Certain Definitions Regarding Accelerated Vesting on a Change of Control
Certain Definitions. For purposes of the Performance Stock Unit Award Agreement to which this Annex is attached (the PSU Award Agreement), the following capitalized terms shall have the meanings set forth below.
(a) Cause means a determination by the Company that any of the following has occurred: (i) disloyalty, gross negligence, willful misconduct or breach of fiduciary duty to the Company which results in substantial direct or indirect loss, damage or injury to the Company; (ii) the Grantees material violation of the Companys Code of Conduct, and other Company Codes of Conduct or other policies and procedures that are applicable to the Grantee; (iii) the commission, indictment, plea of nolo contendere or conviction of the Grantee of a felony; (iv) the breach of the Grantees confidentiality, non-competition, non-solicitation covenants set forth in a separate written agreement between the Company and the Grantee; (v) a violation of federal or state securities law or regulations; or (vi) any other act or omission by the Grantee that would constitute cause under any employment or similar agreement entered into between the Grantee and the Company or any of its subsidiaries.
(b) Change of Control means:
(i) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of the Voting Stock of the Company; provided, however, that any acquisition by the Company, or any employee benefit plan (or related trust) of the Company of 50% or more of Voting Stock shall not constitute a Change of Control; and provided, further, that any acquisition by a corporation with respect to which, following such acquisition, more than 50% of the then outstanding shares of common stock of such corporation, is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners of the Voting Stock immediately prior to such acquisition in substantially the same proportion as their ownership, immediately prior to such acquisition, of the Voting Stock, shall not constitute a Change of Control; or
(ii) Any transaction which results in the Continuing Directors (as defined in the Certificate of Incorporation of the Company) constituting less than a majority of the Board of Directors of the Company; or
(iii) The consummation of (A) a Merger with respect to which the individuals and entities who were the beneficial owners of the Voting Stock immediately prior to such Merger do not, following such Merger, beneficially own, directly or indirectly, more than 50% of the then outstanding shares of common stock of the corporation resulting from the Merger (the Resulting Corporation) as a result of the individuals and entities shareholdings in the Company immediately prior to the consummation of the Merger and without regard to any of the individuals and entities shareholdings in the corporation resulting from the Merger immediately prior to the consummation of the Merger, or (B) the sale or other disposition of all or substantially all of the assets of the Company, excluding a sale or other disposition of assets to a subsidiary of the Company.
Notwithstanding the foregoing, no Change of Control shall be deemed to occur if as a result of any transaction referred to in paragraph (iii) above, the Company is deemed to be the accounting acquirer under U.S. generally accepted accounting principles pursuant to Accounting Standards Codification Topic 805, as it may be amended from time to time or any successor rule, standard, pronouncement, law or regulation.
(c) Change of Control Period means the period commencing upon a Change of Control and ending two (2) years after a Change of Control.
(d) Exchange Act means the Securities Exchange Act of 1934, as amended, and any successor act thereto.
(Hologic, Inc. U.S. FY21 PSU Agreement (ROIC) Page 7)