Exhibit 10.5
CHANGE OF CONTROL
AGREEMENT
CHANGE OF CONTROL AGREEMENT by and
between Hologic, Inc., a Delaware corporation (the
“Company”), and
(the “Executive”), dated as of November 13, 2008
(the “Agreement”).
WHEREAS, the Executive serves as a
Senior Vice President of the Company; and
WHEREAS, the Company 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, in connection therewith, to provide the Executive
with compensation and benefits arrangements upon a Change of
Control as set forth herein; and
WHEREAS, the Company and Executive
desire to enter into this Change of Control Agreement;
and
NOW, THEREFORE, in consideration of
the mutual covenants and agreements hereinafter set forth, the
parties hereto, each intending to be legally bound, do hereby agree
as follows:
1. Certain Definitions . As
used herein, the following terms shall have the meanings set forth
below:
“ Accrued Obligations
” means the sum of (i) any portion of the
Executive’s base salary earned but not yet paid through the
Date of Termination, (ii) the product of (x) the Average
Annual Bonus and (y) 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 and (iii) any
accrued and unpaid compensation, expense reimbursements and any
accrued and vested pension, welfare and fringe benefits subject to
and in accordance with the terms of the applicable plan or policy
including, any unpaid accrued vacation pay, in each case, to the
extent earned, but not yet paid by the Company through the Date of
Termination. Notwithstanding anything to the contrary in the
foregoing, the term “Accrued Obligations” shall not
include any severance benefits not otherwise expressly set forth
herein, it being understood that this Agreement, as it relates to
the termination during the Change of Control Period, shall
supersede any severance benefits to which the Executive would
otherwise have been entitled to pursuant to any other severance
agreement or severance plan that would otherwise have been
applicable to the Executive.
“ Annual Base Salary
” means the greater of the Executive’s annual base
salary as of (i) the date of the consummation of a Change of
Control or (ii) Date of Termination. Notwithstanding anything
herein to the contrary, any portion of Annual Base Salary
electively deferred by the Executive pursuant to a qualified or a
non-qualified plan shall be included in determining Annual Base
Salary.
“ Annual Bonus ”
means the amount paid to Executive in accordance with the
Company’s annual bonus plan, provided, that any portion of an
annual bonus electively deferred by the Executive pursuant to a
qualified or a non-qualified plan shall be included in determining
Annual Bonus. For the avoidance of doubt the Executive’s
Annual Bonus amount shall exclude any retention bonus paid pursuant
to a separate retention agreement between Company and Executive and
any amount contributed or to be contributed by the Company on
behalf of the Executive pursuant to any qualified or non-qualified
plan maintained by the Company. Notwithstanding anything herein to
the contrary, the Executive’s Annual Bonus amount for fiscal
years 2008, 2007 and 2006 shall be the amount set forth on
Exhibit A attached hereto.
“ Average Annual Bonus
” means an amount equal to the average (annualized for any
completed fiscal year with respect to which the Executive has been
employed by the Company for less than twelve (12) full months)
of the Annual Bonus (payable to the Executive by the Company and,
if applicable, its predecessors, in respect of each of the three
(3) fiscal years immediately preceding the fiscal year in
which a Change of Control occurs.
“ Cause ” means a
determination by the Company that any of the following has
occurred: (i) disloyalty, gross negligence, willful misconduct
or breach of fiduciary duty to the Company which results in
substantial direct or indirect loss, damage or injury to the
Company; (ii) Executive’s material violation of the
Company’s Code of Conduct, and other Company Codes of Conduct
or other policies and procedures that are applicable to the
Executive; (iii) the commission, indictment, plea of nolo
contendere or conviction of Executive of a felony;
(iv) the breach of the Executive’s confidentiality,
non-competition, non-solicitation covenants set forth in a separate
written agreement between the Company and the Executive; or
(v) a violation of federal or state securities law or
regulations.
“ Change of Control
” means:
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(i)
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The acquisition
by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 50% or more of the Voting Stock of the
Company; provided, however, that any acquisition by the Company, or
any employee benefit plan (or related trust) of the Company of 50%
or more of Voting 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 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 Voting Stock immediately prior to such
acquisition in substantially the same proportion as their
ownership, immediately prior to such acquisition, of the Voting
Stock, shall not constitute a Change in Control; or
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(ii)
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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
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(iii)
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The
consummation of (i) a Merger with respect to which the
individuals and entities who were the beneficial owners of the
Voting Stock immediately prior to such Merger do not, following
such Merger, beneficially own, directly or indirectly, more than
50% of the then outstanding shares of common stock of the
corporation resulting from the Merger (the Resulting
Corporation”) as a result of the individuals’ and
entities’ shareholdings in the Company immediately prior to
the consummation of the Merger and without regard to any of the
individual’s and entities’ shareholdings in the
corporation resulting from the Merger immediately prior to the
consummation of the Merger, (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.
