As filed with the Securities and Exchange Commission on March 16, 1999
Registration No. 333-64881
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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EXOGEN, INC.
(Exact Name of Registrant as Specified in Its Charter)
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DELAWARE 22-3208468
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
10 Constitution Avenue
Piscataway, New Jersey 08855
(732) 981-0990
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
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Patrick A. McBrayer
President and Chief Executive Officer
10 Constitution Avenue
Piscataway, New Jersey 08855
(732) 981-0990
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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Ellen B. Corenswet, Esq.
Grace E. Han, Esq.
Brobeck, Phleger & Harrison LLP
1633 Broadway, 47th Floor
New York, New York 10019
(212) 581-1600
Approximate date of commencement of proposed sale to the public: As
soon as practicable on or after this Registration Statement is declared
effective.
<PAGE>
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PROSPECTUS
820,000 Shares
EXOGEN, INC.
Common Stock
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This Prospectus relates to the public offering, which is not being
underwritten, of up to 820,000 shares of Common Stock, par value $.0001 per
share (the "Shares"), of Exogen, Inc. ("Exogen" or the "Company"). All of such
Shares are currently issued and outstanding and are held by Smith & Nephew
Holdings, Inc. (the "Selling Stockholder") and may be offered by such Selling
Stockholder. The shares were issued by Exogen to the Selling Stockholder
pursuant to a stock purchase agreement, dated August 10, 1998.
The Shares may be offered by the Selling Stockholder or by pledgees,
donees or transferees of, or other successors in interest to, the Selling
Stockholder from time to time in transactions on The Nasdaq National Market, in
negotiated transactions, or a combination of such methods of sale, at fixed
prices which may be changed, at market prices prevailing at the time of sale, at
prices related to prevailing market prices or at negotiated prices. The Selling
Stockholder may effect such transactions by selling the Shares to one or more
purchasers (including pledgees) or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Stockholder and/or the purchasers of the Shares for
whom such broker-dealers may act as agents or to whom they sell as principals,
or both (which compensation as to a particular broker-dealer might be less than
or in excess of customary commissions). Neither Exogen nor the Selling
Stockholder can presently estimate the amount of such compensation. Exogen knows
of no existing arrangement between the Selling Stockholder and any other
stockholder, broker, dealer, underwriter or agent relating to the sale or
distribution of the Shares. The Selling Stockholder may transfer its Shares
under certain circumstances to other persons who may, in turn, resell Shares in
the manner described above. In addition, the Selling Stockholder may pledge or
make gifts of its Shares and such Shares may also be sold by the pledgees or
transferees. To the extent required, the number of Shares being offered and the
terms of the offering, including the public offering price, the name of the
Selling Stockholder and any underwriters, dealers or agents, the purchase price
paid by any underwriter for the Shares purchased from Selling Stockholder, any
discounts, commissions and other items constituting compensation from the
Selling Stockholder and any discounts, commissions or concessions allowed or
reallowed or paid to dealers with respect to any particular offer will be set
forth in an accompanying Prospectus Supplement. See "Selling Stockholder" and
"Plan of Distribution."
None of the proceeds from the sale of the Shares by the Selling
Stockholder will be received by Exogen. Exogen has agreed to bear certain
expenses (other than selling discounts and commissions) in connection with the
registration of the Shares pursuant to preexisting agreements. Exogen has agreed
to indemnify the Selling Stockholder and its affiliates against certain
liabilities, including liabilities under the Securities Act of 1933, as amended
(the "Securities Act"). The Selling Stockholder has agreed to indemnify Exogen
and its affiliates against certain liabilities, including liabilities under the
Securities Act under certain circumstances.
<PAGE>
AN INVESTMENT IN THE SHARES OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 3.
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Exogen's Common Stock is traded on The Nasdaq National Market under the
symbol "EXGN." The last reported sales price of Exogen's Common Stock on The
Nasdaq National Market on March 15, 1999 was $2 1/2 per share.
---------------------------------------------------
The Selling Stockholder and any broker-dealers, agents or underwriters
that participate with the Selling Stockholder in the distribution of the Shares
may be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any commissions received by them and any profit on the
resale of the Shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. See "Plan of Distribution"
herein for a description of indemnification arrangements.
---------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
----------------------------------------------------
The date of this Prospectus is March 16, 1999
<PAGE>
AVAILABLE INFORMATION
Exogen has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 under the Securities Act with
respect to the Common Stock offered hereby. This Prospectus does not contain all
of the information set forth in the Registration Statement and the exhibits and
the schedules thereto. For further information with respect to Exogen and such
Common Stock, reference is made to the Registration Statement and exhibits and
schedules thereto. Statements contained in this Prospectus as to the contents of
any contract or other document referred to are not necessarily complete, and,
with respect to any contract or other document filed as an exhibit to the
Registration Statement, each such statement is qualified in all respects by
reference to such exhibit. Copies of the Registration Statement and the exhibits
thereto are on file at the offices of the Commission and may be obtained upon
payment of the prescribed fee or may be examined without charge at the public
reference facilities of the Commission described below.
Exogen is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files annual and quarterly reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information may be inspected, and copies of such material may be obtained upon
payment of the prescribed fees, at the Commission's Public Reference Section,
Room 1024, 450 Fifth Street, N.W., Washington D.C. 20549, the Commission's
Regional Offices at Seven World Trade Center, New York, New York 10048, and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511, and the Commission's World Wide Web site at http://www.sec.gov.
Exogen's Common Stock is traded on The Nasdaq National Market, and in
accordance therewith, annual and quarterly reports, proxy statements and other
information concerning Exogen may be inspected at the National Association of
Securities Dealers, Inc., at 1735 K Street, N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed with the Commission are hereby
incorporated by reference in this Prospectus: (i) the Annual Report of Exogen on
Form 10-K for the fiscal year ended September 30, 1998, (ii) the Current Report
of Exogen on Form 8-K filed with the Commission on October 19, 1998, (iii) the
Quarterly Report of Exogen on Form 10-Q filed with the Commission on February
12, 1999, (iv) the description of the Common Stock contained in the Registration
Statement on Form 8-A filed with the Commission on May 26, 1995 under Section 12
of the Exchange Act, and (v) the description of the Preferred Share Purchase
Rights contained in the Registration Statement on Form 8-A filed with the
Commission on December 10, 1996 under Section 12 of the Exchange Act, as it may
be amended from time to time.
All reports and other documents subsequently filed by Exogen pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of this Offering shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such reports and documents. Any statement incorporated herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
<PAGE>
Exogen will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the foregoing documents incorporated herein by reference (other
than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such document). Requests for such documents
should be submitted in writing to Chief Financial Officer, Exogen, Inc., 10
Constitution Avenue, Piscataway, New Jersey 08855.
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<PAGE>
An investment in the shares of Common Stock offered hereby involves a
high degree of risk and should not be made by any investors who cannot afford
the loss of their entire investment. In addition, this Prospectus contains
certain statements of a forward-looking nature relating to future events or the
future financial performance of Exogen. Such statements are only predictions,
and the actual events or results may differ materially from the results
discussed in the forward-looking statements. In evaluating such statements and
in making any investment decisions, prospective investors should specifically
consider the various factors identified in this Prospectus, including the
matters set forth in the "Risk Factors" section below, which could cause actual
results to differ materially from those indicated by such forward-looking
statements. In addition, when used in this Prospectus, the words "intends to,"
"believes," "anticipates," "expects" and similar expressions are intended to
identify forward-looking statements.
THE COMPANY
Exogen was incorporated in New York on January 24, 1992, and was
reincorporated in Delaware on February 8, 1993. Exogen's principal executive
offices are located at 10 Constitution Avenue, Piscataway, New Jersey 08855, and
its telephone number is (732) 981-0990.
Exogen designs, develops, manufactures, and markets medical devices for
the non-invasive treatment of musculoskeletal injury and disease. Exogen's
proprietary ultrasound and mechanical-stress technologies delivery energy that
promotes the growth, repair and maintenance of bone. These technologies are
based on the principle that bone growth is stimulated by mechanical force.
Exogen's Sonic Accelerated Fracture Healing System ("SAFHS(R)") device
utilizes mechanical force, produced by low-intensity ultrasound, to accelerate
fracture healing for closed, cast-immobilized, fresh fractures of the lower leg
and lower arm within the device's approved uses. The SAFHS device is small and
portable, and is used by the patient once daily for 20 minutes. Exogen's
Pre-Market Approval ("PMA") application for its first model, the SAFHS Model 2A,
was approved by the U.S. Food and Drug Administration ("FDA") in October 1994.
