As filed with the Securities and Exchange Commission on August 9, 1999
Registration No. 333-____
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
_____________________________________
HOLOGIC, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-2902449
-------------- ----------
(State or Other (IRS Employer
Jurisdiction of Identification
Incorporation Number)
or Organization)
35 Crosby Drive
Bedford, Massachusetts 01730-1401
(781) 999-7300
(Address, Including Zip Code, and Telephone Number of Registrant's
Principal Executive Offices)
___________________________________
S. David Ellenbogen, Chairman
Hologic, Inc.
35 Crosby Drive
Bedford, Massachusetts 01730-1401
(781) 999-7300
(Name, Address, Including Zip Code, and Telephone Number of Agent
for Service)
__________________________________
Copies to:
Lawrence M. Levy, Esquire
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, Massachusetts 02111
Tel: (617) 856-8200
Fax: (617) 856-8201
__________________________________
Approximate date of commencement 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
Securities Act of 1933, please 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>
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
Amount Proposed Proposed
Title of Each To Be Maximum Maximum Amount Of
Class Of Registered Offering Aggregate Registration
Securities To Be Price Per Offering Fee
Registered Share Price
- ----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 1,857,142 $5.50 $10,214,281(1) $2,839.57(1)
par value per share
- ----------------------------------------------------------------------------
Common Stock Purchase -- -- -- --
Rights(2)
- ----------------------------------------------------------------------------
</TABLE>
(1) Registration fee calculated pursuant to Rule 457(c) under
the Securities Act of 1933. Based upon the average of the high
and low price of the Common Stock as reported on the Nasdaq
National Market on August 4, 1999.
(2) Pursuant to a rights agreement, one right is deliverable
along with each share of common stock. The rights currently are
not separately transferable apart from the common stock, nor are
they exercisable until the occurrence of certain events.
Accordingly, no independent value has been attributed to the
rights.
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.
=================================================================
Prospectus (Subject to Completion)
The information contained in this prospectus is not complete and
may be changed. A registration statement relating to the common
stock has been filed with the United States Securities and Exchange
Commission. The common stock may not be sold until this
registration statement is declared effective by the SEC. This
prospectus is not an offer to sell the common stock and it is not
seeking an offer to buy the common stock in any state where the
offer or sale is not permitted.
HOLOGIC, INC.
1,857,142 Shares of Common Stock
The selling stockholders identified on page 20 of this prospectus
may offer, sell or otherwise transfer up to 1,857,142 shares of our
common stock under this prospectus. References to our common stock
in this prospectus includes common stock purchase rights issuable
under a rights agreement, which provides for the delivery of a
right along with each share of our common stock.
The common stock is traded on the Nasdaq National Market under the
symbol "HOLX". On August 4, 1999, the last reported sale price
of the common stock on the Nasdaq National Market was $5.5625 per
share.
An investment in the common stock offered under this prospectus
involves a high degree of risk. See "Risk Factors" beginning on
page 5.
Neither the SEC nor any state securities commission has approved or
disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is August 9, 1999.
TABLE OF CONTENTS
SUMMARY.................................................. 3
RISK FACTORS............................................. 5
WARNINGS REGARDING FORWARD-LOOKING STATEMENTS........... 19
USE OF PROCEEDS......................................... 19
SELLING STOCKHOLDERS.................................... 20
PLAN OF DISTRIBUTION.................................... 21
LEGAL MATTERS........................................... 23
EXPERTS................................................. 23
WHERE YOU CAN FIND MORE INFORMATION..................... 23
SUMMARY
This summary briefly describes our business and the selling
stockholders' proposed sale of their shares of our common stock.
About Hologic
We are a leading international developer, manufacturer and marketer
of X-ray bone densitometers and ultrasound bone analyzers. Our X-
ray bone densitometers precisely measure bone density to assist in the
diagnosis and monitoring of metabolic bone diseases such as
osteoporosis. Our ultrasound bone analyzer represents a relatively
low cost, compact, easy-to-use measurement technique to assist in
the initial diagnosis of osteoporosis.
We also develop, manufacture and market mini c-arm X-ray imaging
systems. These systems provide real time, high resolution X-ray
images at radiation levels and at a cost well below those of
conventional X-ray and fluoroscopic equipment. These mini c-arm
systems are used primarily by orthopedic surgeons to perform
minimally invasive surgical procedures on a patient's extremities,
such as the hand, wrist, knee, foot or ankle. We also distribute
in Europe an x-ray imaging system for the facial anatomy.
In June 1999, we acquired Direct Radiography Corp. from Sterling
Diagnostic Imaging, Inc. Direct Radiography manufactures digital X-
ray systems for medical imaging and non-destructive testing
applications. The Direct Radiography proprietary flat panel
technology converts X-ray energy directly into electrical signals,
thereby producing radiographic images in seconds that can be
electronically displayed, transferred and stored.
We were incorporated in Massachusetts in October 1985 and
reincorporated in Delaware in March 1990. Our principal executive
offices are located at 35 Crosby Drive, Bedford, Massachusetts
01730-1401. Our telephone number is (781) 999-7300.
The Offering
The selling stockholders may offer, sell or otherwise transfer
up to 1,857,142 shares of our common stock under this prospectus.
The selling stockholders presently hold these shares. We will not
receive any proceeds from the selling stockholders' sales or
transfers.
The selling stockholders obtained these securities in
connection with our purchase of Direct Radiography Corp. and the
Direct Radiography headquarters facility in the State of Delaware
as more fully described under "Selling Stockholders" below. The
total purchase price for these acquisitions was paid for by a
combination of cash and the 1,857,142 shares of our common stock
covered by this prospectus. We prepared this prospectus to satisfy
the registration rights we granted in connection with that
acquisition.
RISK FACTORS
The common stock that is offered with this prospectus involves a
high degree of risk. You should carefully consider the following
risk factors in addition to other information in this prospectus
before deciding to purchase the common stock.
We are incurring significant losses.
We incurred net losses of $584,000 in the first three quarters of
fiscal 1999 and $1.5 million in the third quarter of fiscal 1999.
During these periods, net losses of approximately $827,000 were
attributable to our recent acquisition and the operations of Direct
Radiography Corp. Direct Radiography Corp. has had only limited
sales of its products, primarily for test purposes. In addition,
increased competition, which has resulted in price reductions, and
a slow down in our penetration of the primary care market have
adversely affected our bone densitometry business. We intend to
incur significant expenses in connection with the further
development and commercialization of Direct Radiography Corp.'s
products. We do not expect to be profitable for at least the next
twelve months.
We may not be able to successfully integrate the operations of
Direct Radiography Corp.
We acquired Direct Radiography Corp. in June 1999. That
acquisition involves numerous risks generally associated with
acquisitions, including:
- the diversion of management's attention;
- the assimilation of operations, personnel and products of the
acquired businesses;
- the ability to manage geographically remote units; and
- the potential loss of key employees of the acquired
businesses.
We may not be able to successfully integrate the operations of
Direct Radiography Corp. Failure to do so would have a material
adverse effect on our business, results of operations and financial
condition.
Our success depends on new product development.
We have a continuing research and development program designed to
develop new products and to enhance and improve our products. With
the acquisition of Direct Radiography Corp., we are expending
substantial resources to develop and enhance direct-to-digital X-
ray products. The successful development of our products and
product enhancements are subject to numerous risks, both known and
unknown, including:
- unanticipated delays;
- budget overruns;
- technical problems; and
- other difficulties that could result in the abandonment or
substantial change in the design, development and commercialization
of these new products.
