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As filed with the Securities and Exchange Commission on December 23, 1999
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________
ACUSON CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 3845 94-2784998
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification Number)
incorporation or
organization)
1220 Charleston Road
Mountain View, CA 94043
(650) 969-9112
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Charles H. Dearborn
Vice President of Human Resources and Legal Affairs, General Counsel and
Secretary
1220 Charleston Road
Mountain View, CA 94043
(650) 969-9112
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Keith A. Flaum, Esq.
Cooley Godward LLP
5 Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
(650) 843-5000
___________
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: From time to time after the
effective date of this registration statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Shares to be Amount to be Registered Offering Aggregate Amount of
Registered (1) Price per Share (2) Offering Price (2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.0001 per share 1,272,541 $ 12.03 $ 15,308,668.00 $4,041.49
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This registration statement shall cover any additional shares of Common
Stock which become issuable by reason of any stock dividend, stock split,
recapitalization or any other similar transaction without receipt of
consideration which results in an increase in the number of shares of the
Registrant's outstanding Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) of the Securities Act of 1933.
================================================================================
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Explanatory Note
This registration statement contains a prospectus relating to a public
offering of an aggregate of 1,272,541 shares of common stock, $0.0001 par value
per share, of Acuson Corporation, a Delaware corporation ("Common Stock"), that
are owned by former stockholders of Ecton, Inc., a Pennsylvania corporation (the
"Ecton Offering"). The complete prospectus for the Ecton Offering follows
immediately.
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The information in this prospectus is not complete and may be changed. The
selling stockholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
Subject to Completion, Dated December 23, 1999
ACUSON CORPORATION
1,272,541 Shares
Common Stock
The Selling Stockholders: The selling stockholders identified in this
prospectus are selling 1,272,541 shares of our common
stock. We are not selling any shares of our common
stock under this prospectus and will not receive any
of the proceeds from the sale of shares by the
selling stockholders.
Offering Price: The selling stockholders may sell the shares of
common stock described in this prospectus in a number
of different ways and at varying prices. We provide
more information about how they may sell their shares
in the section titled "Plan of Distribution" on page
16.
Trading Market: Our common stock is listed on the New York Stock
Exchange under the symbol "ACN." On December 22,
1999, the closing sale price of our common stock, as
reported on the New York Stock Exchange, was $12.00.
Risks: Investing in our common stock involves a high degree
of risk. See "Risk Factors" beginning on page 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is __________, 1999
Acuson, Sequoia and 128XP are registered trademarks and AcuNav, Aspen,
Cypress, Freestyle, KinetDx, Imagegate and Native are trademarks of Acuson
Corporation.
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PROSPECTUS SUMMARY
The following is a summary of our business. You should carefully read the
section entitled "Risk Factors" in this prospectus, our Annual Report on Form
10-K for the year ended December 31, 1998, and our Quarterly Reports on Form 10-
Q for the quarterly periods ended April 3, 1999 (as amended on July 6, 1999),
July 3, 1999 and October 2, 1999, respectively, for more information on our
business and the risks involved in investing in our stock.
In addition to the historical information contained in this prospectus,
this prospectus contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Exchange Act of
1934. These statements may be identified by the use of words such as "expects,"
"anticipates," "intends," "plans" and similar expressions. The outcome of the
events described in these forward-looking statements is subject to risks and
actual results could differ materially. The sections entitled "Risk Factors"
beginning on page 4 of this prospectus, and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and "Business" in our
Annual Report and Quarterly Reports contain a discussion of some of the factors
that could contribute to those differences.
Acuson Corporation
Overview
We are a manufacturer, worldwide marketer and service provider of high-
performance systems that generate, display, archive and retrieve medical
diagnostic ultrasound images. Hospitals, clinics and healthcare delivery
systems throughout the world use our products for a broad range of clinical
applications including radiology, cardiology, obstetrical/gynecological and
peripheral vascular. We strive continuously to develop leading-edge,
upgradeable ultrasound and image management technology. In 1998, we had sales
of $455.1 million.
Currently, we design, manufacture, market, sell and service the Sequoia(R),
Aspen(TM), and 128XP(R) ultrasound platforms, as well as the KinetDx(TM) PACS
(Picture Archive Communications Systems) solution.
Our ultrasound platforms - the Sequoia ultrasound platform, the Aspen
ultrasound platform and the 128XP ultrasound platform - are designed to bring
cost-effective solutions to clinical applications such as radiology, cardiology,
obstetrical/gynecological and peripheral vascular. We believe that this family
of ultrasound systems provides significant benefits when compared with other
ultrasound technologies, including superior image quality, versatility,
reliability, ease-of-use and upgradeability. Recent upgrades to these systems
have further improved their clinical utility. For example, in 1998, we
introduced Native(TM) Tissue Harmonic Imaging. This technological advance is now
available on all three of our ultrasound platforms and greatly improves image
optimization, penetration and detail and contrast resolution. It is especially
effective with hard-to-image patients, such as the obese and elderly and those
people undergoing chemotherapy or radiation treatment. In the second half of
1999, a significant new upgrade, the Imagegate(TM) release, was introduced for
both the Aspen and Sequoia platforms. This release provides an advancement in
imaging performance and ease-of-use for both the platforms. It also gives the
option of 3-D fetal surface rendering and Freestyle(TM) Extended Field of View.
A brief description of our current product line is as follows:
. 128XP Ultrasound System: In 1983, we revolutionized the ultrasound
industry with the introduction of the 128 system, integrating ultrasound
with computer technology for the first time. Upgraded to the 128XP
system in the early 1990s, there are more than 14,000 of this platform
installed around the world today.
. Sequoia Ultrasound System: In 1996, we introduced our next major
technological advance in ultrasound with the Sequoia system, bringing
Coherent Image Formation and the first dedicated Digital Lab
Architecture to ultrasound. The Sequoia system is our highest price
ultrasound system.
. Aspen Ultrasound System: Also introduced in 1996, the Aspen system
represents a convergence of popular 128XP features and some advances
developed for the Sequoia system, including a Digital Lab Architecture.
The Aspen platform is sold at a lower price than Sequoia, but at a
higher price than the 128XP platform.
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. KinetDx PACS Solution: The KinetDx PACS solution is the first hospital-
wide, integrated ultrasound PACS which can connect to all ultrasound
systems. It provides a review, report and archive system, which should
increase productivity, manage costs and improve patient care. With full
integration to a hospital's HIS/RIS/CIS systems, the KinetDx solution
provides dynamic digital review capabilities allowing clinicians to make
diagnoses based on dynamic images - whether during or after the exam.
The KinetDx solution began shipping to radiology customers in December
1999. It is anticipated that shipment to cardiology customers will begin
in the first quarter of 2000.
