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EXHIBIT 3
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (this "Agreement"), dated as of October 4,
1999, is made by and among EG&G, Inc., a Massachusetts corporation (the
"Buyer"), Venice Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of the Buyer (the "Sub"), and the holders (the "Stockholders") of the
shares of Common Stock, $0.01 par value (the "Shares"), of Vivid Technologies,
Inc., a Delaware corporation (the "Company"), listed on SCHEDULE A hereto.
WHEREAS, concurrently with the execution of this Agreement, each
Stockholder and American Stock Transfer & Trust Company, as custodian, are
entering into a Custody Agreement (the "Custody Agreement") providing for the
safekeeping of the Stockholder Shares (as defined below), together with a fully
executed stock power, in accordance with the provisions of this Agreement;
WHEREAS, concurrently herewith, the Buyer, the Sub and the Company are
entering into an Agreement and Plan of Merger (as it may be amended from time to
time in the future in accordance with its terms, the "Merger Agreement")
providing for the merger of the Sub with and into the Company (the "Merger"),
with the Company being the entity surviving the Merger and becoming a wholly
owned subsidiary of the Buyer; and
WHEREAS, in order to induce the Buyer and the Sub to enter into the
Merger Agreement, the Buyer and the Sub have requested the Stockholders, and the
Stockholders have agreed, to enter into this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
STOCK OPTION
Section 1.1 GRANT OF STOCK OPTION. Each Stockholder hereby grants to
the Sub an irrevocable option (the "Option") to purchase all Shares currently
owned by such Stockholder and any additional Shares hereafter acquired by such
Stockholder (such "Stockholder's Shares" and, collectively, the "Stockholder
Shares") at a purchase price of $6.25 per Stockholder Share, net to the Seller
in cash (as adjusted pursuant to Section 1.5, the "Purchase Price").
Section 1.2 EXERCISE OF OPTION.
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(a) The Option may be exercised by the Sub, in whole or in
part, at any time or from time to time after the date the Merger Agreement is
terminated pursuant to the terms thereof (the "Merger Termination Date") and
prior to the 180th day after the Merger Termination Date. In the event the Sub
wishes to exercise the Option for all or some of the Stockholder Shares, the Sub
shall send a written notice (the "Exercise Notice") to the Stockholders
specifying the total number of Stockholder Shares it wishes to purchase pursuant
to such exercise (and the corresponding number of each such Stockholder's
Shares) and the place, the date (not less than two nor more than 20 business
days from the date of the Exercise Notice), and the time for the closing of such
purchase, provided that such date and time may be earlier than two days after
the Exercise Notice if reasonably practicable. Each closing of a purchase of
Stockholder Shares pursuant to this Section 1.2(a) (a "Closing") shall take
place at the place, on the date and at the time designated by the Sub in its
Exercise Notice, provided that if, at the date of the Closing herein provided
for, the conditions set forth in paragraphs (i) or (ii) of Section 1.4 shall not
have been satisfied, the Sub may postpone the Closing until a date within five
business days after such conditions are satisfied.
(b) The Sub shall not be under any obligation to deliver an
Exercise Notice and may allow the Option to terminate without purchasing any
Stockholder Shares hereunder; provided, however, that once the Sub has delivered
to the Stockholders an Exercise Notice, subject to the terms and conditions of
this Agreement, the Sub shall be bound to effect the purchase as described in
such Exercise Notice unless there shall be a preliminary or permanent injunction
or other order, decree or ruling issued by a court of competent jurisdiction or
by a governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or order promulgated by any governmental authority,
prohibiting or otherwise restraining the purchase of the Stockholder Shares
pursuant to the Option.
Section 1.3 CLOSING. At each Closing, (a) each Stockholder shall
deliver to the Sub (in accordance with the Sub's instructions) a certificate or
certificates (the "Certificates") representing the number of such Stockholder's
Shares to be purchased at such Closing, duly endorsed or accompanied by stock
powers duly executed in blank with an appropriate signature guarantee and (b)
the Sub shall deliver to such Stockholder a certified or bank cashier's check or
checks payable to or upon the order of such Stockholder in an amount equal to
(i) the number of such Stockholder's Shares being purchased at such Closing
multiplied by (ii) the Purchase Price.