In May 1997, Exogen began commercial distribution of the second-generation SAFHS
2000(R) in the United States. The SAFHS 2000, which utilizes the same
low-intensity ultrasound signal as does the SAFHS Model 2A, is entirely battery
operated and is smaller and lighter than the SAFHS Model 2A for enhanced
portability. The SAFHS device is the only medical device approved by the FDA for
the acceleration of fresh-fracture healing of the lower leg and lower arm.
RISK FACTORS
In addition to the other information in this Prospectus, the following
factors should be considered carefully in evaluating an investment in the shares
of Common Stock offered by this Prospectus.
History of Losses and Expectation of Continued Losses at Least Through 2000
We have had a history of substantial net losses since our inception. We
incurred net losses of $1.5 million for the three months ended December 31,
1998, $7.6 million for the year ended September 30, 1998, $11.2 million for the
year ended September 30, 1997, and $10.6 million for the year ended September
30, 1996. As of December 31, 1998, we had an accumulated deficit of $43.4
million. The net losses we have incurred to date and the net losses we expect to
continue to incur for at least the next two years have been due to several
factors, including the following:
<PAGE>
- engineering and developing the SAFHS device and the
mechanical-stress device;
- conducting clinical trials for the SAFHS device and
mechanical-stress device;
- obtaining FDA approval of the SAFHS device;
- developing and expanding our marketing, sales and distribution
network domestically and internationally;
- expanding our reimbursement activities domestically and
internationally; and
- expanding in-house manufacturing capability.
Although we have been marketing and selling the SAFHS device since
1994, we are still experiencing material losses. We have not achieved
profitability, and we expect to continue to incur operating losses at least
through 2000. Although our revenues have grown in recent quarters, we cannot be
certain that we will achieve sufficient revenues for profitability. Our future
revenues and profitability, if any, are critically dependent on
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<PAGE>
whether we successfully market and sell, and obtain reimbursement for, the SAFHS
device. Even if we do achieve profitability, we cannot be certain that we can
sustain or increase profitability on a quarterly or annual basis in the future.
Substantial Dependence on the SAFHS Device; Uncertainty of Market Acceptance
Our future growth depends substantially on the commercial success of
the SAFHS device. Essentially all of our product revenues are derived from sales
of the SAFHS device. We expect the SAFHS device to continue to account for
substantially all of our product revenues for the foreseeable future. Our
long-term success will depend on the following:
- successful domestic and international commercialization of the
SAFHS device for its approved uses, including the ability of our
exclusive U.S. distributor, Smith & Nephew, to successfully
market the SAFHS device in the United States;
- whether the medical community will accept the ultrasound
technology of the SAFHS device as a safe and effective method of
treating fresh, bone fractures;
- whether third-party payors, including traditional fee-for-service
insurers, workers' compensation insurers, HMOs and other managed
care organizations, automobile insurers, third-party
administrators, Medicare, and other government entities, will
provide third-party reimbursement of the SAFHS device; and
- development and regulatory approval of the SAFHS device for
additional uses.
If the market does not accept the SAFHS device, our business, financial
condition, results of operations, and cash flows will be materially and
adversely affected.
Substantial Dependence on Smith & Nephew U.S. Distribution Arrangement
Our future growth depends substantially on the ability of our exclusive
U.S. distributor, Smith & Nephew, to successfully market the SAFHS device in the
United States. On August 10, 1998, Smith & Nephew acquired exclusive rights to
market the SAFHS device in the United States, under a multi-year master
agreement, a U.S. sales representative agreement, and a stock purchase
agreement. As a result, we are no longer involved in any direct sales activities
relating to the SAFHS device in the United States. Although the U.S. sales
representative agreement has a term of 10 years, it may be terminated by mutual
agreement of Exogen and Smith & Nephew, or by Smith & Nephew in the event of a
default by Exogen.
We cannot assure you that Smith & Nephew will succeed in its efforts to
market the SAFHS device. Smith & Nephew's sales personnel do not have prior
experience in the sale or use of the SAFHS device, although we are providing
them with training and other support. Although we believe that Smith & Nephew is
economically motivated to succeed in performing its responsibilities under the
agreements, the amount of resources and time Smith & Nephew devotes to its
responsibilities is not within our control, and therefore, we cannot assure you
that Smith & Nephew will perform its obligations as expected. If the U.S.
distribution arrangement with Smith & Nephew is not successful or if the
arrangement is terminated, our business, financial condition, results of
operations, and cash flows will be materially and adversely affected.
<PAGE>
Substantial Dependence on Third Parties in Europe and Japan to Sell the SAFHS
Device
We depend on independent distributors, sales agents, and marketing
partners to sell the SAFHS device in Europe, Japan, and other territories.
Revenues derived from international sales of the SAFHS device represented 12%
for the three months ended December 31, 1998, 19% for the year ended September
30, 1998, 18% for the year ended September 30, 1997, and 14% for the year ended
September 30, 1996.
Through a subsidiary in Germany, we began selling and marketing the
SAFHS device in Europe in February 1996. We also sell and market the SAFHS
device in Europe through independent distributors and sales agents. We have
recorded sales in Germany, Austria, Holland, Denmark, Switzerland, Belgium, the
United Kingdom, and Israel. Revenues derived from sales of the SAFHS device in
Europe represented 7% for the three months ended December 31, 1998, 6% for the
year ended September 30, 1998, 18% for the year ended September 30, 1997, and
14% for the year ended September 30, 1996. Most of our sales of the SAFHS device
in Europe are derived from Germany, where we receive limited local reimbursement
only on a case-by-case basis. Our European accounts receivable as of December
31, 1998, net of allowances for returns, bad debt, and amounts a third-party
payor might deduct from the price, was $289,000.
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<PAGE>
In Japan, we market and sell the SAFHS device through an exclusive
distribution arrangement with Teijin Limited, a Japanese corporation. We are
responsible for manufacturing and supplying the SAFHS device to Teijin for
clinical trials and sales in Japan, while Teijin is responsible for obtaining
regulatory approval and for marketing and distributing the SAFHS device in
Japan. In May 1998, Teijin announced that the Health and Welfare Ministry of
Japan had approved reimbursement for the SAFHS device, which was the final
approval they needed to begin commercial distribution of the SAFHS device in
Japan. In June 1998, Teijin began commercial sales of the SAFHS device in Japan.
Revenues derived from sales of the SAFHS device to Teijin represented 5% for the
three months ended December 31, 1998, 13% for the year ended September 30, 1998.
Most of Teijin's purchases of SAFHS devices in fiscal 1998 represented an
initial inventory build-up by Teijin to begin commercial distribution in Japan,
primarily in the second half of the year. Purchases by Teijin in fiscal 1999
should be principally to restock the inventory that Teijin sells. We do not
anticipate that any of Teijin's quarterly restocking purchases will reach the
quarterly volume achieved by Teijin's initial stocking of inventory in fiscal
1998.
Under the distribution arrangement with Smith & Nephew, Smith & Nephew
has an option to obtain exclusive distribution rights to the SAFHS device
worldwide (except for Japan). We cannot assure you that Smith & Nephew will
exercise its option to obtain worldwide (except for Japan) distribution rights
to the SAFHS device. We also cannot assure you that the existence of this option
will not materially and adversely affect our ability to maintain effective
distribution arrangements in international markets, pending the exercise or
expiration of this option.
We cannot assure you that our independent distributors, sales agents,
and marketing partners will succeed in marketing and selling the SAFHS device in
Europe, Japan, and other territories. Each of the foreign markets in which we
sell, or plan to sell, our products have separate regulatory and product
approval requirements. We cannot assure you that we will be able to obtain the
necessary regulatory approvals of the SAFHS device in foreign markets. If our
independent distributors, sales agents, and marketing partners are not
successful in marketing and selling the SAFHS device in Europe, Japan, and other
territories, our business, financial condition, results of operations, and cash
flows could be materially and adversely affected.
Risks Associated with International Operations
Our international operations are subject to other inherent risks,
including the following:
- fluctuations in currency exchange rates;
- regulatory and product approval requirements;
- tariffs and other trade barriers;
- greater difficulty in accounts receivable collection and longer
collection periods;
- reimbursement approvals (both government and private);
- difficulties and costs of staffing and managing foreign
operations and distributors;
- potentially adverse tax consequences;
- reduced protection for intellectual property rights in some
countries, including restrictions on repatriation of earnings;
- burdens of complying with a wide variety of foreign laws;
- the impact of recessions in economies outside the United States;
political and economic instability; and
- seasonal reductions in business activity during the summer months
in Europe and other parts of the world.
