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As filed with the Securities and Exchange Commission on November 6, 2000
Registration No. 333-46480
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
__________________________
FISCHER IMAGING CORPORATION
(Exact Name of Registrant as Specified in its Charter)
__________________________
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DELAWARE 36-2756787
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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12300 N. Grant Street, Denver, Colorado 80241
(303) 452-6800
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive office)
__________________________
Morgan W. Nields
Chairman of the Board and
Chief Executive Officer
Fischer Imaging Corporation
12300 N. Grant Street
Denver, Colorado 80241
(303) 452-6800
(Name, address and telephone number of agent for service of process)
__________________________
Copies To:
Paul Hilton, Esq.
Brobeck, Phleger & Harrison LLP
370 Interlocken Boulevard, Suite 500
Broomfield, Colorado 80021
(303) 410-2001
Approximate date of commencement of proposed sale to 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.
__________________________
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, as amended, or until this registration statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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1,000,000 Shares
Fischer Imaging Corporation
Common Stock
___________________
This prospectus relates to 1,000,000 shares of Fischer Imaging Corporation
common stock that may be offered for sale or otherwise transferred from time to
time by one of our stockholders. See "Selling stockholders." We will not
receive any proceeds from the sale of these shares and we will pay substantially
all of the expenses incurred in connection with this offering other than selling
commissions.
Any or all of these shares may be offered from time to time in one or more
transactions (which may include block transactions) on the Nasdaq National
Market or in the over-the-counter market, in negotiated transactions or
otherwise, at fixed prices, which may be changed, at market prices prevailing at
the time of sale, at negotiated prices, or without consideration, or by any
other legally available means. The selling stockholders may offer these shares
directly or by or through brokers, dealers, agents or underwriters who may
receive compensation in the form of discounts, concessions, commissions or
otherwise.
The selling stockholders and any brokers, dealers, agents or underwriters
that participate in the distribution of the shares may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), in which event any discounts, concessions and commissions
received by any such brokers, dealers, agents or underwriters and any profit on
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. The aggregate net proceeds
to the selling stockholders from the sale of the shares will be the purchase
price of such shares less any commissions. See "Plan of Distribution." No
underwriting arrangements have been entered into by the selling stockholders as
of the date hereof.
Our common stock is traded on the Nasdaq National Market under the symbol
"FIMG." On September 20, 2000, the last reported sale price of our common stock
on the Nasdaq National Market was $3.37 per share.
___________________
The Shares of Common Stock Offered Hereby Involve a High Degree of Risk.
See "Risk Factors" Beginning on page 8.
___________________
These Securities Have Not Been Approved or Disapproved by the Securities
Exchange Commission or any State Securities Commission nor has the
Securities Exchange Commission Passed upon the Accuracy or
Adequacy of this Prospectus.
Any Representation to the Contrary is a Criminal Offense.
The date of this prospectus is November 6, 2000.
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You should rely only on information contained in or incorporated by
reference in this prospectus. Neither we nor the selling stockholders have
authorized anyone to provide you with different information. Neither we nor the
selling stockholders are making an offer of these securities in any state where
the offer is not permitted. You should not assume that the information provided
by the prospectus is accurate as of any date other than the date on the front of
this prospectus.
TABLE OF CONTENTS
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WHERE YOU CAN FIND MORE INFORMATION................................... 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE....................... 6
SUMMARY............................................................... 7
RISK FACTORS.......................................................... 8
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS....................... 17
USE OF PROCEEDS....................................................... 17
DESCRIPTION OF FISCHER CAPITAL STOCK.................................. 18
MARKET PRICE OF FISCHER COMMON STOCK.................................. 21
SELLING STOCKHOLDERS.................................................. 22
PLAN OF DISTRIBUTION.................................................. 22
EXPERTS............................................................... 24
LEGAL MATTERS......................................................... 24
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and other reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any reports, statements or other information we file at the Securities and
Exchange Commission's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the Securities and Exchange Commission at 1
(800) SEC-0330 for further information on the Public Reference Room. Our
Securities and Exchange Commission filings are also available to the public from
commercial document retrieval services and at the web site maintained by the
Securities and Exchange Commission at "http://www.sec.gov."
We have filed a registration statement on Form S-3 to register with the
Securities and Exchange Commission the common stock offered by this prospectus.
This prospectus is part of that registration statement. As allowed by
Securities and Exchange Commission rules, this prospectus does not contain all
the information you can find in the registration statement or the exhibits to
the registration statement.
You can obtain a complete copy of the registration statement, including
exhibits, without charge by submitting a request in writing or by telephone to
us at the following address:
Investor Relations
Fischer Imaging Corporation
12300 N. Grant Street
Denver, Colorado 80241
(303) 452-6800
No dealer, salesperson or other person has been authorized to give any
information or to make any representations, other than those contained in this
Prospectus, in connection with the offering covered by this Prospectus. If
given or made, such information or representations must not be relied upon as
having been authorized by the Company. This Prospectus does not constitute an
offer to sell, or a solicitation of any offer to buy, the securities offered
hereby in any jurisdiction where, or to any person to whom, it is unlawful to
make such offer or solicitation. Neither the delivery of this Prospectus nor any
sale hereunder shall, in any circumstances, create an implication that there has
not been any change in the facts set forth in this Prospectus or in our affairs
since the date hereof.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Securities and Exchange Commission allows us to "incorporate by
reference" information filed with it, which means that we can disclose important
information to you by referring you directly to those documents. The
information incorporated by reference is considered to be a part of this
prospectus. In addition, information we file with the Commission in the future
will automatically update and supersede information contained in this prospectus
and any accompanying prospectus supplement. We are incorporating by reference
the documents listed below and any future filings made with the Commission under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
all of the shares of common stock described in this prospectus are sold:
. Annual Report on Form 10-K for the fiscal year ended December 31, 1999;
. Quarterly Report on Form 10-Q for the fiscal quarter ended April 2,
2000;
. Quarterly Report on Form 10-Q for the fiscal quarter ended July 2, 2000.