. AcuNav(TM) Diagnostic Ultrasound Catheter. We recently announced the
development of a new tool for capturing high quality diagnostic images
from inside the heart. This product integrates a high performance,
digital ultrasound system with a catheter the size of a strand of
spaghetti. We expect to begin selling the AcuNav catheter in the first
quarter of 2000.
We sell our products primarily to hospitals, clinics, private and
governmental institutions and healthcare agencies and doctor's offices. We and
our subsidiaries employ our own full time sales, service and applications staff
in North America, certain European countries, Australia and Japan. We sell
through independent distributors in other European countries, Asia, Latin
America and the Middle East.
We were incorporated as a California corporation in 1981 and changed our
state of incorporation to Delaware in 1986. Our principal executive offices are
located at 1220 Charleston Road, Mountain View, California 94043. Our telephone
number is (650) 969-9112 and our Website is located at www.acuson.com.
Information contained on our Website is not a part of this prospectus.
Acquisition of Ecton, Inc.
On December 23, 1999, we acquired Ecton, Inc. ("Ecton"), a Pennsylvania
corporation. The aggregate consideration exchanged in connection with the
acquisition of Ecton by Acuson was 1,413,934 shares of our common stock, and $4
million in cash. In addition, the merger agreement provides that up to $17
million, in either shares of our common stock and/or cash, may be payable to
Ecton shareholders depending on the gross profits attributable to the sale or
license of Ecton's products through each of the four twelve month periods
beginning on July 1, 2000 and ending on June 30, 2004. The merger is intended
to be a tax-free reorganization under the Internal Revenue Code of 1986, as
amended, and has been accounted for as a purchase.
The Ecton echocardiography system, which will be marketed as the
Cypress(TM) Echocardiography system, is being developed as a comprehensive
cardiovascular ultrasound system that will be simple to use and highly portable.
Weighing less than 20 pounds, it will include performance elements and
functionality presently found in top-of-the-line ultrasound systems. Like our
Sequoia and Aspen ultrasound platforms, the Cypress system is being designed
with the DICOM communications standard embedded in the system as well as a
Digital Lab Architecture.
3.
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RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below are not the
only ones facing us. Additional risks and uncertainties not presently known to
us or that we currently deem immaterial may also impair our business operations.
If any of the following risks actually occur, our business could be harmed. In
such case, the trading price of our common stock could decline, and you may lose
all or part of your investment.
Effect of Acquisitions
We recently completed the acquisition of Ecton described earlier in this
prospectus. The process of integrating any acquired company may create
unforeseen operating difficulties and expenditures and is itself risky. The
areas where we may face difficulties include:
. diversion of management time (both Acuson's and at the acquired
companies) during the period of negotiation through closing and further
diversion of such time after closing from focus on operating the
businesses to issues of integration and future products;
. decline in employee morale and retention issues resulting from changes
in compensation, reporting relationships, future prospects, or the
direction of the business;
. the need to integrate each company's accounting, management information,
human resource and other administrative systems to permit effective
management and the lack of control if such integration is delayed or not
implemented;
. difficulty in predicting the revenue and expenses attributable to an
acquired business; and
. the need to implement controls, procedures and policies appropriate for
a larger public company at companies that prior to acquisition had been
smaller, private companies.
We have relatively limited experience in managing this integration process.
Moreover, the anticipated benefits of the Ecton acquisition or any future
acquisitions may not be realized. Future acquisitions could result in
potentially dilutive issuances of equity securities, the incurrence of debt,
contingent liabilities or amortization expenses related to goodwill and other
intangible assets, any of which could harm our business.
Quarterly Results may Fluctuate
Our results have varied on a quarterly basis during our operating history.
Our operating results may fluctuate significantly as a result of a variety of
factors, many of which are outside our control. Factors that may affect our
quarterly operating results include the following: the introduction of new
services and products by us or our competitors; the costs of developing these
new products and services; consummating an acquisition including the Ecton
acquisition; costs of integrating acquired operations including Ecton; the
amount and timing of operating costs and capital expenditures relating to
expansion of our business, operations and infrastructure; and general economic
conditions and economic conditions specific to the ultrasound technology and
imaging industries. Our operating history and the dynamic nature of the markets
in which we compete make it difficult for us to forecast our revenues or
earnings accurately. A significant portion of our quarterly orders and
shipments occur towards the end of each quarter, compounding the difficulty of
accurately forecasting our revenues and earnings. We believe that period-to-
period comparisons of our operating results may not be meaningful and should not
be relied upon as an indication of future performance. Our operating results in
one or more future quarters may fall below the expectations of securities
analysts and investors. In that event, the trading price of our common stock
would almost certainly decline.
Product Expansion
The acquisition of Ecton expands our product line into the low-to-mid range
cardiology market segment with what we believe to be a high performance system
with 'best in its class' technology. We believe that expanding our product line
into the low to mid-end cost range will benefit us substantially in the long-
term.
4.
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However, the acquisition of Ecton will require us to increase spending to
complete the development of a low cost miniaturized echocardiography system and
shipments of such product is not expected to begin until the second half of year
2000. Further, this development may take longer and cost substantially more
than anticipated and may not ultimately be successful.
In addition to the risks associated with the development and marketing of
new products, there is no guarantee that sales of any of our products will
increase or continue at their current rate. As more Aspen and Sequoia systems
enter the clinical environment, continued market acceptance will depend in part
on the actual and perceived performance and quality of these products in that
clinical environment. In addition, we believe that the continued success of
these products will also depend on the timely and successful completion of
future product enhancements and capabilities. We have a number of these new
product enhancements and capabilities as well as additional new products under
development at any time. There is no guarantee, however, as to when, if ever,
the development of such products and product enhancements and capabilities will
be completed.
Increased product option sales depend upon, among other things, timely
completion of a number of product capabilities currently under development and
market acceptance of upgrades currently offered by us, including Native Tissue
Harmonic Imaging for the 128XP system, the Imagegate release for the Aspen and
Sequoia platforms and those under development for introduction in 2000. In
addition, in general, the success of our products in the market and our
financial results depend upon us continuing to develop and introduce products
and software updates in a timely manner; upon the success of product cost
reduction designs and initiatives; upon the actual and perceived levels of
product performance and quality in a clinical environment compared to other
imaging modalities and competitive products; upon continued market acceptance of
our products and upgrades and their respective pricing; and upon competitor
responses, including the introduction of competitive products and upgrades,
pricing, intellectual property allegations and product positioning counter-
strategies.