Given the uncertainties inherent with product development and
introduction, we can not assure that any of product development
efforts will be successful on a timely basis or within budget, if
at all. For example, we have experienced significant delays and
budget overruns in our attempt to develop a biochemical marker
strip test to monitor the effectiveness of osteoporosis therapies
through the analysis of a patient's urine. Our failure to develop
new products and product enhancements on a timely basis or within
budget could have a material adverse effect on our business,
results of operations or financial condition.
The markets for our Direct Radiography products are unproven.
In 1998, Direct Radiography Corp. was the first company to
introduce direct-to-digital X-ray imaging products in the United
States. Since that introduction, Direct Radiography Corp. has had
only limited sales of its products, primarily for test purposes.
As a result, the markets for these products are unproven. There is
a significant installed base of conventional X-ray imaging products
in hospitals and radiological practices. The use of our direct-to
digital X-ray imaging products would require these potential
customers to either modify or replace their existing X-ray imaging
equipment. Because of the early stage of the markets for these
products, it is likely that our evaluation of the potential markets
for these products will materially vary with time. We cannot
assure that any significant market will develop for our Direct
Radiography products.
Our reliance on one or only a limited number of suppliers for some
key components or subassemblies for our products could have a
material adverse affect on our business.
We rely on one or only a limited number of suppliers for some key
components or subassemblies for our products. In particular we
have only one source of supply for each of the panel and the
coating of that panel for our Direct Radiography products.
Obtaining alternative sources of supply of these components could
involve significant delays and other costs, may not be available to
us on reasonable terms, if at all. The failure of a component
supplier or contract assembler to provide acceptable quality and
timely components or assembly service at an acceptable price, or an
interruption of supplies from such a supplier could have a material
adverse effect on our business, financial condition or results of
operations
The success of our bone densitometry business depends in large part
on the development and more widespread acceptance of complementary
therapies.
Our bone densitometers and related products are used to assist
physicians in diagnosing patients at risk for osteoporosis and
other bone disorders, and to monitor the effectiveness of therapies
to treat these disorders. As a result, the success of these
products will in large part be dependent upon the development and
more widespread acceptance of drug therapies to prevent and to
treat osteoporosis. Over the last several years, the U.S. Food and
Drug Administration has approved a number of drug therapies to
treat osteoporosis. We also understand that a number of other drug
therapies are under development. While sales of our bone
densitometry products have benefited from the increased
availability and use of these therapies, most patients who are at
risk for osteoporosis continue to go untreated. We cannot assure
that any therapies under development or in clinical trials will
prove to be effective, obtain regulatory approval, or that any
approved therapy will gain wide acceptance. Even if such therapies
gain widespread acceptance, we can not assure that such acceptance
will increase the sales of our products.
The success of our bone densitometry products depends on our
broadening market acceptance.
The success of our bone densitometer and related products depends
on our ability to increase sales to primary care providers, such as
gynecologists and family physicians. Although we had initial
success in placing our products with these groups during fiscal
1998, during the current fiscal year, our sales to this group have
slowed. We may not be successful in obtaining broader market
acceptance for our products or in increasing sales to targeted
groups. Our failure to achieve such success could have a material
adverse effect on our business, results of operations or financial
condition.
The uncertainty of health care reform could adversely affect our
business.
Certain health care reform proposals and medical cost containment
measures in the United States and in many foreign countries could:
- limit the use of our products;
- reduce reimbursement available for such use; or
- adversely affect the use of new therapies for which our
products may be targeted.
Such reforms or cost containment measures, including the
uncertainty in the medical community regarding their nature and
effect, could have a material adverse effect on our business,
results of operations or financial condition.
A reduction in reimbursement levels could have a material adverse
effect on our business.
Health care insurance systems in the United States and abroad have
approved reimbursement for bone densitometer use. In the United
States, many third-party insurers pay for bone density
examinations. In addition, the Health Care Finance Administration,
known as HCFA, has approved reimbursement for X-ray and ultrasound
examinations. HCFA establishes guidelines for the reimbursement of
health care providers treating Medicare and Medicaid patients. The
actual reimbursement amounts are determined by the individual state
Medicare carriers. There are often delays between the
reimbursement approvals by the Health Care Finance Administration
and by a state Medicare carrier. Moreover, states may choose not
to follow the Health Care Finance Administration reimbursement
guidelines. A reduction in reimbursement levels for our products
could have a material adverse effect on our business, results of
operations or financial condition.
Our success depends upon our ability to adapt to rapid changes in
technology and customer requirements.
The market for our products has been characterized by rapid
technological change, frequent product introductions and evolving
customer requirements. We believe that these trends will continue
into the foreseeable future. Our success will depend, in part,
upon our ability to enhance our existing products, successfully
develop new products that meet increasing customer requirements and
gain market acceptance. If we fail to do so our products may be
rendered obsolete or uncompetitive by new industry standards or
changing technology.
We may not be able to compete successfully.
We may not be able to compete successfully. A number of companies
have developed, or are expected to develop, products that compete
or will compete with our products. Many of these competitors and
potential competitors have substantially greater resources than we
do.
Lunar, Norland Medical Systems, Aloka, Diagnostic Medical Systems
and Hitachi have developed dual X-ray systems to measure bone
density. In ultrasound, we compete with Lunar, Myriad, McCue and
OSI Systems and expect additional competitors in the future based
upon the greater availability of ultrasound technology. In
addition, Lunar, Norland Medical Systems, OSI Systems and Schick
have peripheral X-ray systems that compete with our dual X-ray and
ultrasound bone densitometry products, primarily on price.
Our direct radiography products will compete with traditional X-ray
systems as well as computed radiography systems, which are less
expensive than our products, and other direct-to-digital systems.
Many of these competitors have established relationships with
hospitals and other of our potential customers in our targeted
markets. The larger competitors in these markets include General
Electric, Siemens and Philips.
Our mini c-arm products compete directly with mini c-arm's
manufactured and sold by a limited number of companies including
Lunar, OEC Medical and XiTec. We also compete indirectly with
manufacturers of conventional c-arm image intensifiers including
Philips, Siemens, General Electric, OEC Medical, Fischer Imaging
and Picker International.
The placement of new systems under our strategic alliance program,
which accounted for a large portion of our sales in fiscal 1998, is
adversely affecting our operating results.
In February 1999, Sanwa, now known as Fleet Business Credit
Corporation, discontinued the placement of new bone densitometers
under our strategic alliance program. Under this program, Sanwa
purchased bone densitometry equipment from us that they leased to
physicians, primarily in the primary care market, on a fee-per-scan
basis. In fiscal 1998 our sales under this program accounted for
33% of our product revenues. The discontinuance of new placements
under this program has adversely affected our results of
operations. Our operating results may continue to be materially
and adversely affected unless we can obtain replacement revenue
from more conventional sales or leasing programs.
Our remarketing obligations under the strategic alliance program
could adversely affect our future product sales.
Under our strategic alliance program, we continue to be obligated
to use our best efforts to remarket equipment repossessed by or
returned to Fleet Business Credit Corporation. As Fleet has
received significant returns under this program, their efforts to re-
market the returned equipment could have a material adverse
effect on our future product sales.
Our reliance on a single sales representative for a large portion
of our revenues could have a material adverse effect on our results
of operations.