You may request a copy of these filings at no cost by writing us at 12300
N. Grant Street, Denver, Colorado 80241, Attention: Investor Relations, or by
telephoning us at (303) 452-6800.
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SUMMARY
The following summary is qualified in its entirety by reference to the more
detailed information appearing elsewhere in this prospectus or incorporated
herein by reference. Each prospective investor is urged to read this prospectus
and the incorporated documents in their entirety. An investment in the
securities offered hereby involves a high degree of risk. See "Risk Factors."
The Company
Fischer Imaging Corporation designs, manufactures and markets specialty and
general purpose medical imaging systems for the diagnosis and treatment of
disease. Our newest product lines are directed towards medical specialties in
which image-guided, minimally-invasive therapies are replacing open surgical
procedures. These products are used primarily in the diagnosis and treatment of
breast cancer, heart disease and vascular disease.
Our principal executive office is located at 12300 N. Grant Street, Denver,
Colorado 80241, and our telephone number is (303) 452-6800.
The Offering
We are registering an aggregate of 1,000,000 shares of our common stock to
be offered for sale by one of our stockholders. There will be approximately
8,074,867 shares of common stock outstanding after this offering. We will not
receive any of the proceeds from the sale of the common stock by the selling
stockholders.
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RISK FACTORS
In evaluating our business, investors should carefully consider the
following risk factors in addition to the other information included or
incorporated by reference in this prospectus.
We have a history of losses.
We have experienced annual losses from operations for four of the
past five fiscal years. Significant factors giving rise to these losses include
costs associated with excessive manufacturing capacity; intense competition for
some of our products; declining margins and demand for OEM products and a
general slowdown in capital expenditures by hospitals.
Our ability to sustain profitability will depend on many factors,
including:
. sufficient demand for our products to offset the effects of the reductions in
our OEM business;
. the adequacy of financial resources;
. our ability to maintain or improve gross margins;
. the effectiveness of our efforts to control manufacturing and other costs;
. effective negotiation and implementation of product distribution
arrangements;
. effective implementation of domestic and international marketing and sales
strategies; and
. the development and introduction of new products that compete successfully.
Fluctuations in our financial results could adversely affect our stock price.
We expect continued fluctuations in quarterly and annual revenues,
operating results and net income, depending on factors such as:
. delays in our development projects;
. the timing of large system product orders;
. new product introductions or marketing initiatives by us or our competitors;
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. the effects of managed healthcare on capital expenditures and reimbursement;
. increases in marketing, research, and other costs in relation to sales;
. regulatory clearance of new products;
. the effect of general economic conditions of our markets;
. seasonal patterns and other timing issues affecting customer purchasing
decisions; and
. the outcome of claims against us.
These factors can occur unexpectedly and, because many of our costs
are fixed, we may not be able to sufficiently reduce our costs in periods when
revenues are less than anticipated and may, as a result, suffer unexpected
losses. Any of these events could cause our stock price to decline.
Technological change and new products could make our products obsolete.
The market for our products is characterized by rapid and significant
changes in competitive technologies, evolving medical industry standards and the
frequent introduction of new products. Alternative surgical procedures or
technologies or new medications may also be developed and marketed. Products
based on new technologies could replace or reduce the importance of current
procedures that utilize our products and render these products uncompetitive.
Accordingly, our success will depend in part on our ability to respond quickly
to new product introductions, marketing campaigns and medical and technological
changes through the development of new products. We may not be able to develop
new products in the future on a timely or cost-effective basis, if at all, and
our current products may be rendered obsolete or noncompetitive.
New product development and market acceptance of our new products is important
to our future success.
We have a number of potential new products in various stages of
development. We have focused our recent research and development efforts on the
development of SenoScan, which is a full-field digital mammography system, for
which clinical trials are continuing but which has not yet received pre-market
clearance from the United States Food and Drug Administration, or FDA. In
addition, we have expended significant efforts on ultrasound, full-field digital
mammography and associated advanced image processing applications.
These products involve technological innovation and require significant
planning, design, development and testing at the technological, product and
manufacturing process levels. These activities require significant investments
in research and development, equipment, inventory, manufacturing and marketing.
Lengthy and expensive clinical trials could also be required prior to submission
to the FDA for FDA clearance or approval. We may not be able to successfully
design, manufacture and market these new products, the new products may not
receive FDA clearance or approval.
In addition, our newest products may be used with minimally-invasive
surgical procedures, and in order for our product to be accepted by the medical
community, we must demonstrate to physicians and managed healthcare
organizations the clinical benefits, safety, efficacy and cost-effectiveness of
our products for such procedures. In particular, we must demonstrate that our
products are an attractive alternative to other products and methods that may be
widely accepted. Surgeons may not embrace our products as replacements for open
surgical procedures, and hospitals may not be willing to invest in and
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use our products. Lack of widespread acceptance of our products could have a
material adverse effect on our future revenues and earnings.
We may be unable to protect our patents and proprietary rights.
We seek to protect our proprietary rights through a combination of
technical experience, patent, trade secret and trademark protection and
nondisclosure agreements. Our future success will depend in part on our ability
to obtain and enforce patent protection for our products and processes, to
preserve our trade secrets and to operate without infringing on the patent or
proprietary rights of others. Although we have numerous United States and
foreign-issued patents and pending patent applications covering various aspects
of our products, our patents, and any patents that may be issued in the future,
may not provide us with significant competitive advantages or protection of our
intellectual property. Any patents owned or applied for by us may be challenged,
invalidated or circumvented at any time.
Moreover, the laws of some foreign countries do not protect our proprietary
rights in our products to the same extent as do the laws of the United States.
We anticipate that any attempt to enforce our patents would be time consuming
and costly. In addition, because many other companies hold patents in fields in
which we operate, we could be found to have infringed third-party patents and,
as a result, could be required to alter our products or processes, pay licensing
fees (which may not be available to us on commercially reasonable terms, if at
all) or cease manufacturing and selling any infringing products and pay damages
for past infringement.
