As filed with the Securities and Exchange Commission on May 21, 1999.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
Under the
Securities Act of 1933
_____________________
HOLOGIC, INC.
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(Exact name of registrant as specified in its charter)
Delaware 04-2902449
---------------------- ----------------------------
(State of Incorporation) (IRS Employer Identification
No.)
35 Crosby Drive, Bedford, Massachusetts 01730-1401
--------------------------------------------------
(Address of principal executive offices) (zip code)
Hologic, Inc.
Amended and Restated 1999 Equity Incentive Plan
1997 Employee Equity Incentive Plan
------------------------------------------------
(Full titles of the Plans)
S. David Ellenbogen, Chairman and Chief Executive Officer
Hologic, Inc.
35 Crosby Drive,
Bedford, Massachusetts 01730-1401
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(Name and address of agent for service)
(781) 999-7300
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
=========================================================================
Proposed Proposed
Title of Amount to maximum maximum Amount of
securities be offering aggregate registration
to be registered price per offering fee
registered share (1) price (1)
=========================================================================
Common Stock, 1,600,000
$.01 par value shares (2) $7.1875 $11,500,000 $3,197.00
Right to 1,600,000 --- --- ---
Purchase rights
Common Stock
(3)
=========================================================================
(1) Estimated solely for the purpose of determining the
registration fee pursuant to Rule 457(h) under the
Securities Act of 1933, as amended, on the basis of the
average high and low prices for the Corporation's Common
Stock on May 19, 1999, as reported by the Nasdaq Stock
Market.
(2) Consists of 1,500,000 shares that may be issued pursuant to
options granted under the Hologic, Inc. Amended and Restated
1999 Equity Incentive Plan and 100,000 shares that may be
issued pursuant to options granted under the Hologic, Inc.
1997 Employee Equity Incentive Plan. Also registered
hereunder are such presently indeterminable number of
additional shares of Common Stock as may be issued in the
event of a merger, consolidation, reorganization,
recapitalization, stock dividend, stock split or other
similar change in Common Stock.
(3) Pursuant to a Rights Agreement entered into in 1992, as
amended, one right (each a "Right") is deemed to be
delivered with each share of Common Stock issued by the
Registrant. The Rights currently are not separately
transferable apart from the Common Stock, and they are not
exercisable until the occurrence of certain events.
Accordingly, no independent value has been attributed to the
Rights.
This Registration Statement also incorporates by reference
and serves as Post-Effective Amendment No. 1 to Registration
Statement No. 333-34003 on Form S-8, relating to an aggregate of
500,000 shares issuable under the Hologic, Inc. 1997 Employee
Equity Incentive Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents by Reference.
- -------------------------------------------------
The Corporation hereby incorporates by reference into
this Registration Statement the following documents:
(a) The Corporation's Annual Report on Form 10-K for
the fiscal year ended September 26, 1998.
(b) The Corporation's Quarterly Report on Form 10-Q
for the three months ended March 27, 1999.
(c) All other reports filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") since the end of the fiscal year
covered by the Annual Report referred to in (a) above.
(d) The descriptions of the Corporation's Common Stock
and Rights to purchase common stock which are contained in
its Registration Statements filed pursuant to Section 12 of
the Exchange Act, including all amendments and reports
updating such description.
All documents filed by the Corporation pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
subsequent to the date hereof and prior to the filing of a
post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed hereby
incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such
documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for
purposes of this registration statement to the extent that
a statement contained herein or in any subsequently filed
document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
- ----------------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
- ------------------------------------------------
The legality of the Common Stock, and of the Rights to
be issued in connection with Common Stock, to be issued
pursuant to the Amended and Restated 1999 Equity Incentive
Plan and the 1997 Employee Equity Incentive Plan, has been
passed upon for the Corporation by Brown, Rudnick, Freed &
Gesmer, One Financial Center, Boston, Massachusetts 02111.
A member of Brown, Rudnick, Freed & Gesmer is Secretary of
the Company.
Item 6. Indemnification of Directors and Officers.
- ---------------------------------------------------
Article 10 of the Registrant's Certificate of
Incorporation eliminates the personal liability of
directors of the Registrant or its stockholders for
monetary damages for breach of fiduciary duty to the full
extent permitted by Delaware law. Article 11 of the
Registrant's By-laws provides that the Registrant may
indemnify its officers and directors to the full extent
permitted by the General Corporation Law of the State of
Delaware. Section 145 of the General Corporation Law of
the State of Delaware authorizes a corporation to indemnify
directors, officers, employees or agents of the corporation
in non-derivative suits if such party acted in good faith
and in a manner he or she 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
reasonable cause to believe this 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 in the defense of
any claim.