In the United States, we have sold our products to the primary care
market through Physician Sales and Services, Inc., known as PSS.
Our reliance on a single sales representative for this important
market could have a material adverse effect on our results of
operations. In fiscal 1998, sales in which Physician Sales and
Services acted as either our sales representative or distributor,
which included sales under our strategic alliance program,
accounted for 35% of our product revenues. In the first three
quarters of fiscal 1999, sales to or through Physician Sales and
Services accounted for 14% of our product revenues. This reduction
in sales was in large part due to changes in our strategic alliance
program which took effect in the beginning of the fiscal year and
the subsequent termination of that program. Our agreement with PSS
expires in May 2000 and may be terminated by either party on thirty
days notice. We cannot assure that the agreement will be
continued. Even if the agreement is continued, we may not continue
to receive significant revenues through PSS's efforts. Our failure
to generate significant revenues from the primary care market,
through the efforts of PSS or otherwise, is likely to have a
material adverse effect upon our business, results of operation or
financial condition.
Our results of operations are subject to significant quarterly
variation and seasonal fluctuation.
Our results of operations have been and may continue to be subject
to significant quarterly variation. The results for a particular
quarter may vary due to a number of factors, including:
- the overall state of health care and cost containment efforts;
- the development status and demand for drug therapies to treat
osteoporosis;
- the development status and demand for our direct radiography
products;
- economic conditions in our markets;
- the timing of orders;
- the timing of expenditures in anticipation of future sales;
- the mix of products sold by us;
- the introduction of new products and product enhancements by
us or our competitors; and
- pricing and other competitive conditions.
We also believe that our sales may be somewhat seasonal, with
reduced orders in the summer months reflecting summer vacation
schedules. Customers may also cancel or reschedule shipments.
Production difficulties could also delay shipments. Any of these
factors also could have a material adverse effect on our business,
results of operations or financial condition.
Reductions in revenues could have a material adverse effect on
operating results because a high percentage of our operating
expenses is relatively fixed.
A high percentage of our operating expenses is relatively fixed.
We likely will not be able to reduce spending to compensate for
adverse fluctuations in revenues. As a result, shortfalls in
revenues are likely to have a material adverse effect on our
operating results.
Our delay or inability to obtain any necessary United States or
foreign regulatory clearances or approvals for our products could
have a material adverse effect on our business.
Our products are medical devices that are the subject of a high
level of regulatory oversight. Our delay or inability to obtain
any necessary United States or foreign regulatory clearances or
approvals for our products could have a material adverse effect on
our business. The process of obtaining clearances and approvals can
be costly and time-consuming. There is a risk that any approvals
or clearances, once obtained, may be withdrawn or modified.
Medical devices cannot be marketed in the United States without
clearance or approval by the FDA. Medical devices sold in the
United States must also be manufactured in compliance with FDA Good
Manufacturing Practices, which regulate the design, manufacture,
packing, storage and installation of medical devices. Moreover,
medical devices are required to comply with FDA regulations
relating to investigational research and labeling. States may also
regulate the manufacture, sale and use of medical devices,
particularly those that employ X-ray technology. Our products are
also subject to approval and regulation by foreign regulatory and
safety agencies.
We conduct our business worldwide which exposes us to a number of
difficulties in coordinating our international activities and
dealings with multiple regulatory environments.
We maintain sales and service offices in Belgium, France and Spain,
and sell our products to customers throughout the world. Our
worldwide business may be materially adversely affected by:
- difficulties in staffing and managing operations in multiple
locations;
- greater difficulties in trade accounts receivable collection;
- possible adverse tax consequences;
- governmental currency controls;
- changes in various regulatory requirements;
- political and economic changes and disruptions;
- export/import controls; and
- tariff regulations.
We have recently experienced difficulties in collecting accounts
receivable in Latin America, which as of June 30, 1999 totaled $8.5
million. In fiscal 1999, we increased our reserve against our
receivables, including these Latin American receivables, by
$900,000.
Fluctuations in the exchange rates, in relation to the U.S. dollar,
and the other foreign currencies in which we conduct our business
could have a material adverse effect on our operating results.
In fiscal 1998, foreign sales accounted for approximately 28% of
our product sales. We maintain sales and service offices in
Belgium, France and Spain. The expenses and sales of these offices
are denominated in local currencies. We anticipate that foreign
sales and sales denominated in foreign currencies will continue to
account for a significant portion of our total sales. Fluctuations
in the value of local currencies have caused and are likely to
continue to cause, amounts translated into U.S. dollars to
fluctuate in comparison with previous periods. In particular, an
increase in the value of the local currencies in which we have
offices would likely increase our expenses relative to U.S. dollar
sales and could have a material adverse effect on our operating
results. We have hedged our foreign currency exposure by borrowing
funds in local European currencies to pay the expenses of our
foreign offices. There is a risk that these hedging activities will
not be successful in mitigating our foreign exchange risk exposure.
We are not certain how we will be affected by the euro conversion.
On January 1, 1999, 11 of the 15 member countries of the European
Union, including Belgium, France and Spain, established fixed
conversion rates between their existing sovereign currencies and
the euro. The European Union has scheduled January 1, 2002 for the
transition to the euro to be complete. We have significant
operations within the European Union and are currently preparing
for the euro conversion. The issues that we are addressing
include:
- preparing our information systems for the euro;
- analyzing the benefit of decreased exchange rate risk in cross
border transactions involving participating countries; and
- assessing the potential impact of increased price
transparency.
In addition, the euro may impact general economic conditions such
as interest and foreign exchange rates within the participating
countries or in other areas where we operate. We are analyzing the
impact of the euro with a view to minimizing the effects on our
operations. We do not expect the costs of upgrading our systems
for the euro to be material.
Year 2000 readiness disclosure; Our failure to resolve the year
2000 problem could cause disruptions in our computer systems that
could prevent us from engaging in normal business activities.
The year 2000 issue is the potential for system and processing
failure of date-related data and the result of computer-controlled
systems using two digits rather than four to define the applicable
year. For example, computer programs that have date-sensitive
software may recognize a date using "00" as the year 1900 rather
than the year 2000. Systems that do not properly recognize date-
sensitive information when the year changes to 2000 could generate
system failure or miscalculations causing disruptions of
operations, including a temporary inability to process
transactions, send invoices or engage in similar ordinary business
activities. We have defined year 2000 compliance as the ability
for us, our products and our suppliers to continue normal business
activities in the year 2000 and beyond.
We have evaluated the year 2000 issue with respect to our financial
and management information systems, our products and our suppliers.
At this point in our assessment, we are not currently aware of any
year 2000 problems that are reasonably likely to have a material
adverse effect on our business, results of operations or financial
condition, without taking into account our efforts to avoid such
problems. We believe that our accounting and information systems
are currently compliant as a result of installing an upgrade
version of the software made available through the annual
maintenance contract. We also use other application hardware and
software which we believe to be year 2000 complaint. There is a
risk that, notwithstanding our internal review, if we have not
properly identified all year 2000 compliance issues with respect to
our management and information systems, we may not be able to
implement all necessary changes to these systems on a timely basis
and within budget. Such a failure could result in a material
disruption to our business, including the inability to track and
fill orders on a timely basis, which could have a material adverse
effect on its business, results of operations or financial
condition.
