Exhibit 10.1

HOLOGIC, INC.

DEFERRED EQUITY PLAN

ADOPTED EFFECTIVE SEPTEMBER 17, 2015

ARTICLE 1

Nature and Purpose of Plan

1.1     Nature . This document, the Hologic, Inc. Deferred Equity Plan, became effective upon its adoption by the Committee on September 17, 2015 (the “Effective Date”) . The Plan has been adopted by the Committee pursuant to the authority granted to the Committee under the EIP and is subject in all respects to the terms and conditions of the EIP.  The Plan is intended to be a nonqualified deferred compensation plan within the meaning of Code Section 409A, to be construed and administered in accordance with the Section 409A Standards.

1.2     Purpose . The purpose of the Plan is to provide Eligible Participants with an opportunity to defer taxation of all or a portion of their Eligible Equity Awards and to accumulate Company stock in a tax-efficient manner.

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 the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), and therefore is exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA.

ARTICLE 2

Definitions

2.1     Definitions . As used in the Plan, the following words and phrases, when capitalized, have the following meanings:

(a)    “Account” means, with respect to a Participant, a bookkeeping account established for the Participant pursuant to Article 3 as a Deferred DSU Account.

(b)    “Affiliate” means (1) any corporation that is a member of a controlled group of corporations (as defined in Code section 414(b)) of which the Company is also a member, (2) any trade or business, whether or not incorporated, that is under common control (as defined in Code section 414(c)) with the Company, (3) any trade or business that is a member of an affiliated service group (as defined in Code section 414(m)) of which the Company is also a member, or (4) to the extent required by regulations issued under Code section 414(o), any other organization. The term “Affiliate,” however, does not include any corporation or unincorporated

trade or business prior to the date on which that corporation, trade, or business satisfies the affiliation or control tests of (1), (2), (3), or (4) above.

(c)    “Beneficiary” means the person or persons designated pursuant to Section 5.3 to receive benefits under the Plan in the event of a Participant’s death.

(d)    “Board of Directors” means the Board of Directors of the Company.

(e)    “Cash Compensation” means, with respect to an Eligible Participant for a Plan Year, compensation payable to the Eligible Participant by the Company or any of its Affiliates for the Plan Year in the form of cash.

(f)    “Change of Control" shall have the meaning assigned to such term in the EIP, provided that such transaction must also constitute a “change in control event” as defined in Treasury Regulation Section §1.409A-3(i)(5), to the extent required by the Section 409A Standards.

(g)    “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time. Reference to a particular section of the Code includes reference to any regulations issued by the Department of Treasury under that section and any notices and other releases issued by the Internal Revenue Service interpreting or implementing that section.

(h)    “Committee” means the Compensation Committee of the Board of Directors.

(j)    “Company Stock” means common stock of the Company.

(k)    “Deferred DSU Account” means, with respect to a Participant, the Account established for the Participant pursuant to Section 4.5.

(l)    “Deferred DSUs” means Eligible Equity Awards that are deferred in accordance with Section 4 and then are settled and distributed to a Participant in shares of Company Stock in accordance with Article 5.

(m)    “Director” means a member of the Board of Directors.

(n)    “EIP” means the Hologic, Inc. Amended and Restated 2008 Equity Incentive Plan, as it may be amended from time to time, and any successor to that plan.

(o) “Eligible Equity Awards” means, with respect to an Eligible Participant for a Plan Year, restricted stock units and performance stock units granted under the EIP, or portions of such awards, with a vesting date or dates that occur on or after November 1, 2016. Options to purchase the Company’s common stock are not eligible for deferral under the Plan.

(p) “Eligible Participant” means any (x) Director who is not an employee of the Company or any of its Affiliates or if so determined by the Board of Directors or (y) any employee of the Company or any of its Affiliates who is a designated member of the Company’s Executive Leadership Team, Division President, Corporate Vice President or is otherwise designated as an eligible participant by the Board of Directors or the Committee.

(q)  “Participant” means an Eligible Participant who becomes a participant in the Plan pursuant to Section 3.1 and has not ceased to be a Participant pursuant to Section 3.2.

(r)   “Payment Event” means, with respect to Deferred DSUs, the earliest of (1) a Participant’s Separation from Service, plus, if applicable, a specified number of years following such separation as set forth on the Participant’s governing election form, (2) the Participant’s death and (3) a Change of Control.

(s) “Permissible Trading Day” means a day that satisfies each of the following requirements: (1) the Nasdaq Global Market is open for trading on that day; (2) the Participant is permitted to sell shares of Company Stock on that day without incurring liability under Section 16(b) of the Securities Exchange Act of 1934, as amended; (3) the Participant is either (a) not in possession of material non-public information that would make it illegal to sell shares of Company Stock on that day under Rule 10b-5 of the Securities and Exchange Commission or (b) Rule 10b5-1 of the Securities and Exchange Commission is applicable; (4) under the Company’s Insider Trading Policy, the Participant is permitted to sell shares of Company Stock on that day; and (5) the Participant is not prohibited from selling shares of Company Stock on that day by a written agreement between the Participant and the Company or a third party.

(t) “Plan” means this Hologic, Inc. Deferred Equity Plan, as amended from time to time.

(u)   “Plan Year” means a fiscal year of the Company beginning on or after September 27, 2015, and each successive fiscal year thereafter.

(v)    “Section 409A Standards” means the applicable requirements and standards for nonqualified deferred compensation plans established by Code Section 409A.

(w)    “Separation From Service” means, with respect to a Participant, a “separation from service” as defined in accordance with the Section 409A Standards, including Treasury Regulation §1.409A-1(h), and shall include, for the avoidance of doubt, as a “separation from service” as a result of a Participant’s disability. The Committee may, but need not, elect in writing, subject to the applicable limitations under the Section 409A Standards, any of the special elective rules prescribed in §1.409A-1(h) for purposes of determining whether a Separation From Service has occurred. Any such written election will be deemed to be part of the Plan.

(x)    “Specified Employee” has the meaning given in Code Section 409A(a)(2)(B)(i).

ARTICLE 3

Participation

3.1     Commencement of Participation . An Eligible Participant will become a Participant by filing an election form in accordance with the provisions of Section 4.1.

3.2     Duration of Participation . A Participant will remain a Participant until he or she has received all payments to which he or she is entitled under the terms of the Plan.

3.3 Determination of Eligible Participants . The Board of Directors or the Compensation Committee shall determine Eligible Participants under the Plan from time to time in its sole and absolute discretion.

ARTICLE 4

Elections and Accounts

4.1     Deferral Election . Prior to the beginning of each Plan Year, each Eligible Participant may elect in writing, in the manner and on the form prescribed by the Committee, to defer settlement of all or a portion of the Eligible Participant’s Eligible Equity Award that will or may be granted in the following Plan Year and have the deferred amount credited, as Deferred

DSUs, to a Deferred DSU Account pursuant to Section 4.3. A Participant’s deferral election for a Plan Year will become irrevocable on the day preceding the first day of the Plan Year. Notwithstanding the foregoing, Participants may make a deferral election (i) in the thirty (30) days following the Plan’s Effective Date with respect Eligible Equity Awards to be issued in Plan Year beginning on September 27, 2015 and (ii) make, prior to October 31, 2015, a one-time election to deferred Eligible Equity Awards issued prior to September 17, 2015 with respect to amounts thereof vesting on or after November 1, 2016.

4.2     Deemed Non-Election . If a Participant fails to make a timely deferral election in accordance with Section 4.1 for a Plan Year, the Participant will be deemed to have elected not to defer any portion of his Eligible Equity Award for the Plan Year.

4.3      Deferred DSU Account . A Deferred DSU Account will be established for any Participant who makes an election described in Section 4.1 for any Plan Year. For each Plan Year for which a Participant makes an election described in Section 4.1 with respect to all or a portion of his or her Eligible Equity Award, the Participant’s Deferred DSU Account will be credited with a number of Deferred DSUs equal to the number of shares subject to the Eligible Equity Award that otherwise would been settled if the Participant had not made a deferral election described in Section 4.1.

4.4     Dividend Equivalent. Unless otherwise determined by the Committee, if dividends are paid or distributed with respect to the Company’s Stock and to the extent that an Eligible Equity Award that has been deferred in accordance with Section 4.1, then the Participant shall have dividend equivalents (the “Dividend Equivalents”) credited to his or her Deferred DSU Account in an amount equal in value to the amount of the dividend or property distributed on a single share of Company Stock, multiplied by the number of Deferred DSU’s credited to the Participant’s Deferred DSU account as of the record date for such dividend or distribution.

4.5    Account Records . Participants will be able to access records of their Deferred DSU Account balances online or telephonically through the appropriate record keeper.

ARTICLE 5

Payment of Deferred Amounts

5.1        Timing of Payment of Deferred DSU Accounts . Upon a Payment Event, the total number of vested Deferred DSUs and Dividend Equivalents, if any, credited to the Participant’s Deferred DSU Account will be settled in a lump sum in shares of Company Stock

(with one share of Company Stock payable for each whole Deferred DSU and associated Dividend Equivalents) on the earliest of:

5.2     Delay For Specified Employees . Notwithstanding section 5.1, in the event that (a) the Payment Event is a Separation From Service (assuming no additional number of years following separation was elected as a Payment Event by the Participant at the time of deferral), and (b) a Participant is a Specified Employee at the time of his Separation From Service, then any vested Deferred DSUs that would otherwise have been settled during the six-month period following such Participant’s Separation From Service, shall instead be settled on the six-month anniversary of such Participant’s Separation From Service.

5.3      Designation of Beneficiary . A Participant may designate a Beneficiary or Beneficiaries under the Plan to receive payment of the Participant’s Accounts upon the Participant’s death by submitting a completed Beneficiary designation to the Committee’s designated record keeper, in the form and manner prescribed by the Committee or its designee, before the Participant’s death. If the Participant fails to designate a Beneficiary, or if no designated Beneficiary survives the Participant, the Participant’s Beneficiary will be the Participant’s estate.