In addition, we rely on trade secrets and proprietary know-how, which we
seek to protect, in part, through appropriate confidentiality and proprietary
information agreements. Proprietary information or confidentiality agreements
with employees, consultants and others may be breached, we may not have adequate
remedies for any breach, and our trade secrets may become known to or
independently developed by competitors. We could incur substantial costs in
suits in which we assert our patent rights against others or in defending
against suits brought by others.
In April 1992, we filed a patent infringement lawsuit against Lorad, now owned
by Trex Medical Corporation, in the United States District Court for the
District of Colorado. We own patent No. 5,078,142, covering certain features of
our Mammotest stereotactic breast biopsy system. We believe that Lorad has
infringed certain claims of our patent with the introduction of its mammographic
biopsy system. In April 1998, following receipt of patent No. 5,735,264, we
filed a second patent suit against Trex Medical Corporation, also in United
States District Court for the District of Colorado. In July 1998, the United
States District Court granted our Motion to Consolidate the two patent
infringement suits. The consolidated suit seeks to enjoin Lorad and its agents
from the manufacture, use and sale of the allegedly infringing stereotactic
breast biopsy system. We are also seeking treble damages and attorney's fees.
We have incurred and will continue to incur substantial costs in connection with
this litigation. We face significant competition from major multinational
corporations with greater resources than we have, which may cause our operating
results to suffer.
We face significant competition from companies that have more resources than we
do.
We encounter and expect to continue to encounter intense competition in the
sale of our products. The principal competitive factors affecting the market
for our products include the clinical aspects of the products, product features,
product performance and quality, upgrade flexibility, price and customer
service. Our competitors include large multinational corporations and their
operating units, including GE Medical Systems, Siemens AG, Philips Medical
Systems, Toshiba America Medical Systems, Inc., Shimadzu Precision Systems, Inc.
- Medical Systems Division and Picker International, Inc., as well as a number
of other companies such as Trex Medical Corporation. These companies have larger
installed customer bases and far greater financial, management, manufacturing,
sales, marketing and other resources
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than we do. As a result, they may be able to adapt more quickly than we can to
new or emerging technologies and changes in customer requirements, or to devote
greater resources to the development, manufacture, promotion and sale of their
products.
Moreover, a significant portion of our sales are to medical equipment
companies who integrate our products into their own systems or resell these
products under their own label. There can be no assurance that such companies
will not choose to purchase from alternative sources or internally manufacture
competing products. We face competition from vendors selling used x-ray imaging
equipment, particularly general radiology systems, at prices substantially below
the prices of our new products. We compete for acquisition opportunities, and
service contracts and experienced personnel.
We face significant manufacturing and operating risks.
The scope of the product lines offered by us and the need for product
customization require a number of separate manufacturing processes and
components and significant management and engineering time and expertise.
Additionally, as we develop new products, we will be required to refine the
prototypes of these products and develop new processes to manufacture these
products in commercial quantities. We have encountered and may continue to
encounter difficulties involving inventory supply, length of production cycles
and shortages of manufacturing personnel. Due to the shifting demand for our
products and the high fixed costs associated with manufacturing these products,
we may encounter difficulty managing our operating costs. We may not be able to
reliably or efficiently manufacture our existing or new products at commercially
reasonable costs on a timely basis, if at all. Failure to effectively manage the
development and manufacture of our products could adversely affect us.
A disruption or loss of our key suppliers could seriously interfere with our
ability to produce our products.
Many of the components used by us in existing products and products under
development are purchased from single sources. An interruption in the delivery
of these or other supplies would require us to identify and qualify alternative
components or vendors. We may not be able to obtain components from alternate
sources on a timely basis and on a commercially reasonable basis, if at all, in
the event of an interruption in the delivery of our supplies, which would have a
material adverse effect on our business.
Government regulation of our manufacturing and products is extensive and
compliance problems could lead to serious sanctions.
We are subject to periodic inspections by the Food and Drug
Administration, whose primary purpose is to audit our compliance with Quality
System Regulations, which include testing, quality control and documentation
procedures. In March 1995, our Denver facility received a Warning Letter from
the FDA concerning documentation and other deficiencies. We rectified these
deficiencies and resolved the matter with the FDA in June 1995. In December
1996, following an inspection of the Denver facility, the FDA issued
Inspectional Observations Form 483 and a subsequent Warning Letter regarding
manufacturing practices. As required, we responded as to planned corrective
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actions and obtained a favorable third-party certification of manufacturing and
quality systems. In October 1998, following a subsequent inspection, the FDA
issued a Form 483 regarding possible deficiencies in manufacturing, quality, and
documentation practices. We submitted our response to the Form 483 and is
instituting corrective actions. We continue to implement corrective actions and
anticipates that an inspection of the Denver facility by the FDA will take place
in the near future. The recent issuance of another Form 483 increases the
possibility that one or more of the sanctions described below could be imposed.
Failure to satisfy FDA requirements can result in: (1) our inability
to receive awards of federal government contracts; (2) an inability to receive
new marketing or export clearances; or (3) FDA enforcement actions including,
among other things, product seizure, injunction, and/or criminal or civil
proceedings which could be initiated without further notice. Although we believe
we have instituted policies and procedures allowing us to operate within FDA
requirements, however, deficiencies may not be corrected and we may not be able
to satisfy future FDA compliance concerns. Sanctions resulting from FDA
compliance reviews or related delays in product clearances could have a material
adverse effect on us.
We have obtained the certifications necessary to permit the "CE" mark to be
attached to those products currently being sold in Europe. The CE mark is an
international symbol of quality that is now required for sales into the
countries which are members of the European Union. Although we have approval to
sell into the European Union, there can be no assurance that we will be able to
obtain other international regulatory approvals. In addition, significant costs
and delays may be encountered in obtaining such approvals.
We are also regulated by the FDA under the Radiation Control for Health and
Safety Act of 1968 which specifically addresses radiation emitting products.
Under this law, we must submit initial reports on any new x-ray systems that
require certification. In addition, we must submit installation reports to the
FDA certifying compliance with installation instructions of the manufacturer.