We have evaluated our bone densitometer products in production and
believe them to be year 2000 compliant. We have also undertaken a
general review of our previously sold bone densitometer products
and determined that many of those products will need software
upgrades to become year 2000 compliant. We have developed a year
2000 compliant software upgrade for these systems and plan to make
it available to our customers, at our expense. We do not expect
these costs to be material. Some customers will need computer
hardware upgrades in addition to the software upgrades to become
year 2000 compliant.
We are also exposed to the risk that we could experience material
shipment delays from our major component suppliers or material
sales delays from our major customers due to year 2000 issues
relating either to their management information or production
systems. We have inquired of these suppliers in an attempt to
ascertain their year 2000 readiness. Although we do not currently
anticipate that we will experience any material shipment delays
from our major product suppliers or any material sales delays from
our major customers due to year 2000 issues, these third parties
could experience year 2000 problems that could have a material
adverse effect on our business, results of operations or financial
condition.
Apart from our activities described above, we do not have and do
not plan to develop a contingency plan to address year 2000 issues.
Should any unanticipated significant year 2000 issues arise, our
failure to implement such a contingency plan could have a material
adverse effect on our business, financial condition and results of
operations.
To the extent that we do not identify any material non-compliant
year 2000 issues affecting us or third parties, such as our
suppliers, service providers and customers, the most reasonably
likely worst case year 2000 scenario is a systemic failure beyond
our control, such as a prolonged telecommunications or electrical
failure, or a general disruption in United States or global
business activities that could result in a significant economic
downturn. We believe that the primary business risks, in the event
of such failure or other disruption, would include but not be
limited to, loss of customers or orders, increased operating costs,
inability to obtain inventory on a timely basis, disruptions in
product shipments, or other business interruptions of a material
nature, as well as claims of mismanagement, misrepresentation, or
breach of contract, any of which could have a material adverse
effect on our business, results of operations or financial
condition.
Our business could be materially adversely affected if we are
unable to protect our proprietary technology.
We rely primarily on a combination of trade secrets, patents,
copyright and trademark laws, confidentiality procedures to protect
our technology. As of June 26, 1999, we had obtained 58 patents,
licensed 16 patents and had pending 40 patent applications in the
United States. These patents have expiration dates ranging from
1999 to 2016. One of our licensed U.S. ultrasound patents will
expire in this year, and two licensed patents with ultrasound and X-
ray claims will expire in 2001. We have obtained or applied for
corresponding patents and patent applications in several foreign
countries for certain of our patents and patent applications. There
is a risk that these patent applications will not be granted or
that the patent or patent application will not provide significant
protection for our products and technology. Moreover, there is a
risk that foreign intellectual property laws will not protect our
intellectual property rights to the same extent as United States
intellectual property laws. In the absence of significant patent
protection, we may be vulnerable to competitors who attempt to copy
our products, processes or technology.
Our settlement agreement with Lunar, which provides that each of us
may not enforce our proprietary rights against the other for a ten
year period ending November 2005 could have a material adverse
effect on our business.
We were involved in extensive patent litigation with Lunar, with
each party claiming that the other was infringing patents held by
the other. This litigation was settled by agreement dated November
22, 1995. The agreement provides for royalties to be paid by each
party to the other for future sales of products using defined
technologies. We do not believe that amounts to be paid by either
party under this arrangement will be material. The agreement also
provides that neither party will engage in patent litigation with
the other party relating to these technologies for a period of ten
years following the date of the agreement, regardless of the
infringement claimed and whether the technology in question
currently exists or is developed or acquired by the other party in
the future. As a result, Lunar could use our technology during
this period in a manner that would materially and adversely affect
our business.
Limitations on our licenses from NASA for patents used by us for
our mini c-arm products, and the scheduled expiration of those
patents in 2003, could have a material adverse effect on our
business.
We have a license from NASA to use and develop technology that is
used in some of our mini c-arm products and that is the subject of
two patents held by NASA. Our license is exclusive in the United
States. However, NASA retains the right to use its technologies in
connection with devices that it produces, including devices that
may be produced and marketed by NASA in direct competition with us.
Additionally, the exclusivity of the license may be revoked if NASA
determines that such exclusivity does not serve the public good and
the United States' national interest. Moreover, our license
agreement with NASA is exclusive only in the United States and its
territories. Accordingly, NASA retains the right to license its
technologies to others outside of the United States, where such
technologies are patented or can be patented. The technology
covered by the NASA patents is not patented in many foreign
countries and may therefore not be protectable or may be cumbersome
and expensive to enforce in such countries. Therefore, a
competitor in one of these countries could reverse engineer our
mini c-arm products and manufacture and sell products in direct
competition with us outside the United States. The patents covered
by this license expire in 2003. Upon expiration of a patent, all of
the technology covered by these patents will be accessible to
potential competitors, which could have a material adverse effect
on our mini c-arm business.
Our business could be materially adversely affected if we infringe
upon the intellectual property rights of others.
There has been substantial litigation regarding patent and other
intellectual property rights in the medical device and related
industries. We have been, and may be in the future, notified that
we may be infringing intellectual property rights possessed by
other third parties. If any such claims are asserted against our
intellectual property rights, we may seek to enter into royalty or
licensing arrangements. There is a risk in such situations that no
license will be available or that a license will not be available
on reasonable terms. Alternatively, we may decide to litigate
such claims or to design around the patented technology. Such
actions could be costly and would divert the efforts and attention
of our management and technical personnel. Consequently, any
infringement claims by third parties or other claims for
indemnification by customers resulting from infringement claims,
whether or not proven to be true, may have a material adverse
effect on our business, financial condition and results of
operations.
We may not be successful in identifying, acquiring, developing and
expanding products and technology.
We expect to continue to seek to expand our products and technology
through acquisitions or strategic alliances in complementary
markets, including other diagnostic or imaging markets and other
women's health care markets. There is a risk that we will not be
successful in identifying, acquiring and developing products and
technology. There are additional risks that, once identified, we
will not consummate such acquisitions and that, once acquired, we
will not successfully integrate the technology or businesses.
Our future success will depend on the continued services of our
executive officers and key research and development personnel.
The loss of any of our executive officers or key research and
development personnel could have a material adverse effect on our
business and prospects. Our success will also depend upon our
ability to attract and retain other qualified managerial and
technical personnel. Competition for such personnel, particularly
software engineers and other technical personnel, is intense. We
may not be able to attract and retain personnel necessary for the
development of our business. We do not have any key man life
insurance for any of our officers or other key personnel.
Our Chief Executive Officer and Senior Vice President also serve in
similar positions of another company, which diverts their attention
and could have a material adverse effect on our business.
S. David Ellenbogen, our Chief Executive Officer, and Jay A. Stein,
our Senior Vice President, also serve in similar positions at Vivid
Technologies, Inc. Under a management agreement between Vivid and
us, we agreed to provide management services to Vivid, including
the part-time assistance of Mr. Ellenbogen and Dr. Stein. Mr.
Ellenbogen and Dr. Stein typically devote up to approximately 16
and 8 hours per week, respectively, to Vivid. As a result, we do
not have the full time and attention of these key executive
officers, which could have a material adverse effect on our
business.
There is a risk that our insurance will not be sufficient to
protect us from product liability claims, or that in the future
product liability insurance will not be available to us at a
reasonable cost, if at all.
Our business involves the risk of product liability claims inherent
to the medical device business. We maintain product liability
insurance subject to certain deductibles and exclusions. There is
a risk that our insurance will not be sufficient to protect us from
product liability claims, or that product liability insurance will
not be available to us at a reasonable cost, if at all. An
underinsured or uninsured claim could have a material adverse
effect on our business, financial condition or results of
operations.