<PAGE>
In addition, our international operations and sales are denominated in
local foreign currencies. In Japan, where we do not have operations, our sales
to Teijin are denominated in U.S. dollars. We do not currently engage in
currency hedging activities.
If we fail to successfully market and sell the SAFHS device in
international markets, our business, financial condition, results of operations,
and cash flows could be materially and adversely affected.
Quarterly Operating Results Are Subject to Significant Fluctuations
Our revenues and operating results may vary significantly from quarter
to quarter due to a number of factors, not all of which are within our control.
These factors include the following:
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<PAGE>
- the success of our exclusive U.S. distributor, Smith & Nephew, in
marketing the SAFHS device in the United States;
- the timing of sales of the SAFHS device;
- the mix of sales of the SAFHS device in the United States and
Europe and to Japan;
- the timing of reimbursement approval and payments by governmental
authorities and third-party payors;
- new product introductions by us or our competitors;
- expenses incurred in the research and development of new products;
- changes in our pricing policies or those of our competitors;
- timing of regulatory actions;
- general economic and market conditions;
- the Asian economic crisis and instability; and
- currency fluctuations.
Our revenues for the foreseeable future are almost entirely dependent
on sales of the SAFHS device. If revenues grow slower than we anticipate, our
business, financial condition, results of operations, and cash flows will be
materially and adversely affected.
Dependence on Third-Party Reimbursement
Successful sales of the SAFHS device in the United States, Europe,
Japan, and other territories will depend, in part, on whether we will be
reimbursed by third-party payors, including traditional fee-for-service
insurers, workers' compensation insurers, HMOs and other managed care
organizations, automobile insurers, third-party administrators, Medicare, and
other government entities. There is significant uncertainty concerning
third-party reimbursement for the use of any medical device incorporating new
technology, such as the SAFHS device. Third-party payors are increasingly
challenging the price of medical devices, and as a result, are limiting
reimbursement coverage for medical devices and, in many instances, are putting
pressure on medical suppliers to lower their prices. Legislative bodies in the
United States and around the world continue to propose fundamental reforms in
the health care industry that could affect the availability of third-party
reimbursement, and we cannot predict the timing or effect of any such
legislation.
United States. We cannot assure you that costs associated with medical
devices incorporating new technology, such as the SAFHS device, will be
reimbursed. To expedite reimbursement for SAFHS devices in the United States, we
seek reimbursement approval from third-party payors, when possible, prior to
shipping the devices. Regardless of the availability of reimbursement
preapproval, our reimbursement staff works closely with third-party payors,
pursuing reimbursement case-by-case. Prior to approving coverage for a new
medical technology, most third-party payors require evidence that the technology
is safe and effective, not experimental or investigational, and medically
necessary and appropriate for the specific patient. Third-party payors typically
require that the technology has received FDA approval or clearance for
marketing. Also, new technologies are often prescribed for uses other than those
approved by the FDA (off-label applications), for which reimbursement by
third-party payors may not be available. An increasing number of third-party
payors and managed care plans are also beginning to require evidence that the
technology is cost effective. We have obtained a nationally recognized product
code for the ultrasound device, and this code may expedite reimbursement from
third-party payors for the SAFHS device. However, we cannot assure you that such
codes will be utilized appropriately, or at all.
<PAGE>
We have developed a multi-level program to obtain coverage and
reimbursement from third-party payors for the SAFHS device as a new treatment.
The SAFHS device is classified by third-party payors as durable medical
equipment. Although we have not received broad approval from any reimbursement
authority for payment of the SAFHS device, we have received approval from
various third-party payors on a case-by-case basis.
The Health Care Financing Administration ("HCFA"), which administers
the Medicare program, has a national coverage policy for electrical-stimulation
devices that initiate the healing of non-union fractures. In August 1996, HCFA's
Technology Advisory Committee recommended that the SAFHS device not be covered
under the Medicare program. The committee's recommendation stated, "The
available data, although demonstrating a reduction in physician-determined
healing time for the study population, could not be generalized to the Medicare
population in a way that would allow a conclusion that SAFHS was an effective
procedure." Since that time, we have continued to pursue coverage for SAFHS
through meetings with HCFA staff, and have provided additional support of the
clinical benefits of the SAFHS therapy, including information related to the
Medicare population. In addition, we have been working with consultants and the
Health Industry Manufacturers Association to pursue
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<PAGE>
various avenues to obtain Medicare coverage for the SAFHS device. To date, we
have been unable to change the Medicare noncoverage decision; however, we have
an ongoing dialogue with HCFA staff. The United States Congress has the power to
significantly reduce Medicare and Medicaid expenditures, and considers from time
to time proposals to reduce such expenditures. We cannot predict when Congress
may enact legislation reducing Medicare and Medicaid expenditures, and if such
legislation is enacted, what effect, if any, such legislation may have on our
business, financial condition, results of operation and cash flows.
We cannot assure you that we will be successful in obtaining
third-party reimbursement from third-party payors, including Medicare, or that
third-party payors will recommend that their programs cover the SAFHS device. If
we are unable to obtain adequate third-party reimbursement for the SAFHS device,
our business, financial condition, results of operations, and cash flows will be
materially and adversely affected.
International. Our international reimbursement plan varies by country.
In Germany, Holland, and France, we are using indigenous clinical data as well
as data collected in the United States on the effectiveness of the SAFHS device
to support our filings for reimbursement coverage.
The operating loss for fiscal 1998 includes an $800,000 nonrecurring
charge, recorded in the three months ended March 31, 1998, to write down certain
international accounts receivable - primarily in Germany that exceeded 180 days
outstanding. The nonrecurring charge was precipitated by a German Supreme Social
Court ruling made available to Exogen in the quarter ended March 31, 1998. The
ruling stated that reimbursement under the Bundesausschuss system (the German
federal organization that establishes medical reimbursement policy for
outpatient healthcare providers) for new medical therapies could occur only if
the new therapy was part of the official book of therapies of the
Bundesausschuss. Prior to this ruling, Exogen relied on a 1995 German Supreme
Social Court ruling that established that new medical therapies must be
reimbursed under the pre-Bundesausschuss system if (i) treatment was proven
effective and economical and (ii) treatment did not exceed the scope of what was
necessary. Exogen believed the clinical effectiveness of the SAFHS device and
the device's economic benefits would satisfy the requirements of the 1995
ruling. However, based on the later ruling and the fact that the SAFHS therapy
is not part of the official book of therapies, Exogen recorded the nonrecurring
charge.
To assist in the collection of outstanding claims and to expedite the
reimbursement process on future claims, Exogen is seeking nationwide approval by
the Bundesausschuss. To this end, in August 1997, Exogen submitted a formal
application to the National Krankenkasse (the predecessor to the
Bundesausschuss). The application process includes scientific and economic
assessments. In August 1998, the Minister of Health accepted the recommendation
of the Bundesausschuss not to approve national reimbursement for SAFHS therapy.
Exogen is appealing the Minister of Health's decision through administrative and
legal channels, but has been delayed by the November 1998 election of a new
government and concurrent appointment of a new Minister of Health. Exogen has
also filed a lawsuit against the Bundesausschuss to challenge its decision. Both
actions are being actively pursued at this time.
Because there is no nationwide reimbursement approval for the SAFHS
device by the Bundesausschuss, Exogen has adopted the policy that, since
September 1997, for each prescription submitted to Exogen in Germany, Exogen
<PAGE>
ships the SAFHS device only after receiving reimbursement approval for that
device. This preapproval involves a case-by-case review by a local reimbursement
authority, which has the discretion to reimburse for the device regardless of
the decision of the Bundesausschuss. The local decision is based on data
supplied by Exogen and the prescribing physician.
In Holland, we have received approval from the Ministry of Health,
Welfare, and Sports of The Netherlands for the nationwide reimbursement of
Exogen's SAFHS device for the treatment of nonunion fractures older than six
months. The approval, which will be effective April 1, 1999, was based on an
extensive review by the Ziekenfondsraad (Sick Fund Council) of the clinical
efficacy and economic benefits of SAFHS therapy.
In France, we have applied to be listed on the Tarif Interministeriel
des Prestations Sanitaries ("TIPS"). France's list of medical devices allowed
for prescription by physicians working in the private sector and for
reimbursement by the National Health Insurance. That application is still
pending, and therefore, we do not sell SAFHS devices in France at this time.
In Japan, our Japanese distributor, Teijin, received nationwide
reimbursement approval from the Japanese Health and Welfare Ministry in May
1998.
We cannot assure you that we will be successful in obtaining national
reimbursement approval in Germany, France, or other countries. If we do not
obtain national reimbursement approval of the SAFHS device in Germany,
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France, and other countries, our business, financial condition, results of
operations, and cash flows could be materially and adversely affected.
