EXHIBIT 10.23
Name: ______________________
SELLING STOCKHOLDER AGREEMENT
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AGREEMENT, dated as of December __, 1995 (the "Agreement"), among Hologic,
Inc., a Delaware corporation (the "Company"), and each stockholder of the
Company listed on Exhibit A, attached hereto (collectively the "Selling
Stockholders").
W I T N E S S E T H
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WHEREAS, the Board of Directors of the Company has determined that a public
offering (the "Public Offering") of the Company's Common Stock, $.01 par value
(the "Common Stock"), would be beneficial to the Company and its stockholders
and proposes to issue shares of Common Stock (the "Company Shares") for such
purpose; and
WHEREAS, the Company also has determined that it would be beneficial to the
Company and its stockholders for certain stockholders to have the opportunity to
sell in the Public Offering a portion of the shares of Common Stock held by such
stockholders; and
WHEREAS, the Company has offered such stockholders such opportunity and the
Selling Stockholders propose to accept such offer and sell in the Public
Offering an aggregate of up to 180,000 shares of Common Stock (the "Stockholder
Shares").
NOW THEREFORE, in consideration of the mutual and dependent promises
hereinafter set forth and such other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Payment of Expenses.
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(a) The Company shall pay (i) all of the expenses, other than underwriting
discounts, incurred in connection with the Public Offering (including, but not
limited to, all registration, filing and qualification fees, transfer agent's
fees, printing and engraving fees and legal and accounting fees), and (ii) the
Company's pro rata portion of all underwriting discounts incurred in connection
with the Public Offering, determined in accordance with the number of Company
Shares and Stockholder Shares actually sold by each respective party in the
Public Offering.
(b) Each Selling Stockholder shall pay such Selling Stockholder's pro
rata portion of all underwriting discounts incurred in connection with the
Public Offering, determined in accordance with the number of Company Shares and
Stockholder Shares actually sold by each respective party in the Public
Offering.
(c) Notwithstanding the provisions of this Section 1 or any other
agreement of the Company to pay certain expenses of the Public Offering, if the
payment of any such expenses by the Company shall be prohibited by any state
Blue Sky or securities regulatory commission in a jurisdiction in which Shares
are offered, then each Selling Stockholder agrees to pay his or its
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pro rata portion of any such expenses determined in accordance with the number
of Company Shares and Stockholder Shares actually sold by each respective party
in the Public Offering.
SECTION 2. Indemnification; Contribution.
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(a) The Company shall indemnify each of the Selling Stockholders, and
each person (if any) who controls such Selling Stockholder within the meaning of
Section 15 of the Securities Act of 1933, as amended (the "Act"), against all
losses, claims, damages and liabilities and expense (including all reasonable
fees and disbursements of counsel incurred in defending against any such claim,
damage or liability) caused by any untrue statement or alleged untrue statement
of a material fact contained in the registration statement filed or to be filed
with the Securities and Exchange Commission (the "Commission"), in connection
with the Public Offering, as the same may be amended or supplemented from time
to time (the "Registration Statement") or in any prospectus filed with, or
delivered to, the Commission in connection with the Public Offering, or caused
by any omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; provided, however,
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insofar as such losses, claims, damages, or liabilities are caused by an untrue
statement of a material fact contained in, or any material fact omitted from,
information relating to a Selling Stockholder furnished in writing to the
Company by such Selling Stockholder for use in the Registration Statement or any
amendment or supplement thereto, or any such prospectus, then the Company shall
have no obligation hereunder to indemnify the Selling Stockholder furnishing
such information.