Provisions in our Certificate of Incorporation and By-laws and a
rights distribution may have the effect of discouraging
advantageous offers for our business or common stock and limit the
price that investors might be willing to pay in the future for
shares of our common stock.
Our Certificate of Incorporation, By-laws and the provisions of
Delaware corporate law include provisions that may have the effect
of discouraging or preventing a change in control. In addition, we
made a rights distribution in December 1992 that could also have
the effect of discouraging or preventing a change in control.
These provisions could limit the price that our stockholders might
receive in the future for shares of our common stock.
The volatility of our stock price could adversely affect your
investment in our stock.
The market price of the common stock has been, and may continue to
be, highly volatile. We believe that a variety of factors could
cause the price of the common stock to fluctuate, perhaps
substantially, including:
- announcements and rumors of developments related to our
business;
- quarterly fluctuations in our actual or anticipated operating
results and order levels;
- general conditions in the worldwide economy;
- announcements of technological innovations;
- new products or product enhancements by us or our competitors;
- developments in patents or other intellectual property rights
and litigation; and
- developments in our relationships with our customers and
suppliers.
In addition, in recent years the stock market in general and the
markets for shares of small capitalization and "high-tech"
companies in particular, have experienced extreme price
fluctuations which have often been unrelated to the operating
performance of affected companies. Any such fluctuations in the
future could adversely affect the market price of the common stock,
and the market price of the common stock may decline.
WARNINGS REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements contained in this prospectus under "Summary"
and "Risk Factors," and in the documents incorporated by reference,
are forward-looking made pursuant to the safe harbor provisions of
the Private Securities Litigation Reform Act of 1995. In essence,
forward-looking statements are predictions of future events.
Although we would not make forward-looking statements unless we
believe we have a reasonable basis for doing so, we cannot
guarantee their accuracy and actual results may differ materially
from those we anticipated due to a number of uncertainties, many of
which we are not aware. We urge you to consider the risks and
uncertainties discussed under "Risk Factors" and in the other
documents filed with the SEC that we have referred you to in
evaluating our forward-looking statements.
You should understand also that we have no plans to update our
forward-looking statements. Our forward-looking statements are
accurate only as of the date of this prospectus, or in the case of
forward-looking statements in documents incorporated by reference,
as of the date of those documents.
We identify forward-looking statements with the words "plans,"
"expects," "anticipates," "estimates," "will," "should" and similar
expressions. Examples of our forward-looking statements may
include statements related to:
- our plans, objectives, expectations and intentions;
- the timing of, availability, cost of development and
functionality of products under development or recently introduced;
and
- the anticipated markets for our Direct Radiography and bone
densitometer products and the success of our products in those
markets.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the our common
stock by the selling stockholders.
SELLING STOCKHOLDERS
On June 3, 1999, we acquired all of the issued and outstanding
shares of DRC Holding Corp, the parent company of Direct
Radiography Corp., from SDI Investments, L.L.C. On June 3, 1999,
we also purchased from Glasgow Land Company L.L.C., a wholly owned
subsidiary of SDI Investments, the land and buildings in the State
of Delaware at which Direct Radiography Corp. conducts its
business. The aggregate purchase price for the stock of DRC
Holding Corp. and for the real estate and buildings was
approximately $20,000,000. Approximately $7,000,000 was paid in
cash and approximately $13,000,000 was paid by delivery of
1,857,142 shares of our common stock. Immediately following the
acquisition, SDI Investments transferred 473,571 shares to E. I. du
Pont de Nemours and Company. In addition, SDI Investments and
Glasgow Land Company transferred the remaining 1,383,571 shares to
SDI Investments Liquidating Trust. SDI Investments Liquidating
Trust and DuPont are the selling stockholders in this prospectus.
Prior to our acquisition of DRC Holding Corp., Patrick de
Maynadier, an agent for SDI Investments Liquidating Trust, served
as Senior Vice President, General Counsel and Secretary of Direct
Radiography Corp. and as President, Secretary, Treasurer and sole
director of DRC Holding Corp. Similarly, each of the trustees of
SDI Investments Liquidating Trust were directors of the parent of
DRC Holding Corp. prior to its merger with another unrelated
company in 1999. One of the trustees, William C. Oehmig, was a
director of Direct Radiography Corp. up to the time of that merger.
Patrick de Maynadier was the sole director of Direct Radiography
Corp. since the date of the merger and the sale to us. Other than
as described in this prospectus, we are not aware that any of the
selling stockholders has had any material relationship with us
during the past three years.
The following table sets forth:
- the number of shares of common stock that the selling
stockholders beneficially owned as of July 29, 1999;
- the maximum number of shares of common stock that the selling
stockholders may offer under this prospectus; and
- the number and percentage of shares of common stock that the
selling stockholders will beneficially own if all of the shares
that may be offered under this prospectus are sold.
This information is based upon each selling stockholder's
representations to us.
<TABLE>
<CAPTION>
Number of Number of
Shares Maximum Shares
Beneficially Number of Beneficially Percentage
Owned Shares Owned after of Shares
Name of Beneficial as of July Being Offering Owned After
Owner 29, 1999 Offered Offering
- ------------------- ------------ ---------- ----------- ------------
<S> <C> <C> <C> <C>
SDI Investments 1,383,571 1,383,571 0 0%
Liquidating Trust
E. I. du Pont de 473,571 473,571 0 0%
Nemours and Company
</TABLE>
PLAN OF DISTRIBUTION
Set forth below is the plan of distribution of the shares of our
common stock covered by this prospectus by each of the selling
stockholders as indicated. We have agreed to pay the registration
expenses associated with this offering, which include:
- federal, state and other registration and qualification fees;
- legal fees and expenses for our counsel, but not the fees and
expenses, if any, of counsel or other advisers to the selling
shareholders;
- auditing and accounting expenses incurred by us in connection
with registration; and
- printing and other related expenses, including salary and
related overhead expenses of our employees for time expended by
them.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear
commissions and discounts, if any, attributable to the sales of the
shares. The selling stockholders may agree to indemnify any broker-
dealer or agent that participates in transactions involving sales
of the shares against liabilities, including liabilities arising
under the Securities Act of 1933, as amended.
We have agreed to indemnify the selling stockholders, their
officers, directors and trustees, against certain losses, claims
damages or liabilities arising out of any untrue or alleged untrue
statement of material fact contained in this registration
statement, as amended or supplemented, or arising out of any
omission of a material fact required to be stated in such
registration statement, as amended or supplemented, except those
untrue statements and omissions contained in any written
information the selling shareholder furnished for use in connection
with this registration. SDI Investments Liquidating Trust and
DuPont have agreed to a substantially reciprocal indemnity with
respect to untrue statements and omissions in written materials
furnished for inclusion in this registration statement and its
supplements and amendments.
Under applicable rules and regulations under the Securities
Exchange Act of 1934, as amended, any person engaged in a
distribution of the common stock may be limited in its ability to
engage in market activities with respect to the common stock. In
addition, the selling stockholders will be subject to applicable
provisions of the Securities Exchange Act of 1934, as amended, and
the rules and regulations under the Securities Exchange Act, which
may limit the timing of purchases and sales of any of the common
stock by the selling stockholders.