Extensive Government Regulation
United States. Our current product and our future products, if any, are
subject to extensive regulation by the FDA in the United States and by similar
regulatory authorities in other countries. Prior to commercial sale in the
United States, each of our products must undergo an extensive regulatory
approval process conducted by the FDA under the Federal Food, Drug and Cosmetic
Act ("FDC Act"). The FDA regulates the clinical testing, manufacturing,
labeling, distributing, and promoting of medical devices. Noncompliance with
applicable requirements can result in failure of the government to grant PMA for
devices, withdrawal of the PMA, total or partial suspension of production,
fines, injunctions, civil penalties, recall or seizure of products, and criminal
prosecution.
Medical devices are classified into three classes (I, II, or III) on
the basis of the controls necessary to reasonably assure their safety and
effectiveness. The SAFHS device is classified as a Class III device, the class
subject to the highest level of regulation by the FDA. In addition to the
general control requirements of the FDC Act (including registration, labeling,
pre-market notification, and adherence to Good Manufacturing Practices ("GMP"),
the SAFHS device is also subject to pre-market approval.
Before a new Class III device can be introduced into the market, the
manufacturer must obtain FDA clearance through a PMA application. The less
burdensome 510(k) pre-market notification process has not been, and is not
expected to be, available for any of our products. Accordingly, we have had to
obtain, and expect to apply for, PMAs and PMA supplements for our future
products.
A PMA application must be supported by extensive data, including
preclinical and clinical trial data, to demonstrate the safety and efficacy of
the device for the uses specified in the PMA application. If human clinical
trials of a device are required and the device presents a "significant risk,"
the manufacturer or the distributor of the device must file an Investigational
Device Exemption ("IDE") and have an approved application prior to commencing
human clinical trials.
The IDE application must be supported by data, typically including the
results of animal and laboratory testing. If the IDE application is approved,
human clinical trials may begin at a specific number of investigational sites
with a specified maximum number of patients, as recommended by the FDA. Sponsors
of clinical trials are permitted to sell those devices distributed in the course
of study as long as compensation does not exceed recovery of the costs of
manufacturing, researching, developing, and handling.
Upon receipt of the PMA application, the FDA makes a threshold
determination as to whether the application is sufficiently complete to permit a
substantive review. If the FDA determines that the PMA application is
sufficiently complete to permit a substantive review, the FDA will "file" the
application. An FDA review of a PMA application generally takes between two and
three years from the date the PMA application is filed, but may take
significantly longer. The review time is often significantly extended by
requests from the FDA for more information or clarification of information
already provided in the submission. During the review period, an advisory
<PAGE>
committee, including clinicians, will likely be convened to review and evaluate
the application and provide recommendations to the FDA as to whether the device
should be approved. In addition, the FDA will inspect the manufacturing facility
to ensure compliance with the FDA's GMP requirements prior to approval of a PMA
application.
The PMA process can be expensive, lengthy, and uncertain. We cannot
assure you that we will be able to obtain necessary regulatory approvals. The
loss of previously received approvals, or failure to comply with existing or
future regulatory requirements, would have a material adverse effect on our
business, financial condition, results of operations, and cash flows.
We are required to file a PMA supplement for new or expanded uses of
our SAFHS technology and for any material modifications to the SAFHS device. If
a PMA supplement is not accepted by the FDA for a new or expanded use or
material modification of the SAFHS device, we must commence and complete the
entire pre-market approval process with respect to such use or modification of
the SAFHS device. We began commercial distribution of the SAFHS 2000, the
second-generation SAFHS device, in the United States in May 1997 pursuant to FDA
approval of a PMA supplement in March 1997. In August 1998, we resubmitted a PMA
supplement for expanded and new applications of the SAFHS 2000 device. We cannot
guarantee that this supplement will be accepted on a timely basis or at all. In
addition, we will be required to file a PMA application for our
mechanical-
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stress device, if and when development is completed. We cannot assure you that
any PMA application relating to the mechanical-stress device will be filed or
granted on a timely basis, or at all.
Any products manufactured or distributed by us pursuant to an approved
PMA are subject to pervasive and continuous regulation by the FDA, including
record-keeping requirements, reports of adverse experience with the use of the
device, postmarket surveillance, postmarket registry, and other actions as
deemed necessary by the FDA. Product labeling and promoting activities are
subject to scrutiny by the FDA and, in certain instances, by the Federal Trade
Commission. Exogen and its agents may promote products only for the products'
approved indications. We cannot assure you that the FDA will not impose
modifications to the labeling that could adversely affect our ability to market,
sell, or be reimbursed for the SAFHS device. In addition, we cannot assure you
that we will not become subject to FDA actions as a result of physicians'
prescribing the SAFHS device for off-label uses.
We are also subject to numerous federal, state, and local laws relating
to such matters as safe working conditions, manufacturing practices,
environmental protection, fire hazard control, and disposal of hazardous or
potentially hazardous substances. We cannot assure you that we will not be
required to incur significant costs to comply with such laws and regulations in
the future, or that such laws or regulations will not have a material adverse
effect upon our business, financial conditions, results of operations, or cash
flows.
International. To market and sell the SAFHS device or any future
products in foreign markets, we must comply with foreign government regulations,
the requirements of which differ substantially from country to country. In
Europe, we are required to comply with the Medical Device Directive, which
covers most medical devices. Under the Medical Device Directive, most medical
devices must qualify for the CE mark, and effective June 1998, must bear a CE
mark to be marketed and sold in the European Union. To obtain the CE mark, a
manufacturer must demonstrate compliance with product safety requirements as
well as quality system requirements. The CE mark is recognized by countries that
are members of the European Union and the European Free Trade Association. We
received the CE mark for the SAFHS Model 2A in August 1996 and for the SAFHS
2000 in March 1998. We cannot assure you that we will be able to obtain CE marks
for future generations, if any, of the SAFHS device.
Although members of the European Union must accept for marketing
medical devices bearing a CE mark without imposing further requirements related
to product safety and performance, each country may require the use of its own
language on labels and instructions for use. National Competent Authorities, who
are required to enforce compliance with the requirements of the Medical Device
Directive, can restrict, prohibit, and recall CE-marked products if they are
considered to be unsafe. Such a decision must be confirmed by the European
Commission to be valid. Member countries may impose additional requirements as
long as they do not violate the Medical Device Directive or constitute technical
barriers to trade.
We cannot assure you that the FDA or any foreign regulatory authority
will approve our current or future products in a timely manner, or at all. If we
experience delays or failure in obtaining such approvals, lose any previously
received approvals, or fail to comply with existing or future regulatory
requirements, our business, financial condition, results of operations, and cash
flows will be materially and adversely affected.
<PAGE>
Uncertainty of New Product Development
We plan to seek FDA approval to begin clinical trials to expand the
approved uses for the SAFHS technology to include other long-bone fractures,
lower-spine fusion, and cartilage repair. We also plan to undertake additional
development activities and human clinical trials for our mechanical-stress
device, which is designed to prevent bone loss related to osteoporosis. Our
research and development efforts with respect to expanded uses of the SAFHS
technology and the mechanical-stress device may not lead to development of
applications or products that are shown to be safe and effective in clinical
trials. In addition, these new applications or products may not:
- meet applicable regulatory standards;
- be capable of being manufactured in commercial quantities at
acceptable costs;
- be eligible for third-party reimbursement from governmental or
private insurers;
- be successfully marketed; or
- achieve market acceptance.
At any stage of the development process, new applications or products
that appeared promising in preclinical studies or trials may not demonstrate
efficacy in larger-scale clinical trials and as a result, would not receive
regulatory approval. As a result, it is possible that we may have to curtail,
redirect, suspend, or eliminate some or all of our product development programs.
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Risks Associated with Intense Competition
The medical device industry is intensely competitive. The SAFHS device
competes with non-invasive bone-growth electrical-stimulation devices and with
various surgical treatments. In the United States there are four companies that
currently market electrical stimulation devices for the treatment of
slow-healing fractures, in direct competition with the SAFHS device. We believe
that some of these companies are conducting preclinical or clinical research
relating to the use of electrical stimulation for the treatment of fresh
fractures. If our mechanical-stress device is developed, approved by the FDA,
and commercialized, it will compete with drug therapies, growth factors,
bone-graft substitutes, and exercise/physical therapy equipment. Many of our
competitors have substantially greater financial, technical, marketing, sales,
and distribution resources than we do. They also have more experience in
research and development, clinical trials, and regulatory matters than us. In
addition, most of our competitors have established third-party reimbursement for
their products. We cannot assure you that our competitors will not develop
products that are superior to ours, achieve greater market acceptance, or render
our technology and products obsolete or noncompetitive, in which case our
business, financial condition, results of operation, and cash flows will be
materially and adversely affected.