Under certain circumstances, we are also required to submit Product Defect
Reports concerning our radiation emitting products to the FDA and, sometimes, to
the first purchasers of the products. Product Defect Reports describe any safety
related product defects or the failure of a product to conform to an applicable
standard of which we have become aware. Additionally, we are required to submit
Accidental Radiation Occurrence reports to the FDA whenever one of its products
accidentally releases radiation that results in an injurious or potentially
injurious exposure to any person. However, we need not file both a Medical
Device Report and an Accidental Radiation Occurrence report on the same
incident. A failure to comply with these regulations could have a material
adverse effect on us. Furthermore, discovery of unexpected product hazards or
failures to meet required standards through the reporting system could also have
a material adverse effect on us.
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Uncertainty of patient reimbursement or healthcare return legislation could
limit our business.
The Federal government and state, local and foreign governments have
considered or adopted, and may in the future consider or adopt, healthcare
policies intended to curb rising healthcare costs. Such policies include
rationing of government-funded reimbursement for healthcare services and
imposing price controls upon providers of medical products and services. In the
past, healthcare reform has adversely affected us by limiting hospital budgets
for the purchase of medical equipment, including our products.
Consolidation in the healthcare industry has reduced the number of
hospitals in the United States and, in some cases, reduced the demand for
medical imaging equipment. In addition, healthcare cost containment pressures
have lead to the formation of purchasing and shared facility arrangements among
hospital chains and large medical equipment manufacturers, thereby reducing the
demand for medical equipment and increasing centralization of decision-making
regarding equipment purchases. We cannot predict what healthcare reform
legislation or regulation, if any, will be enacted in the United States or
elsewhere.
Significant changes in healthcare reimbursement systems in the United
States or elsewhere could have a material adverse effect on us. The Federal
government also regulates the reimbursement of fees related to certain
diagnostic procedures or medical conditions and capital equipment acquisition
costs connected with services to Medicare beneficiaries. Recent legislation has
limited Medicare reimbursement of these fees, which may have the effect of
limiting the availability of reimbursement for procedures or conditions, and as
a result may inhibit or reduce demand by healthcare providers for our products.
Other legislation has limited Medicare reimbursement of these fees, which
has the effect of limiting the availability of reimbursement for procedures or
conditions and, as a result, may inhibit or reduce demand by healthcare
providers for our products. For example, the Balanced Budget Act of 1997,
reduces capital expenditure payments to hospitals by some two percent for the
period October 1, 1997 through September 30, 2002. Additionally, hospitals may
continue to face other capital constraints which prevent them from investing in
such equipment. In addition, widespread use of procedures utilizing our SenoScan
digital or breast magnetic resonance imaging mammography systems would likely
require reimbursement in excess of those currently permitted under Medicare
guidelines.
As a result, the demand for these systems may be limited. While we cannot
predict what effect the polices of government entities and other third party
payors will have on future sales of our products, there can be no assurance that
such policies would not have a material adverse effect on our business.
Market withdrawal or product recall could adversely affect us.
Complex medical devices, such as our products, can experience performance
problems in the field that require review and possible corrective action by the
manufacturer. We periodically receive reports from users of our products
relating to performance difficulties they have encountered. These or future
product problems could result in market withdrawals or recalls of products,
which could have a material adverse effect on our business, financial condition
and results of operations.
We face payment and other risks in our international operations.
We have wholly owned subsidiaries in Australia, Germany and France.
Local assets and liabilities, principally intercompany debt to the parent
company, are recorded in local currencies, thereby creating exposures to changes
in exchange rates. These changes may
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positively or negatively affect our operating results. Revenues in foreign
currency through all foreign subsidiaries constituted less than 3% of our total
revenues for the six month periods ended July 2, 2000. We therefore do not
believe that foreseeable near-term changes in exchange rates will have in a
material effect on our future earnings, fair values or cash flows and have
chosen not to enter into foreign currency hedging instruments. Such an approach
may not be successful, especially in the event of a significant and sudden
decline in the value of any of the applicable local currencies.
The loss of our chairman of other key personnel could jeopardize our business.
Our future performance is partially dependent on the services of Morgan W.
Nields, our Chairman, Chief Executive Officer and largest common stockholder. We
have no employment agreement with Mr. Nields nor, typically, with other
executives. We carry and are the beneficiary of $5,000,000 of key -man life
insurance on the life of Mr. Nields.
In addition, our continued success will depend heavily on our ability to
attract and retain highly qualified engineering, management, manufacturing,
marketing and sales personnel. There can be no assurance that we will be able to
continue to attract and retain such people. Failure to hire and retain such
personnel could have a material adverse effect on us.
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We face potential product liability.
Our business exposes us to potential product liability claims which are
inherent in the manufacture and sale of medical devices, and, as such, we may
face substantial liability to patients for damages resulting from the faulty
design or manufacture of products. We have been a defendant from time to time
in product liability actions. We maintain product liability insurance with
coverage limits of $5,000,000 per occurrence and per year in the aggregate.
There can be no assurance that product liability claims will not exceed coverage
limits or that such insurance will continue to be available at commercially
reasonable rates, if at all. Consequently, a product liability claim or other
claim in excess of insured liabilities or with respect to uninsured liabilities
could have a material adverse effect on our business and financial condition.
Complex medical devices, such as our products, can experience performance
problems in the field that require review and possible corrective action by the
manufacturer. We periodically receive reports from users of our products
relating to performance difficulties they have encountered. These or future
product problems could result in market withdrawals or product recalls, which
could have a material adverse effect on our business, financial condition and
results of operations.
Our management owns a significant portion of our stock and is able to exercise
significant influence over our affairs.
Our officers and directors beneficially own, in the aggregate,
approximately 19.7% of our common stock. As a result, the officers and directors
are able to exercise significant influence on the election of our Board of
Directors, and thereby direct our policies.
Our common stock price may be volatile.
The market price of our common stock could be subject to significant
fluctuations in response to variations in quarterly operating results and other
factors. In addition, the securities markets have experienced significant price
and volume fluctuations from time to time in recent years that have often been
unrelated or disproportionate to the operating performance of particular
companies. These broad fluctuations may adversely affect the market price of our
common stock.
We have experienced fluctuations in our quarterly operating results and
anticipate that such fluctuations will continue and could intensify.
