Exhibit 10.1
INDEMNIFICATION
AGREEMENT
This Agreement, made
and entered into this 4 th day of March, 2009
(“Agreement”), by and between Hologic, Inc., a Delaware
corporation (“Company”), and
(“Indemnitee”).
WHEREAS, the Company desires to
retain the availability of its existing directors and to be in a
position to attract additional persons to serve in such capacity;
and
WHEREAS, highly competent persons
are becoming more reluctant to serve as directors or in other
capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their
service to and activities on behalf of the Company; and
WHEREAS, the current
impracticability of obtaining adequate insurance and the
uncertainties relating to indemnification have increased the
difficulty of attracting and retaining such persons; and
WHEREAS, it is reasonable, prudent
and necessary for the Company contractually to obligate itself to
indemnify such persons to the maximum extent permitted by
applicable law so that they will serve or continue to serve the
Company free from undue concern that they will not be so
indemnified;
WHEREAS, Indemnitee does not regard
the protection available under the Company’s Certificate of
Incorporation and By-laws as adequate in the present circumstances,
and may not be willing to serve as a director without adequate
protection and the Company desires Indemnitee to serve in such
capacity. Indemnitee is willing to serve, continue to serve and to
take on additional service for or on behalf of the Company on the
condition that Indemnitee be indemnified to the maximum extent
permitted by applicable law so that they will serve or continue to
serve the Company free from undue concern that they will not be so
indemnified;
WHEREAS, this Agreement is a
supplement to and in furtherance of the By-laws of the Company and
any resolutions adopted pursuant thereto, and shall not be deemed a
substitute therefore nor to diminish or abrogate any right of
Indemnitee thereunder; and
NOW, THEREFORE, in consideration of
the premises and the covenants contained herein, the Company and
Indemnitee do hereby covenant and agree as follows:
ARTICLE I
Definitions
For purposes of this Agreement the
following terms shall have the meanings indicated:
1.01. “ Board ”
shall mean the Board of Directors of the Company.
1.02. “ Change of
Control ” shall be deemed to occur upon the earliest to
occur after the date of this agreement of any of the following
events:
(a) Acquisition of Stock by Third
Party . Any Person (as defined below) is or becomes the
Beneficial Owner (as defined below), directly or indirectly, of
securities of the Company representing twenty percent (20%) or
more of the combined voting power of the Company’s then
outstanding securities;
(b) Change in the Board .
During any period of two (2) consecutive years (not including
any period prior to the execution of this Agreement), individuals
who at the beginning of such period constitute the Board, and any
new director (other than a director designated by a person who has
entered into an agreement with the Company to effect a transaction
described in Sections 1.02(a), 1.02(c) or 1.02(d)) whose election
by the Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute at least a majority of the members of the
Board;
(c) Corporate Transactions .
The effective date of a merger or consolidation of the Company with
any other entity, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 51% of
the combined voting power of the voting securities of the surviving
entity outstanding immediately after such merger or consolidation
and with the power to elect at least a majority of the board of
directors or other governing body of such surviving
entity;
(d) Liquidation . The
approval by the stockholders of the Company of a liquidation of the
Company or an agreement for the sale or disposition by the Company
of all or substantially all of the Company’s assets;
and
(e) Other Events . There
occurs any other event of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of
Regulation 14A (or a response to any similar item on any similar
schedule or form) promulgated under the Exchange Act (as defined
below), whether or not the Company is then subject to such
reporting requirement.
For purposes of this
Section 1.02, the following terms shall have the following
meanings:
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(A)
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“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations
promulgated thereunder.
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(B)
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“Person” shall have
the meaning as set forth in Sections 13(d) and 14(d) of the
Exchange Act (including without limitation any two or more persons
acting as a group and deemed to be a single person under
Section 13(d) pursuant to Section 13(d)(3) and Rule 13d-5
promulgated thereuder);
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provided, however, that Person
shall exclude (i) the Company, (ii) any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, and (iii) any corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the
Company.
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(C)
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“Beneficial Owner” shall have the
meaning given to such term in Rule 13d-3 under the Exchange Act;
provided, however, that Beneficial Owner shall exclude any Person
otherwise becoming a Beneficial Owner by reason of the stockholders
of the Company approving a merger of the Company with another
entity.
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1.03. “ Corporate
Status ” describes the status of a person who is or was a
director, officer, employee, agent, trustee or fiduciary of the
Company or of any other corporation, limited liability company,
partnership, joint venture, trust, employee benefit plan or other
enterprise for which such person is or was serving as a director,
officer, employee or agent at the request of the
Company.