Section 1.4 CONDITIONS. The obligation of each Stockholder to sell
Stockholder Shares at any Closing is subject to satisfaction of each of the
following conditions:
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(i) All waiting periods under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder (the "HSR Act")
applicable to such exercise of the Option shall have expired
or been terminated.
(ii) There shall be no preliminary or permanent
injunction or other order, decree or ruling issued by a court
of competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, nor any statute, rule,
regulation or order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining such exercise
of the Option.
(iii) A proposal for an Alternative Transaction (as
defined in the Merger Agreement) involving the Company shall
have been made on or after the date of this Agreement and
prior to the Merger Termination Date.
(iv) At the time the Exercise Notice is sent, the
Company shall have entered into a proposal, plan or agreement
with respect to an Alternative Transaction.
Section 1.5 CERTAIN ADJUSTMENTS.
(a) In the event of any change in the Company's capital stock
by reason of stock dividends, stock splits, mergers, consolidations,
recapitalizations, combinations, conversions, exchanges of shares, extraordinary
or liquidating dividends, or other changes in the corporate of capital structure
of the Company which would have the effect of diluting or changing the Sub's
rights hereunder, the number and kind of shares or securities subject to the
Option and the Purchase Price per Stockholder Share (but not the total Purchase
Price) shall be appropriately and equitably adjusted so that the Sub shall
receive upon exercise of the Option the number and class of shares or other
securities or property that the Sub would have received in respect of the
Stockholder Shares purchasable upon exercise of the Option if the Option had
been exercised immediately prior to such event. Each Stockholder shall take such
steps in connection with such consolidation, merger, liquidation or other such
action as may be necessary to assure that the provisions hereof shall thereafter
apply as nearly as possible to any securities or property thereafter deliverable
upon exercise of the Option.
(b) In the event the value of the consideration per Share to
be paid by the Sub pursuant to the Merger is increased, the Purchase Price shall
be similarly
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increased and in the event any Closing hereunder shall have occurred, the Sub
shall promptly pay to each Stockholder the product of the amount of such
increase in the Purchase Price multiplied by the number of such Stockholder's
Shares as to which the Option has been exercised.
ARTICLE II
VOTING AGREEMENT; IRREVOCABLE GRANT OF PROXY
2.1 VOTING AGREEMENT. Each Stockholder hereby agrees to vote all Shares
that such Stockholder is entitled to vote to approve and adopt the Merger
Agreement, the Merger and all agreements related to the Merger and any actions
related thereto at any meeting of the stockholders of the Company, and at any
adjournment thereof (or by written consent in lieu of a meeting), at which such
Merger Agreement and other related agreements (or any amended version thereof),
or such other actions, are submitted for the consideration and vote of the
stockholders of the Company. Each Stockholder hereby agrees that it will not
vote (or give a written consent with respect to) any Shares in favor of the
approval of any (i) Acquisition Proposal by any person other than Buyer or its
affiliates, (ii) reorganization, recapitalization, liquidation or winding up of
the Company or any other extraordinary transaction involving the Company, (iii)
corporate action the consummation of which would frustrate the purposes, or
prevent or delay the consummation, of the transactions contemplated by the
Merger Agreement or (iv) other matter relating to, or in connection with, any of
the foregoing matters.
