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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) September 15, 2000
HOLOGIC, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 0-18281 04-2902449
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(State or Other (Commission (I.R.S. Employer
Jurisdiction File Number) Identification No.)
of Incorporation)
35 Crosby Drive, Bedford, Massachusetts 01730
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(address of principal executive offices) (Zip Code)
(781) 999-7300
Registrant's telephone number, including area code ----------------------------
N/A
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(Former Name or Former Address, If Changed Since Last Report)
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ITEM 2. ACQUISITION OF ASSETS
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On September 15, 2000, the Registrant acquired substantially all of the
U.S. business assets of Trex Medical Systems Corporation ("Trex Medical") in
exchange for $30 million in cash and a 11.5% note in the amount of $25 million
with accrued interest first payable on September 13, 2001 and semi-annually
thereafter. The Registrant funded the cash portion of the purchase price from
its working capital. The note has term of three (3) years with a maturity date
of September 13, 2003. The note is secured by a mortgage on the Registrant's
principal office in Bedford, Massachusetts as well as the facility in Danbury,
Connecticut which was acquired from Trex Medical in connection with the
acquisition. The purchase price is subject to adjustment based upon the working
capital of the business as of the closing date. The Registrant also acquired 49
issued U.S. and foreign patents in connection with the acquisition. The
Registrant intends to use the purchase method to account for this acquisition.
Trex Medical manufactured X-ray mammography systems used for the detection
and diagnosis of breast cancer and other general-purpose and specialized medical
X-ray equipment. The Registrant intends to continue the business activities of
Trex Medical in the areas of mobile X-ray systems, X-ray systems for non-
destructive testing, digital radiographic/fluoroscopic (R/F) systems,
electrophysiology products and general radiography products. The Registrant
acquired approximately 550 employees at Trex Medical's owned 62,500 square foot
and leased 60,000 square foot research and development, manufacturing and
administrative facilities in Danbury, Connecticut and Trex Medical's 156,000
square foot leased facility in Littleton, Massachusetts.
The terms of the asset purchase are more fully described in that certain
Asset Purchase and Sale Agreement by and among the Registrant, Trex Medical,
Trex Medical Corporation, Thermotrex Corporation, and Thermo Electron
Corporation dated August 13, 2000, as amended on September 15, 2000 (the
"Purchase Agreement"), a copy of which is attached hereto. The terms of this
transaction were the result of arm's length negotiations between representatives
of the Registrant and Trex Medical. Prior to the consummation of the transaction
there was no material relationship between the Registrant, and its affiliates,
on the one hand, and Trex Medical, and its affiliates, on the other hand.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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(a) Financial Statements of Business Acquired. It is impracticable at
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this time for the Registrant to file the required financial statements with
respect to the business acquisition described in Item 2 of this Form 8-K. The
required financial statements will be filed not later than sixty (60) days from
the date this report is filed.
(b) Exhibits.
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2. Asset Purchase and Sale Agreement dated August 13, 2000, by
and between the Registrant, Trex Medical Systems Corporation,
Trex Medical Corporation, Thermotrex Corporation and Thermo
Electron Corporation, as amended on September 15, 2000.
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SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: October 2, 2000 HOLOGIC, INC.
By: /s/ Glenn P. Muir
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Glenn P. Muir,
Chief Financial Officer
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Exhibits. 2. Asset Purchase and Sale Agreement dated August 13, 2000, by
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and between the Registrant, Trex Medical Systems Corporation, Trex Medical
Corporation, Thermotrex Corporation and Thermo Electron Corporation, as amended
on September 15, 2000.
(Annexes, Exhibits and Schedules are omitted pursuant to Item 601(b)(2) of
Regulation S-K. The Registrant agrees, however, to furnish supplementary a copy
of such omitted items to the Commission upon request.)
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Amendment No. 1
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to
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Asset Purchase and Sale Agreement dated as of August 13, 2000
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This Amendment No. 1 (the "Amendment") to the Asset Purchase and Sale
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Agreement (the "Sale Agreement"), dated as of August 13, 2000, among Trex
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Medical Systems Corporation ("Seller"), Trex Medical Corporation, ThermoTrex
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Corporation and Thermo Electron Corporation (each, a "Parent") and Hologic, Inc.