Fluctuations in operating results may result in volatility in the price of our
common stock. Although we have taken significant steps to return to
profitability, there can be no assurance that profitability will be achieved or,
if achieved, that levels of profitability will not vary significantly between
quarters. Based on the foregoing, we believe that future revenues, expenses and
operating results are likely to vary significantly from quarter to quarter. As
a result, quarter-to-quarter comparisons of operating results are not
necessarily meaningful or indicative of future performance.
Further, it is likely that, from time to time, our future quarterly
operating results will be below the expectations of public market analysts or
investors. In such event, or in the event that adverse medical device market
conditions prevail, or are perceived to prevail, with respect to our business or
generally, the market price of our common stock would likely be materially
adversely affected.
We do not expect to pay dividends on common stock.
For the foreseeable future, we anticipate that all earnings, if any, will
be retained for the operation and expansion of our business and that we will not
pay cash dividends.
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Our charter, bylaws and anti-takeover protections could delay or prevent a sale
of Fischer.
Our certificate of incorporation and bylaws include provisions that may be
deemed to have anti-takeover effects and may delay, defer or prevent a takeover
attempt that stockholders might consider in their best interests. These
provisions include the ability of our Board of Directors to issue shares of
preferred stock in one or more series with such rights, obligations and
preferences as it may provide, a "fair price" provision, a provision that
requires stockholder action to be taken at meetings and not by written consent,
a provision under which only our Board of Directors may call meetings of
stockholders, certain advance notice procedures for nominating candidates for
election to the Board of Directors and staggered terms for our Board of
Directors.
In November 1994, our Board of Directors adopted a stockholder rights plan
and, pursuant thereto, issued preferred stock purchase rights (Rights) to the
holders of our common stock. The Rights have certain anti-takeover effects. If
triggered, the Rights would cause substantial dilution to a person or group of
persons (other than certain exempt persons, including Morgan W. Nields, one of
our founders and our Chairman of the Board and Chief Executive Officer, Kinney
L. Johnson, one of our founders, and GE Medical Systems) who acquires more than
15% of our common stock on terms not approved by the Board of Directors.
The Rights and other provisions of our charter could discourage or make
more difficult a tender offer, acquisition, merger or other similar transaction,
even if favorable to our stockholders. See "Description of Fischer Capital
Stock."
The large number of shares eligible for future sale could adversely affect our
stock price.
Sales of a substantial number of shares of our common stock after this
offering, or the perception that such sales could occur, could have a material
adverse effect on the market price of our common stock and could impair our
ability to raise capital through the sale of equity securities. Future sales of
our common stock under Rule 144 of the Securities Act of 1933 by existing
stockholders or through the issuance of common stock upon the exercise of
options or otherwise could have an adverse effect on the price of our common
stock.
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<PAGE>
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
We have made certain forward-looking statements in this document and in the
documents referred to in this document that are subject to risks and
uncertainties. These statements are based on the beliefs and assumptions of our
management and on the information currently available to our management.
Forward-looking statements include information concerning our possible or
assumed future results. These statements may be preceded by, followed by or
otherwise include the words "believes," "expects," "anticipates," "intends,"
"plans," "estimates" or similar expressions.
Forward-looking statements are not guarantees of performance. They involve
risks, uncertainties and assumptions. Our future results and stockholder values
may differ materially from those expressed in these forward-looking statements.
Many of the factors that will determine these results and values are beyond our
ability to control or predict. Investors are cautioned not to put undue
reliance on any forward-looking statements. Except for any ongoing obligation
to disclose material information as required by the Federal securities laws, we
do not have any intention or obligation to update forward-looking statements
after the distribution of this prospectus, even if new information, future
events or other circumstances have made them incorrect or misleading. For those
statements, we claim the protection of the safe harbor for forward-looking
statements contained in the Private Securities Litigation Reform Act of 1995.
You should understand that various factors, in addition to those discussed
elsewhere in this document and in the documents referred to in this document,
could affect our future results and could cause results to differ materially
from those expressed in such forward-looking statements. For a discussion of
certain of these important factors, see "Risk Factors."
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of our common stock
by the selling stockholders.
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<PAGE>
DESCRIPTION OF FISCHER CAPITAL STOCK
The following is a summary description of our capital stock. Investors are
urged to review our certificate of incorporation, as amended to date, which has
been filed as an exhibit to a registration statement filed with the Securities
and Exchange Commission.
General
Our authorized capital stock consists of (i) 25,000,000 shares of common
stock, $.01 par value, of which approximately 8,074,867 shares will be
outstanding after this offering, and (ii) 5,000,000 shares of preferred stock,
$.01 par value, issuable in series, of which 500,000 shares have been designated
as "Series C Junior Participating Preferred Stock" (Series C Preferred), none of
which are outstanding, and 1,333,333 shares have been designated as "Series D
Convertible Preferred Stock" (Series D Preferred), none of which are
outstanding.
The following description of our capital stock and certain provisions of
our certificate of incorporation and bylaws are qualified in their entirety by
reference to such documents, copies of which have been previously filed with the
Securities and Exchange Commission. As of August 31, 2000, our common stock was
held of record by 247 stockholders.
Common Stock
Holders of our common stock are entitled to one vote for each share held on
all matters submitted to a vote of the stockholders, including the election of
directors. Accordingly, holders of a majority of the shares of our common stock
entitled to vote in any election of directors may elect all of the directors
standing for election if they choose to do so. Our certificate of incorporation
does not provide for cumulative voting for the election of directors. Subject to
the dividend rights of any outstanding preferred stock, holders of our common
stock are entitled to receive ratably such dividends, if any, as may be declared
from time to time by the Board of Directors out of funds legally available
therefor, and, subject to the liquidation preferences of any outstanding
preferred stock, are entitled to receive, pro rata, all of our assets that are
available for distribution to such holders upon liquidation. Holders of our
common stock have no preemptive, subscription or redemption rights. The transfer
agent and registrar for our common stock is CompuShare, Denver, Colorado.