Competition
Diagnostic ultrasound is a well-established field in which there are a
number of competitors. We compete with several companies and their affiliates
such as ATL Ultrasound, Inc., a division of Philips Medical Systems, Agilent
Technologies Inc. (the recent spin-off from Hewlett-Packard Company), Aloka Co.,
Ltd., General Electric Company, Hitachi Corporation, Siemens Medical Systems,
Inc., and Toshiba Medical Systems, Inc., all of which have significantly greater
financial and other resources. In addition, most of these companies compete in
more medical imaging and other market segments and countries than we do. While
we believe that our Sequoia and Aspen systems provide superior and advanced
capabilities and features, the products offered to date by these competitors in
some cases include features and capabilities not currently offered by us and in
most cases are substantially less expensive than our products.
Market success in diagnostic ultrasound is heavily dependent on the
purchaser's evaluation of the system's diagnostic value, cost, ease of use and
safety. Any established or new ultrasound company may introduce a system or
upgrades to an existing system that is equal to or superior to our products in
quality or performance and no assurance can be given that our products will
remain competitive with existing or future products. If a competitor introduces
a new product, customers may delay submitting new orders to us and may cancel
orders in the backlog.
Ultrasound Market Changes
Diagnostic ultrasound is generally less expensive than other competing
imaging modalities such as computed tomography and magnetic resonance imaging,
and, in certain applications, offers capabilities that make it the modality of
choice regardless of cost. However, these price and/or performance advantages
may not continue in comparison to other current or future imaging modalities. In
addition, ultrasound systems compete with other imaging modalities for limited
hospital funding.
The trends of health care provider consolidation, medical cost containment
and intense competitive pressures are continuing in the market. These factors
have placed increased pressures on ultrasound system pricing and along with
start-up and other manufacturing costs of our new product lines, have
contributed to the decline in our gross margins over the last several years.
For example, our gross margins have declined from 61.3% in 1990 to 47.3% in
1998. Further, the U.S. government is continuing to consider Medicare reforms.
We believe that future revenues and profitability will continue to be impacted
by these uncertainties, especially in our domestic markets.
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Although some portions of the international ultrasound markets are experiencing
some economic growth, it is uncertain whether this is a temporary or permanent
trend.
As health care provider consolidation and medical cost containment continue
in the market, customers are relying to an increased degree on national sales
contracts. In 1999, we were awarded a number of national contracts. If we are
unsuccessful at obtaining future national contracts, we may be precluded from
selling to certain large customers or buying groups. In addition, the exclusive
contracts may be canceled during their term by the customer or may not be
renewed.
Patents and Proprietary Technology
We attempt to protect our intellectual property through a combination of
trade secrets and, where appropriate, copyrights, trademarks and patents. We
own or have rights to greater than 100 U.S. patents (plus many international
counterparts), covering certain aspects of our systems, and we have over 150
U.S. patent applications pending (plus many international counterparts). No
assurances can be given as to the breadth or degree of protection patents,
copyrights, trademarks or trade secrets will afford us.
Our competitors also rely on patents to protect their technology, and
numerous physicians, universities and other individuals or entities in the
ultrasound field are patenting many ultrasound inventions. We have from time to
time received notices from such competitors and other entities or individuals
that we may need a license to one or more of their patents in order to continue
to sell our products. Such a competitor, individual or entity may have, or may
be granted, a patent to which we must obtain a license if we wish to market and
sell any one or more of our products. To date, patent disputes involving us have
ultimately been resolved through licensing arrangements, sometimes involving the
payment of royalties by us. There can be no assurance that we will be able to
obtain a license to any patent (if so required) or that such a license will be
available on reasonable financial or other terms.
We also rely heavily on our unpatented proprietary know-how. No assurance
can be given that others will not be able to develop substantially equivalent
proprietary information to Acuson's, or otherwise obtain access to our know-how.
Regulation by Government Agencies
As a manufacturer of medical devices, we are subject to extensive
regulation by federal, state and local governmental authorities, such as the FDA
and the California Department of Health Services. Obtaining FDA market
clearances or approvals can be time consuming, lengthy and expensive and there
can be no assurance that the necessary clearance or approval will be granted to
us or that FDA review will not involve delays adversely affecting us. For
example, we believe that the time it takes to obtain clearance for new products
has increased and the FDA has been more rigorous in its 510(k) clearance
process.
Manufacturers of medical devices marketed in the United States are required
to adhere to numerous regulations, including Quality Systems Regulations
("QSR"), which address testing, design, control and documentation requirements.
Manufacturers also must comply with Medical Device Reporting ("MDR")
requirements that a firm report to the FDA certain adverse events associated
with our devices. We are subject to routine inspection by the FDA and certain
state agencies for compliance with QSR requirements, MDR requirements and other
applicable regulations. We believe the FDA is using its statutory authority
more vigorously during inspections of companies and in other enforcement
matters. The FDA finalized changes to the QSR regulations and promulgated new
MDR regulations, both of which may increase the cost of compliance with QSR
requirements. Congress also recently passed the FDA Modernization Act of 1997,
which enacts significant changes in how the FDA regulates medical devices. We
are also subject to numerous federal, state and local laws relating to such
matters as health care "fraud and abuse," safe working conditions, manufacturing
practices, environmental protection, fire hazard control and disposal of
hazardous or potentially hazardous substances. Changes in existing requirements
and implementation and adoption of new requirements could have a material
adverse effect on our business, financial condition and results of operations.
Although we believe that we are in compliance with all applicable regulations of
the FDA, the State of California and other federal, state and local governmental
authorities, current regulations depend heavily on administrative
interpretation, and there can be no assurance that we will not incur significant
costs to comply with laws and regulations in the future or that laws and
regulations will not have a material adverse effect upon our business, financial
condition or
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results of operations. In addition, the potential effects on our heightened
enforcement of federal, state and local regulations cannot be predicted.
Federal and state regulations also govern or influence the reimbursement to
health care providers of fees and capital equipment costs in connection with
medical examinations of certain patients. Changes in current policies, including
implementation of a new hospital outpatient reimbursement system, could impact
reimbursement for the purchase and/or operation of our equipment by such
providers and thereby adversely affect future sales of our products. In
particular, the Clinton Administration and the Congress continue to debate and
consider various Medicare and other health care reform proposals that could
significantly affect both private and public reimbursement for health care
services. Some of these proposals, if enacted into law, could reduce
reimbursement for or the incentive to use diagnostic devices and procedures and
thus could adversely affect the demand for diagnostic devices, including our
products.
Acuson and our customers are subject to various federal and state laws
pertaining to physician self-referral prohibitions, antikickback laws and false
claims laws. We seek to structure our sales, marketing and other activities to
comply with these and other laws. However, given the broad reach of these laws,
there can be no assurance that our activities will not be subject to scrutiny
and/or challenged some time in the future.