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("Buyer"), is entered into this 15th day of September, 2000. Capitalized terms
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used herein and not otherwise defined shall have the meanings ascribed to such
terms in the Sale Agreement.
Recitals
WHEREAS, the Seller, the Parents and the Buyer are parties to the Sale
Agreement; and
WHEREAS, the Parties desire to effect certain amendments to the Sale
Agreement prior to the consummation of the transactions contemplated thereby;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the Parties hereby amend the Sale Agreement as follows :
1. Paragraph (x) of Section 1.1(d) of the Sale Agreement is hereby
deleted and replaced by the following:
(x) Subject to the provisions of Section 6.1(c) with respect to
the Fischer Litigation (as defined below) and Section 6.1(d) with
respect to the IBM Claims (as defined below), all liabilities with
respect to all actions, suits, proceedings, disputes, claims or
investigations arising out of or related to the Business or that
otherwise arise out of or are related to the
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Acquired Assets to the extent expressly set forth in the Disclosure
Schedule;
2. Section 6.1 of the Sale Agreement is hereby amended by adding a new
paragraph (d) as follows:
(d) resulting from the IBM Claims (as defined in this Section
6.1(d) below) to the extent of any Damages (as defined in this
Section 6.1(d) below) resulting from infringement of the IBM Patents
(as defined in this Section 6.1(d) below) by any Products (as defined
in this Section 6.1(d) below) manufactured, sold, offered for sale or
used on or prior to the last expiration date of the IBM Patents and
such Damages are attributable to either (i) the period prior to the
Closing or (ii) the period from and after the Closing, subject to the
limitations set forth in Section 6.5 below.
"IBM Claims" shall mean (i) any action or claim brought
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against any Buyer Indemnified Party predicated on the IBM Patents,
but only to the extent that such action or claim involves any
Products, and (ii) any actions or claims for indemnification or other
relief brought or made by customers or users of Products, based on
actions or claims of infringement of the IBM Patents, based on the
use or the sale of Products and filed or made by the owner or
licensees of the IBM Patents.
"IBM Patents" shall mean United States Patent Nos.
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5,572,999, 5,445,166 and 4,751,507 (the "Original IBM Patents"), and
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any reissues, extensions, continuations, divisions or continuations
in
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part thereof, provided that, in the case of any continuation in part,
the term "IBM Patents" shall mean only those claims of such
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continuation in part supported by the disclosure of any of the
Original IBM Patents.
"Products" shall mean, for all purposes of indemnification
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under this Agreement in connection with the IBM Patents and not
withstanding the definition of "Products" above, any product
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manufactured, sold or offered for sale by Seller on or before the
date hereof, as such product may be enhanced or improved from time to
time by or on behalf of Buyer, so long as such product as so enhanced
or improved is not alleged by IBM in good faith to infringe on any
claims of any IBM Patents which are not infringed upon by such
product as manufactured by Seller on the date hereof, or any claims
of foreign counterparts of the IBM Patents whose corresponding U.S.
claims, if any, are not alleged to be infringed upon by such product
as manufactured by Seller on the date hereof, provided that in any
such case such product is manufactured, offered for sale or sold only
for the uses offered by Seller on or before the date hereof.
"Damages" shall mean, for all purposes of indemnification
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under this Agreement in connection with the IBM Claims and
notwithstanding the definition of "Damages" in the introductory
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paragraph of this Section 6.1, only (i) monetary damages (including
without limitation "enhanced damages"), fines, fees and interest and
obligations ordered by a court in connection with the IBM Claims,
(ii) all amounts
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payable to International Business Machines Corporation (or its
successors in interest) ("IBM") in settlement of the IBM Claims,
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including, without limitation, any future royalties required to be
paid by any Buyer Indemnified Party as a result of such settlement,
(iii) any losses, including consequential damages, suffered by any
Buyer Indemnified Party as a result of an injunction issued as a
consequence of the IBM Claims prohibiting the sale of Products, and
(iv) reasonable costs and expenses, including, without limitation,
reasonable attorneys' fees and expenses, costs of investigation and
evaluation, experts and other reasonable costs, incurred in
connection with the defense of the IBM Claims.