5.4     Unvested Deferred DSUs . The extent to which Deferred DSUs are vested will be determined by the terms of the EIP and the governing award agreement for the Eligible Equity Award.

A RTICLE 6

Nature of Claims for Benefit Payments

6.1     Obligation of the Company . The Company will establish on its books a liability with respect to its obligations for benefits payable under the Plan to Participants and their Beneficiaries.

6.2     Participants’ Rights Unsecured . The Plan is unfunded. The right of any Participant to receive payment of deferred amounts under the provisions of the Plan will be an unsecured claim against the general assets of the Company. The maintenance of individual Participant Accounts is for bookkeeping purposes only. The Company is not obligated to acquire, segregate, or set aside, in trust or otherwise, any assets of any kind for the discharge of its obligations under the Plan, nor will any Participant have any property rights in any particular assets held by the Company, whether or not held for the purpose of funding the Company’s obligations under the Plan.

ARTICLE 7

Administration

7.1     Plan Administrator . The Committee will be the administrator of the Plan and will have full discretionary power and authority to administer the Plan in all of its details.

7.2     Powers of the Committee as Administrator . The Committee’s powers as administrator of the Plan will include, but will not be limited to, the following discretionary authority, in addition to all powers and authority provided elsewhere in the Plan:

(a)    to make and enforce such rules, regulations, and procedures, consistent with the terms of the Plan, as the Committee deems necessary or proper for the efficient administration of the Plan;

(b)    to interpret the terms and provisions of the Plan and to decide any and all questions arising under the Plan, including, without limitation, the right to remedy possible ambiguities, inconsistencies, or omissions by a general rule or particular decision;

(c)    to determine the amounts to be distributed to any Participant or Beneficiary in accordance with the terms of the Plan and determine the person or persons to whom such amounts will be distributed;

(d)    to allocate or delegate its powers to other persons; and

(e)    to appoint persons to carry out administrative and recordkeeping functions with respect to the Plan.

7.3     Finality of Committee Determinations . Determinations by the Committee and any interpretation, rule, or decision adopted by the Committee under the Plan, or in carrying out or administering the Plan, will be final and binding for all purposes and upon all interested persons in the absence of clear and convincing evidence that the determination or interpretation was made arbitrarily or capriciously.

7.4     Claims Procedures . Any person making a claim for benefits under the Plan must submit the claim in writing to the Committee or its designee. If the Committee or its designee denies the claim in whole or in part, it will issue to the claimant a written notice explaining the reasons for the denial (with specific reference to the Plan provisions on which the denial is based) and identifying any additional information or documentation that might enable the claimant to perfect the claim. The claimant may, within 60 days of receiving a written notice of denial, submit a written request for reconsideration to the Committee or its designee, together with a written explanation of the basis for the request. The Committee or its designee will consider any such request and will provide the claimant with a written decision, which will include a written explanation of the reasons for the decision (with reference to the specific Plan provisions on which the decision is based). All interpretations, determinations, and decisions of the Committee with respect to any claim will be final and conclusive in the absence of clear and convincing evidence that the interpretation, determination, or decision was made arbitrarily or capriciously.

7.5     Indemnification . The Company agrees to indemnify and hold harmless any member of the Committee, any employee or former employee to whom the Committee delegates or allocates any of the Committee’s responsibilities under the Plan, and any employee or former employee who has been asked to assist the Committee in any way (together, the “indemnified persons”) against any liability (including, without limitation, payment of attorney’s fees) that the indemnified person may incur as a result of the discharge of his or her duties and responsibilities in good faith under the Plan.

7.6     Right to Suspend Benefits and Correct Errors . To the extent consistent with the Section 409A Standards, the Committee or its designee may delay any payment until satisfied as to the correctness of the payment or the person to receive the payment or to allow filing in any court of competent jurisdiction for a legal determination of the benefits to be paid and the person to receive them. The Committee specifically reserves the right to correct errors of every sort, and each Participant hereby agrees, on his own behalf and on behalf of any Beneficiary, to any method of error correction specified by the Committee or its designee. The Committee is authorized to recover any payment made in error.

7.7     Incapacity . If the Committee or its designee determines that any person entitled to benefits under the Plan is a minor, an incompetent person, or other person incapable of providing a valid receipt, then any payment due to that person may be paid for the benefit of that person to the person’s spouse, parent, or other party providing or reasonably appearing to provide for the care of that person, unless a duly qualified guardian or other legal representative has been appointed, in which case payment will be made to that guardian or legal representative.

7.8     Legal Holidays . If any day on (or on or before) which action under the Plan must be taken falls on a Saturday, Sunday, or legal holiday, that action may be taken on (or on or before) the next succeeding day that is not a Saturday, Sunday, or legal holiday; provided that this Section 7.8 does not permit any action that must be taken in one calendar year to be taken in any subsequent calendar year.

ARTICLE 8

Amendment or Termination of the Plan

The Company expects to continue the Plan in effect, but it reserves the right to amend the Plan, by action of the Board of Directors or its designee, in any respect at any time (retroactively if the Company so provides) and to terminate the Plan; provided, however, that no amendment or action may, without the consent of the affected Participant, reduce the Account of a Participant. Any amendment or termination will be set forth in a written instrument and signed by a duly authorized representative of the Company. In the event of an amendment or termination of the Plan, a Participant’s benefits will not be less than the amount credited to the Participant’s Accounts immediately prior to the amendment or termination.

ARTICLE 9

Miscellaneous

9.1     No Assignment or Alienation . No payee may assign any payment due him under the Plan. No benefits at any time payable under the Plan will be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, attachment, garnishment, levy, execution, or other legal or equitable process or encumbrance of any kind. Any attempt to alienate, sell, transfer, assign, or otherwise encumber any Plan benefit, whether payable presently or in the future, will be void.

9.2     Limitation of Rights . Neither the establishment nor amendment of the Plan, nor the payment of any benefits, will be construed as giving any individual any legal or equitable right against the Company, the Committee, or any Trustee. In no event will the Plan be deemed to constitute a contract between any individual and the Company, the Committee, or any Trustee.

9.3     Receipt and Release . Any payment of a benefit under the Plan to any Participant or Beneficiary will be in full satisfaction of all claims with respect to the benefit under the Plan against the Company and the Committee.

9.4     No Effect on Future Service . Nothing in the Plan, nor any action taken under the Plan, shall be construed as giving any Participant a right to continue in service to the Company or any of its Affiliates as an employee, director or non-employee consultant.

9.5     Severability .     If any provision of the Plan is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions will remain fully enforceable.

9.6     Successor Company . In the event of the dissolution, sale, merger, consolidation, or reorganization of the Company, provision may be made by which a successor to all or a major portion of the Company will have all of the powers, duties, and responsibilities of the Company under the Plan.

9.7     Headings and Subheadings . Headings and subheadings are inserted for convenience only and are not to be considered in the construction of the provisions of the Plan.

9.8     Governing Law . To the extent not preempted by federal law, the Plan will be governed by, and construed and administered in accordance with, the laws of the Commonwealth of Massachusetts.

ARTICLE 10

Rules of Construction

10.1     Rules of Construction . The following rules of construction will govern in interpreting the Plan:

(a)    Words used in the masculine gender will be construed to include the feminine gender, where appropriate, and vice versa.

(b)    Words used in the singular will be construed to include the plural, where appropriate, and vice versa.

(c)    If any provision of the Plan is held to be illegal or invalid for any reason, that provision will be deemed to be null and void, but the invalidation of that provision will not otherwise impair or affect the Plan.    

(d)    The Plan is intended to comply with Code Section 409A, and it will be construed and administered accordingly. The provisions of the Plan and all deferral elections under Plan will be effected, construed, interpreted, and applied in a manner consistent with Section 409A Standards. To the extent that any terms of the Plan or a deferral election would subject any Participant to gross income inclusion, interest, or additional tax pursuant to Code Section 409A, those terms are to that extent superseded by such Code Section.

Exhibit 10.2 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE HOLOGIC, INC.

AMENDED AND RESTATED

DEFERRED COMPENSATION PROGRAM

 

 

 

Amended and Restated
September 17, 2015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE HOLOGIC, INC.

AMENDED AND RESTATED

DEFERRED COMPENSATION PROGRAM

 

ARTICLE 1 - PURPOSE; EFFECTIVE DATE

 

1.1 Purpose . The purpose of this HOLOGIC, INC. AMENDED AND RESTATED DEFERRED COMPENSATION PROGRAM (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 was later amended and restated and became effective as of December 1, 2008 and was again amended and restated as of October 15, 2011, and again on October 15, 2013, to, among other things, merge the Gen-Probe Incorporated Deferred Compensation Plan (the “Gen-Probe Plan”) with and into the Plan; and further amended and restated as of September 17, 2015 (the “Effective Date”). With respect to any amounts deferred or contributed (or to be deferred or contributed) to the Gen-Probe Plan for an applicable period commencing prior to October 15, 2013, such amounts shall at all times be subject to and governed by the terms of the Gen-Probe Plan as such terms existed immediately prior to the merger of the Gen-Probe Plan with and into the Plan, such Gen-Probe Plan being set forth here as Exhibit B. 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 2 - 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 with respect to Participant deferrals and Company contributions prior to January 1, 2014 shall be identified as:

 

 

(a) Deferral Account;

 

(b) In-Service Account;

 

(c) Matching Account; and

 

(d) Retention Account.

 

Effective on and after January 1, 2014, for each calendar year/Deferral Period, a Participant shall have a separate account hereinafter known as a Class Year Account (for example, for the 2014 calendar year/Deferral Period, the account shall be known as the 2014 Class Year Account, for the 2015 calendar year/Deferral Period, the account shall be known as the 2015 Class Year Account, and so on) to which all Participant deferrals and Company contributions attributable to such calendar year/Deferral Period shall be credited. Accordingly, all contributions to the Plan prior to December 31, 2013 shall be allocated to one of the accounts in subsections (a) (b) (c) or (d) of this Section 2.1, and after January 1, 2014 shall be allocated to the applicable Class Year Account based on year of deferral.