Since June 1998, medical device companies wishing to sell products into
those European countries that are members of the European Union have been
required to place the CE mark on their products. To be able to place that mark
on our products, we must comply with the standards of the MDD, and be subject to
annual surveillance audits by a certified organization to assure conformity to
the MDD. We are currently certified as compliant to the relevant requirements
of the MDD and we will undertake activities designed to assure continued
compliance; however, no assurance can be given that we will continue to be able
to place the CE mark on our products. If we lose our ability to place the CE
mark on our products, we will not be able to sell our products into the European
Union. In 1998, sales into the European Union accounted for approximately 19.0%
of our revenues.
Employees
We believe that our continued success and future growth will depend on,
among other factors, our ability to continue to attract and retain skilled
employees. The loss of a significant number of employees could adversely affect
our business, most significantly by delaying the development of new products and
product enhancements. The job market in the Silicon Valley area is very
competitive, especially for skilled electrical and software engineers. There
can be no assurance that we will be able to retain or hire key employees.
Manufacturing
Component parts and microprocessors for our products and some specialty
transducers are purchased from outside vendors. A number of such items currently
have limited or single sources of supply, and disruption or termination of those
sources could have a temporary adverse effect on shipments and our financial
results. We believe that we could ultimately develop alternate sources for all
such items, but that sales could be lost or deferred as a result of doing so.
Service
Approximately 19.8% of our 1998 revenues were derived from our service
activities, including the sales of service contracts and time and material
services. Increasing cost containment pressures in the market have adversely
impacted the number of customers purchasing service contracts and the prices of
those contracts, but this impact has been somewhat offset by our increased
installed base and an increase in time and material services. We believe that
the trend away from service contracts will continue and there can be no
assurance that we will be able to continue to maintain our current levels of
service contract revenue. Further, introduction of the Sequoia and Aspen
products will continue to reduce sales of new service contracts and options to
the 128XP system installed base. In addition, we have made significant
expenditures in establishing remote diagnostic and other service programs unique
to the Sequoia and Aspen systems. There can be no assurance that this
investment will be profitable, as the success of the Aspen and Sequoia service
program will depend in part on the number of Aspen and Sequoia systems sold.
Finally, we have seen an increasing trend for hospitals to purchase asset
management contracts, in which all of the hospital's medical equipment and in
some cases, other assets, are managed and serviced by third parties. As we do
not sell
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asset management services and only service our ultrasound systems, this
increased trend toward asset management contracts could have an adverse impact
on our sales of service contracts and our time and materials service business.
International Operations and International Receivables
Our business is subject to risks from potential negative political or
geographic events in certain markets in Asia, Latin America and Europe and by
adverse economic effect from currency fluctuations in our worldwide operations.
Political instability or other issues may negatively affect the ability of us to
collect receivables in foreign countries. The following table, in thousands,
summarizes our foreign accounts and leases receivable in excess of $3.0 million
at October 2, 1999.
In millions
-------------------------------------
Italy $15,092
-------------------------------------
Brazil 11,739
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France 7,583
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Germany 3,436
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Spain 3,300
-------------------------------------
Japan 3,240
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Derivative Financial Instruments
We operate internationally and are therefore subject to market risk due to
fluctuations in foreign currency exchange rates. We manage this risk through
established policies and procedures that include the use of derivative financial
instruments. We routinely enter into forward foreign currency exchange
contracts to hedge amounts due from selected subsidiaries denominated in foreign
currencies against fluctuations in exchange rates. Forward currency contract
terms are typically not more than three months and the counterparties to the
exchange contracts are major domestic and international financial institutions.
The purpose of the hedging activities is to minimize the effect of foreign
exchange rate movements on our operating results and on the cash flows we
receive from our foreign subsidiaries.
Currently, we neither engage in foreign currency speculation nor hold or
issue financial instruments for trading purposes. Because we only enter into
forward currency exchange contracts as hedges, any change in currency rates
would not result in a material gain or loss, as any gain or loss on the
underlying transaction being hedged would be offset by the gain or loss on the
forward currency contract. For this reason, we believe that neither our exposure
to foreign currency exchange rate risk nor any potential near-term losses in
future earnings, fair values or cash flows from reasonably possible near-term
changes in market rates or prices would be material. Please refer to our 1998
Form 10-K, filed with the Securities and Exchange Commission for further
discussion of our market risk due to fluctuations in foreign currency exchange
rates.
Euro Conversion
On January 1, 1999, eleven of the fifteen member countries of the European
Union adopted the Euro as their common legal currency. Following the
introduction of the Euro, the local currencies of the participating countries
are scheduled to remain legal tender until June 30, 2002. During this transition
period goods and services may be paid for in either Euros or the participating
country's local currency. Thereafter, only the Euro will be legal tender in the
participating countries. Acuson's foreign subsidiaries that are part of the
European Union have not yet converted to the Euro and continue to use their
respective local currencies as their functional currency. However, the
conversion will be completed prior to the June 30, 2002 deadline. We believe our
current accounting systems are capable of accommodating the Euro conversion with
minimal intervention and that the conversion will not have a material impact on
the competitiveness of our products in Europe. We also believe any costs of
addressing the Euro conversion will not have a material impact on our financial
statements.
Computing Environment
During 1997, we initiated a two-phase project to replace our outdated
computing environment with an enterprise-wide, integrated business information
system to control many of our operating systems including order
8.
<PAGE>
administration, service, financial and manufacturing processes. The first phase
of this project has been completed and the second phase is currently scheduled
to be substantially completed during the latter half of 2000. We have retained
an experienced consulting organization to assist in the conversion, however, our
future shipments and results could be adversely impacted if, during and
following the conversion, there are significant problems with the system.
Year 2000 Readiness
We are taking steps to ensure our products and services will continue to
operate on and after January 1, 2000. In addition to our new business
information system, which is year 2000 ready and will be replacing a significant
portion of our critical systems, we are currently engaged in a three-phase
project to evaluate and remedy those systems not being replaced. The first
phase, completed in May 1998, included a comprehensive inventory of our systems
by an experienced consulting firm and an analysis and determination of the
criticality of each system. This phase included the evaluation of both
information technology ("IT") and non-IT systems. Non-IT systems include systems
or hardware containing embedded technology such as microcontrollers. The second
phase was completed in March 1999, and focused on confirming the year 2000
readiness of those systems identified in phase one. The third and final phase,
which is now essentially complete, involved taking any needed corrective action
to make all remaining critical systems and components year 2000 ready and to
develop a contingency plan in the event any non-compliant critical systems are
not remedied by January 1, 2000.
We have established a year 2000 project team, comprised of representatives
from each of our functional areas, which reports to senior management. To date,
the costs incurred by us with respect to this project have not been material and
future anticipated costs are not expected to be material. The costs of this
project have been charged against the budgets of our various functional areas
and no material IT projects have been deferred in managing our year 2000
readiness efforts.