Risks Associated with Rapid Technological Change
The medical device industry is characterized by rapid product
development and technological change. We expect that the technologies associated
with medical devices will continue to develop rapidly. As a result, our future
success will depend in large part upon our ability to maintain a competitive
position with respect to those technologies. Technological developments by
others may result in our products' obsolescence or becoming too expensive before
they are marketed or before we recover a significant portion of expenses
incurred in connection with developing and commercializing those products, in
which case our business, financial condition, results of operations, and cash
flows will be materially and adversely affected.
Limited Protection of Patents, Copyrights and Proprietary Rights; Risk of Patent
Infringement
Our success will depend in part on our ability to obtain and maintain
United States and foreign patent protection, preserve our copyrights and trade
secrets, and operate without infringing the proprietary rights of third parties.
We place considerable importance on obtaining patent protection for significant
new technologies, products, and processes. With respect to our SAFHS technology,
we hold title to 11 issued United States patents, one issued Canadian patent,
one issued Taiwanese patent, one issued New Zealand patent, one issued Japanese
patent, 14 pending United States patent applications, and corresponding Patent
Cooperation Treaty and foreign patent applications. The original United States
ultrasound patent that is the basis of the SAFHS device expires in 2007. Our 10
other issued United States patents relating to SAFHS technology will expire
between 2008 and 2014.
With respect to our mechanical-stress technology, we are the exclusive
licensee of four issued United States patents, two issued foreign patents, one
pending United States patent application, and four pending foreign patent
applications. The four issued United States patents will expire between 2010 and
2011. The exclusive license agreement relating to the mechanical-stress
<PAGE>
technology provides for royalty payments on sales of products using the patented
technology. Under the license agreement, our exclusive license may revert to a
nonexclusive license if we do not use good faith efforts to commercially exploit
the patented technology. The license agreement expires on the later of March
2022 or the expiration of the final patent licensed to us.
We believe we own or have the right to use all the proprietary
technology necessary to manufacture and market our products. Under current law,
patent applications in the United States are maintained in secrecy until patents
issue, and patent applications in foreign countries are maintained in secrecy
for a period after filing. The right to a device patent in the United States is
attributable to the first to invent the device, rather than the first to file a
patent application, while in foreign countries, ownership of a patent is
typically determined by priority of patent filing, not invention. Consequently,
we cannot be certain that we were the first to invent certain technology covered
by pending patent applications or that we were the first to file patent
applications for such inventions. In addition, the patent positions of medical
device companies, including ours, are generally uncertain partly because the
positions involve complex legal and factual questions.
Legal standards relating to the validity of patents covering medical
devices and biotechnological inventions and the scope of claims made under such
patents are still developing. Our patent position is highly uncertain and
involves complex legal and factual questions. We cannot be certain that the
applicants or inventors of subject matter covered by patent applications or
patents owned by or licensed to us were the first to invent or the first to file
patent applications for such inventions. In addition, we cannot guarantee that:
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<PAGE>
- patent applications to which we hold rights will result in the
issuance of patents;
- any patents issued or licensed to us will be free from challenge
and that if challenged, they would be held to be valid;
- any such patents will provide commercially significant protection
to our technology, products, and processes;
- others will not independently develop substantially equivalent
proprietary information that is not covered by patents to which
we own rights or obtain access to our know-how; or
- others will not be issued patents that may prevent the sale of
one or more of our products, or require a license and the payment
of significant fees or royalties by us to third parties to enable
us to conduct our business.
We have not received any notices alleging, and we are not aware of, any
infringement by us of any other entity's patents. However, because of the volume
of patents issued and patents applications filed relating to medical devices, we
cannot assure you that current and potential competitors and other third parties
have not filed or will not file patent applications, or have not received or
will not receive patents, relating to materials or processes we use or propose
to use. Accordingly, we cannot assure you our products do not infringe any
patents or proprietary rights of third parties.
If another party claims the same or overlapping subject matter with
subject matter we have claimed in a United States patent application or patent,
we may decide or be required to participate in interference proceedings in the
United States Patent and Trademark Office to determine priority of invention.
Loss of such an interference proceeding would deprive us of patent protection
sought or previously obtained. Participating in such proceedings could result in
substantial costs, whether or not the eventual outcome is favorable.
In addition to patent protection, we rely on trademarks, copyrights,
trade secrets, proprietary know-how, and confidentiality and assignment of
invention agreements with our employees, consultants, distributors, sales
agents, and marketing partners to protect our intellectual property. We hold
United States federal trademark registrations for the marks: SAFHS(R),
EXOGEN(R), SAFHS 2000(R) and EXOGEN 2000(R). We also hold registrations for the
SAFHS(R) mark in Japan, Canada and Mexico. Trademark applications for the EXOGEN
and SAFHS 2000 marks are pending in foreign countries, and an application for
the EXOGEN 2000(TM) mark is pending in the United States. We hold rights to
copyrights on text and software we develop in connection with the SAFHS device.
We cannot assure you that any issued patents or copyrights we own will
provide us with a competitive advantage or will not be challenged or
circumvented by our competitors. We also cannot assure you that our
confidentiality and assignment of invention agreements will not be breached or
that we would have adequate remedies for any such breach. Finally, we cannot
assure you that our copyrights, trade secrets, proprietary know-how, and
intellectual property will not become known or be independently discovered by
others.
Litigation may be necessary to defend against claims of infringement,
to enforce patents and copyrights issued or licensed to us, or to protect trade
secrets. If we must litigate such issues, we may be forced to incur substantial
costs and to devote substantial resources and time. We cannot assure you that we
would prevail in such litigation. In addition, if any relevant claims of
third-party patents are upheld as valid and enforceable, we could be prevented
<PAGE>
from selling our products or could be required to obtain licenses from the
owners of such patents. We cannot guarantee that such licenses would be
available or, even if available, would be on acceptable terms to us. If we are
forced to incur substantial costs in litigation or fail to obtain a license, our
business, financial condition, results of operations, and cash flows will be
materially and adversely affected.
Manufacturing and Related Risks
We have developed in-house manufacturing and refurbishing capability
for the SAFHS 2000 device. Although we are able to manufacture our entire SAFHS
2000 production in-house, previous purchase commitments to a contract
manufacturer and our belief that it is prudent to have a second source to
support our in-house manufacturing require our use of a contract manufacturer.
We anticipate that approximately one third of our fiscal 1999 SAFHS 2000
production will be supplied by the contract manufacturer.
The FDA regulates manufacturers of medical devices that have received
FDA approval. We are required to adhere to FDA regulations setting forth GMP
requirements relating to tests, control, and documentation. State and federal
agencies monitor ongoing compliance with GMP and other applicable regulatory
requirements through periodic inspections. The FDA has inspected and approved
our facilities and those of our contract manufacturer
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<PAGE>
under the FDA's Quality System Regulations. If we or the contract manufacturer
fail to maintain our facilities in accordance with the FDA's GMP requirements,
the noncomplying party could lose the ability to manufacture the SAFHS device on
a commercial scale. Loss of this manufacturing capability could limit our
ability to deliver the SAFHS device to physicians or patients. If this occurs,
our business, financial condition, results of operations, and cash flows will be
materially and adversely affected.
The manufacture of the SAFHS device involves an assembly process with a
number of significant components. Each device is tested and released by us in
accordance with FDA requirements. Most purchased components are available from
more than one vendor. However, two key components currently are manufactured by
single-source vendors. For these components, there are relatively few
alternative sources of supply. However, we are actively in the process of
qualifying alternative vendors for these components. If the supply of these
components is interrupted, and we are unable to establish additional or
replacement suppliers for such components, our business, financial condition,
results of operations, and cash flows will be materially and adversely affected.
Royalty Payment Obligations; Potential Loss of Exclusive License
If we successfully develop the mechanical-stress device, we will be
required to pay a royalty on any net revenues from sales of this product. We
have an exclusive license to the mechanical-stress technology, which we will
lose if we do not commercially exploit the technology underlying the license. We
cannot assure you that we will be able to commercially exploit this technology.
If we lose the exclusive license, our business, financial condition, results of
operations, and cash flows could be materially and adversely affected.
Reliance on Key Personnel
Our success depends to a significant extent upon our executive officers
and other key technical personnel. If we lose the services of an executive
officer or one or more key employees or our ability to attract and retain such
personnel, our business, financial condition, results of operations, and cash
flows will be materially and adversely affected. Except for Patrick McBrayer,
none of our executive officers or key employees is a party to an employment
agreement with Exogen. We do not have "key person" life insurance policies
covering any of our employees.