The Registrant has entered into indemnification
agreements with each of its present directors. The Company
may also enter into similar agreements with certain of the
Company's officers who are not also directors. Generally,
the indemnification agreements attempt to provide the
maximum protection permitted by Delaware law with respect
to indemnification of directors. In addition, the
Registrant maintains insurance on behalf of any person who
is or was a director or officer against any loss arising
from any claim asserted against him or her in any such
capacity, subject to certain exceptions.
Item 7. Exemption from Registration Claimed.
- ---------------------------------------------
Not Applicable.
Item 8. Exhibits.
- ------------------
4.1 Certificate of Incorporation of the
Registrant - Filed as Exhibit 3.01 to the
Registrant's Registration Statement on Form S-1
(File No. 33-33128).*
4.2 By-Laws of the Registrant - Filed as
Exhibit 3.02 to the Registrant's Registration
Statement on Form S-1 (File No. 33-33128).*
4.3 Specimen Certificate of Common Stock -
Filed as Exhibit 4.01 to the Registrant's
Registration Statement on Form S-1 (File No. 33-
33128).*
4.4 Rights Agreement dated December 22, 1992 -
Filed as Exhibit 1 to Registrant's Registration
Statement on Form 8-A filed with respect to the
Rights, dated January 29, 1993.*
4.5 Amendment No. 1 and Amendment No. 2 to the
Rights Agreement, dated as of December 13, 1995
and December 9, 1996, respectively - Filed as of
January 17, 1997 as Exhibits 4.01 and 4.02 to
Form 8-A/A amending Registrant's Registration
Statement on Form 8-A filed with respect to the
Rights.*
4.6 Amendment No. 3 to the Rights Agreement,
dated as of April 25, 1999 - Filed as Exhibit
4.03 to Form 8-A/A further amending Registrant's
Registration Statement on Form 8-A filed with
respect to the Rights.*
5 Legal Opinion of Brown, Rudnick, Freed &
Gesmer.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer
is included in their legal opinion filed as
Exhibit 5 hereof.
24 Power of Attorney (included on the
signature page of this Registration Statement).
99.1 Registrant's 1997 Employee Equity Incentive
Plan - Filed as Exhibit 99 to the Registrant's
Registration Statement on Form S-8 (File No. 333-
34003).*
99.2 Registrant's Amended and Restated 1999
Equity Incentive Plan - Filed as Exhibit 10 to
the Registrant's Quarterly Report on Form 10-Q
for the three months ended March 27, 1999.*
_____________
* Not filed herewith. In accordance with Rule 411
promulgated pursuant to the Securities Act of 1933, as
amended, reference is made to the documents previously
filed with the Commission, which are incorporated by
reference herein.
Item 9. 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 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.
(2) That, for the purpose of determining
liability under the Securities Act, 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 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) 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the
securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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-8 and has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of
Waltham, Commonwealth of Massachusetts, on the 21st day of
May, 1999.
HOLOGIC, INC.
By:/s/ S.David Ellenbogen
------------------------
S. David Ellenbogen
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below constitutes and appoints S. David
Ellenbogen and Jay A. Stein and each of them (with full
power to each of them to act alone), his true and lawful
attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or
all amendments (including post-effective amendments) to
this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission,
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 might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact
and agents, or any 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 date
indicated.