1.04. “ Court ”
means the Court of Chancery of the State of Delaware, the court in
which the Proceeding in respect of which indemnification is sought
by the Indemnitee shall have been brought or is pending, or another
court having subject jurisdiction and personal jurisdiction over
the parties.
1.05. “ Disinterested
Director ” means a director of the Company who is not and
was not and is not threatened to be a party to the Proceeding in
respect of which indemnification is sought by
Indemnitee.
1.06. “ Enterprise
” shall mean the Company and any other corporation, limited
liability company, partnership, joint venture, trust, employee
benefit plan or other entity of which Indemnitee is or was serving
at the request of the Company as a director, officer, employee,
agent, trustee or fiduciary.
1.07. “ Expenses
” shall mean all reasonable costs and expenses (including,
without limitation, all reasonable attorneys’ fees,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all
other disbursements or expenses of the types customarily) incurred
in connection with prosecuting, defending, preparing to prosecute
or defend, investigating or being or preparing to be a witness in a
Proceeding or otherwise participating in a Proceeding. Expenses
also shall include (i) all reasonable costs and expenses
incurred in connection with any appeal resulting from any
Proceeding, including without limitation the premium, security for,
and other costs relating to any cost bond, supersede as bond, or
other appeal bond or its equivalent, and (ii) for purposes of
Section 8.06 only, all reasonable costs and expenses incurred
by Indemnitee in connection with the interpretation, enforcement or
defense of
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Indemnitee’s rights under this Agreement,
by litigation or otherwise. The parties agree that for the purposes
of any advancement of Expenses for which Indemnitee has made
written demand to the Company in accordance with this Agreement,
all Expenses included in such demand that are certified by
affidavit of Indemnitee’s counsel as being reasonable shall
be presumed conclusively to be reasonable. Expenses, however, shall
not include amounts paid in settlement by Indemnitee or the amount
of judgments or fines against Indemnitee.
1.08. “ Good Faith
” shall mean Indemnitee having acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any
Proceeding which is criminal in nature, having had no reasonable
cause to believe Indemnitee’s conduct was
unlawful.
1.09. “ Independent
Counsel ” means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and may include
law firms or members thereof that are regularly retained by the
Company but not any other party to the Proceeding giving rise to a
claim for indemnification hereunder. Notwithstanding the foregoing,
the term “Independent Counsel” shall not include any
person who, under the standards of professional conduct then
prevailing and applicable to such counsel, would have a conflict of
interest in representing either the Company or Indemnitee in an
action to determine Indemnitee’s rights under this Agreement.
The Company agrees to pay the reasonable fees and expenses of the
Independent Counsel referred to above and to fully indemnify such
counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
1.10. “ Proceeding
” shall include any pending, threatened or completed action,
suit, arbitration, alternate dispute resolution mechanism,
investigation (including any internal corporate investigation),
administrative hearing or any other pending, threatened or
completed proceeding whether civil, criminal, administrative,
legislative or investigative (whether formal or informal), other
than one initiated by Indemnitee including any appeal therefrom in
which Indemnitee was, is or will be involved as a party, potential
party, non-party witness or otherwise by reason of the fact that
Indemnitee is or was a director or officer of the Company, by
reason of any action taken by him or of any action on his part
while acting as director or officer of the Company, or by reason of
the fact that he is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation,
limited liability company, partnership, joint venture, trust or
other enterprise, in each case whether or not serving in such
capacity at the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement. If the Indemnitee believes in good
faith that a given situation may lead to or culminate in the
institution of a Proceeding, this shall be considered a Proceeding
under this paragraph. For purposes of this paragraph, a
“Proceeding” shall not be deemed to have been initiated
by Indemnitee where Indemnitee seeks pursuant to Article VIII of
this Agreement to enforce Indemnitee’s rights under this
Agreement.
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ARTICLE II
Term of Agreement
This Agreement shall continue until
and terminate upon the later of: (i) ten (10) years after
the date that Indemnitee shall have ceased to serve as a director,
officer, employee, agent, trustee or fiduciary of the Company or of
any other Enterprise; or (ii) the final termination of all
pending Proceedings in respect of which Indemnitee is granted
rights of indemnification or advancement of Expenses hereunder and
of any proceeding commenced by Indemnitee pursuant to Article VIII
of this Agreement relating thereto.