2.2. IRREVOCABLE PROXY. Each Stockholder hereby revokes any and all
previous proxies granted with respect to such Stockholder's Shares. Each
Stockholder hereby grants a proxy appointing the Sub as such Stockholder's
attorney-in-fact and proxy, with full power of substitution, for and in such
Stockholder's name, to vote, express consent or dissent, or otherwise to utilize
such voting power in such manner and upon such matters as the Sub or its proxy
or substitute shall, in the Sub's sole discretion, deem proper with respect to
such Stockholder's Shares. The proxy granted by each Stockholder pursuant to
this Section 2.2 is irrevocable and is granted in consideration of the Sub's
entering into this Agreement and the Merger Agreement and incurring certain
related fees and expenses. The proxy grant by each Stockholder shall be revoked
upon termination of this Agreement in accordance with its terms. At the Sub's
request, each Stockholder shall perform such further acts and execute such
further documents as may be required to vest in the Sub the sole power to vote
the Shares during the term of the proxy granted herein.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders severally represents and warrants to the Sub
that:
Section 3.1 VALID TITLE. Such Stockholder is the sole, true, lawful
record and beneficial owner of such Stockholder's Shares with no restrictions on
such Stockholder's voting rights or rights of disposition pertaining thereto. At
any Closing, such Stockholder will convey good and valid title to such
Stockholder's Shares being purchased free and clear of any and all claims,
liens, charges, encumbrances and security interests. None of such Stockholder's
Shares is subject to any voting trust or other agreement or arrangement with
respect to the voting of such Shares.
Section 3.2 NON-CONTRAVENTION. The execution, delivery and performance
by such Stockholder of this Agreement and the Custody Agreement and the
consummation of the transactions contemplated hereby and thereby (i) are within
such Stockholder's powers, have been duly authorized by all necessary action
(including any consultation, approval or other action by or with any other
person), (ii) require no action by or in respect of, or filing with, any
governmental body, agency, official or authority (except as required under the
HSR Act), and (iii) do not and will not contravene or constitute a default
under, or give rise to a right of termination, cancellation or acceleration of
any right or obligation of such Stockholder or to a loss of any benefit of such
Stockholder under, any statute, rule or regulation applicable to such
Stockholder (except that the pre-merger notification requirements of the HSR Act
may apply), or injunction, order, decree, or other instrument binding on such
Stockholder or result in the imposition of any lien on any asset of such
Stockholder.
Section 3.3 BINDING EFFECT. This Agreement and the Custody Agreement
have been duly executed and delivered by such Stockholder and are the valid and
binding agreements of such Stockholder, enforceable against such Stockholder in
accordance with their respective terms except as enforcement may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights generally. If this Agreement or the Custody Agreement is being executed
in a representative or fiduciary capacity, the person signing this Agreement or
the Custody Agreement, as the case may be, has full power and authority to enter
into and perform this Agreement or the Custody Agreement.
Section 3.4 TOTAL SHARES. The number of Shares set forth on SCHEDULE A
hereto are the only Shares legally or beneficially owned by such Stockholder
and, except as set forth on SCHEDULE A, such Stockholder owns no options to
purchase or rights to
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subscribe for or otherwise acquire any securities of the Company and has no
other interest in or voting rights with respect to any securities of the
Company.
Section 3.5 FINDER'S FEES. No investment banker, broker or finder is
entitled to a commission or fee from the Buyer, the Sub or the Company in
respect of this Agreement or the Custody Agreement based upon any arrangement or
agreement made by or on behalf of such Stockholder.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SUB
The Sub represents and warrants to each of the Stockholders that the
Sub has all requisite corporate power and authority to enter into this Agreement
and to perform its obligations hereunder. The execution, delivery and
performance by the Sub of this Agreement and the consummation by the Sub of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of the Sub and no other corporate action on the part of the Sub is
necessary to authorize the execution, delivery or performance by the Sub of this
Agreement and the consummation by the Sub of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Sub and is a
valid and binding agreement of the Sub, enforceable against it in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally.
ARTICLE V
COVENANTS OF THE STOCKHOLDERS
Each of the Stockholders hereby covenants and agrees that:
Section 5.1 NO PROXIES FOR OR ENCUMBRANCES ON STOCKHOLDER SHARES.
Except as provided in this Agreement, such Stockholder shall not, during the
term of this Agreement, without the prior written consent of the Sub, directly
or indirectly, (i) grant any proxies or enter into any voting trust or other
agreement or arrangement with respect to the voting of any Shares or (ii) sell,
assign, transfer, encumber or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the direct or
indirect sale, assignment, transfer, encumbrance or other disposition of, any
Shares. Such Stockholder shall not seek or solicit any such sale, assignment,
transfer, encumbrance or other disposition or any such contract, option or other
arrangement or assignment or understanding and agrees to notify the Sub
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promptly and to provide all details required by the Sub if such Stockholder
shall be approached or solicited, directly or indirectly, by any person with
respect to any of the foregoing.