Possible Volatility of Stock Price
The trading price of our common stock has been subject to wide
fluctuations in the past. Our common stock's trading price could continue to
fluctuate in response to variations in quarterly operating results,
announcements of technological innovations or new products by us or our
competitors, changes in earning estimates by analysts, general conditions in the
medical device industry, and other events or factors. In addition, the stock
market in general has experienced significant price and volume fluctuations that
have affected the market prices of equity securities of many companies in
industries similar to ours. This volatility has often been unrelated to the
operating performance of these companies. These market fluctuations may
adversely affect the market price of our common stock. In the past, companies
that have experienced volatility in the market price of their stock have been
the object of securities class action litigation. If we were the subject of
securities class action litigation, it could result in substantial costs and a
diversion of management's attention and resources.
<PAGE>
Risks Associated With Low-Priced Stocks
Continued inclusion of our common stock on the Nasdaq National Market
will require the following:
- that the public float consist of at least 750,000 shares of
common stock, valued in the aggregate at more than $5 million;
- that we maintain at least $4 million in net tangible assets;
- that our common stock be held by at least 400 holders; and
- that the minimum bid price for our common stock be at least $1.00
per share.
If we are unable to satisfy such maintenance requirements, our common
stock may be removed to the Nasdaq SmallCap Market or delisted from the Nasdaq
Stock Market. In the event our common stock is delisted from the Nasdaq Stock
Market, trading, if any, in the securities would thereafter be conducted in the
over-the-counter market in the "pink sheets" or the National Association of
Securities Dealers' "Electronic Bulletin Board." Consequently, the liquidity of
our common stock could be materially impaired, not only in the number of
securities that can be bought and sold at a given price, but also through delays
in the timing of transactions and reduction in security analysts' and the
media's coverage of us. This could result in lower prices for our common stock
than
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might otherwise be attained, and could also result in a larger spread between
the bid and asked prices for our common stock.
In addition, if our common stock is delisted from trading on the Nasdaq
Stock Market and the trading price of our common stock is less than $5.00 per
share, trading in the common stock would also be subject to the requirements of
Rule 15g-9 promulgated under the Exchange Act. Under such rule, broker/dealers
who recommend low-priced securities to persons other than established customers
and accredited investors must satisfy special sales practice requirements,
including a requirement that they make an individualized written suitability
determination for the purchaser and receive the purchaser's written consent
prior to the transaction. The Securities Enforcement Remedies and Penny Stock
Reform Act of 1990 also requires additional disclosure in connection with any
trades involving a stock defined as a penny stock (generally any equity security
not traded on an exchange or quoted on the Nasdaq Stock Market that has a market
price of less than $5.00 per share, subject to certain exceptions), including
the delivery, prior to any penny stock transaction, of a disclosure schedule
explaining the penny stock market and the associated risks. Such requirements
could severely limit the market liquidity of our common stock. We cannot assure
you that our common stock will not be delisted or treated as a penny stock.
Year 2000 Risks
The Year 2000 compliance issue results from the inability of systems
that utilize computer programs to differentiate between the year 1900 and the
year 2000. This issue arises because many such programs were developed using two
digits rather than four digits to identify the applicable year. As a result,
programs that use time-sensitive calculations may not function correctly in the
year 2000. Those programs developed using four-digit years are probably Year
2000 compliant, however, all other programs will likely require modification
and/or replacement to be compliant. The Year 2000 issue not only affects
computer hardware and software, but also can affect equipment used in our
operations, and extends to the systems of outside suppliers and customers, upon
which we rely. Failure to address the Year 2000 issue on a timely basis, or at
all, for critical programs used by us could result in system failures or
miscalculations, which could have material adverse effect on our business,
results of operations, financial condition, and cash flows.
<PAGE>
In fiscal 1998, we performed an initial assessment of our Year 2000
compliance relating to the following:
- the SAFHS devices;
- our information systems' hardware and software;
- our custom-developed business applications;
- third-party business software; and
- other equipment using computer programs.
We do not believe that any of these areas will have a material adverse effect on
our business, results of operations, financial condition, and cash flows. We
cannot assure you that we will not find Year 2000 issues in these areas as
further compliance testing occurs, or that such issues, if found, can be
corrected on a timely basis.
We also performed an initial assessment of Year 2000 compliance on our
suppliers, customers, and marketing partners. We rely on, and will continue to
rely on, these third parties to provide the following:
- equipment, goods, and services;
- reimbursement for the SAFHS devices; and
- marketing and distributing support for the SAFHS device.
There can be no assurance that these third parties will adequately address Year
2000 compliance issues or that contingency plans in certain areas are possible
or practical. As a result, there could be a material adverse affect on our
business, results of operations, financial conditions, and cash flows.
Possible Adverse Effect of the Euro Conversion
On January 1, 1999, 11 of the 15 member countries of the European Union
established fixed conversion rates between their existing currencies and a new
common currency called the "euro." This represents an initial step in a process
expected to culminate in the replacement of the existing currencies with the
euro. The conversion to the euro may have operational and legal implications for
some of our international business activities. We have begun consideration of
the effects of the euro conversion on our operations, but we are currently
unsure of the potential
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impact that the euro conversion will have on our business, financial condition,
results of operations, and cash flows, particularly as the euro conversion
relates to our European operations.
Certain Anti-takeover Provisions
Certain provisions of our Certificate of Incorporation could make it
more difficult for a third party to acquire control of our business, even if
such change in control would be beneficial to our stockholders. Our Certificate
of Incorporation allows our Board of Directors to issue preferred stock without
stockholder approval. In addition, we entered into a Rights Agreement in
December 1996 that allows our Board of Directors to declare a dividend of one
right to purchase, under certain circumstances, one one-hundredth of a share of
preferred stock for each share of common stock outstanding. Although we do not
have any current plans to issue any preferred stock, the issuance of preferred
stock in the future could make it more difficult for a third party to acquire
our business.
In addition, certain provisions of Delaware law and our bylaws could
discourage a third party from attempting to acquire control of our business.
Section 203 of the Delaware General Corporation Law prohibits us from engaging
in any business combination with an interested stockholder (generally a
stockholder who, together with its affiliates, owns 15% or more of our
outstanding stock) for a period of three years unless certain conditions are
met. Section 203 may also have the effect of discouraging a proxy contest or
tender offer. In addition, certain provisions of our bylaws contain specific
procedures stockholders must follow in making director nominations and
submitting proposals for consideration at stockholder meetings. These provisions
could make it more difficult for a third party to acquire our business.
Product Liability and Insurance
Our business exposes us to potential product liability risks in the
event that the use of our products is alleged to have resulted in physical harm
or other adverse effect. Product liability insurance for the medical device
industry is expensive. We currently carry product liability coverage of $3
million per occurrence, with coverage in the aggregate of $3 million for all
claims made in any policy year. In addition, we maintain umbrella liability
insurance, including product liability coverage, of $10 million per occurrence,
with coverage in the aggregate of $10 million for all claims made in any policy
year. Although to date we have not been the subject of any product liability
claims, we cannot assure you that our insurance will provide adequate coverage
against potential claims or that we will be able to maintain product liability
insurance on acceptable terms, or at all. If a product liability claim exceeds
the coverage of our insurance policy, our business, financial condition, results
of operations, and cash flows will be materially and adversely affected.
Shares Eligible for Future Sale
If our stockholders sell substantial amounts of our common stock
(including shares issued upon the exercise of outstanding options and warrants)
in the public market, the market price of our common stock could fall. Such
sales also might make it difficult for us to sell equity or equity-related
securities in the future at a time and price that we deem appropriate. As of
January 31, 1999, there were 12,738,650 shares of common stock outstanding as
follows:
<PAGE>
- 820,000 shares of common stock, which are held by Smith & Nephew
and are covered by a registration statement that has been filed
with the SEC but not declared effective;
- approximately 2.7 million shares, which are held by affiliates
and are subject to the volume restrictions of Rule 144; and
- the remaining outstanding shares of common stock, which are
freely tradeable.
The possible sale of a significant number of the above shares of common stock
may cause the price of our common stock to fall.
We have registered for resale 1,350,000 shares of common stock reserved
for issuance under our 1995 Stock Option/Stock Issuance Plan, as amended. As of
January 31, 1999, options to purchase 1,090,860 shares of common stock were
outstanding and will be eligible for sale in the public market from time to
time, subject to vesting. In addition, 159,632 shares of common stock are
available under Exogen's employee stock purchase plan, as amended. Also, there
are 125,000 shares of common stock issuable upon exercise of warrants, which may
be sold in accordance with Rule 144 one year after their date of issuance. The
possible sale of a significant number of the shares issuable upon exercise of
stock options and warrants, or under the employee stock purchase plan, may cause
the price of our common stock to fall.