Our products being shipped today are year 2000 ready and we believe our
products previously shipped are either year 2000 ready or can be made year 2000
ready by customer purchase of an upgrade. We have also been communicating with
suppliers and others we do business with to coordinate year 2000 readiness. We
believe that our most reasonably likely worst case scenario relating to year
2000 readiness would be if a critical supplier of ours became unable to supply
parts to us based on the supplier's failure to be year 2000 ready, and that as a
result, our production of systems would be seriously affected. We have contacted
all of what we consider to be our key technology suppliers and approximately 100
of our largest general suppliers. To date, all responses have been received. The
responses were individually assessed during the third quarter of 1999 to
determine the potential impact to us should one or more of our suppliers not be
year 2000 ready. All supplier responses stated that their systems and software
are or will be year 2000 ready by the end of fourth quarter 1999. We identified
and assessed a subset of responses that are considered high risk. We purchased
additional inventory as safety stock in case these suppliers are unable to
supply material as a result of the year 2000 issue. The amount of the additional
inventory purchased was immaterial.
Based upon the steps being taken to address this issue and the progress to
date, we do not expect the financial impact of the year 2000 date conversion to
be material to our financial position or results of operations. However, if
preventative and/or corrective actions by us or those suppliers with whom we do
business are not made in a timely manner, we may not be able to provide our
products to customers until successful preventative and/or corrective actions
have been taken, and as a result, the year 2000 issue could have a material
adverse effect on our financial statements.
We primarily sell our products to hospitals, clinics, and other customers
within the healthcare industry. Although no one customer is material to our
business, should the year 2000 issue impact the ability and willingness of these
customers generally to purchase capital equipment, including our products, the
year 2000 issue could have a material adverse impact on our consolidated
financial statements.
Industry Consolidation
During 1998, Philips Medical Systems completed its acquisition of ATL
Ultrasound, Inc. We believe that consolidations such as this may provide our
competitors with significantly greater financial and other resources with which
to compete in the marketplace. As companies attempt to strengthen or hold their
market positions, future
9.
<PAGE>
consolidation within the industry could lead to increased variability in our
operating results and could have a material adverse impact on our financial
statements.
Earthquake
Our research and development and manufacturing activities, our corporate
headquarters and other critical business operations are located near major
earthquake faults. In the event of a major earthquake, the ultimate impact on
us, our significant suppliers and the general infrastructure is unknown, but
operating results could be materially affected. We are not insured for losses
and interruptions caused by earthquakes.
Volatility of stock price
The trading price of our common stock has been and is likely to be somewhat
volatile. Our stock price could be subject to fluctuations in response to a
variety of factors, including the following:
. actual or anticipated variations in our quarterly operating results and
the difficulty of predicting those variations;
. additions or departures of key personnel;
. announcements of technological innovations or new services by us or our
competitors;
. changes in financial estimates by securities analysts;
. conditions or trends in the ultrasound technology and imaging
industries;
. changes in the market valuations of other ultrasound technology and
imaging companies;
. developments in QSR, MDR and other applicable government regulations;
. announcements by us or our competitors of significant acquisitions,
including Ecton, strategic partnerships, joint ventures or capital
commitments;
. sales of our common stock or other securities in the open market; and
. other events or factors that may be beyond our control.
In addition, the trading price of stocks of technology-based companies in
general, have experienced extreme price and volume fluctuations in recent
months. These fluctuations often have been unrelated or disproportionate to the
operating performance of these companies. The valuations of many technology-
based stocks are extraordinarily high based on conventional valuation standards
such as price to earnings and price to sales ratios. Any negative change in the
public's perception of the prospects of ultrasound technology companies could
depress our stock price regardless of our results. Other broad market and
industry factors may decrease the market price of our common stock, regardless
of our operating performance. Market fluctuations, as well as general political
and economic conditions such as recession or interest rate or currency rate
fluctuations, also may decrease the market price of our common stock.
DESCRIPTION OF CAPITAL STOCK
We are authorized to issue up to 50,000,000 shares of common stock, $0.0001
par value and 10,000,000 shares of preferred stock without par value.
Common Stock
As of November 5, 1999, there were 26,722,103 shares of common stock
outstanding. The holders of common stock are entitled to one vote for each
share held of record on all matters submitted to a vote of the stockholders.
10.
<PAGE>
The holders of common stock are not entitled to cumulative voting rights with
respect to the election of directors and as a consequence, minority stockholders
will not be able to elect directors on the basis of their votes alone. Subject
to preferences that may be applicable to any then outstanding shares of
preferred stock, holders of common stock are entitled to receive ratably such
dividends as may be declared by the Board of Directors out of funds legally
available therefor. In the event of our liquidation, dissolution or winding up,
holders of the common stock are entitled to share ratably in all assets
remaining after payment of liabilities and the liquidation preference of any
then outstanding preferred stock. Holders of common stock have no preemptive
rights and no right to convert their common stock into any other securities.
There are no redemption or sinking fund provisions applicable to the common
stock.
Preferred Stock
Pursuant to our Certificate of Incorporation, the Board of Directors has the
authority, without further action by the stockholders, to issue up to 10,000,000
shares of preferred stock in one or more series and to fix the rights,
preferences, privileges and restrictions thereof, including dividend rights,
conversion rights, voting rights, terms of redemption, liquidation preferences,
sinking fund terms and the number of shares constituting any series or the
designation of such series, without any further vote or action by stockholders.
The issuance of preferred stock could adversely affect the voting power of
holders of common stock and the likelihood that such holders will receive
dividend payments and payments upon liquidation and could have the effect of
delaying, deferring or preventing a change in control. Currently there are no
outstanding shares of preferred stock and we have no present plan to issue any
shares of preferred stock.
Preferred Stock Purchase Rights.
During 1998, we authorized and declared a dividend distribution of one
preferred stock purchase right for each outstanding share of common stock to
stockholders of record at the close of business on June 8, 1998, and authorized
the issuance of one preferred stock purchase right (a "Right") with each future
share of common stock issued by us before the Rights become exercisable, or
before the Rights are redeemed by us, or before the Rights expire on June 8,
2008. The Rights will attach to all certificates representing shares of our
outstanding common stock and will not be exercisable or transferable apart from
the common stock until ten days after another person or group of persons
acquires 15 percent (or in certain circumstances, 20 percent) or more of our
common stock or commences a tender or exchange offer for at least 15 percent (or
in certain circumstances, 20 percent) of our common stock. Each Right entitles
the holder to purchase from us one one-hundredth of a share of Series A
Preferred Stock (a "Unit") at $120 per Unit, subject to adjustments for dilutive
events. If, after the Rights have been distributed, either the acquiring party
holds 15 percent (or in certain circumstances, 20 percent) or more of our
common stock or we are a party to a merger or other acquisition transaction
(other than a merger or other acquisition transaction pursuant to a merger or
other acquisition agreement approved by our Board of Directors), then each Right
(other than those held by the acquiring party) will entitle the holder to
receive, upon exercise, that number of Units or shares of common stock of the
surviving company with a value equal to two times the exercise price of the
Right. The Board of Directors may redeem the Rights, at any time until the
tenth day following an announcement of the acquisition of 15 percent (or in
certain circumstances, 20 percent) or more of our common stock, at $0.01 per
Right, payable in cash, common shares or other consideration. In addition, the
Board may also, without consent of the holders of the Rights, amend the terms of
the Rights to lower the threshold for exercisability of the Rights.