Section 5.2 NO SHOP. Such Stockholder shall not directly or indirectly
(i) solicit, initiate or encourage (or authorize any person to solicit, initiate
or encourage) any inquiry, proposal or offer from any person to acquire the
business, property or capital stock of the Company or any direct or indirect
subsidiary thereof, or any acquisition of a substantial equity interest in, or a
substantial amount of the assets of, the Company or any direct or indirect
subsidiary thereof, whether by merger, purchase of assets, tender offer or other
transaction or (ii) participate in any discussion or negotiations regarding, or
furnish to any other person any information with respect to, or otherwise
cooperate in any way with, or participate in, facilitate or encourage any effort
or attempt by any other person to do or seek any of the foregoing. Such
Stockholder shall promptly advise Sub of the terms of any communications it may
receive relating to any of the foregoing.
Section 5.3 CONDUCT OF STOCKHOLDERS. Such Stockholder will not (i)
take, agree or commit to take any action that would make any representation and
warranty of such Stockholder hereunder inaccurate in any respect as of any time
prior to the termination of this Agreement or (ii) omit, or agree or commit to
omit, to take any action necessary to prevent any such representation or
warranty from being inaccurate in any respect at any such time.
ARTICLE VI
MISCELLANEOUS
Section 6.1 EXPENSES. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense.
Section 6.2 FURTHER ASSURANCES. Except as otherwise provided in the
Merger Agreement, the Stockholders will each execute and deliver or cause to be
executed and delivered all further documents and instruments and use their
respective best efforts to secure such consents and take all such further action
as may be reasonably necessary in order to consummate the transactions
contemplated hereby or to enable the Sub and any assignee to exercise and enjoy
all benefits and rights of the Stockholders with respect to the Option and the
Stockholder Shares.
Section 6.3 ADDITIONAL AGREEMENTS. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use all reasonable
efforts to take, or
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cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations and which
may be required under any agreements, contracts, commitments, instruments,
understandings, arrangements or restrictions of any kind to which such party is
a party or by which such party is governed or bound, to consummate and make
effective the transactions contemplated by this Agreement.
Section 6.4 SPECIFIC PERFORMANCE. The parties hereto agree that the Sub
may be irreparably damaged if for any reason any Stockholder failed to sell such
Stockholder's Shares (or other securities deliverable pursuant to Section 1.5)
upon exercise of the Option or to perform any of its other obligations under
this Agreement, and that the Sub would not have any adequate remedy at law for
money damages in such event. Accordingly, the Sub shall be entitled to specific
performance and injunctive and other equitable relief to enforce the performance
of this Agreement by each Stockholder. This provision is without prejudice to
any other rights that the Sub may have against any Stockholder for any failure
to perform its obligations under this Agreement.
Section 6.5 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered two
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or one business day after it is sent via a reputable
nationwide overnight courier service for next business day delivery, if to the
Buyer or the Sub, at its address set forth below its signature hereto; and if to
a Stockholder, to such Stockholder at his address set forth on SCHEDULE A
hereto. Any party may give any notice, request, demand, claim, or other
communication hereunder using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the party for whom it is intended. Any party may change
the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
Section 6.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in this Agreement shall survive
delivery of and payment for the Stockholder Shares.
Section 6.7 AMENDMENTS; TERMINATION; EXPIRATION. This Agreement may not
be modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This Agreement
may be terminated by the Buyer and the Sub upon written notice to the
Stockholders. This
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Agreement and the Stockholder's obligations hereunder shall expire on the first
to occur of (a) the Effective Time, (b) 181 days after the termination of the
Merger Agreement in accordance with its terms, and (c) the termination of the
Seller Stock Option Agreement (as defined in the Merger Agreement) pursuant to
clause (c) of Section 18 thereof; PROVIDED, HOWEVER, that no such expiration
shall relieve a Stockholder from such Stockholder's obligation to deliver Shares
to the Sub to the extent the Sub has delivered an Exercise Notice prior to the
181st day after the termination of the Merger Agreement in accordance with its
terms but the Closing has not occurred prior to such 181st day.