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Smith & Nephew has Certain Rights to Purchase Shares of Common Stock
Under the August 1998 agreements between Smith & Nephew and us, Smith &
Nephew has an option to acquire exclusive worldwide distribution rights (except
Japan) to the SAFHS device. This worldwide distribution option is limited to a
three-year period. If Smith & Nephew exercises this option, it has a one-time
right to purchase from us additional shares of our common stock, up to 19%
(including the shares already acquired by Smith & Nephew) of the outstanding
shares of our common stock, after giving effect to the shares issuable upon
exercise of the right. The price per share to be paid would equal the stock's
average fair market value over a 20-day period preceding the date Smith & Nephew
announces, to Exogen, its election to exercise the stock purchase option. Any of
these additional shares of our common stock sold to Smith & Nephew under these
agreements would require that we file a registration statement with the
Securities and Exchange Commission to register the shares. The possible sale of
a significant number of these shares may cause the price of our common stock to
fall.
No Intention to Pay Dividends
We have never declared or paid any cash dividends on our capital stock.
We currently intend to retain any future earnings for funding growth, and
therefore, do not expect to pay any dividends in the foreseeable future.
USE OF PROCEEDS
None of the proceeds from the sale of the Shares will be received by
Exogen.
-15-
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
Set forth below are the selected consolidated financial data for Exogen
for the five fiscal years ended September 30, 1998. The following data should be
read in conjunction with Exogen's financial and their related notes statements
and with "Management's Discussion and Analysis of Financial Condition and
Results of Operations" in the Annual Report on Form 10-K filed on September 30,
1998.
<TABLE>
<CAPTION>
SELECTED CONSOLIDATED FINANCIAL DATA
(in thousands, except per share data)
For the years ended September 30,
------------------------------------------------------------
1998 1997 1996 1995 1994
-------- --------- --------- -------- --------
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Revenues:
Product sales.................................. $ 11,201 $ 7,081 $ 5,777 $ 1,852 $ -
Revenues from development agreements........... 400 400 1,100 - -
-------- --------- --------- -------- --------
Total revenues............................... 11,601 7,481 6,877 1,852 -
-------- --------- --------- -------- --------
Operating costs and expenses:
Cost of product sales.......................... 4,585 3,864 3,661 1,128 -
Research and development....................... 2,792 3,124 3,988 2,545 1,432
Selling, general, and administrative........... 11,885 12,291 11,030 5,775 1,782
Nonrecurring charge for international
doubtful accounts............................ 800 - - - -
-------- --------- --------- -------- --------
Total operating costs and expenses........... 20,062 19,279 18,679 9,448 3,214
-------- --------- --------- -------- --------
Operating loss.................................... (8,461) (11,798) (11,802) (7,596) (3,214)
Other income (expense):
Interest income (expense), net................. 710 701 1,438 604 (185)
License fee.................................... 1,000 - - - -
Litigation settlement.......................... (851) - - - -
Other, net..................................... 19 (51) (224) (59) (2)
-------- --------- --------- -------- --------
Total other income (expense), net............ 878 650 1,214 545 (187)
-------- --------- --------- -------- --------
Loss before income taxes.......................... (7,583) (11,148) (10,588) (7,051) (3,401)
Provision for income taxes........................ 2 4 - - -
Net loss.......................................... $ (7,585) $ (11,152) $(10,588) $ (7,051) $ (3,401)
======== ========= ======== ======== ========
Basic net loss per common share [a]............... $ (0.64) $ (1.12) $ (1.07) $ (0.94) $ (2.70)
======== ========= ========= ======== ========
Diluted net loss per common share [a]............. $ (0.64) $ (1.12) $ (1.07) $ (0.94) $ (2.70)
======== ========= ========= ======== ========
Wghtd. avg. shares outstanding, basic and diluted. 11,860 9,946 9,875 7,489 1,261
</TABLE>
<PAGE>
- ---------------------------
[a] Loss per share data for fiscal years 1995 and 1994 have been restated in
accordance with Statement of Financial Accounting Standards No. 128,
"Earnings per Share."
<TABLE>
<CAPTION>
September 30,
------------------------------------------------------------
1998 1997 1996 1995 1994
-------- --------- --------- -------- --------
<S> <C> <C> <C> <C> <C>
Balance Sheet Data:
Cash and cash equivalents and short- and long-term $ 15,582 $ 8,544 $ 19,534 $ 31,061 $ 640
investments....................................
Working capital................................... 15,525 11,042 17,235 30,054 301
Total assets...................................... 20,796 14,789 25,511 34,886 1,773
Redeemable Preferred Stock........................ - - - - 6,002
Total stockholders' equity (deficit).............. 16,297 12,091 23,077 33,342 (5,487)
</TABLE>
16
<PAGE>
SELLING STOCKHOLDER
The following table sets forth the number of shares of Common Stock
beneficially owned by the Selling Stockholder as of March 16, 1999. The Selling
Stockholder has not had a material relationship with Exogen within the past
three years other than as a result of the distribution relationship between
Exogen and Smith & Nephew and the Selling Stockholder's ownership of the Shares
or other securities of Exogen. The Shares offered by this Prospectus may be
offered from time to time by the Selling Stockholder. See "Plan of
Distribution."
<TABLE>
<CAPTION>
Beneficial Ownership
After Offering(1)
Number of Shares Number of Shares ----------------------
Beneficially Owned Registered for Number of
Name of Selling Stockholder Prior to Offering Sale Hereby Shares Percent
- --------------------------- ----------------- ----------- ------ -------
<S> <C> <C> <C> <C>
Smith & Nephew Holdings, Inc................ 820,000 820,000 -- --
</TABLE>
- --------------------
(1) The number of shares of Common Stock and the percentage of shares of
Common Stock beneficially owned by the Selling Stockholder after the
offering are based on the assumption that the Selling Stockholder will
sell all of the Shares registered for sale hereby. Because the Selling
Stockholder may offer all, some or none of the Shares pursuant to this
Prospectus, and because there are currently no agreements,
arrangements or understandings with respect to the sale of any of the
Shares, no estimate can be given as to the number of Shares that will
be held by the Selling Stockholder after completion of the sale of
Shares hereunder. See "Plan of Distribution."
(2) Smith & Nephew plc is the ultimate parent corporation of Smith &
Nephew Holdings, Inc. Mr. Christopher J. O'Donnell is the chief
executive officer of Smith & Nephew plc and, as such, may be deemed to
have voting and investment power with respect to such shares. The
address for Smith & Nephew Holdings, Inc. is 1450 Brooks Road,
Memphis, Tennessee 38116.
The Shares registered for sale hereby were acquired by the Selling
Stockholder on August 10, 1998 in connection with the execution of a multi-year
master agreement, a U.S. sales representative agreement under which Smith &
Nephew obtained exclusive rights to distribute SAFHS devices in the United
States, and a stock purchase agreement. As part of the transaction, the Selling
Stockholder purchased 820,000 shares of Exogen's Common Stock for an aggregate
purchase price of $4.1 million, or $5.00 per share. On the closing date, the
fair market value of Exogen's Common Stock was $3.625. The aggregate net
proceeds of the sale to Exogen were $4.0 million, which will be used for general
corporate purposes.
Exogen has agreed to bear certain expenses (other than selling
discounts and commissions) in connection with the registration of the Shares.
Exogen has agreed to prepare and file such amendments and supplements
to the Registration Statement as may be necessary to keep this Registration
Statement effective until the earlier of August 10, 2000 or until all of the
Shares have been sold pursuant to the terms hereof.