 

 

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 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 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 identified as “Performance Based Compensation” under the terms of this Plan and any other bonus or incentive compensation which is specifically identified by the Committee as being eligible to be deferred under this Plan which is 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. The Committee shall have the authority to exclude from the definition of Compensation which can be deferred under this Plan, provided such determination is made prior to the time that the election to defer such Compensation is required to be filed under the terms of this Plan. 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 Internal Revenue 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 prior to the time that a Deferral Commitment is required to be filed under the terms of this Plan. Notwithstanding the preceding, with respect to Matching Contributions, Compensation shall be limited to the Code Section 401(a)(17) limit in effect for the given Deferral Period with respect to which the Matching Contributions are to be attributed.

 

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. A Participant shall be required to execute separate Deferral Elections for the deferral of Performance-Based Compensation and Compensation other than Performance-Based Compensation. The Deferral Election shall apply to each payment of Compensation and/or Performance-Based Compensation, as applicable, payable to a Participant. Such designation shall be made in the form of a whole percentage. 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. 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 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 certain benefits payable under this Plan, as elected by the Participant.

 

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 or accident of the Participant, the Participant’s spouse, a Beneficiary or 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 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 Matching Contribution . “Matching Contribution” means the annual discretionary contribution, if any, made by the Company to the Participant’s Matching Account or Class Year Account, as applicable, under Section 4.4, below.

 

2.17 Participant . “Participant” means any individual who is eligible, pursuant to Section 3.1, below as applicable, 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 Matching Contribution or 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.

 

2.18 Performance Based Compensation . “Performance Based Compensation” means annual bonus and commissions, 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.

 

2.19 Performance Period . “Performance Period” means a continuous period of service with the Company comprising one entire plan year (which is the Company’s fiscal year) with respect to which Performance-Based Compensation is earned.

 

2.20 Plan . “Plan” means this Amended and Restated Deferred Compensation Program, as amended from time to time.

 

2.21 Retention Contribution . “Retention Contribution” means the annual discretionary contribution, if any, made by the Company to the Participant’s Retention Account or Class Year Account, as applicable, under Section 4.4, below.

 

2.22 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).

 

2.23 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.

 

2.24 Termination of Employment . “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, and where such cessation of services constitutes a separation from service under Code Section 409A.

  

2.25 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 3 - ELIGIBILITY AND PARTICIPATION

 

3.1 Eligibility and Participation.

 

(a) Eligibility . Eligibility to participate in the Plan shall be limited to those employees of the Company who are (i) members of a select group of management or highly-compensated employees and (ii) designated as eligible to participate by the Committee, in its discretion, from time to time. An individual’s eligibility to participate in the Plan may be limited, in the Committee’s discretion, to deferrals only and/or to one or more Company contribution types.

 

(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 (which notification shall specify the effective date of participation), 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 within the time periods set forth in Section 3.2(b).

 

3.2 Form of Deferral Election . Except as otherwise provided in Section 3.1, a Participant may irrevocably elect to make a Deferral Election and a related Distribution Election with respect to Compensation other than annual bonus Compensation or Performance-Based Compensation to be deferred for a given Deferral Period, and any Matching Contribution that may be made with respect to such Deferral Period, provided such elections are made and the respective forms are submitted to the Committee prior to the December 31 that immediately precedes the beginning of the Deferral Period. A Deferral Election and related Distribution 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 prior to March 27 of such performance period (and, in any event, 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. Notwithstanding the preceding, effective on and after January 1, 2014, a Deferral Election and related Distribution Election with respect to a given calendar year/Deferral Period shall apply to all Participant deferrals and Company contributions attributable to such calendar year/Deferral Period that are credited to the Participant’s applicable Class Year Account for such calendar year/Deferral Period. 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, prior to January 1, 2014, shall designate the portion of each deferral that shall be allocated among either the Deferral or In-Service Accounts. In addition, for periods prior to January 1, 2014, 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.

 

(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 or Distribution Election made by a Participant with respect to Compensation shall remain in effect solely for the current Deferral Period, and shall not remain in effect for any future Deferral Periods; provided, if a Participant suffers a Disability or terminates employment with Company prior to the 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 5.6, below.

 

3.4 Modification of Deferral Election . Except as provided in Sections 3.3, above, and 5.6 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 or Distribution Elections . In the event that a Participant submits an incomplete or inaccurate Deferral Election, as determined by the Committee in its discretion, such election will be rejected as an invalid Deferral Election. In addition, in the event that a Participant submits an incomplete or inaccurate Distribution Election, as determined in the Committee’s discretion, the form of distribution for all monies in each Account under the Plan shall be a lump sum distribution upon Termination of Employment. Finally, in the event that a Participant submits an incomplete or inaccurate Valuation Fund, the amounts to be credited to the Participant’s applicable Account shall be invested in such fund as selected by the Committee in its discretion.

 

 

ARTICLE 4 - DEFERRED COMPENSATION ACCOUNT

 

4.1 Accounts . Effective prior to January 1, 2014, 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 Matching Contributions and Interest thereon shall be credited to the Participant’s Matching Account; and any Retention Contributions and Interest thereon shall be credited to the Participant’s Retention Account. Separate accounts may be maintained on the books of the Company to reflect the different Accounts chosen by the Participant, and the Participant shall designate the portion of each deferral that will be credited to each Account as set forth in Section 3.2(a), above. These Accounts shall be used solely to calculate the amount payable to each Participant under this Plan and shall not constitute a separate fund of assets. Effective on and after January 1, 2014, for each calendar year/Deferral Period, a Participant shall have all Compensation deferred by the Participant (and Interest thereon) for a given calendar year/Deferral Period and all Company contributions attributable to such calendar year/Deferral Period (and Interest thereon) credited to the Participant’s applicable Class Year Account.

 

4.2 Timing of Credits; Withholding . A Participant’s deferred Compensation shall be credited to each Account designated by the Participant as soon as administratively practical after the date the Compensation deferred would have otherwise been payable to the Participant. Any Matching Contributions shall be credited to the Matching Account as set forth in Section 4.5, below. Any Retention Contributions shall be credited to the Retention Account as set forth in Section 4.5, below. Any withholding of taxes or other amounts with respect to deferred Compensation or other amounts credited under this Plan that is required by local, state or federal law shall be withheld from the

Participant’s corresponding non-deferred portion of the Compensation to the maximum extent possible, and any remaining amount shall reduce the amount credited to the Participant’s Account in a manner specified by the Committee.

 

4.3 Valuation Funds . A Participant shall designate, at a time and in a manner acceptable to the Committee, one or more Valuation Funds for each Account for the sole purpose of determining the amount of Interest to be credited or debited to such Account. Such election shall designate the portion of each deferral of Compensation made into each Account that shall be allocated among the available Valuation Fund(s), and such election shall apply to each succeeding deferral of Compensation until such time as the Participant shall file a new election with the Committee. Upon notice to the Committee, Participants shall also be permitted to reallocate the balance in each Valuation Fund among the other available Valuation Funds as determined by the Committee. The manner in which such elections shall be made and the frequency with which such elections may be changed and the manner in which such elections shall become effective shall be determined in accordance with the procedures to be adopted by the Committee or its delegates from time to time. As of the Effective Date, such elections may be made on a daily basis electronically, and such elections shall become effective on the date made or the next available Determination Date.

  

4.4 Company Contributions .

 

(a) Matching Contributions . With respect to a Participant who (i) elects to defer Compensation under the Plan for a given Deferral Period, and (ii) deferred the maximum permissible amount under the Hologic, Inc. Savings and Investment Plan (the “401(k) Plan”) for such Deferral Period, the Company may make a discretionary contribution to the Matching Account of the Participant for such Deferral Period in an amount not to exceed the amount that would have been credited to the Participant under the 401(k) Plan, but for the deferral limitations under the 401(k) Plan. If the Company, in its discretion, elects to make a Matching Contribution for a given Deferral Period, the applicable Matching Contribution shall be credited to each eligible Participant’s Matching Account as soon as is practical after the end of the Deferral Period. Beginning with fiscal year 2015, the Company may also make a separate discretionary contribution for the benefit of a Participant, in any amount determined by the Company, as a separate contribution within the Matching Account of the Participant for the applicable fiscal year, regardless of whether the Participant participates or has made deferral elections under the 401(k) Plan for the fiscal year and the amount of any discretionary contribution shall be credited and combined with other amounts in the Participant’s Matching Account. In order for a Participant to be eligible to receive a Matching Contribution, if any, made under this Section 4.4(a) with respect to a given Deferral Period, the Participant must remain an active employee of the Company on the last day of such Deferral Period, and with respect to a separate discretionary contribution in a fiscal year must remain an employee on the last day of the applicable fiscal year. Effective on and after January 1, 2014, Matching Contributions attributable to a given calendar year/Deferral Period shall be made to the Participant’s applicable Class Year Account.

(b) Retention Contributions . Company may make a discretionary contribution to each eligible Participant’s Retention Account as soon as is practical after the close of the Company’s fiscal year. The amount of the credit shall be determined by the Committee in its sole discretion, and each year, the Committee shall have the discretion to increase or decrease the Retention Contribution from prior years, or to eliminate the contribution totally for any given year. Effective on and after January 1, 2014, Retention Contributions attributable to a given calendar year/Deferral Period shall be made to the Participant’s applicable Class Year Account.

 

4.5 Determination of Accounts . Each Participant’s Account as of each Determination Date shall consist of the balance of the Account as of the immediately preceding Determination Date, adjusted as follows:

 

(a) New Deferrals . Each Account shall be increased by any deferred Compensation credited since such prior Determination Date in the proportion chosen by the Participant, except that no amount of new deferrals shall be credited to an Account at the same time that a distribution is to be made from that Account.

 

(b) Company Contributions . Each Account shall be increased by any Matching Contributions or Retention Contributions credited since such prior Determination as set forth above in sections 4.4 or as otherwise directed by the Committee.