3. Paragraphs (b) and (c) of Section 6.2 of the Sale Agreement are
hereby deleted and replaced by the following:
(b) resulting from, relating to or constituting any obligations
or liabilities associated with the conduct of the business or
operations of the Business from and after the Closing, except to the
extent that such Damages result from a matter for which Buyer is
entitled to indemnification from Seller pursuant to clauses (c)(ii)
or (d)(ii) of Section 6.1 above (after giving effect Section 6.5
below);
(c) subject to the limitations set forth in Section 6.5 below,
resulting from or relating to the Fischer Litigation or the IBM
Claims;
4. Paragraph (b) of Section 6.4 of the Sale Agreement is hereby deleted
and replaced by the following:
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(b) Any valid claim that is properly asserted in writing pursuant
to Section 6.3 prior to the expiration as provided in Section 6.4(a)
of the representation or warranty that is the basis for such claim
shall survive until such claim is finally resolved and satisfied;
provided, however, that any valid claim that is properly asserted in
writing pursuant to any of Section 6.1(c), Section 6.1(d) or Section
6 .2(c) shall survive until such claim is finally resolved and
satisfied.
5. Section 6.5(b) of the Sale Agreement is hereby amended by adding a
new clause (v) as follows:
(v) Seller shall not be liable under Section 6.1(d) unless and
until the aggregate Damages under Section 6.1(d) exceed $250,000 (the
"Threshold Amount"), provided that if such Damages exceed the
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Threshold Amount, Seller shall be liable for all such Damages without
regard to the Threshold Amount.
6. All in accordance with Section 6.3(a) of the Agreement, the Buyer
Indemnified Parties shall be deemed hereby to have made a claim for
indemnification with respect to Damages resulting from the IBM Claims against
Seller and Parents pursuant to Section 6.1(d) of the Agreement, and Seller and
Parents shall be deemed hereby to have assumed control of the defense thereof
with Fish & Richardson, P.C. as counsel (which counsel is satisfactory to the
Buyer Indemnified Parties).
7. Article X of the Sale Agreement is hereby amended by adding a new
Section 10.11 as follows:
10.11 Transitional Services.
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(a) Services; Fees; Terms. Buyer agrees to perform for
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Seller, in accordance with the terms and provisions of this Section
10.11, the services described in Exhibits I and II attached hereto
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(collectively, the "Transitional Services") upon the terms specified
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in Exhibits I and II. From time to time, Seller may request of Buyer
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that additional services not included in the Transitional Services be
provided by Buyer. Buyer and Seller shall use good faith efforts to
agree upon the provision of such additional services and the fees
therefor, and upon such agreement, such additional services shall be
deemed "Transitional Services" for purposes of this Agreement. Buyer
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shall use commercially reasonable efforts in the timely performance
of the Transitional Services and Seller shall use commercially
reasonable efforts to cooperate with Buyer in connection with the
provision of the Transitional Services. Seller agrees to pay to Buyer
a fee for each of the Transitional Services actually provided by
Buyer as specified in Exhibit I attached hereto.
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(b) Independent Contractor Status. Buyer shall perform all
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Transitional Services as an "independent contractor" and not as an
agent of Seller. Buyer is not, in connection with the performance of
Transitional Services hereunder, authorized to assume or create any
obligation or responsibility, express or implied, on behalf of, or in
the name of Seller or to bind Seller in any manner.