Preferred Stock
Pursuant to our certificate of incorporation, we are authorized to issue
5,000,000 shares of preferred stock, which may be issued from time to time in
one or more series upon authorization by our Board of Directors. The Board of
Directors, without further approval of the stockholders, are authorized to fix
the dividend rights and terms, conversion rights, voting rights, redemption
rights and terms, liquidation preferences and any other rights, preferences,
privileges and restrictions applicable to each series of the preferred stock.
The issuance of preferred stock, while providing flexibility in connection with
possible acquisitions and other corporate purposes could, among other things,
(i) adversely affect the voting power of the holders of our common stock, (ii)
make it more difficult for a third party to gain control of us, (iii) discourage
bids for our common stock at a premium, or (iv) otherwise adversely affect the
market price of our common stock.
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<PAGE>
In connection with the issuance of the Rights (described below) in November
1994, we designated 500,000 shares of preferred stock as Series C Preferred.
Shares of the Series C Preferred could become issuable under certain
circumstances if the Rights become exercisable and are exercised.
In June 1995, we completed a private sale of 1,333,333 shares of our Series
D Preferred to GEMS for $10,000,000. The 826,666 shares of our Series D Stock
surrendered by GEMS pursuant to its agreement with us effective March 24, 1999
have been canceled and retired and may not be reissued by us to any party. The
remaining shares of Series D Preferred Stock held by GEMS have been converted
into common stock and may not be reissued by us. There are currently no shares
of Series D Stock outstanding.
Stockholders Rights Plan; Series C Junior Participating Preferred Stock
In November 1994, our Board of Directors declared a dividend, on each share
of our common stock outstanding at the close of business on November 14, 1994,
of one right to purchase, in certain circumstances, one one-hundredth of a newly
issued share of Series C Preferred at the initial purchase price of $25.00 per
share (a Right). Each share of subsequently issued common stock, including each
share of common stock offered hereby, will also incorporate one Right. The
Rights will expire on November 3, 2004.
The Rights will be exercisable and transferable apart from our common stock
only if a person or group (other than certain exempt persons, including Morgan
W. Nields, one of our founders and our Chairman of the Board and Chief Executive
Officer, Kinney L. Johnson, one of our founders, and GEMS) acquires beneficial
ownership of 15% or more of our common stock, or commences a tender or exchange
offer upon the consummation of which such person or group would beneficially own
15% or more of our common stock. We will generally be entitled to redeem the
Rights at $.001 per Right at any time until a person or group (other than the
exempt persons) has become the beneficial owner of 15% or more of our common
stock.
Under the Rights "flip-in" feature, if any such person or group becomes the
beneficial owner of 15% or more of our common stock, then each Right not owned
by such person or group or certain related parties will entitle its holder to
purchase, at the Right's then current purchase price, shares of our common stock
(or in certain circumstances as determined by the Board of Directors, cash,
other property or other securities) having a value of twice the Right's purchase
price.
Under the Rights "flip-over" provision, if, after any other person or group
(other than the exempt persons) becomes the beneficial owner of 15% or more of
our common stock, we are involved in a merger or other business combination
transaction with another person, or we sell 50% or more of our assets or earning
power in one or more transactions, each Right will entitle its holder to
purchase, at the Right's then current purchase price, shares of the common stock
of such other person having a value of twice the Right's purchase price.
The Series C Preferred is not redeemable and, unless otherwise provided in
connection with the creation of a subsequent series of preferred stock, is
subordinate to all other series of our preferred stock. Each share of Series C
Preferred represents the right to receive, when and if declared, a quarterly
dividend at an annual rate equal to the greater of $1.00 per share or 100 times
the quarterly per share cash dividends declared on our common stock during the
immediately preceding fiscal year. In addition, each share of Series C Preferred
represents the right to receive 100 times any noncash dividends (other than
dividends payable in common stock) declared on our common stock, in like kind.
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<PAGE>
In the event of our liquidation, dissolution or winding up, each share of
Series C Preferred will represent the right to receive a liquidation payment in
an amount equal to the greater of $1.00 per share or 100 times the liquidation
payment made on each share of our common stock.
Each share of Series C Preferred has 100 votes, voting together with our
common stock. In the event of any merger, consolidation or other transaction in
which our common stock is exchanged, each share of Series C Preferred represents
the right to receive 100 times the amount received per share of common stock.
The rights of the Series C Preferred as to dividends, liquidation, voting rights
and merger participation are protected by customary anti-dilution provisions.
Change in Control Provisions in the Certificate of Incorporation or Bylaws
In addition to the Stockholders Rights Plan and certain aspects of the
preferred stock (described above), our certificate of incorporation also
contains certain provisions which may have the effect of delaying, deferring or
preventing a change of control.
Our certificate of incorporation provides that our Board of Directors shall
consist of three classes of directors, each serving for a three-year term ending
in a successive year. Each class currently consists of two directors. This
provision may make it more difficult to effect a takeover because it would
generally take two annual meetings of our stockholders for an acquiring party to
elect a majority of the Board of Directors. As a result, a classified Board of
Directors may discourage proxy contests for the election of directors or
purchases of a substantial block of our stock because it could operate to
prevent a potential acquiror from obtaining control of our Board of Directors in
a relatively short period of time.
Our certificate of incorporation also includes a "fair price" provision
that requires the affirmative vote of two-thirds of the outstanding shares of
our capital stock entitled to vote generally in the election of directors (in
lieu of the majority vote otherwise required by the Delaware General Corporation
Law) to approve certain business combinations, including certain mergers,
security issuances, recapitalizations, liquidations and the sale, lease or
transfer of a substantial part of our assets, involving us or a subsidiary and
an owner of 5% or more of our outstanding common stock (an interested
stockholder), unless such business combination is approved by a majority of the
directors unaffiliated with the interested stockholder or the stockholders
receive a "fair price" for their holdings and other procedural requirements are
met. A "fair price" is an amount at least equal to the greater of (i) the
highest price per share paid by the interested stockholder for any shares
acquired by it when it became such a stockholder or within two years prior to
the announcement of the proposed business combination, or (ii) the highest
market value or liquidation value per share on the date of such announcement or
the date the person became an interested stockholder.