SDI Investments Liquidating Trust
The SDI Investments Liquidating Trust has advised us that from time
to time and in its discretion, it intends to:
- - sell all or part of the 1,383,571 shares of our common stock
covered by this prospectus in open market transactions; and/or
- - transfer all or part of the 1,383,571 shares of our common
stock covered by this prospectus,
to its beneficiaries, in the respective amounts which they are
entitled to receive under the terms of the Trust Agreement dated
May 11, 1999, creating the SDI Investments Liquidating Trust. If
all or part of the shares are transferred to the beneficiaries of
the SDI Investments Liquidating Trust, the beneficiaries will pay
nothing for the common stock. The shares of common stock the
beneficiaries will receive in a transfer, if any, will be
unrestricted shares which they are free to resell in open market
transactions or in any other manner permitted by law. Both the
sale by SDI Investments Liquidating Trust of the shares covered by
this prospectus in open market transactions and, in the event of a
transfer by SDI Investments Liquidating Trust to its beneficiaries,
the beneficiaries' resales, may be made on the Nasdaq National
Market, in the over-the-counter market or otherwise, in negotiated
transactions, or through a combination of these sale methods, at
market prices prevailing at the time of sale, at prices related to
the then current market price or at negotiated prices, including by
one of more of the following methods:
- purchases by a broker-dealer as principal and resale by such
broker or dealer for its account;
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and
- block trades in which the broker-dealer engaged will attempt
to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction.
E. I. du Pont de Nemours and Company
DuPont has advised us that from time to time and in its discretion,
it intends to sell up to all of the 473,571 shares of our common
stock owned by it and covered by this prospectus. These sales may
be made on the Nasdaq National Market, in the over-the-counter
market or otherwise, in negotiated transactions, or through a
combination of these sale methods, at market prices prevailing at
the time of sale, at prices related to the then current market
price or at negotiated prices, including by one of more of the
following methods:
- purchases by a broker-dealer as principal and resale by such
broker or dealer for its account;
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and
- block trades in which the broker-dealer engaged will attempt
to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction.
LEGAL MATTERS
For the purpose of this offering, Brown, Rudnick, Freed & Gesmer,
Boston, Massachusetts, will pass upon the validity of the shares of
common stock in the offering.
EXPERTS
The financial statements and schedules of Hologic, Inc. included in
and 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 reports
with respect thereto, and are included herein in reliance upon the
authority of such firm as experts in accounting and auditing in
giving such report.
The financial statements of Direct Radiography Corp. ("DRC") as of
December 31, 1997 and 1998 and for the period from March 29, 1996
to December 31, 1996 and the years ended December 31, 1997 and 1998
incorporated by reference in this prospectus have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their
report (which report expresses an unqualified opinion and includes
an explanatory paragraph relating to DRC's ability to continue as a
going concern), which is incorporated by reference herein, and have
been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC . You may read and copy any
document we file at the SEC's public reference rooms at 450 Fifth
Street, N.W., Washington, D.C., 20549, Chicago, Illinois and New
York, New York. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are
also available to the public on the SEC's Website at
http://www.sec.gov.
We have filed with the SEC a registration statement on Form S-3
under the Securities Act of 1933, as amended, with respect to the
common stock offered in connection with this prospectus. This
prospectus does not contain all of the information set forth in the
registration statement. We have omitted parts of the registration
statement in accordance with the rules and regulations of the SEC.
For further information with respect to us and the common stock,
you should refer to the registration statement. Statements
contained in this prospectus as to the contents of any contract or
other document are not necessarily complete and, in each instance,
you should refer to the copy of such contract or document filed as
an exhibit to or incorporated by reference in the registration
statement. Each statement as to the contents of such contract or
document is qualified in all respects by such reference. You may
obtain copies of the registration statement from the SEC's
principal office in Washington, D.C. upon payment of the fees
prescribed by the SEC, or you may examine the registration
statement without charge at the offices of the SEC described above.
The SEC allows us to "incorporate by reference" the information
that we file with it, which means that we can disclose important
information to you by referring you to those documents. The
information incorporated by reference is considered to be 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 following documents:
- Our Annual Report on Form 10-K for the fiscal year ended
September 26, 1998;
- Our Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 27, 1999 and December 26, 1998;
- Our Current Report on Form 8-K dated June 18, 1999 and our
Current Report on Form 8-K/A dated August 5, 1999;
- The description of our common stock contained in our
Registration Statement on Form 8-A dated January 31, 1990; and
- The description of our common stock purchase rights contained
in our Registration Statement on Form 8-A/A dated June 14, 1999,
filed with the SEC on June 18, 1999.
We also incorporate by reference any future filings made with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the termination of the
offering to which this prospectus relates.
You may request a copy of any of these filings, at no cost, by
writing or telephoning us at the following address:
Hologic, Inc.
35 Crosby Drive
Bedford, MA 01730-1401
Tel: (781) 999-7300
Attn: Investor Relations
You should rely only on the information contained in this document
(or any supplement) or that we have referred you to. We have not
authorized anyone else to provide you with different information.
You should not assume that the information in this prospectus or
any supplement is accurate as of any date other than the date on
the front of those documents.
This prospectus is part of a
registration statement we filed
with the SEC. You should rely
only on the information or HOLOGIC, INC.
representations provided in this
prospectus. We have authorized no
one to provide you with different Up to 1,857,142 Shares of Common
information. The selling Stock
stockholder described in this
prospectus is not making an offer
in any jurisdiction where the
offer is not permitted. You
should not assume that the PROSPECTUS
information in this prospectus is
accurate as of any date other than August 9, 1999
the date of this prospectus.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses payable by
Hologic in connection with the sale and distribution of the
securities registered hereby. Each of the selling stockholders will
pay their normal commission expenses and brokerage fees. All
amounts are estimated except the SEC and Nasdaq filing fee. Costs
of issuance and distribution will be borne by Hologic as follows:
SEC Registration Fee $ 2,840
Accounting Fees and Expenses 25,000
Legal Fees and Expenses 25,000
Miscellaneous 7,160
-------
Total $60,000
Item 15. Indemnification of Directors and Officers
Article 10 of Hologic's Certificate of Incorporation eliminates the
personal liability of directors to Hologic or its stockholders for
monetary damages for breach of fiduciary duty to the extent
permitted by Delaware General Corporation Law. Article VII of
Hologic's By-Laws provides that Hologic shall indemnify its
officers and directors to the extent permitted by Delaware General
Corporation Law. Section 145 of the Delaware General Corporation
Law authorizes a corporation to indemnify directors, officers,
employees or agents of the corporation if such party acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the corporation and, with respect
to any criminal action or proceeding, had no reason to believe his
conduct was unlawful, as determined in accordance with the Delaware
General Corporation Law. Section 145 further provides that
indemnification shall be provided if the party in question is
successful on the merits or otherwise. Hologic has also entered
into indemnification agreements with each of its directors. The
indemnification agreements are intended to provide the maximum
protection permitted by Delaware law with respect to
indemnification of directors. Hologic may also enter into similar
agreements with certain of its officers who are not also directors.
The effect of these provisions is to permit indemnification by
Hologic for liabilities arising under the Securities Act of 1933,
as amended. Hologic also maintains directors and officers
liability insurance.
Item 16. Exhibits
Exhibit Reference
Number
- -------- -----------
2.01 Merger Agreement between Hologic and its B
Massachusetts predecessor
2.02 Agreement and Plan of Merger between Hologic, D-2.01
Fenway Acquisition Corp., and FluoroScan Imaging
Systems, Inc.
