall be irrevocable by the
Participant during a Deferral Period.
3.5 Change in Status .
If the Committee determines that a Participant’s employment
performance is no longer at a level that warrants reward through
participation in this Plan, but does not terminate the
Participant’s employment with Company, the
Participant’s existing Deferral Election shall terminate at
the end of the Deferral Period, and no new Deferral Election may be
made by such Participant after notice of such determination is
given by the Committee, unless the Participant later satisfies the
requirements of Section 3.1. If the Committee, in its sole
discretion, determines that the Participant no longer qualifies as
a member of a select group of management or highly compensated
employees, as determined in accordance with the ERISA, and
interpretive guidance issued thereunder the Committee may, in its
sole discretion terminate any Deferral Election for that year, and
prohibit the Participant from making any future Deferral
Elections.
3.6 Defaults in Event of
Incomplete or Inaccurate Deferral Elections . In the event
that a Participant submits a Deferral Election to the Committee
that contains information necessary to the efficient operation of
this Plan which, in the sole discretion of the Committee, is
incomplete or inaccurate, the Committee shall be authorized to
treat the incomplete or inaccurate Deferral Election as if the
following elections had been made by the Participant, and such
information shall be communicated to the Participant:
(a) If no Account is listed - treat
as if the Deferral Account was elected;
(b) If Accounts listed equal less
than 100% - treat as if the balance was deferred into Deferral
Account;
(c) If Accounts listed equal more
than 100% - proportionately reduce each Account to equal
100%;
(d) If In-Service Account is listed,
but no deferrals can be made into that Account due to the fact that
benefits are being paid from that In-Service Account, then the
amounts elected to be deferred shall be credited to the Deferral
Account during such period of payment, after which time the balance
of the amounts elected to be deferred shall be credited to a
subsequent In-Service Account with a distribution date as elected
or as provided in subsection (i), below;
(e) If no Valuation Fund is selected
- treat as if the Money Market Fund was elected;
(f) If Valuation Fund(s) selected
equal less than 100% - treat as if the Money Market Fund was
elected for remaining balance;
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(g) If Valuation Fund(s) selected
equal more than 100% - proportionately reduce each Valuation Fund
to equal 100%;
(h) If no Distribution Election is
chosen - treat as if lump sum was elected for In-Service Account
and treat as if three (3) year annual installment method was
elected for Deferral Account; and,
(i) If no time of payment is chosen
for In-Service Account -treat as if the earliest possible date
available under the provisions of Section 5.3, below, was
elected.
ARTICLE IV - DEFERRED
COMPENSATION ACCOUNT
4.1 Accounts . The
Compensation deferred by a Participant under the Plan, and Interest
shall be credited to the Participant’s Account(s) as selected
by the Participant; any Retention