 

(c) Distributions . Each Account shall be reduced by the amount of each benefit payment made from that Account since the prior Determination Date. Distributions shall be deemed to have been made proportionally from each of the Valuation Funds maintained within such Account based on the proportion that such Valuation Fund bears to the sum of all Valuation Funds maintained within such Account for that Participant as of the Determination Date immediately preceding the date of payment.

 

(d) Interest . Each Account shall be increased or decreased by the Interest credited to such Account since such Determination Date as though the balance of that Account as of the beginning of the current month had been invested in the applicable Valuation Funds chosen by the Participant.

  

4.6 Vesting of Accounts . Each Participant shall be vested in the amounts credited to such Participant’s Account and Interest thereon as follows:

 

(a) Amounts Deferred . A Participant shall be one hundred percent (100%) vested at all times in the amount of Compensation elected to be deferred under this Plan to the Deferral Account and In-Service Account, if any, including any Interest thereon.

 

(b) Matching Contributions . A Participant shall be one hundred percent (100%) vested at all times in the amount of Matching Contributions made, if any, to the Participant’s Matching Account (or, effective on and after January 1, 2014, the applicable Class Year Account), including any Interest thereon.

 

(c) Retention Contributions . Each separate Retention Contribution, if any, to a Participant’s Retention Account (or, effective on and after January 1, 2014, the applicable Class Year Account), including any Interest thereon, shall be 33% vested on September 30 of the first calendar year that commences following the fiscal year to which the Retention Contribution is attributable, provided, that the Participant remains employed by the Company on such date; vested in an additional 33% of such Retention Contribution on September 30 of the second calendar year that commences following the fiscal year to which the Retention Contribution is attributable, provided, that the Participant remains employed by the Company on such date; and vested in an additional 34% of such Retention Contribution on September 30 of the third calendar year that commences following the fiscal year to which the Retention Contribution is attributable, provided, that the Participant remains employed by the Company on such date. If the Participant fails to remain employed with the Company through the vesting dates and the Retention Contribution is not otherwise vested as providing in the following sentence, then the unvested portion of the Retention Contribution and any Interest thereon shall be forfeited and returned to the Company. Notwithstanding the previous sentence or anything else herein to the contrary, a Participant’s Retention Contributions shall (i) be one hundred percent (100%) vested upon the death or Disability of the Participant, the Participant’s Retirement or a Change of Control or (ii) be one hundred percent (100%) vested as otherwise provided by the Committee in its sole discretion.

 

(d) Statement of Accounts . The Committee shall direct the Plan’s third-party administrator to provide to each Participant a statement showing the balances in the Participant’s Account on a quarterly basis.

 

ARTICLE 5 - PLAN BENEFITS

 

5.1 Deferral Account and Matching Account . The vested portion of a Participant’s Deferral Account and Matching Account shall be distributed to the Participant upon the Termination of Employment with the Company.

 

(a) Timing of Payment. Subject to Section 5.9, benefits payable from the Deferral Account shall commence on or about the December 15 ^th immediately following the date of the Participant’s Termination of Employment, or if termination is after December 15th (i.e., the period between December 16 and December 31 in any year), then within forty-five days following the Participant’s Termination of Employment, and subsequent payments, if the Form of Payment selected provides for subsequent payments, shall be made on or about each succeeding December 15th both in accordance with the Company’s normal payroll procedures.

  

(b) Form of Payment. The form of benefit payment from the Deferral Account and Matching Account (or, as applicable, a portion of the Deferral Account or Matching Account) shall be that form selected by the Participant in the applicable Deferral Election and Distribution Election which designated the distribution of the Matching Account or a portion of the Compensation deferred be allocated to the Deferral Account, and as permitted pursuant to Section 5.10 below, except that if the Participant terminates employment prior to Retirement, in which event, the Deferral Account and the Matching Account shall be paid in the form of a lump sum payment.

 

5.2 Retention Account. The vested portion of the Participant’s Retention Account shall be distributed to the Participant upon the Termination of Employment with the Company.

 

(a) Timing of Payment. Subject to Section 5.9, benefits payable from the Retention Account shall commence on or about the December 15 ^th immediately following the date of the Participant’s Termination of Employment, or if termination is after December 15th later (i.e., the period between December 16 and December 31 in any year), then within forty-five days following the Participant’s Termination of Employment, and subsequent payments, if the Form of Payment selected provides for subsequent payments, shall be made on or about each succeeding December 15th both in accordance with the Company’s normal payroll procedures.

 

(b) Form of Payment . The form of benefit payment from the Retention Account shall be made in that form selected by the Participant in the Distribution Election set forth in the Enrollment Form filed with the Committee coincident with the initial crediting of amounts to the Retention Account, and as permitted pursuant to Section 5.10 below, except that if the Participant terminates employment prior to Retirement, in which event, the Retention Account shall be paid in the form of a lump sum payment.

 

5.3 In-Service Account . The vested portion of a Participant’s In-Service Account shall generally be distributed to the Participant upon the date chosen by the Participant, or if earlier the Participant’s Termination of Employment.

 

(a) Timing of Payment . Subject to Section 5.9, benefits under this section shall be payable on or about January 15 ^th of the year specified in the first Deferral Election which designated a portion of the Compensation deferred be allocated to the In-Service Account and subsequent payments. In no event shall the date selected be earlier than twenty-four (24) months following the initial filing of the Deferral Election with respect to that In-Service Account. In the event that the Participant terminates employment with the Company prior to the date so specified, the benefits under this section shall commence on Participant’s Termination of Employment. Any benefit payments due on Termination of Employment shall commence on or about the December 15th immediately following the date of the Participant’s Termination of Employment, or if termination is after December 15th (i.e., the period between December 16 and December 31 in any year), then within forty-five days following the Participant’s Termination of Employment and if the Form of Payment selected provides for subsequent payments, subsequent payments shall be made on or about each succeeding December 15th both in accordance with the Company’s normal payroll procedures.

 

(b) Form of Payment . The form of benefit payment from the In-Service Account shall be that form selected by the Participant pursuant to Section 5.10, below, except that if the Participant terminates employment with the Company prior to the date so specified, then the In-Service Account shall be paid in the form of a lump sum payment.

   

5.4 Class Year Account . The vested portion of each applicable Class Year Account of a Participant shall be distributed to the Participant upon the earlier of (i) the Participant’s Termination of Employment with the Company or (ii) a date-certain distribution date, as elected by the Participant.

 

(a) Timing of Payment. Subject to Section 5.9, benefits payable from the applicable Class Year Account shall commence within sixty (60) days following the earlier of (i) date of the Participant’s Termination of Employment or (ii) the date-certain distribution date elected by the Participant, and subsequent payments, if the Form of Payment selected provides for subsequent payments, shall be made on each subsequent anniversary date of

the first payment. In no event shall a Participant be permitted to elect the tax year of payment when the sixty (60) day period spans two calendar years.

 

(b) Form of Payment. The form of benefit payment from the applicable Class Year Account shall be that form selected by the Participant in the applicable Deferral Election and Distribution Election which designated the distribution of the applicable Class Year Account. Notwithstanding the preceding, if the Participant terminates employment prior to Retirement, Retention Contributions made to the Participant’s Class Year Accounts shall be distributed in the form of a lump sum payment.

 

5.5 Death Benefit . Notwithstanding any Plan provision to the contrary, upon the death of a Participant prior to the commencement of benefits under this Plan from any particular Account, Company shall pay to the Participant’s Beneficiary an amount equal to the vested Account balance in that Account in the form of a lump sum payment within ninety (90) days following the Participant’s date of death, provided substantiation of such death is provided to the Company within such time period. In the event of the death of the Participant after the commencement of benefits under this Plan from any Account, the benefits from that Account(s) shall be paid to the Participant’s designated Beneficiary from that Account at the same time and in the same manner as if the Participant had survived.

 

5.6 Hardship Distributions . Upon a finding that a Participant has suffered a Financial Hardship, the Committee shall terminate the existing Deferral Election, and/or make distributions from any or all of the Participant’s Accounts. The amount of such distribution shall be limited to the amount reasonably necessary to meet the Participant’s needs resulting from the Financial Hardship plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such Financial Hardship is or may be relieved through the reimbursement or compensation by insurance, or otherwise or by liquidation of the Participant’s assets (to the extent that liquidation of such assets would not itself cause severe financial hardship). The amount of such distribution will not exceed the Participant’s vested Account balances. If payment is made due to Financial Hardship, the Participant’s deferrals under this Plan shall cease for the period of the Financial Hardship and for twelve (12) months thereafter. If the Participant is again eligible to participate, any resumption of the Participant’s deferrals under the Plan after such twelve (12) month period shall be made only at the election of the Participant in accordance with Article III herein.

  

5.7 Change of Control Distributions . Upon the occurrence of a Change of Control, benefits payable from the Participant’s Accounts shall be distributed to the Participant within forty-five (45) days following the Change of Control.

 

5.8 Disability Distributions . Notwithstanding any Plan provision to the contrary, with respect to a Participant Disability occurring after October 15, 2013, upon a finding that a Participant has suffered a Disability prior to the commencement of benefits under the Plan, the Committee shall distribute the vested Account balance from each of the Participant’s Accounts in the form of a lump sum payment within ninety (90) days following the Participant’s Date of Disability.

 

5.9 Payment to Specified Employees . Payments of benefits due to the Termination of Employment of a Participant who is determined to meet the definition of Specified Employee shall be payable as otherwise provided, except that the initial payment shall be made no earlier than the first business day following the last day of the six (6) month anniversary following a Specified Employee’s Termination of Employment with the Company in accordance with the Company’s normal payroll procedures (or if earlier than the end of the six (6) month period, the date of death of the Specified Employee).