2.03 Securities Purchase Agreement dated April 28, 1999, G-1
as amended on June 3, 1999 by and among Hologic,
Sterling Diagnostic Imaging, Inc. and SDI
Investments, L.L.C.
2.04 Contract of Sale dated April 28, 1999, as amended G-2
on June 3, 1999, by and between Glasgow Land
Company, L.L.C. and Hologic
3.01 Certificate of Incorporation of Hologic B
4.01 Specimen certificate for shares of Hologic's Common B
Stock
4.02 Description of capital stock (contained in B
Hologic's Certificate of Incorporation filed, as
Exhibit 3.01)
4.03 Rights Agreement dated December 22, 1992 C
4.04 Amendment No. 1 to Rights Agreement dated as of E-4.01
December 13, 1995
4.05 Amendment No. 2 to Rights Agreement dated as of E-4.02
December 19, 1996
4.06 Amendment No. 3 to Rights Agreement dated as of F-4.03
April 25, 1999
5.01 Legal Opinion of Brown, Rudnick, Freed & Gesmer, A
P.C.
23.01 Consent of Arthur Andersen LLP A
23.02 Consent of Deloitte & Touche LLP A
23.03 Consent of Brown, Rudnick, Freed & Gesmer, P.C. A
(included in Exhibit 5.01)
24.01 Power of Attorney (continued on page II-6 hereof) A
____________
A. Filed herewith.
B. The above exhibits were previously filed as an
exhibit of the same number to our Registration
Statement on Form S-1 (Registration No. 33-33128)
filed on January 24, 1990 and are incorporated
herein by reference.
C. The above exhibit was previously filed as an
exhibit of the same number to our 1992 Annual
Report on Form 10-K and are incorporated herein by
reference.
D. The above exhibit was previously filed as an
exhibit of the above referenced number of our Proxy
Statement and Prospectus on Form S-4 filed
(Registration No. 333-08977) on August 6, 1996 and
is incorporated herein by reference.
E. The above exhibit was previously filed as an
exhibit of the referenced number to Amendment No. 1
to Hologic's Registration Statement on Form 8-A/A
(Registration No. 000-18281) filed on January 17,
1997 and is incorporated herein by reference.
F. The above exhibit was previously field as an
exhibit of the referenced number to Amendment No. 2
to Hologic's Registration Statement on Form 8-A/A
(Registration No. 000-18281) filed on May 20, 1999
and is incorporated herein by reference.
G. The above exhibit was previously field as an
exhibit of the referenced number to Hologic's
Current Report on Form 8-K (SEC File No. 000-18281)
filed on June 18, 1999 and is incorporated herein
by reference.
Item 17. Undertakings
(a) 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;
(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;
(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 (a)(1)(i) and (a)(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 SEC 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.
(b) 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 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.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
(g) Not applicable.
(h) 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, the registrant has been advised that in
the opinion of the SEC 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 of
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.
(i) Not applicable.
(j) Not applicable.
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 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 Town of Bedford,
Commonwealth of Massachusetts, on August 9, 1999.
HOLOGIC, INC.
By: /s/ S. David Ellenbogen
---------------------------
S. David Ellenbogen, Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints S. David
Ellenbogen, Glenn P. Muir and Jay A. Stein, and each of them (with
full power to each of them to act alone), his or her true and
lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any or
all amendments (including post-effective amendments) to this
registration statement, to sign any abbreviated registration
statement and any and all amendments thereto, and to file the same,
with all exhibits thereto and other documents in connection
therewith, and, in connection with any registration of additional
securities pursuant to Rule 462(b) under the Securities Act of
1933, to sign any abbreviated registration statement and any and
all amendments thereto, and to file the same, with all exhibits
thereto and other documents in connection therewith, in each case,
with the SEC, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or either of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
Signature Title Date
/s/ S. David Ellenbogen Director and Chief August 9, 1999
-------------------- Executive Officer
S. David Ellenbogen
/s/ Steve L. Nakashige Director, President August 9, 1999
------------------- and Chief Operating
Steve L. Nakashige Officer
/s/ Glenn P. Muir Principal Financial August 9, 1999
------------- and Accounting Officer
Glenn P. Muir
/s/ Jay A. Stein Director and Senior August 9, 1999
------------- Vice President
Jay A. Stein
/s/ Irwin Jacobs Director August 9, 1999
-------------
Irwin Jacobs
/s/ William A. Peck Director August 9, 1999
----------------
William A. Peck
/s/ Elaine Ullian Director August 9, 1999
--------------
Elaine Ullian
/s/ Gerard Segel Director August 9, 1999
-------------
Gerard Segel
EXHIBIT INDEX
Exhibit Reference
Number
- ------- ---------
2.01 Merger Agreement between Hologic and its B
Massachusetts predecessor
2.02 Agreement and Plan of Merger between Hologic, D-2.01
Fenway Acquisition Corp., and FluoroScan Imaging
Systems, Inc.
2.03 Securities Purchase Agreement dated April 28, 1999, G-1
as amended on June 3, 1999 by and among Hologic,
Sterling Diagnostic Imaging, Inc. and SDI
Investments, L.L.C.
2.04 Contract of Sale dated April 28, 1999, as amended G-2
on June 3, 1999, by and between Glasgow Land
Company, L.L.C. and Hologic
3.01 Certificate of Incorporation of Hologic B
4.01 Specimen certificate for shares of Hologic's Common B
Stock
4.02 Description of capital stock (contained in B
Hologic's Certificate of Incorporation filed, as
Exhibit 3.01)
4.03 Rights Agreement dated December 22, 1992 C
4.04 Amendment No. 1 to Rights Agreement dated as of E-4.01
December 13, 1995
4.05 Amendment No. 2 to Rights Agreement dated as of E-4.02
December 19, 1996
4.06 Amendment No. 3 to Rights Agreement dated as of F-4.03
April 25, 1999
5.01 Legal Opinion of Brown, Rudnick, Freed & Gesmer, A
P.C.
23.01 Consent of Arthur Andersen LLP A
23.02 Consent of Deloitte & Touche LLP A
23.03 Consent of Brown, Rudnick, Freed & Gesmer, P.C. A
(included in Exhibit 5.01)
24.01 Power of Attorney (continued on page II-6 hereof) A
_________________
A. Filed herewith.
B. The above exhibits were previously filed as an
exhibit of the same number to our Registration
Statement on Form S-1 (Registration No. 33-33128)
filed on January 24, 1990 and are incorporated
herein by reference.
C. The above exhibit was previously filed as an
exhibit of the same number to our 1992 Annual
Report on Form 10-K and are incorporated herein by
reference.
D. The above exhibit was previously filed as an
exhibit of the above referenced number of our Proxy
Statement and Prospectus on Form S-4 filed
(Registration No. 333-08977) on August 6, 1996 and
is incorporated herein by reference.
E. The above exhibit was previously filed as an
exhibit of the referenced number to Amendment No. 1
to Hologic's Registration Statement on Form 8-A/A
(Registration No. 000-18281) filed on January 17,
1997 and is incorporated herein by reference.
F. The above exhibit was previously field as an
exhibit of the referenced number to Amendment No. 2
to Hologic's Registration Statement on Form 8-A/A
(Registration No. 000-18281) filed on May 20, 1999
and is incorporated herein by reference.