Section 6.8 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that Sub may assign its rights and
obligations to any affiliate of Sub and provided, further, that no Stockholder
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the Sub.
Section 6.9 GOVERNING LAW AND VENUE. THIS AGREEMENT SHALL BE DEEMED TO
BE MADE IN, AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY
AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS
TO BE PERFORMED WHOLLY IN SUCH STATE. The parties hereby (a) irrevocably submit
to the jurisdiction of the Chancery Court of the State of Delaware and the
federal courts of the United States of America located in the State of Delaware
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and in respect of the transactions contemplated hereby and
thereby and (b) waive, and agree not to assert, as a defense in any action, suit
or proceeding for the interpretation or enforcement hereof, that it is not
subject to such jurisdiction or that such action, suit or proceeding may not be
brought or is not maintainable in said courts or that the venue thereof may not
be appropriate or that this Agreement may not be enforced in or by such courts,
and the parties irrevocably agree that all claims with respect to such action or
proceeding shall be heard and determined in such courts. The parties hereby
consent to and grant any such court's jurisdiction over the person of such
parties and over the subject matter of such dispute and agree that mailing of
process or other papers in connection with any such action or proceeding in the
manner provided in Section 6.5, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
Section 6.10 COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instruments.
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Section 6.11 BUYER GUARANTY. Buyer hereby unconditionally guarantees
the Sub's obligations under this Agreement and agrees to be liable for any
breach of this Agreement by the Sub.
Section 6.12 HEADINGS. The headings and captions used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
Section 6.13 OBLIGATIONS SEPARATE; STOCKHOLDER CAPACITY. The
obligations of the Stockholders hereunder are several and not joint. Each
Stockholder who is an individual signs solely in his capacity as the record
holder and beneficial owner of, or the trustee of a trust whose beneficiaries
are the beneficial owners of, such Stockholder's Shares and nothing herein shall
limit or affect any actions taken by a Stockholder in his capacity as an officer
or director of the Company.
Section 6.14 DEFINED TERMS. Capitalized terms used in this Agreement
and not otherwise defined shall have the meaning given to such terms in the
Merger Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BUYER:
EG&G, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------
Title: Senior Vice President
Name: Xxxxxx Xxxxxxxxxx
Address: 00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
SUB:
VENICE ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------
Title: Treasurer
Name: Xxxxxx Xxxxxxxxxx
Address: c/o EG&G, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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STOCKHOLDERS:
/s/ S. Xxxxx Xxxxxxxxxx
---------------------------
S. Xxxxx Xxxxxxxxxx
XXXXXXXXXX FAMILY IRREVOCABLE
TRUST OF 1996
By: /s/ Xxxxxxx X. X'Xxxxx, Trustee
-----------------------------------
Xxxxxxx X. X'Xxxxx, as Trustee
S. XXXXX XXXXXXXXXX
1996 RETAINED ANNUITY TRUST
By: /s/ Xxxxxxx X. X'Xxxxx, Trustee
-----------------------------------
Xxxxxxx X. X'Xxxxx, as Trustee
/s/ Xxx X. Xxxxx
-----------------------------
Xxx X. Xxxxx
XXX X. XXXXX
1996 RETAINED ANNUITY TRUST
By: /s/ Xxxxxxx X. X'Xxxxx, Trustee
-----------------------------------
Xxxxxxx X. X'Xxxxx, as Trustee
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SCHEDULE A
STOCKHOLDER NAME AND ADDRESS NUMBER OF SHARES
S. Xxxxx Xxxxxxxxxx 164,884
Hologic, Inc.
00 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Xxxxxxxxxx Family Irrevocable 237,500
Trust of 1996
c/o X'Xxxxx & Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
S. Xxxxx Xxxxxxxxxx 210,616
1996 Retained Annuity Trust
c/o X'Xxxxx & Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Xxx X. Xxxxx 565,114
Hologic, Inc.
00 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Xxx X. Xxxxx 124,886
1996 Retained Annuity Trust
c/o X'Xxxxx & Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
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