 

5.10 Form of Payment . Unless otherwise specified in this Article, the benefits payable from any Account under this Plan shall be paid in the form of benefit as provided below, and as elected by the Participant. The permitted forms of benefit payments are:

 

(a) A lump sum; and

 

(b) Annual installments for a period of up to fifteen (15) years (or in the event of payment of the In-Service Account, a maximum of five (5) years) (with respect to Class Year Accounts, up to fifteen (15) years if payment is to be made due to Termination of Employment; otherwise, up to five (5) years if payment is to be made pursuant to a date-certain distribution election) where the annual payment shall be equal to the balance of the Account (or portion of the Account payable in Installments) immediately prior to the payment, multiplied by a fraction, the numerator of which is one (1) and the denominator of which commences at the number of annual payment initially chosen and is reduced by one (1) in each succeeding year. Interest on the unpaid balance shall be based on the most recent allocation among the available Valuation Funds chosen by the Participant, made in accordance with Section 4.3, above. For purposes of Code Section 409A, installment payments shall be considered to be single payment.

 

5.11 Small Account . If the total of a Participant’s vested, unpaid aggregate Account balance in all Accounts under the Plan as of the date of the Participant’s Termination of Employment is less than $10,000, the remaining unpaid, vested aggregate Account balance in all Accounts under the Plan shall be paid in a lump sum, notwithstanding any election by the Participant to the contrary.

  

5.12 Withholding; Payroll Taxes . Company shall withhold from any payment made pursuant to this Plan any taxes required to be withheld from such payments under local, state or federal law.

 

5.13 Payment to Guardian . If a Plan benefit is payable to a minor or a person declared incompetent or to a person incapable of handling the disposition of the property, the Committee may direct payment to the guardian, legal representative or person having the care and custody of such minor, incompetent or person. The Committee may require proof of incompetency, minority, incapacity or guardianship as it may deem appropriate prior to distribution. Such distribution shall completely discharge the Committee and Company from all liability with respect to such benefit.

 

5.14 Effect of Payment . The full payment of the applicable benefit under this Article V shall completely discharge all obligations on the part of the Company to the Participant (and the Participant’s Beneficiary) with respect to the operation of this Plan, and the Participant’s (and Participant’s Beneficiary’s) rights under this Plan shall terminate.

 

5.15 Forfeiture. In the event a Participant is terminated for “cause”, then his Retention Account shall be immediately forfeited without regard to whether or not he is vested or unvested in such Retention Account. For purposes of this Plan, “cause” shall mean (i) an act or acts of personal dishonesty taken by the Participant and intended to result in substantial personal enrichment of the Participant at the expense of the Company; (ii) material violation of the Company’s Code of Conduct, and other Company Codes of Conduct or policies and procedures that are applicable to the Participant; or (iii) the conviction of the Participant of a felony involving moral turpitude, which are not remedied in a reasonable period of time after receipt of written notice from the Company. Notwithstanding anything in the Plan to the contrary, forfeiture for cause may not occur following a Change of Control.

 

5.16 No Acceleration of Retirement Benefit. Neither a Participant nor the Company may accelerate the time or schedule of any Retirement Benefit scheduled to be paid under the Plan (including, for this purpose, any Deferral Agreement or Deferral Election). Notwithstanding the foregoing, the time or schedule of any Retirement Benefit may be accelerated in any of the following circumstances:

 

(a) Domestic Relations Orders. The Plan Administrator may accelerate the time or schedule of a payment under the Plan to an individual other than the Participant, or a payment under the Plan may be made to an individual other than the Participant, to the extent necessary to fulfill a domestic relations order (as defined in Section 414(p)(1)(B) of the Code);

 

(b) Payment of Employment Taxes. The Plan Administrator may accelerate the time or schedule of a payment under the Plan, or a payment may be made under the Plan, to (x) pay the Federal Insurance Contributions Act (“FICA”) tax imposed under Sections 3101, 3121(a) or 3121(v)(2) of the Code or (y) pay the

income tax at the source on wages imposed under Section 3401 of the Code or the corresponding withholding provisions of applicable state, local or foreign tax laws. However, the total payment under this clause (b) may not exceed the aggregate of the FICA amount and the income tax withholding related to the FICA amount;

  

(c) Payment Upon Income Inclusion Under Section 409A. The Plan Administrator may accelerate the time or schedule of a payment under the Plan, or a payment may be made under the Plan, at any time that the Plan fails to meet the requirements of Section 409A of the Code and the Final Regulations. Such payment may not exceed the amount required to be included in income as a result of the failure to comply with the requirements of Section 409A of the Code and the Treasury Regulations promulgated thereunder; or

 

(d) Certain Offsets. The Plan Administrator may accelerate the time or schedule of a payment under the Plan, or a payment may be made under the Plan, as satisfaction of debt of the Participant to the Company, where such debt is incurred in the ordinary course of the service relationship between the Participant and the Company, the entire amount of reduction in any of the Participant’s taxable years does not exceed $5,000, and the reduction is made at the same time and in the same amount as the debt otherwise would have been due and collected from the Participant.

5.17 Change of Time and/or Form of Payment . With respect to timing of payment set forth in sections 5.1(a), 5.2(a), 5.3(a) or 5.4(a), the Participant may subsequently amend the form of payment provided or elected in any one of the aforementioned sections to a date later than that date initially chosen, by filing such amendment with the Committee no later than twelve (12) months prior to the current date of payment. The Participant may file this amendment, provided that each amendment must provide for a payout under this paragraph at a date no earlier than five (5) years after the date of payment in force immediately prior to the filing of such request, and the amendment may not take effect for twelve (12) months after the request is made.

 

ARTICLE 6 - BENEFICIARY DESIGNATION

 

6.1 Beneficiary Designation . Each Participant shall have the right, at any time, to designate one (1) or more persons or entity as Beneficiary (both primary as well as secondary) to whom benefits under this Plan shall be paid in the event of Participant’s death prior to complete distribution of the Participant’s vested Account balance. Each Beneficiary designation shall be in a written form prescribed by the Committee, shall be effective only when filed with the Committee during the Participant’s lifetime and shall apply to all monies in all of the Participant’s Accounts under the Plan.

 

6.2 Changing Beneficiary . Any Beneficiary designation may be changed by a Participant without the consent of the previously named Beneficiary by the filing of a new Beneficiary designation with the Committee.

 

6.3 No Beneficiary Designation . If any Participant fails to designate a Beneficiary in the manner provided above, if the designation is void, or if the Beneficiary designated by a deceased Participant dies before the Participant or before complete distribution of the Participant’s benefits, the Participant’s Beneficiary shall be the person in the first of the following classes in which there is a survivor:

 

(a) The Participant’s surviving spouse;

 

(b) The Participant’s children in equal shares, except that if any of the children predeceases the Participant but leaves surviving issue, then such issue shall take by right of representation the share the deceased child would have taken if living; or

 

(c) The Participant’s estate.

 

6.4 Effect of Payment . Payment to the Beneficiary shall completely discharge the Company’s obligations under this Plan.

  

ARTICLE 7 - ADMINISTRATION

 

7.1 Committee; Duties . This Plan shall be administered by the Compensation Committee, or the Senior Vice President of Human Resources acting as the Plan Administrator. References to the “Compensation Committee” in the Plan shall include the Senior Vice President of Human Resources acting in his capacity as Plan Administrator. The Committee or its designee shall have the authority to make, amend, interpret and enforce all appropriate rules and regulations for the administration of the Plan and decide or resolve any and all questions, including interpretations of the Plan, as they may arise in such administration. A majority vote of the Committee members shall control any decision.

 

7.2 Agents . The Committee may, from time to time, employ agents and delegate to them such administrative duties as it sees fit, and may from time to time consult with counsel who may be counsel to the Company.

 

7.3 Binding Effect of Decisions . The decision or action of the Committee with respect to any question arising out of or in connection with the administration, interpretation and application of the Plan and the rules and regulations promulgated hereunder shall be final, conclusive and binding upon all persons having any interest in the Plan.

 

7.4 Indemnity of Committee . To the fullest extent permitted by the Company’s Articles of Incorporation and By-Laws, the Company shall indemnify and hold harmless the members of the Compensation Committee or the Senior Vice President of Human Resources acting as the Plan Administrator against any and all claims, loss, damage, expense or liability arising from any action or failure to act with respect to this Plan on account of such member’s service on the Committee, except in the case of gross negligence or willful misconduct.

 

ARTICLE 8 - CLAIMS PROCEDURE

 

8.1 Claim . Any person or entity claiming a benefit, requesting an interpretation or ruling under the Plan (hereinafter referred to as “Claimant”), or requesting information under the Plan shall present the request in writing to the Committee, which shall respond in writing as soon as practical, but in no event later than ninety (90) days after receiving the initial claim (or no later than forty-five (45) days after receiving the initial claim regarding a Disability under this Plan).

 

8.2 Denial of Claim . If the claim or request is denied, the written notice of denial shall state:

 

(a) The reasons for denial, with specific reference to the Plan provisions on which the denial is based;

 

(b) A description of any additional material or information required and an explanation of why it is necessary, in which event the time frames listed in section 8.1 shall be one hundred and eighty (180) and seventy-five (75) days from the date of the initial claim respectively; and

 

(c) An explanation of the Plan’s claim review procedure.

  

8.3 Review of Claim . Any Claimant whose claim or request is denied or who has not received a response within sixty (60) days (or one hundred and eighty (180) days in the event of a claim regarding a Disability) may request a review by notice given in writing to the Committee. Such request must be made within sixty (60) days (or one hundred and eighty (180) days in the event of a claim regarding a Disability) after receipt by the Claimant of the written notice of denial, or in the event Claimant has not received a response sixty (60) days (or one hundred and eighty (180) days in the event of a claim regarding a Disability) after receipt by the Committee of Claimant’s claim or request. The claim or request shall be reviewed by the Committee which may, but shall not be required to, grant the Claimant a hearing. On review, the claimant may have representation, examine pertinent documents, and submit issues and comments in writing.