<PAGE>
PLAN OF DISTRIBUTION
The Shares offered hereby are being offered directly by the Selling
Stockholder or by pledgees, donees or transferees of, or other successors in
interest to, the Selling Stockholder. Exogen will not receive any of the
proceeds from the sale of the Shares by the Selling Stockholder. The sale of the
Shares may be effected by the Selling Stockholder from time to time in
transactions on The Nasdaq National Market, in negotiated transactions, or a
combination of such methods of sale, at fixed prices which may be changed, at
market prices prevailing at the time of sale, at prices related to prevailing
market prices or at negotiated prices. The Selling Stockholder may effect such
transactions by selling the Shares to one or more purchasers (including
pledgees) or through broker-dealers, and such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholder and/or the purchasers of the Shares for whom such
broker-dealers may act as agents or to whom they sell as principals, or both
(which compensation as to a particular broker-dealer might be less than or in
excess of customary commissions). Neither Exogen nor the Selling Stockholder can
presently estimate the amount of such compensation. Exogen knows of no existing
arrangement between the Selling Stockholder and any other
-17-
<PAGE>
stockholder, broker, dealer, underwriter or agent relating to the sale or
distribution of the Shares. The Selling Stockholder may transfer its Shares
under certain circumstances to other persons who may, in turn, resell Shares in
the manner described above. In addition, the Selling Stockholder may pledge or
make gifts of its Shares and such Shares may also be sold by the pledgees or
transferees. The distribution of the Shares may be effected in one or more of
the following methods: (i) ordinary brokers' transactions, which may include
long or short sales; (ii) transactions involving cross or block trades or
otherwise on The Nasdaq National Market; (iii) purchases by brokers, dealers or
underwriters as principal and resale by such purchasers for their own accounts
pursuant to this Prospectus; (iv) "at the market" to or through market makers or
into an existing market for the Common Stock; (v) in other ways not involving
market makers or established trading markets, including direct sales to
purchasers or sales effected through agents; (vi) through transactions in
options, swaps or other derivatives (whether exchange-listed or otherwise); or
(vii) any combination of the foregoing, or by any other legally available means.
In addition, the Selling Stockholder or its successors in interest may enter
into hedging transactions with broker-dealers who may engage in short sales of
Shares in the course of hedging the positions they assume with the Selling
Stockholder. The Selling Stockholder or its successors in interest may also
enter into option or other transactions with broker-dealers that require the
delivery by such broker-dealers of the Shares, in which Shares may be resold
thereafter pursuant to this Prospectus. The Selling Stockholder or its
successors in interest may also pledge shares as collateral for margin accounts
and such shares could be resold pursuant to the terms of such accounts.
At the time a particular offer of Shares is made, to the extent
required, a Prospectus Supplement will be distributed which will set forth the
number of Shares being offered and the terms of the offering including the name
or names of any underwriters, dealers or agents.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with by Exogen and the Selling
Stockholder.
The Selling Stockholder may also transfer its Shares pursuant to Rule
144, whether or not the Registration Statement, of which this Prospectus forms a
part, is effective at the time of any such transfer.
The Selling Stockholder and any broker-dealers, agents or underwriters
that participate with the Selling Stockholder in the distribution of the Shares
may be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any commissions received by them and any profit on the
resale of the Shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Exogen has agreed to
indemnify the Selling Stockholder and its affiliates against certain
liabilities, including liabilities under the Securities Act. The Selling
Stockholder has agreed to indemnify Exogen and its affiliates against certain
liabilities, including liabilities under the Securities Act under certain
circumstances.
<PAGE>
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the Shares may not simultaneously engage
in market making activities with respect to the Common Stock of Exogen for a
period of two business days prior to the commencement of such distribution. In
addition and without limiting the foregoing, the Selling Stockholder will be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including, without limitation, Rule 102 under Regulation
M, which provisions may limit the timing of purchases and sales of shares of
Exogen's Common Stock by the Selling Stockholder.
Exogen has agreed to bear certain expenses (other than discounts and
selling commissions) in connection with the registration of the Shares.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for
Exogen by Brobeck, Phleger & Harrison LLP, New York, New York. Ellen B.
Corenswet, a partner of Brobeck, Phleger & Harrison LLP, owns 2,000 shares of
Common Stock of Exogen. Luci Staller Altman, a partner of Brobeck, Phleger &
Harrison LLP, owns 500 shares of Common Stock of Exogen.
-18-
<PAGE>
EXPERTS
The financial statements and schedule incorporated by reference from
Exogen's Annual Report on Form 10-K for the fiscal year ended September 30, 1998
in this Prospectus and elsewhere in the registration statement have been audited
by Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto and are included herein in reliance upon the
authority of said firm as experts in giving said report.
-19-
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
the offering made hereby, and if given or made, such information or
representations must not be relied upon as having been authorized by Exogen, any
Selling Stockholder or by any other person. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that the information herein is correct as of any time subsequent
to the date hereof. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy the Shares to any person or by anyone in any
jurisdiction in which such offer or solicitation may not lawfully be made.
----------------------------------------------
Table of Contents
Page
----
Available Information.............................. 2
Incorporation of Certain Information by Reference.. 2
The Company........................................ 3
Risk Factors....................................... 3
Use of Proceeds.................................... 15
Selected Consolidated Financial Data............... 16
Selling Stockholder................................ 17
Plan of Distribution............................... 17
Legal Matters...................................... 18
Experts............................................ 19
<PAGE>
820,000 Shares
EXOGEN, INC.
Common Stock
PROSPECTUS
March 16, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth an estimate of the expenses to be
incurred by Exogen in connection with the issuance and distribution of the
securities being registered:
Amount to
Be Paid
-------
Registration Fee - SEC............................................. $ 772
Nasdaq National Market Listing Fee................................. 17,500
Legal Fees and Expenses............................................ 30,000
Accounting Fees and Expenses....................................... 15,000
Miscellaneous...................................................... 16,728
Total.............................................................. 80,000
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court
to award or a corporation's Board of Directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). Articles 8 and 9 of the Registrant's Second
Amended and Restated Certificate of Incorporation provide for indemnification of
its directors and officers and permissible indemnification of employees and
other agents to the maximum extent permitted by the Delaware General Corporation
Law. The Selling Stockholder has agreed to indemnify officers, directors and
controlling persons of the Registrant against certain liabilities, including
liabilities under the Securities Act under certain circumstances. Exogen has
obtained liability insurance for its directors and officers.
Item 16. Exhibits
The following is a list of Exhibits filed as part of the Registration
Statement:
4.1 Specimen certificate for shares of the Registrant's Common Stock,
incorporated herein by reference to Exhibit 4.1 to Registration
Statement No. 33-92740.
4.2 Provisions of the Certificate of Incorporation and Bylaws of the
Registrant defining rights of holders of Common Stock of the
Registrant, incorporated herein by reference to Exhibits 3.2 and 3.3 to
Registration Statement No. 33-92740.
5. Opinion and Consent of Brobeck, Phleger & Harrison LLP.*
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in the opinion
filed as Exhibit 5).
24. Powers of Attorney.*
* Previously filed.
<PAGE>
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, Delaware General Corporation
Law, the Certificate of Incorporation, the Bylaws of the Registrant, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission (the "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 counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-1
<PAGE>
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, as amended.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Piscataway, State of New Jersey, on this 16th
day of March 1999.
EXOGEN, INC.
By: /s/ Patrick A. McBrayer
------------------------
Patrick A. McBrayer, Chief Executive Officer,
President and Director
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on March 16, 1999:
Signature
---------
By: /s/John P. Ryaby
----------------
John P. Ryaby, Chairman of the Board, Vice
President, and Chief Scientific Officer
By: /s/Patrick A. McBrayer
----------------------
Patrick A. McBrayer, Chief Executive Officer, President, and
Director (Principal Executive Officer)
By: /s/Richard H. Reisner
---------------------
Richard H. Reisner, Vice President, Chief Financial Officer,
and Secretary (Principal Financial Officer and Principal
Accounting Officer)
By: *
---------------------
Buzz Benson, Director
By: *
---------------------------
Donald J. Lothrop, Director
By: *
-------------------------
Peter C. Madeja, Director
<PAGE>
By: *
------------------------------------
David J. Ottensmeyer, M.D., Director
By: *
-------------------------
Terence D. Wall, Director
*By: /s/ Patrick A. McBrayer
------------------------
Patrick A. McBrayer
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit
No. Description Page
--- ----------- ----
4.1 Specimen certificate for shares of the Registrant's Common
Stock, incorporated herein by reference to Exhibit 4.1 to
Registration Statement No. 33-92740
4.2 Provisions of the Certificate of Incorporation and By-Laws of
the Registrant defining rights of holders of Common Stock of
the Registrant, incorporated herein by reference to Exhibits
3.2 and 3.3 to Registration Statement No. 33-92740
5. Opinion and Consent of Brobeck, Phleger & Harrison LLP
23.1 Consent of Arthur Andersen LLP, independent public accountants
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in the
opinion filed as Exhibit 5)
24. Powers of Attorney*
* Previously filed.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our report dated November 3, 1998 included in the Exogen, Inc. Form
10-K for the year ended September 30, 1998 (and to all references to our Firm)
included in or made a part of this Form S-3 Registration Statement No.
333-64881.
/s/ Arthur Andersen LLP
-----------------------
ARTHUR ANDERSEN LLP
New York, New York
March 10, 1999