11.
<PAGE>
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of
common stock offered by the selling stockholders.
WHERE YOU CAN GET MORE INFORMATION
We are a reporting company and file annual, quarterly and current reports,
proxy statements and other information with the SEC. You may read and copy
these reports, proxy statements and other information at the SEC's public
reference rooms at Room 1024, 450 Fifth Street, N.W., Washington, D.C., as well
as at the SEC's regional offices at 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York, NY
10048. You can request copies of these documents by writing to the SEC and
paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for
more information about the operation of the public reference rooms. Our SEC
filings are also available at the SEC's web site at "http://www.sec.gov." In
addition, you can read and copy our SEC filings at the office of the New York
Stock Exchange, 11 Wall Street, New York, NY 10005.
INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" information that we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934:
. Our Annual Report on Form 10-K for the year ended December 31, 1998,
including all material incorporated by reference therein;
. Our Definitive Proxy Statement on Schedule 14A, filed on April 21, 1998,
including all material incorporated by reference therein;
. Our Quarterly Reports on Form 10-Q for quarters ended April 3, 1999 (as
amended on July 6, 1999), July 3, 1999 and October 2, 1999, including
all material incorporated by reference therein;
. Our Form 8-K, as filed on December 6, 1999, including all material
incorporated by reference therein;
. All other reports filed by us pursuant to Section 13(a) or 15(d) of the
Exchange Act since December 31, 1998, including all material
incorporated by reference therein; and
. The description of the common stock contained in our Registration
Statement on Form 8-A.
You may request a copy of these filings at no cost, by writing or telephoning us
at the following address:
Acuson Corporation
1220 Charleston Road
Mountain View, CA 94043
(650) 969-9112
This prospectus is part of a Registration Statement we filed with the SEC.
You should rely only on the information incorporated by reference or provided in
this prospectus and the Registration Statement. We have authorized no one to
provide you with different information. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front of the document.
12.
<PAGE>
SELLING STOCKHOLDERS
In connection with the acquisition of Ecton in December 1999, we issued to
the selling stockholders shares of our common stock, and we agreed to register a
number of shares for resale. We also agreed to use commercially reasonable
efforts to keep the registration statement effective until the earliest of the
date the shares of common stock offered under this prospectus have been sold to
the public, the date one year from the date of effectiveness of this prospectus
(subject to adjustment in certain cases for delays in filing) and, in some
cases, the date when all shares of common stock offered under this prospectus
may be sold in any three month period under Rule 144. Our registration of the
shares of common stock does not necessarily mean that the selling stockholders
will sell all or any of the shares.
The table below sets forth certain information regarding the beneficial
ownership of the common stock, as of December 22, 1999, of each of the selling
stockholders.
The information provided in the table below with respect to each selling
stockholder has been obtained from that selling stockholder. Except as otherwise
disclosed below, none of the selling stockholders has, or within the past three
years has had, any position, office or other material relationship with us.
Because the selling stockholders may sell all or some portion of the shares of
common stock beneficially owned by them, we cannot estimate the number of shares
of common stock that will be beneficially owned by the selling stockholders
after this offering. In addition, the selling stockholders may have sold,
transferred or otherwise disposed of, or may sell, transfer or otherwise dispose
of, at any time or from time to time since the date on which they provided the
information regarding the shares of common stock beneficially owned by them, all
or a portion of the shares of common stock beneficially owned by them in
transactions exempt from the registration requirements of the Securities Act of
1933.
Beneficial ownership is determined in accordance with Rule 13d-3(d)
promulgated by the Commission under the Securities Exchange Act of 1934. Unless
otherwise noted, each person or group identified possesses sole voting and
investment power with respect to shares, subject to community property laws
where applicable. None of the share amounts set forth below represents more
than 1% of our outstanding stock as of December 22, 1999, adjusted as required
by rules promulgated by the SEC.
<TABLE>
<CAPTION>
Selling Stockholder Number Of Shares Shares Being
- ------------------- ---------------- ------------
Beneficially Owned Offered
------------------ -------
<S> <C> <C>
Dorothy K. Acker 6,316 5,684
David D. Allen or Eleanor M. Allen 8,210 7,389
John Brown 186 167
Michael G. Cannon 141,315 127,184
Ralph T. Canonaco 821 739
John Conklin 1,368 1,231
The Cook Organization Ltd. 16,842 15,158
Howard A. Davis Profit Sharing Plan & Trust 1,684 1,516
Lowell B. Davis, DDS MS Profit Share Plan & Trust 3,831 3,448
Lowell B. Davis, DDS, Trustee Profit Sharing Plan and Trust
for the benefit of Lowell B. David, DDS 1,916 1,724
Allen Dutton 821 739
Lawrence Engle 1,094 985
Steven Fallows 553 498
Philip Fine or Barbara L. Fine 2,613 2,352
Robert Fine 5,473 4,926
Steven Fine 16,421 14,779
Garry Flower 3,831 3,448
Golden Eagle Partners 104,308 93,877
Martin Goldman, MD 5,473 4,926
Lennart Hagegard 25,309 22,778
Scott M. Jenkins 6,220 5,598
Edwin T. Johnson 3,421 3,079
Richard T. Kanter 18,852 16,967
</TABLE>
13.