G. The above exhibit was previously field as an
exhibit of the referenced number to Hologic's
Current Report on Form 8-K (SEC File No. 000-18281)
filed on June 18, 1999 and is incorporated herein
by reference.
EXHIBIT 5.01
August 9, 1999
Hologic, Inc.
35 Crosby Drive
Bedford, MA 01730
Attn: S. David Ellenbogen, Chief Executive Officer
RE: Registration Statement on Form S-3 filed on August 5, 1999
---------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Hologic, Inc., a Delaware
corporation (the "Company"), in connection with the
preparation and filing with the Securities and Exchange
Commission of a Registration Statement on Form S-3 (the
"Registration Statement") pursuant to which the Company is
registering under the Securities Act of 1933, as amended
(the "Act"), a total of 1,857,142 shares of common stock,
$.01 par value (the "Shares") and 1,857,142 Rights, as
defined below. The Rights are issuable pursuant to that
certain Rights Agreement, dated as of April 22, 1992 (the
"Rights Agreement"), providing, in effect, for the delivery
of a right (a "Right"), along with each share of Common
Stock issued by the Company. This opinion is being rendered
in connection with the filing of the Registration Statement.
In connection with this opinion, we have examined the
following documents (collectively, the "Documents"):
(i) the Certificate of Incorporation of the Company
incorporated by reference as Exhibit 3.01 to the
Registration Statement;
(ii) the By-laws of the Company incorporated by reference as
Exhibit 3.02 to the Registration Statement;
(iii) the corporate minute books and other records of
the Company;
(iv) the Securities Purchase Agreement dated April 28, 1999,
as amended on June 3, 1999 by and among the Company,
Sterling Diagnostic Imaging, Inc. and SDI Investments,
L.L.C.;
(v) the Contract of Sale dated April 28, 1999, as amended
on June 3, 1999 by and among the Company and Glasgow Land
Company, L.L.C.;
(vi) the Rights Agreement;
(vii) a letter dated August 4, 1999 from American Stock
Transfer & Trust Company, the Company's transfer agent, as
to the number of issued and outstanding shares of the
Company as of a recent date; and
(viii) the Registration Statement.
We have, without independent investigation, relied
upon the representations and warranties of the various
parties as to matters of objective fact contained in the
Documents.
We have not made any independent review or
investigation of orders, judgments, rules or other
regulations or decrees by which the Company or any of its
property may be bound, nor have we made any independent
investigation as to the existence of actions, suits,
investigations or proceedings, if any, pending or
threatened against the Company.
The opinions expressed herein are based solely upon
(i) our review of the Documents, (ii) discussions with S.
David Ellenbogen, the Chairman of the Board and Chief
Executive Officer of the Company and Glenn P. Muir, the
Company's Vice President of Finance and Treasurer, (iii)
discussions with those of our attorneys who have devoted
substantive attention to the matters contained herein, and
(iv) such review of published sources of law as we have
deemed necessary.
This firm, in rendering legal opinions, customarily
makes certain assumptions which are described in Schedule A
hereto. In the course of our representation of the Company
in connection with preparation of the Registration
Statement, nothing has come to our attention which causes us
to believe reliance upon any of those assumptions is
inappropriate, and, with your concurrence, the opinions
hereafter expressed are based upon those assumptions.
We express no legal opinion upon any matter other than
those explicitly addressed in numbered paragraphs 1 and 2
below, and our express opinions therein contained shall not
be interpreted to be an implied opinion upon any other
matter.
Our opinions contained herein are limited to the
Delaware General Corporation Law and the Federal law of the
United States of America.
Based upon and subject to the foregoing, we are of the
opinion that:
1. The Shares have been duly authorized and validly
issued, and are fully paid and non-assessable.
2. The Rights have been duly authorized and, when
issued in accordance with the terms of the Rights Agreement,
will be validly issued, fully paid and non-assessable.
We understand that this opinion is to be used in
connection with the Registration Statement. We consent to
the filing of this opinion as an Exhibit to said
Registration Statement and to the reference to our firm
wherever it appears in the Registration Statement, including
the prospectus constituting a part thereof and any
amendments thereto. This opinion may be used in connection
with the offering of the Shares only while the Registration
Statement, as it may be amended from time to time, remains
effective under the Act.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: BROWN, RUDNICK, FREED & GESMER, P.C., a Partner
By: /s/ Philip J. Flink
--------------------------
Philip J. Flink, A Member
Duly Authorized
SCHEDULE A
BROWN, RUDNICK, FREED & GESMER
STANDARD ASSUMPTIONS
In rendering legal opinions in third party
transactions, Brown, Rudnick, Freed & Gesmer makes certain
customary assumptions described below:
1. Each natural person
executing any of the Documents has sufficient
legal capacity to enter into such Documents and
perform the transactions contemplated thereby.
2. The Company holds
requisite title and rights to any property
involved in the transactions described in the
Documents and purported to be owned by it.
3. Each person other than the
Company has all requisite power and authority and
has taken all necessary corporate or other action
to enter into those Documents to which it is a
party or by which it is bound, to the extent
necessary to make the Documents enforceable
against it.
4. Each person other than the
Company has complied with all legal requirements
pertaining to its status as such status relates
to its rights to enforce the Documents against
the Company.
5. Each Document is accurate,
complete and authentic, each original is
authentic, each copy conforms to an authentic
original and all signatures are genuine.
6. All official public
records are accurate, complete and properly
indexed and filed.
7. There has not been any
mutual mistake of fact or misunderstanding,
fraud, duress, or undue influence by or among any
of the parties to the Documents.
8. The conduct of the parties
to the transactions described in the Documents
has complied in the past and will comply in the
future with any requirement of good faith, fair
dealing and conscionability.
9. Each person other than the
Company has acted in good faith and without
notice of any defense against the enforcement of
any rights created by, or adverse claim to any
property or security interest transferred or
created as part of, the transactions described in
the Documents.
10. There are no agreements or
understandings among the parties to or bound by
the Documents, and there is no usage of trade or
course of prior dealing among such parties, that
would define, modify, waive, or qualify the terms
of any of the Documents.
11. The Company will not in
the future take any discretionary action
(including a decision not to act) permitted under
any Document that would result in a violation of
law or constitute a breach or default under that
or any other Document or court or administrative
orders, writs, judgments and decrees that name
the Company and are specifically directed to it
or its property.
12. The Company will obtain
all permits and governmental approvals not
required at the time of the closing of the
transactions contemplated by the Documents but
which are subsequently required, and will take
all actions similarly required, relevant to
subsequent consummation of the transactions
contemplated by the Documents or performance of
the Documents.
13. All parties to or bound by the Documents
will act in accordance with, and will refrain
from taking any action that is forbidden by, the
terms and conditions of the Documents.
EXHIBIT 23.01
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of
our report dated November 6, 1998 included in Hologic, Inc.'s
Form 10-K for the year ended September 26, 1998 and to all
references to our Firm included in this registration
statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
August 6, 1999
EXHIBIT 23.02
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Hologic, Inc. on Form S-3 of our report dated August 2,
1999 relating to the financial statements of Direct Radiography Corp.
("DRC") (which report expresses an unqualified opinion and includes an
explanatory paragraph relating to DRC's ability to continue as a going
concern), appearing in Form 8-K/A of Hologic, Inc. dated June 3, 1999
and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Greenville, South Carolina
August 9, 1999