 

8.4 Final Decision . The decision on review shall normally be made within sixty (60) days (or forty-five (45) days in the event of a claim regarding a Disability) after the Committee’s receipt of claimant’s claim or request. If an extension of time is required for a hearing or other special circumstances, the Claimant shall be notified and the time limit shall be one hundred twenty (120) days (or ninety (90) days in the event of a claim regarding a Disability). The decision shall be in writing and shall state the reasons and the relevant Plan provisions. All decisions on review shall be final and bind all parties concerned.

 

ARTICLE 9 - AMENDMENT AND TERMINATION OF PLAN

 

9.1 Amendment . The Board may at any time amend the Plan by written instrument, notice of which is given to all Participants and to Beneficiary receiving installment payments, except that no amendment shall reduce or otherwise adversely affect the amount accrued in any Account as of the date the amendment is adopted.

 

9.2 Company’s Right to Terminate . The Board may at any time terminate the Plan provided that such termination of the Plan is not treated as an “acceleration of benefits” as described in Section 409A(a)(3) of the Code and the Plan termination is identified as an exception to the non-acceleration rule” under Treasury Regulation Section 1.409A-3(j)(4)(ix). Upon a permitted partial or complete termination, the Board may cease all future Deferral Elections, all current Deferral Elections, and or, in its sole discretion, pay out Accounts over a period of up to five (5) years, provided such action is not treated as an “acceleration of benefits” as described in Section 409A(a)(3) of the Code and Treasury Regulation Section 1.409A-3(j)(4)(ix).:

 

ARTICLE 10 - MISCELLANEOUS

 

10.1 Unsecured General Creditor . Notwithstanding any other provision of this Plan, Participants and Participants’ Beneficiary shall be unsecured general creditors, with no secured or preferential rights to any assets of Company or any other party for payment of benefits under this Plan. Any property held by Company for the purpose of generating the cash flow for benefit payments shall remain its general, unpledged and unrestricted assets. Company’s obligation under the Plan shall be an unfunded and unsecured promise to pay money in the future.

 

10.2 Trust Fund . Company shall be responsible for the payment of all benefits provided under the Plan. At its discretion, Company may establish one (1) or more rabbi trusts, with such trustees as the Board may approve, for the purpose of assisting in the payment of such benefits. The assets of any such trust shall be held for payment of all Company’s general creditors in the event of insolvency. To the extent any benefits provided under the Plan are paid from any such trust, Company shall have no further obligation to pay them. If not paid from the trust, such benefits shall remain the obligation of Company.

 

10.3 Nonassignability . Neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate or convey in advance of actual receipt the amounts, if any, payable hereunder, or any part thereof, which are, and all rights to which are, expressly declared to be unassignable and non-transferable. No part of the amounts payable shall, prior to actual payment, be subject to seizure or sequestration for the payment of any debts, judgments, alimony or separate maintenance owed by a Participant or any other person, nor be transferable by operation of law in the event of a Participant’s or any other person’s bankruptcy or insolvency.

 

10.4 Not a Contract of Employment . This Plan shall not constitute an employment contract or a contract for services of any kind between the Company and the Participant. Nothing in this Plan shall confer on the Participant the right to be retained by Company or otherwise be retained in the service of the Company or to interfere with the right of the Company to terminate its relationship with a Participant at any time.

 

10.5 Protective Provisions . A Participant will cooperate with Company by furnishing any and all information requested by Company, in order to facilitate the payment of benefits hereunder, and by taking such physical examinations as Company may deem necessary and taking such other action as may be requested by Company.

 

10.6 Governing Law . The provisions of this Plan shall be construed and interpreted according to the laws of the Commonwealth of Massachusetts, except to the extent as preempted by federal law.

 

10.7 Validity . If any provision of this Plan shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Plan shall be construed and enforced as if such illegal and invalid provision had never been inserted herein.

 

10.8 Notice . Any notice required or permitted under the Plan shall be sufficient if in writing and hand delivered or sent by registered or certified mail. Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail, as of the date shown on the postmark on the receipt for registration or certification. Mailed notice to the Committee shall be directed to the company’s address. Mailed notice to a Participant or Beneficiary shall be directed to the individual’s last known address in company’s records.

 

10.9 Successors . The provisions of this Plan shall bind and inure to the benefit of Company and its successors and assigns. The term successors as used herein shall include any corporate or other business entity which shall, whether by merger, consolidation, purchase or otherwise acquire all or substantially all of the business and assets of Company, and successors of any such corporation or other business entity

 

10.10 Code Section 409A . Notwithstanding anything herein to the contrary, in the event that the Company, upon the advice of its counsel, determines in its sole and absolute discretion that a delay in payment of a benefit hereunder or other modification is necessary to comply with Section 409A of the Code and the Treasury Regulations promulgated thereunder, then such delay in payment or other modification shall be made.

 

Exhibit 10.3

AMENDED AND RESTATED
EMPLOYMENT AGREEMENT

THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”), dated as of September 18, 2015, by and between Hologic, Inc., a Delaware corporation (the “Company”), and Stephen P. MacMillan (the “Executive”).

WHEREAS , the Executive and the Company previously entered into an employment agreement, dated as of December 6, 2013 (the “Prior Employment Agreement”);

WHEREAS, Executive currently serves as the Company’s Chief Executive Officer and President, pursuant to the Prior Employment Agreement;

WHEREAS, the Company wishes to continue to employ the Executive as the Company’s Chief Executive Officer and President, and the Executive is willing to continue be employed and to serve in such capacity; and

WHEREAS, the Company and Executive desire to hereby amend and restate the Prior Employment Agreement;

WHEREAS , the Company and the Executive wish to set forth in this Agreement the terms and conditions upon which the Executive will continue to be employed.

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. Employment Terms; Prior Agreements

1.1.      Employment and Duties . Subject to the terms and conditions herein, the Company hereby agrees to continue to employ the Executive for the Term (as defined in Section 2), effective as September 27, 2015 (the “Effective Date”), to render services to the Company. From the Effective Date, the Executive shall continue as the Company’s Chief Executive Officer and President and continue to perform such other duties consistent with such positions (including service as a director or officer of any Affiliate (as defined in Section 4.2) of the Company) as may be assigned by the Company’s Board of Directors (the “Board”) from time to time. The Executive’s title shall continue to be Chief Executive Officer and President. For so long as he is Chief Executive Officer and President of the Company, the Company agrees to nominate the Executive for re-election to the Board at the expiration of each term of office and that the Executive shall serve as a member of the Board for each period for which he is so elected or appointed.

1.2.      Acceptance . The Executive hereby accepts such continued employment and agrees to render the services described above on an exclusive basis to the Company. During the Term, and consistent with Section 1.1, the Executive agrees to continue to serve the Company faithfully and to the best of the Executive’s ability and to use the Executive’s best efforts, skill and ability to promote the interests of the Company in a manner consistent with the Executive’s position. The Executive also agrees to continue to devote the Executive’s entire business time, energy and skill to such employment, except for vacation time, absence for sickness or similar disability, and time spent performing services for any charitable, religious or community organizations, so long as such services do not materially interfere with the performance of the Executive’s duties hereunder or create a conflict of interest other than current board of director positions held by Executive and disclosed in Exhibit A . The Executive may not serve on the board of directors of any other for-profit business or organization without the prior consent of the Board. In consideration for the substantial consideration provided for herein and as a condition to this Agreement, the Executive agrees to continue to be bound by the terms of the Non-Competition and Proprietary Information Agreement by and between the Company and the Executive, dated as of December 6, 2013, (the “Non-Competition Agreement) previously entered into in connection with the execution of the Prior Employment Agreement .

1.3.      Compliance with Policies . The Executive shall comply with all duly adopted Company policies and codes of conduct and ethics in the performance of the Executive’s duties, as such policies may be in effect from time to time and which have been previously provided to the Executive in writing or otherwise made available to him.

1.4.      Location . The duties to be performed by the Executive hereunder shall be performed primarily at the Company’s offices in Marlborough, Massachusetts, subject to reasonable travel requirements consistent with the nature of the Executive’s duties from time to time on behalf of the Company.

2.      Term of Employment .

The term of the Executive’s employment under this Agreement (the “Term”) shall commence on the Effective Date, and shall end on September 26, 2020 (the “Initial Term”) unless extended as provided in the following sentence. Upon the expiration of the Initial Term, the Term shall be automatically extended for an additional five-year period ending on September 27, 2025, unless either the Company or the Executive notifies the other party in writing not later than June 27, 2020 that the notifying party has elected not to extend the Term (“Notice of Non-Renewal”), in which event the Term shall end upon the expiration of the Initial Term. Notwithstanding the foregoing provisions of this Section 2, the Term shall terminate on the date the Executive’s employment is terminated as provided in Section 4 (and, for the avoidance of doubt, such notification shall not preclude a termination of employment pursuant to Section 4 prior to the then scheduled expiration of the Term).

3.      Compensation and Benefits .

3.1.      Salary . During the Term, the Company agrees continue to pay to the Executive a base salary, payable in arrears in accordance with the Company’s standard payroll practices, at the Executive’s current annual rate of $1,000,000 (as adjusted in accordance with this Section 3.1, the “Base Salary”). The Executive’s Base Salary will be subject to annual review for increase (but not decrease, unless such decrease is in connection with a similar percentage decrease in salary applicable to all senior executives at the Company) by the Compensation Committee of the Board (the “Committee”) and the Board in accordance with the Company’s typical schedule for all senior executives, with future increases equal to the same employee merit pool percentage increase approved for base salaries of US salaried employees for the fiscal year ending immediately prior to the commencement of the review. All payments of Base Salary or other compensation hereunder shall be less such deductions or withholdings as are required by applicable law and regulations.