<PAGE>
<TABLE>
<CAPTION>
Selling Stockholder Number Of Shares Shares Being
- ------------------- ---------------- ------------
Beneficially Owned Offered
------------------ -------
<S> <C> <C>
Michael B. Keehan 14,191 12,772
Bernard F. Knell 4,473 4,026
Christopher B. Knell 124,696 112,226
Marlene T. Knell 16,054 14,449
M. Elizabeth Knell 2,937 2,643
Max H. Kraus and Lois B. Kraus 5,473 4,926
Kraus Family Limited Partnership 2,463 2,217
George C. Ku 9,647 8,682
Anthony P. Lanutti 17,557 15,801
Donald Libengood 273 246
Raymond G. Lindquist & Helen G. Lindquist 2,052 1,847
Ralph L. MacDonald Jr. 20,842 18,758
George J. MacGovern, MD 50,482 45,434
George J. MacGovern, MD & Margaret Ann MacGovern 30,752 27,677
James A. MacGovern, MD 10,424 9,382
Randolph Martin, MD & Anne P. Martin 15,376 13,838
Randolph P. Martin 32,319 29,087
Donald R. McDevitt 24,929 22,436
Michael J. Mirro, MD 11,527 10,374
Morgan Stanley Dean Witter, as custodian for Vincent Canonaco 7,252 6,527
Susan L. Mullen 4,612 4,151
Patrick G. Murray 5,698 5,128
Susan Ng 821 739
Northern Indiana Family Physicians, P.C. 401(k) Profit Sharing
Plan for the benefit of:
. Herbert Acker, MD 3,110 2,799
. David Paris, MD 3,687 3,318
. Daniel Tritch, MD 5,430 4,887
David J. Paris, MD 3,109 2,798
Carol Pendergrass 6,220 5,598
Carol M. Pendergrass u/w/o Henry M. Minster 6,220 5,598
Kevin S. Randall 88,361 79,525
Edward Ray & Lonnetta Ray 15,960 14,364
L. Ray Family Partnership for the account of:
. Philip Dunston 1,231 1,108
. Walter Dunston 1,231 1,108
. Dena & Ken Gold 1,231 1,108
. David F. & Margaret Ray 1,231 1,108
. Jean E. Ray 1,231 1,108
. Judith L. & Paul Trapido 1,231 1,108
Peter A. Ringer & Brenda A. Ringer 4,652 4,187
Richard J. Rodeheffer and Jane K. Rodeheffer 5,904 5,314
Edward H. Rosen & Evelyn B. Rosen, as joint tenants
with right of survivorship 6,705 6,035
Edward H. Rosen 547 492
John Ross 6,568 5,911
David P. Schleuter, MD 4,210 3,789
Robert P. Schloss or Meshell L. Schloss 3,284 2,956
Jodi Schwartz 922 830
Mary Siegfried 273 246
Frank P. Slattery, Jr. 11,084 9,976
J. Alex Smith & Nan P. Smith 8,508 7,657
Diana E. Snyder 2,052 1,847
South Quad Partners 50,582 45,524
Milton S. Stearns, Jr. 9,852 8,867
</TABLE>
14.
<PAGE>
<TABLE>
<CAPTION>
Selling Stockholder Number Of Shares Shares Being
- ------------------- ---------------- ------------
Beneficially Owned Offered
------------------ -------
<S> <C> <C>
Milton S. Stearns Jr., Trustee 4,105 3,695
Bernard D. Steinberg 9,766 8,789
Bernard D. Steinberg, Trustee for the benefit of
Bernard D. Steinberg 758 682
Geoffrey Steinberg, Trustee for the benefit of:
. Jason Steinberg 1,094 985
. Julia Steinberg 1,094 985
. David Steinberg 1,094 985
Harris Steinberg, Trustee for the benefit of:
. Issac Steinberg 1,094 985
. Henry Steinberg 1,094 985
Lowell S. Steinberg, Trustee for the benefit of:
. Sarah Steinberg 1,094 985
. Daniel Steinberg 1,094 985
S. Ty Steinberg 6,568 5,911
Sutton Partners, L.P. 43,540 39,186
Wilma M. Thrush 3,790 3,411
Jay H. Tolson 6,568 5,911
Daniel L. Tritch, MD 45,184 40,666
Joseph A. Urbano 92,351 83,116
Flordeliza Villanueva, MD 4,105 3,695
Linda Wadsworth 547 492
Walnut Street Partners 43,541 39,187
Michael Wert 6,842 6,158
Richard A. Willis & Susan A. Willis 3,075 2,768
Andrew J. Wood 89,182 80,264
</TABLE>
15
<PAGE>
PLAN OF DISTRIBUTION
The shares of common stock may be sold from time to time by the selling
stockholders in one or more transactions at fixed prices, at market prices at
the time of sale, at varying prices determined at the time of sale or at
negotiated prices. As used in this prospectus, "selling stockholders" includes
donees, pledgees, transferees and other successors in interest selling shares
received from a selling stockholder after the date of this prospectus as a gift,
pledge, partnership distribution or other non-sale transfer. The selling
stockholders may offer their shares of common stock in one or more of the
following transactions:
. on any national securities exchange or quotation service on which the
common stock may be listed or quoted at the time of sale, including the
New York Stock Exchange,
. in the over-the-counter market,
. in private transactions,
. through options,
. by pledge to secure debts and other obligations or
. a combination of any of the above transactions.
If required, we will distribute a supplement to this prospectus to describe
material changes in the terms of the offering.
The selling stockholders may sell the shares of common stock described in
this prospectus from time to time directly. Alternatively, the selling
stockholders may from time to time offer shares of common stock to or through
underwriters, broker/dealers or agents. The selling stockholders and any
underwriters, broker/dealers or agents that participate in the distribution of
the shares of common stock may be deemed to be "underwriters" within the meaning
of the Securities Act of 1933. Any profits on the resale of shares of common
stock and any compensation received by any underwriter, broker/dealer or agent
may be deemed to be underwriting discounts and commissions under the Securities
Act of 1933. We have agreed to indemnify each selling stockholder against
certain liabilities, including liabilities arising under the Securities Act of
1933. The selling stockholders may agree to indemnify any agent, dealer or
broker-dealer that participates in the sale of shares of common stock described
in this prospectus against certain liabilities, including liabilities arising
under the Securities Act of 1933.
Any shares covered by this prospectus that qualify for sale pursuant to
Rule 144 under the Securities Act of 1933 may be sold under Rule 144 rather than
pursuant to this prospectus. The selling stockholders may not sell all of the
shares they hold. The selling stockholders may transfer, devise or gift such
shares by other means not described in this prospectus.
To comply with the securities laws of certain jurisdictions, the common
stock must be offered or sold only through registered or licensed brokers or
dealers. In addition, in certain jurisdictions, the shares of common stock may
not be offered or sold unless they have been registered or qualified for sale or
an exemption is available and complied with.
Under the Securities Exchange Act of 1934, any person engaged in a
distribution of the common stock may not simultaneously engage in market-making
activities with respect to the common stock for five business days prior to the
start of the distribution. In addition, each selling stockholder and any other
person participating in a distribution will be subject to the Securities
Exchange Act of 1934, which may limit the timing of purchases and sales of
common stock by the selling stockholders or any such other person. These factors
may affect the marketability of the common stock and the ability of brokers or
dealers to engage in market-making activities.
