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Exhibit
10.14
Separation and Release
Agreement
SEPARATION AND RELEASE
AGREEMENT entered into as of this 22 nd day of October, 2007 (the “Agreement”) by and among
Hologic, Inc., a Delaware corporation with its principal place of
business at 35 Crosby Drive, Bedford, Massachusetts 01730
(“Hologic”), Cytyc Corporation, a Delaware corporation
with its principal place of business at 250 Campus Drive,
Marlborough, Massachusetts 01752 (“Cytyc”), and Daniel
J. Levangie, an individual having his principal residence at 120
Commonwealth Avenue, Apt. 4, Boston, Massachusetts 02116 (the
“Executive”).
RECITAL
WHEREAS, in connection
with the execution and delivery of that certain Agreement and Plan
of Merger by and among Hologic, Nor’easter Corp., a Delaware
corporation (“Nor’easter”) and Cytyc Corporation,
dated as of May 20, 2007 (the “Merger Agreement”),
pursuant to which Cytyc, subject to satisfaction or waiver of the
conditions set forth therein, has agreed to merge with and into
Nor’easter (the “Merger”);
WHEREAS , Executive
and Cytyc entered into that certain Change of Control Agreement, as
amended, dated July 23, 2003 (the “Cytyc Change of
Control Agreement”);
WHEREAS , Executive
and Hologic have entered into that certain Amended and Restated
Retention and Separation Agreement dated August 17, 2007 (the
“Retention Agreement”), subject to and effective upon
the consummation of the Merger;
WHEREAS, Executive and
Hologic entered into that certain Intellectual Property Rights and
Noncompetition Agreement, dated August 17, 2007 (the
“Noncompetition Agreement”);
WHEREAS , Executive
and Hologic entered into a certain Amended and Restated Change of
Control Agreement, dated August 17, 2007 (the “Hologic
Change of Control Agreement”); and
WHEREAS , Executive
and Cytyc desire to reach a mutual understanding and acceptance of
the terms and conditions related to Executive’s resignation
from employment with Cytyc, effective as of the closing of the
Merger.
AGREEMENT
NOW, THEREFORE, in
consideration of the mutual promises and covenants herein contained
it is hereby agreed as follows:
1. Separation Date .
Executive shall cease to be an employee of Cytyc immediately prior
to the Effective Time (as such term is defined in the Merger
Agreement) of the Merger (the “Separation Date) and shall not
become an employee of Hologic; provided that this Release Agreement
is not revoked in accordance with Section 8 herein. The
Executive shall execute and deliver a letter of resignation to
Cytyc in substantially the form attached as Exhibit A hereto
and dated as of the Separation Date.
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2. Severance . In
consideration of Executive’s accepting and not revoking this
Release Agreement:
(a) In addition to all other
amounts payable to Executive by law (including, without limitation,
final wages and accrued but unused vacation), Cytyc shall pay
Executive a lump sum payment equal to $3,840,644.00 upon expiration
of the revocation period described in Section 8. The payments
indicated in this Section 2 hereof shall be net of all other
withholdings required by law, including, without limitation,
applicable federal and state taxes and shall be in lieu of, and
full satisfaction thereof and any and all payments due pursuant to
Section 6.1 of the Retention Agreement and Section 2 of
the Cytyc Change of Control Agreement. The Executive agrees and
acknowledges that in no event is he entitled to payment of a
Retention Bonus or issuance of Restricted Stock Units under
Sections 3 and 3.1, respectively, of the Retention Agreement. The
Company and Executive agree that the payment due the Executive
under Section 2(a)(i)(B) of the Cytyc Change of Control
Agreement is included in the amount set forth in this
Section 2(a) and the Company has no further obligation
thereto.
(b) Cytyc shall continue to
pay the employer and employee portion of premiums for COBRA
continuation coverage for eighteen (18) months following the
Separation Date.
(c) This Agreement shall be
subject to and conditioned upon the consummation of the Merger and
shall not become effective until the Effective Date (as defined in
Section 8 below). In the event that the Merger Agreement is
terminated prior to the Effective Time (as defined in the Merger
Agreement), then this Agreement shall become null and void ab
initio and be of no further force and effect.
3. Release
.
(a) In consideration for,
among other things, the payments to be made pursuant to Sections
2(a) and 2(b) above, Executive, for himself, his agents, legal
representatives, assigns, heirs, distributes, devisees, legatees,
administrators, personal representatives and executors
(collectively, the “Releasing Parties”), hereby
releases and discharges, to the extent permitted by law, Cytyc and
its present and past subsidiaries and affiliates, its and their
respective successors and assigns, and the present and past
shareholders, officers, directors, employees, agents and
representatives of each of the foregoing (collectively, the
“Releasees”), from any and all claims, demands,
actions, liabilities and other claims for relief and remuneration
whatsoever, whether known or unknown, from the beginning of the
world to the date Executive signs this Release Agreement, but
otherwise including, without limitation, any claims arising out of
or relating to Executive’s employment with and termination of
employment from Cytyc Corporation, for wrongful discharge, for
breach of contract, for discrimination or retaliation under any
federal, state or local fair employment practices laws, including,
Title VII of the Civil Rights Act of 1964 (as amended by the Civil
Rights Act of 1991), the Family and Medical Leave Act, the
Americans with Disabilities Act, the Age Discrimination in
Employment Act, for defamation or other torts, for wages, bonuses,
incentive compensation, stock, stock options, vacation pay or any
other compensation or benefit and any claims under any tort or
contract (express or implied) theory, and any of the claims,
matters and issues which could have been asserted by the Releasing
Parties against the Released Parties in any legal, administrative
or other proceeding in any jurisdiction. Notwithstanding the above,
nothing in this release is intended to release or waive
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your right to COBRA, unemployment
insurance benefits, any accrued pension rights or any other vested
retirement benefits, the right to seek enforcement of this
Agreement or any rights referenced in Section 4
below.
(b) In consideration of the
Release provided by the Executive in Section 3(a) above, Cytyc
hereby releases and discharges, to the extent permitted by law, the
Executive from any and all claims, demands, actions and liabilities
and other claims for relief or remuneration whatsoever, whether
known or unknown, from the beginning of the world to the date
Executive signs this Release Agreement; provided, however, nothing
herein shall eliminate or limit Executive’s personal
liability for any acts or omissions that were not in good faith or
which involved intentional misconduct or knowing violation of the
law.
4. Service as Director
. Notwithstanding anything herein to the contrary, the Executive
and Hologic acknowledge and agree that the Executive shall continue
as a director of Hologic as provided for in the Merger Agreement.
The Executive and Hologic agree and acknow
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