3.2.      Annual Bonus . For each calendar year that ends during the Term, the Executive shall be entitled to participate in the Company’s annual Short-Term Incentive Plan (the “STIP”) and/or such other annual bonus plan as may be adopted by the Company for senior executives of the Company (collectively, and including the STIP, the “Bonus Program”). The Executive’s annual bonus under the Bonus Program for any year is herein referred to as the “Annual Bonus” and, except for the achievement of any applicable Company and individual goals, shall otherwise only be conditioned upon the Executive remaining employed by the Company through the last business day of the fiscal year to which the award relates; provided that, except as set forth in the following sentence, nothing contained herein shall be construed to limit the Committee’s authority to adjust the Annual Bonus in accordance with the Bonus Program. The Executive’s target Annual Bonus under the Bonus Program (the “Annual Bonus Target”) shall be no less than 150% of the Executive’s Base Salary for each fiscal year that ends during the Term. The actual amount of the Executive’s Annual Bonus for any fiscal year during the Term shall range between 0% and 200% of the Annual Bonus Target based upon the achievement of the Company goals and, if applicable, individual goals, as set forth in the Bonus Program previously established by the Committee for the fiscal year. Payment of any Annual Bonus shall be made in a single lump sum cash payment no later than the November 30 following the end of the applicable fiscal year to which the award relates.

3.3.      Long-Term Incentive . Beginning with fiscal year 2016 and each fiscal year thereafter during the Term, the Executive shall receive an annual grant under the Company’s 2008 Amended and Restated Equity Incentive Plan (as it may be amended from time to time, the “Equity Plan”), with an initial value of $7,250,000, (as may be adjusted annually based on the prior year’s grant value, as provided herein, the “Annual Grant”) based on the closing price of Company’s common stock on the date of issuance. The value of the Annual Grant for each fiscal year shall be

adjusted as follows: (i) for every one percent (1%) that the Company exceeds the prior fiscal year’s earnings per share (“EPS”) then the Annual Grant value shall be increased by one-half of one percent (0.5%) and (ii) for every one percent (1%) that the Company is below the prior fiscal year’s EPS, then the Annual Grant value shall be reduced by one percent (1%). For purposes of this Section 3.3, EPS shall be the same EPS used for purposes of the STIP. To the extent EPS is not used for purposes of the STIP, EPS hereunder shall mean non-GAAP EPS as publicly reported by the Company. Such grants shall each be subject to all terms and conditions applicable to grants under the Equity Plan, shall be evidenced by grant agreements in the form customarily used for Equity Plan grants to other named executive officers of the Company and shall be subject to the performance, payout and vesting conditions previously established by the Committee, provided, however, that such awards shall immediately vest (subject in the case of the performance stock units to the achievement of established performance targets) upon Executive’s death or Disability in accordance with the governing award agreement.

3.4.      Additional Equity Compensation .

3.4.1      Deferred Stock Units . For so long as the Company maintains a deferred equity plan (the “DEP”), the Executive may, in accordance with the terms of the DEP, elect to defer the settlement of restricted stock units and/or performance stock units that would have otherwise been settled to the Executive during the Term, including any Matching RSUs (as defined below).

3.4.2      Matching RSUs . As soon as practicable after the end of fiscal year 2016 and after each subsequent fiscal year during the Term, the Company shall grant to the Executive a number of restricted stock units equal to the number shares of the Company’s common stock held by the Executive as of that fiscal year end, divided by the closing price per share of the Company’s common stock on the last trading day of the fiscal year (the “Matching RSUs”). For the sake of clarity, the total value of the Matching RSUs granted will equal the number of shares held by the Executive as of that fiscal year end. For purposes of this Section 3.4.2, “shares held” shall include issued and outstanding shares held directly by the Executive as well as vested equity, the settlement of which has been deferred pursuant to the Company’s DEP, but shall not include shares issued upon vesting of Matching RSUs issued pursuant to this section. The Matching RSUs shall vest on the third anniversary of the applicable Matching RSU issuance date, provided the Executive has remained continuously employed by the Company on the relevant vesting date (or Executive’s employment was terminated as a result of Executive’s death or Disability (as defined below). The total value of Matching RSUs granted under this Section shall not exceed $1,000,000 per fiscal year.

3.5.      Deferred Compensation Plan . The Executive shall be eligible to participate in the Company’s Amended and Restated Deferred Compensation Program (the “DCP”) and the Company shall make a contribution for fiscal year 2016 and each fiscal year thereafter during the Term on behalf of the Executive based on an initial target amount of $232,000, such target amount to be modified consistent with changes for other executive officers for years subsequent to fiscal year 2016, and otherwise subject to the terms and conditions of the DCP including, without limitation, vesting. For the avoidance of doubt, the Company shall make a contribution to the DCP on behalf of the Executive for fiscal year 2015 in an amount not less than $250,000.

3.6.      Business Expenses . The Company shall pay or reimburse the Executive for all reasonable expenses actually incurred or paid by the Executive in the performance of the Executive’s services to the Company or its Affiliates, subject to and in accordance with applicable expense reimbursement and related policies and procedures as in effect from time to time. During the Term, the Company shall provide Executive with an automobile lease at the Company’s cost consistent with similar arrangements provided to other executive officers of the Company. During the Initial Term, the Company shall provide the Executive with a housing allowance of $100,000 per year to cover housing in the greater Boston area.

3.7.      Vacation . The Executive shall be entitled to an annual paid vacation in accordance with the applicable vacation policy, as in effect from time to time. Under the Company’s vacation policy in effect as of the Effective Date, the Executive is entitled to take up to twenty (20) days per calendar year.

3.8.      Employee Savings, Health and Welfare Plans; Perquisites . The Executive (and, to the extent eligible, the Executive’s dependents and beneficiaries) shall be entitled to participate in all employee benefit plans of the Company, including its savings, health and welfare benefit plans and executive perquisites, as in effect from time to time, and on a basis no less favorable than any other senior executive (or the dependents and beneficiaries of other senior executives, as applicable).

3.9.      Clawback . The Executive agrees that any amount payable to him pursuant to the Bonus Program or the Equity Plan or any other similar performance-based compensation may be subject to repayment in accordance with the Company’s Policy on Recoupment of Performance-Based Compensation, as adopted and revised by the Board from time to time, and/or subject to recoupment as required by any other provisions of any law (including, without limitation, Section 10D of the Securities Exchange Act of 1934, as amended), governmental regulation or stock exchange listing requirement and that such repayment obligation will apply notwithstanding any contrary provision of this Agreement.

4.      Termination .

4.1.      Employment at Will . It is expressly acknowledged and agreed by the parties that the Executive’s employment by the Company constitutes employment at will and that, to the maximum extent permitted by law, either the Company or the Executive has the right to terminate the Executive’s employment at any time and for any reason, or without stated reason. Termination of the Executive’s employment, whether by the Company or the Executive, shall not be considered a breach of this Agreement, and the duties of the parties to each other upon and following a termination of employment shall be governed exclusively by this Agreement, or by the terms of any applicable benefit plan. Notwithstanding anything in this Agreement to the contrary, in the event of notice of termination by either party, the Company may require, and shall communicate to the Executive in writing if so required, that the Executive cease performing some or all of the Executive’s duties and/or not be present at the Company’s or its Affiliates’ offices and/or other facilities.

4.2.      Certain Definitions . For all purposes related to the Executive’s employment by the Company during the Term, the following capitalized terms shall have the meanings set forth below:

4.2.1      Affiliate . An “Affiliate” of the Company means any corporation or other entity that stands in a relationship to the Company that would result in the Company and such corporation or other entity being treated as a single employer under sections 414(b) or 414(c) of the Code, except that such sections shall be applied by substituting “at least 50%” for “at least 80%” wherever applicable.

4.2.2      Cause . A termination for “Cause” shall mean termination by the Company of the Executive’s employment by reason of the occurrence of any one or more of the following:

The Company shall provide the Executive with thirty (30) days written notice of any determination of Cause and provide the Executive, for a period of thirty (30) days following such notice, with the opportunity to appear before the Board, with or without legal representation, to present arguments and evidence on his behalf and following such presentation to the Board, the Executive may only be terminated for Cause if the Board (excluding the Executive if he is a member of the Board), by a two-third (2/3) majority vote reasonably determines in good faith that his actions did, in fact, constitute grounds to terminate the Executive for Cause. Nothing herein shall preclude the Board from deliberating without Executive or his counsel being present. The definition of Cause shall govern all equity award agreements by and between Company and Executive, unless otherwise expressly provided in such equity award agreement.

4.2.3      Disability. shall mean the 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 sixty (60) consecutive days or ninety (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 the Executive. The 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.

4.2.4      Good Reason . “Good Reason” shall mean:

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.

4.3.      Termination Events .

4.3.3      Immediate Termination . Executive’s employment and the Term shall terminate immediately upon the occurrence of any of the following:

4.3.4      Termination by the Company without Cause . The Company may terminate the Executive’s employment without Cause upon thirty (30) days prior written notice and, in such event, the Term shall terminate upon expiration of such thirty (30) day period.

4.3.5      Resignation by the Executive . The Executive may resign the Executive’s position (i) voluntarily, which shall be effective ninety (90) days following written notice to the Company of the Executive’s intent to so resign or (ii) due to Good Reason, effective upon expiration of the Company’s thirty (30) day cure period and provided that the Company has not cured. The Company may waive all or any portion of the notice period and notify the Executive that his resignation has been accepted as of an earlier date.

4.3.6      Definition of Termination Date . The date upon which the Executive’s employment and the Term terminate pursuant to this Section 4 shall be the Executive’s “Termination Date” for purposes of this Agreement. In the event that the termination of the Executive’s employment does not constitute a “separation from service” as defined in section 409A of the Code, the Executive’s rights to the applicable payments and benefits described in this Section 4 shall vest upon the Termination Date, but no payment to the Executive that is subject to section 409A of the Code shall be paid prior to the date on which the Executive incurs such a separation from service (or, if required under Section 9.1, prior to the date that is six months after such separation if the Executive is a “specified employee” as defined in Treasury Regulation 1.409A-1(i)(1)).

4.3.7      Deemed Resignation . Upon termination of Executive’s employment for any reason or no reason, including with or without Cause or for Good Reason, whether by the Company or by Executive, and unless the Board otherwise expressly determines, Executive agrees that he automatically shall have been deemed to have resigned from all positions as an officer,

director and employee of the Company or any subsidiaries or affiliates thereof without any further action on the part of the Executive or the Company.