(c) Confidentiality. Each of Buyer and Seller shall hold,
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and shall use reasonable efforts to cause its Affiliates, consultants
and advisors
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to hold, in strict confidence all information concerning the other
obtained in connection with the provision of Transitional Services
(except to the extent that such information (i) is or becomes
generally available to the public other than as a result of a
disclosure by the receiving Party in violation of the terms of this
Section 10.11(c), (ii) was within the possession of the receiving
Party prior to it being furnished to the receiving Party by or on
behalf of the other Party or learned by the receiving Party in
connection with the performance of Transitional Services, provided
that the source of such information was not known by the receiving
Party at the time of receipt to be bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the other Party or any other party with respect to
such information, (iii) is or becomes available to the receiving
Party from a source other than the other Party, provided that such
source is not, to the knowledge of the receiving Party at the time of
receipt, bound by a confidentiality agreement with or other
contractual, legal or fiduciary obligation of confidentiality to the
other Party or any other party with respect to such information, or
(iv) was or is independently developed by the receiving Party without
utilizing any such information or violating any of the receiving
Party's obligations under this Section 10.11(c)), and each Party
shall not release or disclose such information to any other person,
including without limitation its auditors, attorneys, financial
advisors, bankers and other consultants and advisors, unless
compelled to disclose
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such information by judicial or administrative process or by other
requirements of law or so as not to violate the rules of any stock
exchange; provided, however, that in the case of disclosure compelled
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d by judicial or administrative process, the disclosing Party shall
(to the extent permitted by applicable law) notify the non-disclosing
Party promptly of the request or requirement so that the non-
disclosing Party may seek an appropriate protective order or waive
compliance with the provisions of this Section 10.11(c). If, in the
absence of a protective order or the receipt of a waiver hereunder, a
Party is compelled to disclose any such information by judicial or
administrative process, such Party may so disclose such information;
provided, however, that, at the written request of the non-disclosing
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Party, the disclosing party shall use commercially reasonable efforts
to obtain, at the expense of the non-disclosing Party, an order or
other assurance that confidential treatment will be accorded to such
portion of such information required to be disclosed.
(d) Employment Relationships. Except to the extent specified
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on Exhibits I and II, employees of Buyer engaged in performing the
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Transitional Services shall under no circumstances be, or be deemed
to be, employees of Seller. Buyer shall have full and exclusive
liability for the payment of worker's compensation or employer's
liability insurance premiums with respect to such employees and for
the payment of all taxes, contributions, withholdings or other
payments for unemployment compensation or severance, termination,
retirement, old age or other
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benefits, pensions, annuities or other obligations or liabilities of
any nature now or hereafter imposed upon employers by the relevant
government in respect of such employees, measured by the wages,
salaries, compensation or other remuneration paid to such employees
or otherwise, and Buyer shall make such payments and shall make and
file all reports and returns and do all other things necessary to
comply with the law imposing such taxes, contributions, withholdings
or other payments.
8. Section 10.8 of the Sale Agreement is hereby amended by adding the
following at the end of the only sentence therein:
, including without limitation any action to comply with the
requirements of the Connecticut Property Transfer Act, Conn. Statute
Annotated (S)22a-134, et. seq.
9. Section 1.1(e) of the Sale Agreement is hereby amended by adding the
following as a new paragraph thereto:
(xiv) All liabilities and obligations of Seller under the
Connecticut Property Transfer Act, Conn. Statute Annotated (S)22a-
134, et. seq., arising out of the requirement of Seller to make any
filing under such Act in connection with any transfer of the Owned
Real Property prior to the Closing Date.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Parties have executed this Amendment as of the
date first above written.
SELLER:
TREX MEDICAL SYSTEMS CORPORATION
By: /s/ Kenneth J. Apicerno
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Kenneth J. Apicerno, Treasurer
BUYER:
HOLOGIC, INC.
By: /s/ Glenn P. Muir
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Glen P. Muir, Chief Financial Officer
PARENTS:
The undersigned hereby enter into this
Amendment for the purpose of agreeing
to the amendment of the Agreement as
set forth herein .
TREX MEDICAL CORPORATION
By: /s/ Kenneth J. Apicerno
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Kenneth J. Apicerno, Treasurer
THERMO ELECTRON CORPORATION
By: /s/ Kenneth J. Apicerno
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Kenneth J. Apicerno, Treasurer
[Signature page to Amendment No. 1]