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Notwithstanding the foregoing, no
Change of Control shall be deemed to occur if as a result of any
transaction referred to in paragraph (iii) above, the Company
is deemed to be the accounting acquirer under U.S. generally
accepted accounting principles pursuant to paragraph 17 of
Statement of Financial Accounting Standard (SFAS) 141, as it may be
amended from time to time or any successor rule, standard,
pronouncement, law or regulation.
“ Change of Control
Period ” means the period commencing upon a Change of
Control and ending two (2) years after a Change of
Control.
“ Code ” means
the Internal Revenue Code of 1986, as amended and any successor act
thereto.
“ Company Payments
” has the meaning ascribed to in Section 6.
“ Company’s
Accountants ” means the Company’s independent
certified public accountants appointed prior to any change in
ownership (as defined under Section 280G(b)(2) of the Code) or
tax counsel selected by the such certified public
accountants.
“ Date of Termination
” means the date of receipt of the notice of termination by
either party provided that if the Executive’s employment is
terminated by the Executive as a result of Good Reason, the Date of
Termination shall be the date that the Company’s 30 day cure
period expires.
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“ Disability ”
means Executive’s inability to satisfactorily perform the
essential functions and duties of Executive’s position with
the Company, with or without reasonable accommodation, for either
60 consecutive days or 90 days in any 6 month period, as a result
of any physical or mental impairment, as determined by the Board
upon certification thereof by a qualified physician selected by the
Board after such physician examines Executive. Executive agrees,
upon request by the Board, to submit to such examination and to
provide the Board such medical evidence, records and examination
data as is reasonably necessary for the Board to evaluate any
potential Disability. The Board agrees to treat such medical
information confidentially as required by law.
“ Effective Date
” means the date of the occurrence of a Change of
Control.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended, and any
successor act thereto.
“ Excise Tax ”
has the meaning ascribed to it in Section 6.
“ Good Reason ”
means:
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(i)
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A material
diminution in the Executive’s base compensation;
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(ii)
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A material
diminution in the Executive’s authority, duties and
responsibilities as in effect immediately prior to the Change of
Control;
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(iii)
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A material
diminution in the authority, duties and responsibilities of the
supervisor to whom the Executive is required to report as in effect
immediately prior to the Change of Control;
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(iv)
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A material
change in the geographic location in which Executive’s
principal office was located immediately prior to the Change of
Control;
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(v)
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A material
diminution in the budget over which the Executive had authority
immediately prior to the of the Change of Control;
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(vi)
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Any other
action or inaction that constitutes a material breach by the
Company of this Agreement or any other agreement under which the
Executive provides services;
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provided, however, that Good Reason
shall not exist unless the Executive has given written notice to
the Company within ninety (90) days of the initial existence
of the Good Reason event or condition(s) giving specific details
regarding the event or condition; and unless the Company has had at
least thirty (30) days to cure such Good Reason event or
condition after the delivery of such written notice and has failed
to cure such event or condition within such thirty (30) day
cure period.
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“ Merger ” means
a reorganization, merger or consolidation.
“ Non-Competition
Agreements ” means any agreement other than this
Agreement between the Executive and the Company containing
restrictive covenants pertaining to confidentiality,
non-competition and non-solicitation.
“ Voting Stock ”
means the then outstanding shares of voting stock of the
Company.
“Welfare Benefit
Continuation” means
the continuation of medical and dental insurance benefits to the
Executive and/or the Executive’s family at least equal to and
on the same basis to those which would have been provided in
accordance to the terms of the plans to other similarly situated
employees of the Company. For the avoidance of doubt, Welfare
Benefit Continuation shall not include disability, group life or
other fringe benefits.
2. Effect of Change of Control
and Obligations of the Company upon Termination Following a Change
of Control .
(a) Termination Following a
Change of Control as a Result of Death, Disability or Cause .
If the Company consummates a Change of Contr