4.4.      Payments Upon a Termination Event .

4.4.1      Entitlements Upon Termination for Cause or Resignation without Good Reason . Following any termination of the Executive’s employment for Cause or without Good Reason, the Company shall pay or provide to the Executive, or the Executive’s estate or beneficiary, as the case may be, the following amounts (the “Accrued Obligations”):

4.4.2      Payments Upon Termination by Reason of Death or Disability . In the event that the Executive’s employment is terminated by reason of his death or Disability, the Company shall pay or provide the Accrued Obligations to the Executive or the Executive’s estate.

4.4.3      Payments Upon Termination without Cause; or Resignation for Good Reason . In the event that the Executive’s employment is terminated by the Company without Cause or the Executive resigns for Good Reason, then the Company shall pay or provide to the Executive or the Executive’s estate:

beginning on the Termination Date (or such later date as required by Section 4.5) in accordance with the Company’s normal payroll practices; and

4.4.4      Payments Upon Termination as a result of Notice of Non-Renewal. In the event the Executive’s employment is terminated following either parties’ Notice of Non-Renewal of the Term and Executive’s employment is subsequently terminated by the Company without Cause or the Executive resigns for Good Reason at or after the expiration of the Term (without regard in either case to whether the Agreement has expired), then the Company shall pay or provide to the Executive or the Executive’s estate:

4.4.5      Sections Mutually Exclusive . Sections 4.4.1, 4.4.2, 4.4.3 and 4.4.4 are mutually exclusive, and the Executive shall not be entitled to receive payments or benefits upon a termination of employment under more than one such Section.

4.5.      Payments Conditioned Upon Release . Anything else contained herein to the contrary notwithstanding, in no event shall the Executive be entitled to any payment or benefit pursuant to this Section 4, or otherwise as a result of any termination of employment except for his

death, other than the Accrued Obligations, unless and until the Executive executes and does not revoke within the applicable revocation period an enforceable waiver and release of all claims against the Company and its officers and directors in a form provided by the Company (the “Release”). Such Release shall be executed and returned to the Company within the period of time specified in the Release; provided, however, if the Termination Date occurs in one calendar year and the period for considering such Release under applicable law expires during the following calendar year, then notwithstanding anything herein to the contrary other than Section 9.1 herein, the payments of severance hereunder will be paid by the Company to the Executive beginning on the first regular payroll date of the Company in the second calendar year. Any amounts that otherwise would have been paid to the Executive prior to the date on which the revocation period expires shall be paid at the expiration of the revocation period, without interest. If the Executive fails to execute the Release within the specified period, or revokes the Release after executing it, all payments and benefits provided under this Section 4, other than the Accrued Obligations, shall be forfeited.

4.6.      Tax . 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.

4.7.      No Mitigation . Upon termination of the Executive’s employment with the Company, the Executive shall be under no obligation to seek other employment or otherwise mitigate the obligations of the Company under this Agreement or any other agreement with the Company.

5.      Indemnification . In connection with entering into the Prior Employment Agreement, the Company and the Executive entered into an indemnification agreement in form and substance substantially similar to the Company’ standard for of Director’s Indemnification Agreement (the “Indemnification Agreement”). Notwithstanding anything to the contrary herein, the Indemnification Agreement shall remain in full force and effect in accordance with its terms.

6.      Notices .

6.1.      Form and Address for Notices . All notices, requests, consents and other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, one (1) day after having been sent by overnight courier or three (3) days after having been mailed first class, e-mail, postage prepaid, by registered or certified mail, as follows (or to such other address as either party shall designate by notice in writing to the other in accordance herewith):

If to the Company, to:

Attention: General Counsel

Hologic, Inc.

250 Campus Drive

Marlborough, MA 01752

If to the Executive, to the Executive’s principal residence as reflected in the records of the Company.

7.      General .

7.1.      Governing Law; Jurisdiction and Venue . This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts applicable to agreements made between residents thereof and to be performed entirely in Massachusetts. Any action brought by either party with respect to this Agreement, shall be brought and maintained only in the state or federal courts located in the Commonwealth of Massachusetts. Each party consents to personal jurisdiction and venue in such courts, waives any right to file a motion based on forum non conveniens or any similar doctrine and agrees not to oppose any motion to transfer any such case to such courts.

7.2.      Headings . The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.

7.3.      Entire Agreement; Amendment . This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral, relating to the subject matter hereof, including, without limitation, the Prior Employment Agreement; provided, however, that the Non-Competition and Proprietary Information Agreement, the Change of Control Agreement, the Indemnification Agreement, and any outstanding option or other equity agreements by and between the Company and Executive shall be governed in accordance with the terms therein. No representation, promise or inducement has been made by either party that is not embodied in this Agreement, and neither party shall be bound by or liable for any alleged representation, promise or inducement not so set forth herein. This Agreement may be amended, modified, superseded, canceled, renewed or extended and the terms or covenants hereof may be waived, only by a written instrument executed by both of the parties hereto, or in the case of a waiver, by the party waiving compliance. The failure of either party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by either party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement.

7.4.      Assignability .

7.4.1      Nonassignability by Executive . This Agreement, and the Executive’s rights and obligations hereunder, may not be assigned by the Executive, nor may the Executive pledge, encumber or anticipate any payments or benefits due hereunder, by operation of law or otherwise.

7.4.2      Assignability by Company . The Company may only assign its rights, together with its obligations, hereunder to a third party in connection with any sale, transfer or other disposition of all or substantially all of any business to which the Executive’s services are then principally devoted; provided, however, that no assignment pursuant to this Section 7.4.2 shall relieve the Company from its obligations hereunder to the extent the same are not timely discharged by such assignee.

7.4.3      Assumption of Agreement by Successors . 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. Failure of the Company to obtain such assumption and agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Executive to compensation from the Company in the same amount and on the same terms as the Executive would be entitled hereunder if the Executive had terminated his employment for Good Reason, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Termination Date. As used in this Agreement, the “Company” shall mean the Company as previously 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.

7.5.      Survival . The respective rights and obligations of the parties hereunder, including under Sections 4, 5 and 7, shall survive any termination of this Agreement or the expiration of the Term to the extent necessary to the intended preservation of such rights and obligations.

7.6.      Severability . The provisions of this Agreement are severable and the invalidity of any provision shall not affect the validity of any other provision. In the event that any arbitrator or court of competent jurisdiction and venue shall determine that any provision of this Agreement or the application thereof is unenforceable, then the parties hereto agree that said arbitrator or court in making such determination shall have the power to reduce the duration and scope of such provision to the extent necessary to make it enforceable, and that the Agreement in its reduced form shall be valid and enforceable to the fullest extent provided by law.

7.7.      Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and all of which together will constitute one and the same instrument. The parties hereto agree to accept a signed facsimile or “PDF” copy of this Agreement as a fully binding original.

7.8.      Legal Expenses . The Company shall reimburse the Executive for legal expenses he incurs with respect to the review and negotiation of this Agreement in an amount not to exceed Ten Thousand ($10,000) Dollars.

8.      Free to Contract . The Executive represents and warrants to the Company that the Executive is able freely to accept engagement and employment by the Company as described in this Agreement and that there are no existing agreements, arrangements or understandings, written or oral, that would prevent Executive from entering into this Agreement, would prevent Executive or restrict Executive in any way from rendering services to the Company as provided herein during the Term or would be breached by the future performance by the Executive of the Executive’s duties hereunder. The Executive also represents and warrants that no fee, charge or expense of any sort is due from the Company to any third person engaged by the Executive in connection with Executive’s employment by the Company hereunder, except as disclosed in this Agreement.

9.      Code Section 409A Legal Requirement .

9.1.      Six Month Delay in Payment . Notwithstanding anything to the contrary in this Agreement, if the Executive is a “specified employee” as defined and applied in section 409A of the Code as of the Executive’s Termination Date, then, to the extent any payment under this Agreement or any Company Arrangement constitutes deferred compensation (after taking into account any applicable exemptions from section 409A of the Code, including those specified in Section 9.2) and to the extent required by section 409A of the Code, no payments due under this Agreement or any Company Arrangement may be made until the earlier of: (i) the first day following the sixth month anniversary of the Executive’s Termination Date and (ii) the Executive’s date of death.

9.2.      Application of Exemptions . For purposes of section 409A of the Code, each “payment” (as defined by section 409A of the Code) made under this Agreement shall be considered a “separate payment.” In addition, for purposes of section 409A of the Code, each such payment shall be deemed exempt from section 409A of the Code to the fullest extent possible under the “short-term deferral” exemption of Treasury Regulation § 1.409A-1(b)(4), as well as any other applicable exemptions.

9.3.      Reimbursement and Offset Provisions . Reimbursement payments shall generally be made in accordance with applicable Company policies; however, in no event will reimbursement payments be made later than the end of the year following the year in which the

expense was incurred. The amounts eligible for reimbursement provided in one taxable year will not affect the amounts eligible for reimbursement provided in any other taxable year, and the right to reimbursement will not be subject to liquidation or exchange for another benefit. Notwithstanding any other provision of this Agreement to the contrary, in no event shall any payment that constitutes “non-qualified deferred compensation” under section 409A of the Code be subject to offset by any other amount unless otherwise permitted by section 409A.

9.4.      Interpretation and Administration of Agreement . To the maximum extent permitted by law, this Agreement shall be interpreted and administered in such a manner that the payments to the Executive are either exempt from, or comply with, the requirements of section 409A of the Code.

[Signature page follows]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

HOLOGIC, INC.

By: /s/ Elaine S. Ullian

Elaine S. Ullian

Lead Independent Director

EXECUTIVE

/s/ Stephen P. MacMillan

Stephen P. MacMillan

Chairman, President and Chief Executive Officer

Exhibit A

Board Seats

(1)    Boston Scientific Corporation