(b) Each Selling Stockholder shall indemnify each of the Company and
the other Selling Stockholders, and each person (if any) who controls the
Company or such other Selling Stockholder within the meaning of Section 15 of
the Act, against all losses, claims, damages and liabilities and expense
(including all reasonable fees and disbursements of counsel incurred in
defending against any such claim, damage or liability) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or in any prospectus filed with, or delivered to, the
Commission in connection with the Public Offering, or caused by any omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading, but only with respect to information
relating to such Selling Stockholder furnished in writing by or on behalf of
such Selling Stockholder expressly for use in the Registration Statement or any
amendment or supplement thereto, or any such prospectus, provided, however, no
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Selling Stockholder shall be liable in an amount that exceeds the aggregate
public offering price of the Stockholder Shares sold by the Selling Stockholder,
net of the underwriting discount.
(c) The indemnity agreements of the Company and the Selling
Stockholders contained in this Section 2 shall remain in effect regardless of
any investigation made by or on behalf of any indemnified party and shall
survive delivery of the shares of Common Stock pursuant to the Public Offering.
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(d) In order to provide for just and equitable contribution in
circumstances in which indemnification provided for in paragraph (a) of this
Section 2 is unavailable, the Company and each of the Selling Stockholders shall
contribute to the aggregate losses, claims, damages, liabilities and expenses
(including all reasonable fees and disbursements of counsel incurred in
defending against any claim, damage, or liability), to which one or more of the
Selling Stockholders may be subject in such proportion as is appropriate to
reflect the relevant fault of the Company and the respective Selling
Stockholders in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities and expenses as well as any other
relevant equitable considerations: provided, however, that:
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(i) in any case where any Selling Stockholder is seeking
contribution hereunder, such Selling Stockholder shall be entitled to
contribution from the remaining Selling Stockholders pursuant to this Agreement,
only after first seeking contribution from the Company;
(ii) no Selling Stockholder shall in any case be required to
contribute or make any payments under this paragraph (d) which in the aggregate
exceed his pro rata share of such losses, claims, damages, liabilities and
expenses determined in accordance with the total number of Company Shares and
Stockholder Shares sold by each respective party hereto provided, however, that,
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except as set forth in subparagraph (iii) of this paragraph (d), no Selling
Stockholder shall be liable to contribute an amount that exceeds the aggregate
public offering price of the Stockholder Shares sold by the Selling Stockholder,
net of the underwriting discount;
(iii) in the event the Company or any Selling Stockholder
defaults on its obligation to make any contribution pursuant to this paragraph
(d), the amount that each of the remaining parties is obligated to contribute
hereunder shall be increased in accordance with the relation of the number of
shares of Common Stock being sold by each such remaining party to the aggregate
number of shares of Common Stock being sold by all such remaining parties;
(iv) neither the Company nor any Selling Stockholder will be
required to make any contribution to another Selling Stockholder with respect to
matters for which the other Selling Stockholder would not otherwise be entitled
to be indemnified under paragraph (a) of this Section 2 had such indemnification
been available; and
(v) for purposes of this paragraph (d), each person, if any,
who controls a Selling Stockholder within the meaning of Section 15 of the Act,
and each director, officer or partner (if any) of such Selling Stockholder,
shall have the same rights to contribution under this Agreement as such Selling
Stockholder.
SECTION 3. Governing Law.
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This Agreement shall be governed by and construed in accordance with the
laws of the State of Massachusetts.
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SECTION 4. Invalidity.
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If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid or unenforceable, such determination shall
not affect the remaining provisions of the Agreement, all of which shall remain
in effect.
SECTION 5. Counterparts.
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This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall be deemed to
be one and the same instrument.
SECTION 6. Notices.
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Any notice given pursuant to this Agreement shall be sent by certified
mail, return receipt requested, to the address set forth under each party's name
on the signature page of this Agreement, or to such other address as may be
designated by notice given to each party pursuant to the provisions hereof.
SECTION 7. Headings.
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The headings contained in this Agreement are for descriptive purposes only
and shall not be given substantive effect.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first written above.
HOLOGIC, INC., a Delaware corporation
By:
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Steve L. Nakashige, President
SELLING STOCKHOLDER
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Address:
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Exhibit A
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Selling Stockholders Shares to be Sold
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