In addition, our certificate of incorporation provides that stockholders
may take action only at a duly called and held meeting and may not take action
by written consent. This provision may make it more difficult to effect a
takeover by means of certain transactions, such as a merger or sale of assets,
by requiring a potential acquiror to hold a stockholders' meeting before such a
transaction could be consummated.
Our certificate of incorporation also provides that the "fair price"
provision, the "staggered board" provision and the provisions concerning voting
rights of stockholders may be amended only by a vote of two-thirds of the
outstanding shares of our capital stock entitled to vote generally in the
election of directors, voting as a single class.
Finally, we are subject to Section 203 of the Delaware General Corporation
Law, which imposes restrictions on certain business combinations with interested
persons. That section defines an "interested
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<PAGE>
person" as any person who acquires 15% or more of our outstanding voting stock.
In general, we are prohibited from engaging in business combinations with an
interested person for a period of three years from the date that person becomes
an interested person, subject to certain exceptions. By restricting our ability
to engage in business combinations with an interested person, the application of
Section 203 may provide a barrier to takeovers not approved in advance by our
Board of Directors.
MARKET PRICE OF FISCHER COMMON STOCK
Our common stock is quoted on the Nasdaq National Market under the symbol
"FIMG." The range of high and low bid quotations for our common stock as quoted
(without retail markup or markdown and without commissions) on the Nasdaq
National Market for the past fiscal year and the first and second quarters and a
portion of the third quarter of the current fiscal year are provided below. The
figures shown below do not necessarily represent actual transactions:
<TABLE>
<CAPTION>
High Low
Bid Bid
----- -----
<S> <C> <C>
2000
Third Quarter (through Aug. 31) $4.00 2.00
Second Quarter 4.13 2.03
First Quarter 5.88 1.63
1999
Fourth quarter $2.87 $0.81
Third Quarter 1.75 0.94
Second Quarter 2.00 1.25
First Quarter 2.44 1.62
</TABLE>
Dividends
We have not paid any cash dividends on our common stock and intend to
retain future earnings to finance our business. We are subject to restrictions
on paying dividends under state law and our revolving credit agreement.
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<PAGE>
SELLING STOCKHOLDERS
The following table sets forth certain information regarding the selling
stockholders' beneficial ownership of our common stock as of August 31, 2000.
<TABLE>
<CAPTION>
Number of Shares
Beneficially Percent Shares
Owned As of of Registered
Name and Address August 31, 2000 Outstanding in This Offering
<S> <C> <C> <C>
Deerfield International Limited 452,250 5.6% 276,750
Deerfield Partners, L.P. 1,222,750 15.1% 723,250
</TABLE>
Relationship Between Fischer and the Selling Stockholders
On August 28, 2000, Deerfield International Limited and Deerfield Partners, L.P.
purchased 276,250 and 723,250 shares of our Common Stock, respectively, from us
in a private transaction at $4.00 per share. In connection with Deerfield's
purchase of the shares, we entered into an agreement with them in which we
agreed to register their shares for resale and in which Deerfield agreed to
restrictions on their ability to sell the shares of common stock that they
purchased in this transaction. These restrictions include volume limitations
and anti-takeover protections.
PLAN OF DISTRIBUTION
We are registering these shares of our common stock on behalf of the
selling stockholders. The common stock covered by this prospectus may be
offered and sold by the selling stockholders, or by purchasers, transferees,
donees, pledgees or other successors in interest of the selling stockholders,
directly or through brokers, dealers, agents or underwriters who may receive
compensation in the form of discounts, commissions or similar selling expenses
paid by the selling stockholders or by a purchaser of these shares on whose
behalf such party may act as agent. Sales and transfers of these shares may be
effected from time to time in one or more transactions, in private or public
transactions, on the Nasdaq National Market, in the over-the-counter market, in
negotiated transactions or otherwise, at a fixed price or prices that may be
changed, at market prices prevailing at the time of sale, at negotiated prices,
without consideration or by any other legally available means. Any or all of
these shares may be sold from time to time by means of:
. a block trade, in which a broker or dealer attempts to sell these
shares as agent but may position and resell a portion of these shares
as principal to facilitate the transaction;
. purchases by a broker or dealer as principal and the subsequent sale
by such broker or dealer for its account pursuant to this prospectus;
. ordinary brokerage transactions (which may include long or short
sales) and transactions in which the broker solicits purchasers;
. the writing (sale) of put or call options on these shares;
. the pledging of shares as collateral to secure loans, credit or other
financing arrangements and, upon any subsequent foreclosure, the
disposition of shares by the lender thereunder; and
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<PAGE>
. any other legally available means.
To the extent required with respect to a particular offer or sale of these
shares, a prospectus supplement will be filed and will accompany this
prospectus, to disclose (i) the number of shares to be sold, (ii) the purchase
price, (iii) the name of any broker, dealer or agent effecting the sale or
transfer and the amount of any applicable discounts, commissions or similar
selling expenses, and (iv) any other relevant information.
The selling stockholders may transfer these shares by means of gifts,
donations and contributions. This prospectus may be used by the recipients of
such gifts, donations and contributions to offer and sell the shares received by
them, directly or through brokers, dealers or agents and in private or public
transactions. If, however, sales pursuant to this prospectus by any such
recipient could exceed 500 shares, a prospectus supplement would be required to
be filed to identify the recipient as the selling stockholders and disclose any
other relevant information. Such prospectus supplement would be required to be
delivered, together with this prospectus, to any purchaser of such shares.
In connection with distributions of these shares or otherwise, the selling
stockholders may enter into hedging transactions with brokers, dealers or other
financial institutions. In connection with such transactions, brokers, dealers
or other financial institutions may engage in short sales of our common stock in
the course of hedging the positions they assume with the selling stockholders.
To the extent permitted by applicable law, the selling stockholders also may
sell these shares short and redeliver the shares to close out such short
positions.