ARTICLE III
Services by Indemnitee, Notice of
Proceedings
3.01. Services . Indemnitee
agrees to serve or continue to serve as a director of the Company
for so long as he is duly elected or appointed. Indemnitee may at
any time and for any reason resign from such position (subject to
any other contractual obligation or any obligation imposed by
operation of law). This Agreement shall not be deemed an employment
contract between the Company (or any of its subsidiaries or any
Enterprise) and Indemnitee. This Agreement shall continue in force
after Indemnitee has ceased to serve as a director of the
Company.
3.02. Notice of Proceeding .
Indemnitee agrees promptly to notify the Company in writing upon
being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder, but the omission so to
notify the Company shall not relieve the Company from its
obligations hereunder.
ARTICLE IV
Indemnification
4.01. In General . In
connection with any Proceeding, the Company shall indemnify and
advance Expenses to Indemnitee as provided in this Agreement and to
the maximum extent permitted by applicable law in effect on the
date hereof and including indemnification and advancement of
Expenses in excess of that expressly permitted by statute,
including, without limitation, any indemnification provided by the
Company’s Certificate of Incorporation, the Company’s
By-laws, vote of its stockholders or disinterested directors, or
applicable law.
4.02. Proceedings Other Than
Proceedings by or in the Right of the Company . Indemnitee
shall be entitled to the rights of indemnification to the maximum
extent not prohibited by law provided in this Section 4.02 if,
by reason of Indemnitee’s Corporate Status, Indemnitee is, or
is threatened to be made, a party to or is otherwise involved in
any Proceeding, other than a Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this
Section 4.02, Indemnitee shall be indemnified to the maximum
extent permitted by law against Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in Good Faith.
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4.03. Proceedings by or in the
Right of the Company . Indemnitee shall be entitled to the
rights of indemnification to the maximum extent not prohibited by
law provided in this Section 4.03 if, by reason of
Indemnitee’s Corporate Status, Indemnitee is, or is
threatened to be made, a party to or is otherwise involved in any
Proceeding brought by or in the right of the Company to procure a
judgment in its favor. Pursuant to this Section 4.03,
Indemnitee shall be indemnified to the maximum extent permitted by
applicable law against Expenses, judgments, penalties, and amounts
paid in defense or settlement, actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee
acted in Good Faith. Notwithstanding the foregoing, no such
indemnification for Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall
have been finally adjudged to be liable to the Company unless and
only to the extent that the Court in which the Proceeding was
brought shall determine upon application that, despite the
adjudication of liability, but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to
indemnification.
4.04. Indemnification of a Party
Who is Wholly or Partly Successful . Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee is, by
reason of Indemnitee’s Corporate Status, a party to or is
otherwise involved in and is successful, on the merits or
otherwise, in any Proceeding or in defense of any claim, issue or
matter therein, in whole or in part, Indemnitee shall be
indemnified by the Company to the maximum extent permitted by law,
against all Expenses, judgments, penalties, fines, and amounts paid
in defense or settlement, actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection therewith.
If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less
than all claims, issues or matters in such Proceeding, the Company
shall indemnify Indemnitee to the maximum extent permitted by law,
against all Expenses, judgments, penalties, fines, and amounts paid
in defense or settlement, actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this
Section 4.04 and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or
without prejudice, shall be deemed to be a successful result as to
such claim, issue or matter.
4.05. Indemnification for
Expenses of a Witness . Notwithstanding any other provision of
this Agreement, to the maximum extent permitted by applicable law
and to the extent that Indemnitee is, by reason of
Indemnitee’s Corporate Status, a witness or otherwise asked
to participate in any Proceeding to which Indemnitee is not a
party, Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection therewith.
4.06. Partial
Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a
portion of Expenses, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee, to
the maximum extent not prohibited by law, for the portion thereof
to which Indemnitee is entitled.
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4.07. Additional
Indemnification .
(a) Notwithstanding any limitation
in Sections 4.01, 4.02, 4.03, or 4.04, the Company shall indemnify
Indemnitee to the maximum extent permitted by applicable law if
Indemnitee is a party to or threatened to be made a party to any
Proceeding (including a Proceeding by or in the right of the
Company to procure a judgment in its favor) against all Expenses,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by Indemnitee in connection with the
Proceeding.
(b) For purposes of
Section 4.07(a), the meaning of the phrase “to the
maximum extent permitted by applicable law” shall include,
but not be limited to:
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(A)
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to the maximum
extent permitted by the provision of the General Corporation
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