Substantially all of the expenses related to this registration will be paid
by us. These expenses include the SEC's filing fees and fees under state
securities or "blue sky" laws.
16
<PAGE>
LEGAL MATTERS
For the purpose of this offering, Cooley Godward LLP, Palo Alto,
California, is giving an opinion as to the validity of the common stock offered
by this prospectus.
EXPERTS
The financial statements for the years ended December 31, 1998 and December
31, 1997 incorporated by reference in this prospectus and elsewhere in the
registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said report.
17.
<PAGE>
We have not authorized any dealer, sales person or other person to give any
information or to make any representations other than those contained in this
prospectus or any prospectus supplement. You must not rely on any unauthorized
information. This prospectus is not an offer of these securities in any state
where an offer is not permitted. The information in this prospectus is current
as of December 23, 1999. You should not assume that this prospectus is accurate
as of any other date.
<TABLE>
<CAPTION>
TABLE OF CONTENTS PAGE
<S> <C>
Prospectus Summary........................................................ 2
Risk Factors.............................................................. 4
Use of Proceeds........................................................... 12
Where You Can Get More Information........................................ 12
Incorporation by Reference................................................ 12
Selling Stockholders...................................................... 13
Plan of Distribution...................................................... 16
Legal Matters............................................................. 17
Experts................................................................... 17
</TABLE>
1,272,541 SHARES
COMMON STOCK
PROSPECTUS
Acuson Corporation
___________, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, if any, all of which will be paid by the
Registrant, in connection with the distribution of the common stock being
registered. All amounts are estimated, except the SEC registration fee:
SEC registration fee.......................................... $ 4,041.49
Accounting fees............................................... 20,000.00
Legal fees and expenses....................................... 25,000.00
New York Stock Exchange Listing Fee........................... 8,000.00
Miscellaneous................................................. 5,000.00
Total......................................................... $ 62,041.49
==========
Item 15. Indemnification of Officers and Directors.
As permitted by Section 145 of the Delaware General Corporation Law, the
Bylaws of the Registrant provide that (i) the Registrant is required to
indemnify its directors and executive officers to the fullest extent permitted
by the Delaware General Corporation Law, (ii) the Registrant may, in its
discretion, indemnify other officers, employees and agents as set forth in the
Delaware General Corporation Law, (iii) to the fullest extent permitted by the
Delaware General Corporation Law and subject to certain exceptions, the
Registrant is required to advance all expenses incurred by its directors and
executive officers in connection with a legal proceeding upon receipt of an
undertaking by or on behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to be indemnified under
the Bylaws of the Registrant or otherwise, (iv) the rights conferred in the
Bylaws are not exclusive, (v) the Registrant is authorized to enter into
indemnification agreements with its directors, officers, employees and agents
and (vi) the Registrant may not retroactively amend the Bylaws provisions
relating to indemnity.
The Registrant's Bylaws state that without the necessity of entering into
an express contract, all rights to indemnification and advances under the
Registrant's Bylaws will be deemed to be contractual rights and be effective to
the same extent and as if provided for in a contract between the Registrant and
the directors or executive officers of the Registrant who serve in such capacity
at any time while the Registrant's Bylaws and other relevant provisions of the
Delaware General Corporation Law and other applicable law, if any, are in
effect.
Item 16. Exhibits.
Exhibit
Number Description of Document
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Cooley Godward LLP (reference is made to Exhibit 5.1).
24.1 Power of Attorney. Reference is made to the signature page.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of The
Securities Act of 1933.
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to provisions described in Item 15, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Mountain View, State of California, on the 23rd day
of December, 1999.
ACUSON CORPORATION
By: /s/ Samuel H. Maslak
----------------------
Samuel H. Maslak
Chairman of the Board and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Charles H. Dearborn and Daniel R. Dugan,
or either of them, each with the power of substitution, his or her attorney-in-
fact, to sign any amendments to this Registration Statement (including post-
effective amendments), with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
Signature Title Date
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Chief Executive Officer and Chairman December 17, 1999
/s/ Samuel H. Maslak of the Board
- --------------------
Samuel H. Maslak
- ----------------------------------------------------------------------------------------------------------------
President and Director December 17, 1999
/s/ Daniel R. Dugan
- -------------------
Daniel R. Dugan
- ----------------------------------------------------------------------------------------------------------------
Vice President, Chief Financial December 22, 1999
/s/ Barry Zwarenstein Officer (Principal Financial Officer)
- ---------------------
Barry Zwarenstein
- ----------------------------------------------------------------------------------------------------------------
Vice President, Corporate Controller December 22, 1999
/s/ L. Thomas Morse (Principal Accounting Officer)
- -------------------
L. Thomas Morse
- ----------------------------------------------------------------------------------------------------------------
Director December 20, 1999
/s/ Albert L. Greene
- --------------------
Albert L. Greene
- ----------------------------------------------------------------------------------------------------------------
Director December 22, 1999
/s/ Karl H. Johannsmeier
- ------------------------
Karl H. Johannsmeier
- ----------------------------------------------------------------------------------------------------------------
Director December 20, 1999
/s/ William J. Mercer
- ---------------------
William J. Mercer
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Document
5.1.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Cooley Godward LLP (reference is made to Exhibit 5.1).
24.1 Power of Attorney. Reference is made to the signature page.
<PAGE>
EXHIBIT 5.1
OPINION OF COOLEY GODWARD LLP
[LETTERHEAD OF COOLEY GODWARD LLP]
December 23, 1999
Acuson Corporation
1220 Charleston Road
Mountain View, CA 94043
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Acuson Corporation, a Delaware corporation (the "Company") of
a Registration Statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission") covering the sale by
certain selling stockholders of 1,272,541 shares of the Company's common stock
(the "Selling Stockholder Shares").
In connection with this opinion, we have examined the Registration Statement,
the Company's Certificate of Incorporation and Bylaws, each as amended and such
other documents, records, certificates, memoranda and other instruments as we
deem necessary as a basis for this opinion. We have assumed the genuineness and
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as copies thereof, and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
Our opinion is expressed only with respect to the federal laws of the United
States of America, the General Corporation Law of the State of Delaware and the
laws of the State of California. We express no opinion as to whether the laws of
any particular jurisdiction other than those identified above are applicable to
the subject matter hereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Selling Stockholder Shares are validly issued, fully paid and
nonassessable.
We consent to the reference to our firm under the caption "Legal Matters" in the
Prospectus included in the Registration Statement and to the filing of this
opinion as an exhibit to the Registration Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ Keith A. Flaum
-------------------
Keith A. Flaum
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 29, 1999
included in Acuson Corporation's Form 10-K for the year ended December 31, 1998
and to all references to our firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
San Jose, California
December 23, 1999