The selling stockholders and any broker-dealers who participate in the
distribution of the shares may be deemed to be "underwriters" under the
Securities Act of 1933 and any discounts, commissions or similar selling
expenses they receive and any profit on the resale of the shares purchased by
them may be deemed to be underwriting commissions or discounts. The selling
stockholders may agree to indemnify any broker, dealer or agent that
participates in transactions involving the sale of these shares against certain
liabilities, including liabilities arising under the Securities Act of 1933. The
aggregate net proceeds to the selling stockholders from the sale of these shares
will be the purchase price of the shares less any discounts, concessions or
commissions.
The selling stockholders are acting independently of us in making decisions
with respect to the timing, price, manner and size of each sale. We have not
engaged any broker, dealer or agent in connection with the distribution of
these shares. There is no assurance, therefore, that the selling stockholders
will sell any or all of the shares. In connection with the offer and sale of
the shares, we have agreed to make available to the selling stockholders copies
of this prospectus and any applicable prospectus supplement and have informed
the selling stockholders of the need to deliver copies of this prospectus and
any applicable prospectus supplement to purchasers at or prior to the time of
any sale of the shares covered by this prospectus.
The shares covered by this prospectus may qualify for sale pursuant to
Section 4(1) of the Securities Act of 1933 or Rule 144 promulgated thereunder,
and may be sold pursuant to such provisions rather than pursuant to this
prospectus.
We have agreed to pay all of the expenses incident to the registration of
the shares, other than discounts and selling concessions or commissions, if any.
We have agreed to indemnify the selling stockholders against certain
liabilities, including liabilities arising under the Securities Act of 1933.
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<PAGE>
EXPERTS
The financial statements and schedules incorporated by reference in this
prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said reports.
LEGAL MATTERS
Certain legal matters with respect to the shares of common stock being
registered hereunder will be passed upon by Brobeck, Phleger & Harrison LLP,
Broomfield, Colorado.
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<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 payable by us in
connection with the sale of the common stock being registered (all amounts are
estimated except the Commission Registration Fee).
<TABLE>
<S> <C>
Commission Registration Fee........................................... $ 891.00
Printing Expenses (estimated)......................................... $ 1,000
Legal Fees and Expenses (estimated)................................... $ 15,000
Accountants' Fees and Expenses (estimated)............................ $ 2,000
Miscellaneous Expenses (estimated).................................... $ 1,109
===============
Total $ 20,000
</TABLE>
Item 15. Indemnification of Directors and Officers
Our certificate of incorporation and bylaws provide that we shall, to the
fullest extent permitted by the Delaware General Corporation Law, as amended
from time to time, indemnify all of our directors and officers.
Section 145 of the Delaware General Corporation Law provides in part that a
corporation shall have the power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Similar indemnity is authorized for such persons against expenses
(including attorneys' fees) actually and reasonably incurred in defense or
settlement of any threatened, pending or completed action or suit by or in the
right of the corporation, if such person acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
corporation, and provided further that (unless a court of competent jurisdiction
otherwise provides) such person shall not have been adjudged liable to the
corporation.
Any such indemnification may be made only as authorized in each specific
case upon a determination by the stockholders or disinterested directors that
indemnification is proper because the indemnitee has met the applicable standard
of conduct. Where an officer or a director is successful on the
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<PAGE>
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him or her against the expenses which such officer or
director actually or reasonably incurred.
Additionally, our certificate of incorporation and bylaws provide for
mandatory indemnification of directors to the fullest extent permitted by the
Delaware General Corporation Law. This provision does not eliminate the
liability of a director (i) for a breach of the director's duty of loyalty to us
or our stockholders; (ii) for acts or omissions by the director not in good
faith or which involve intentional misconduct or a knowing violation of law;
(iii) for liability arising under Section 174 of the Delaware General
Corporation Law (relating to the declaration of dividends and purchase or
redemption of shares in violation of the Delaware General Corporation Law); or
(iv) for any transaction from which the director derived an improper personal
benefit.
We have a directors and officers insurance policy with a $5,000,000
coverage limit per occurrence and in the aggregate per year.
Section 2.9 of the Registration Rights Agreement between GE Medical Systems
and us provides that we will indemnify and hold harmless GE Medical Systems and
its officers, directors, underwriters and controlling persons against any
losses, claims, damages or liabilities (joint or several) to which they may
become subject that arise from any untrue statement of a material fact made by
us in this registration statement or prospectus, or our omission to state herein
or therein a material fact, or our violation of the Securities Act of 1933 or
the Securities Exchange Act of 1934. The agreement also provides that GE
Medical Systems will indemnify and hold harmless us and our officers, directors,
underwriters and controlling persons against any losses, claims, damages or
liabilities (joint or several) to which we may become subject that arise from
any untrue statement of a material fact made by it in written information
furnished by it to us for use in connection with this registration statement or
prospectus, or its omission to state therein a material fact, or its violation
of the Securities Act of 1933 or the Securities Exchange Act of 1934.
Item 16. Exhibits
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibits
<S> <C>
5.1* Opinion and Consent of Brobeck, Phleger & Harrison LLP
23.1* Consent of Arthur Andersen LLP
23.2* Consent of Brobeck, Phleger & Harrison LLP (included on
Exhibit 5.1)
24.1** Power of Attorney (included on page II-5)
</TABLE>
* Filed Herewith
** Previously filed.
II-2
<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:
(a) to include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(b) 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 a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(c) 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(a) and 1(b) 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 section 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 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.
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 section 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
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 the foregoing provisions, or otherwise,
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<PAGE>
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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Denver, State of Colorado, on November 6,
2000.
FISCHER IMAGING CORPORATION
By: /s/Morgan W. Nields
--------------------------------
Name: Morgan W. Nields
Title: Chairman of the Board,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
* President November 6, 2000
------------------------------
Louis Rivelli
* Director November 6, 2000
------------------------------
David G. Bragg, M.D.
* Director November 6, 2000
------------------------------
Fred Burbank
* Director November 6, 2000
------------------------------
Gerald D. Knudson
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
* Director November 6, 2000
-------------------------
Kathryn A. Paul
/s/Morgan Nields Director and Chief Executive November 6, 2000
-------------------------
Morgan Nields Officer
</TABLE>
*By: /s/Morgan W. Nields
--------------------------------
Name: Morgan W. Nields
Attorney-in-fact