Signature Title Date
- --------- ----- ----
/s/ S. David Ellenbogen Director and Chief May 21, 1999
- ------------------------- Executive Officer
S. David Ellenbogen
/s/ Jay A. Stein Director and Chief May 21, 1999
- ----------------- Technical Officer
Jay A. Stein
/s/ Glenn P. Muir Chief Financial Officer May 21, 1999
- ------------------- and Principal Accounting
Glenn P. Muir Officer
/s/ Irwin Jacobs Director May 21, 1999
- ------------------
Irwin Jacobs
/s/ William A. Peck Director May 21, 1999
- -------------------
William A. Peck
/s/ Gerald Segel Director May 21, 1999
- -----------------
Gerald Segel
/s/ Elaine Ullian Director May 21, 1999
- ------------------
Elaine Ullian
INDEX TO EXHIBITS
Exhibit Sequential
Number Page Number
--------- ------------
4.1 Certificate of Incorporation of the
Registrant - Filed as Exhibit 3.01 to the
Registrant's Registration Statement on Form S-1
(File No. 33-33128).*
4.2 By-Laws of the Registrant - Filed as
Exhibit 3.02 to the Registrant's Registration
Statement on Form S-1 (File No. 33-33128).*
4.3 Specimen Certificate of Common Stock -
Filed as Exhibit 4.01 to the Registrant's
Registration Statement on Form S-1 (File No. 33-
33128).*
4.4 Rights Agreement dated December 22, 1992 -
Filed as Exhibit 1 to Registrant's Registration
Statement on Form 8-A filed with respect to the
Rights, dated January 29, 1993.*
4.5 Amendment No. 1 and Amendment No. 2 to the
Rights Agreement, dated as of December 13, 1995
and December 9, 1996, respectively - Filed as of
January 17, 1997 as Exhibits 4.01 and 4.02 to
Form 8-A/A amending Registrant's Registration
Statement on Form 8-A filed with respect to the
Rights.*
4.6 Amendment No. 3 to the Rights Agreement,
dated as of April 25, 1999 - Filed as Exhibit
4.03 to Form 8-A/A further amending Registrant's
Registration Statement on Form 8-A filed with
respect to the Rights.*
5 Legal Opinion of Brown, Rudnick, Freed &
Gesmer.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Brown, Rudnick, Freed & Gesmer
is included in their legal opinion filed as
Exhibit 5 hereof.
24 Power of Attorney (included on the
signature page of this Registration Statement).
99.1 Registrant's 1997 Employee Equity Incentive
Plan - Filed as Exhibit 99 to the Registrant's
Registration Statement on Form S-8 (File No. 333-
34003).*
99.2 Registrant's Amended and Restated 1999
Equity Incentive Plan - Filed as Exhibit 10 to
the Registrant's Quarterly Report on Form 10-Q
for the three months ended March 27, 1999.*
* Not filed herewith. In accordance with Rule 411
promulgated pursuant to the Securities Act of 1933, as
amended, reference is made to the documents previously
filed with the Commission, which are incorporated by
reference herein.
Exhibit 5
May 21, 1999
Hologic, Inc.
35 Crosby Drive
Bedford, MA 01730-1401
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
We are general counsel to Hologic, Inc., a Delaware
corporation (the "Company"). We have been asked to deliver this
opinion in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Act"), of a Registration Statement on Form
S-8 (the "Registration Statement") relating to (i) 1,600,000
shares of the Company's Common Stock, $.01 par value (the
"Shares"), 1,500,000 of which may be issued pursuant to options
granted under the Company's Amended and Restated 1999 Equity
Incentive Plan (the "1999 Plan") and 100,000 of which may be
issued pursuant to options granted under the Company's 1997
Employee Equity Incentive Plan (the "1997 Plan"); and (ii)
1,600,000 Rights (as defined below) that may be issued in
connection with the issuance of the Shares pursuant to options
granted under such plans. The Rights are issuable pursuant to
that certain Rights Agreement, dated as of December 22, 1992, as
amended by Amendment No. 1, dated December 14, 1995, Amendment
No. 2, dated as of December 9, 1996, and Amendment No. 3, dated
as of April 25, 1999 (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.
In connection with this opinion, we have examined and are
familiar with originals or copies, certified or otherwise
identified to our satisfaction, of the following documents
(collectively, the "Documents"):
1. A copy of the Certificate of Incorporation of the Company as
in effect on the date hereof;
2. A copy of the Bylaws of the Company as in effect on the date
hereof;
3. The corporate records of the Company relating to the
proceedings of stockholders and directors of the Company;
4. The 1999 Plan and the 1997 Plan (collectively, the "Plans");
5. The Rights Agreement; and
6. The Registration Statement.
In giving our opinion, we have relied as to matters of fact
upon certificates of officers of the Company. For purposes of
this opinion we have assumed without any investigation (1) the
legal capacity of each natural person and (2) the genuineness of
each signature, the completeness of each document submitted to us
as an original and the conformity with the original of each
document submitted to us as a copy.
Our opinion hereafter expressed is based solely upon (1) our
review of the Documents, (2) discussions with certain officers of
the Company with respect to the Documents, (3) discussions with
those of our attorneys who have devoted substantive attention to
the matters contained herein and (4) such review of published
sources of law as we have deemed necessary.
Based upon and subject to the foregoing, we are of the opinion
that the Shares have been duly authorized and, when issued in
accordance with the terms of the Plans, the Shares will be
validly issued, fully paid and nonassessable. 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 nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement and to the reference to our firm
wherever it appears in the Registration Statement.
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
hereunto duly authorized
Exhibit 23.2
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
May 20, 1999
