As filed with the Securities and Exchange Commission on May 9, 2013
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HOLOGIC, INC.
(Exact name of registrant as specified in its charter)
Delaware | 04-2902449 | |
(State or other jurisdiction of incorporation or organization) |
(IRS Employer Identification No.) |
35 Crosby Drive, Bedford, Massachusetts 01730
(Address of Principal Executive Offices) (Zip Code)
Hologic, Inc. Amended and Restated 2008 Equity Incentive Plan
(Full title of the plan)
Glenn P. Muir
Executive Vice President, Finance and Administration, and
Chief Financial Officer
Hologic, Inc.
35 Crosby Drive, Bedford, Massachusetts 01730
(Name and address of agent for service)
Copies to:
Philip J. Flink, Esquire
Brown Rudnick LLP
One Financial Center
Boston, Massachusetts 02111
781-999-7300
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer | x | Accelerated filer | ¨ | |||
Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered |
Amount to be registered (1) |
Proposed maximum offering price per share (2) |
Proposed maximum aggregate offering price (2) |
Amount of registration fee (2) |
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Common Stock |
11,500,000 | $ 19.93 | $ 229,195,000 | $ 31,262.20 | ||||
Total Shares of Common Stock |
11,500,000 | $ 19.93 | $ 229,195,000 | $ 31,262.20 | ||||
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(1) | This Registration Statement covers, in addition to the number of shares of Hologic, Inc., a Delaware corporation (the Company or the Registrant), common stock, par value $0.01 per share (the Common Stock), stated above, options and other rights to purchase or acquire the shares of Common Stock covered by this Registration Statement and, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the Securities Act), an additional indeterminate number of shares, options and rights that may be offered or issued pursuant to the Hologic, Inc. Amended and Restated 2008 Equity Incentive Plan (the Plan) as a result of one or more adjustments under the Plan to prevent dilution resulting from one or more stock splits, stock dividends or similar transactions. |
(2) | Pursuant to Securities Act Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the average of the high and low prices of the Common Stock on May 7, 2013, as quoted on the Nasdaq Global Select Market. |
The Exhibit Index for this Registration Statement is at page 6.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. | PLAN INFORMATION* |
ITEM 2. | REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION* |
* | The documents containing the information specified in Part I will be sent or given to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act. In accordance with the Note under Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the SEC) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute the prospectus required by Section 10(a) of the Securities Act. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. | INCORPORATION OF DOCUMENTS BY REFERENCE |
The following documents filed with the SEC by the Company pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the Exchange Act), are incorporated herein by reference.
The following documents are incorporated by reference into this Registration Statement:
(a) | The Registrants Annual Report on Form 10-K for the year ended September 29, 2012, filed with the SEC on November 28, 2012; |
(b) | The Registrants Quarterly Report on Form 10-Q for the quarter ended December 29, 2012, filed with the SEC on February 7, 2013; |
(c) | The Registrants Quarterly Report on Form 10-Q for the quarter ended March 30, 2013, filed with the SEC on May 9, 2013; |
(d) | The Registrants Current Reports on Form 8-K filed on November 13, 2012 (pursuant to Item 5.02 and the related exhibits only), January 4, 2013, January 22, 2013 (pursuant to Item 5.02 and the related exhibits only), January 28, 2013, February 15, 2013, February 21, 2013, March 11, 2013, March 20, 2013, and May 8, 2013 (pursuant to Items 1.01, 5.02 and the related exhibits only) and the Registrants Current Report on Form 8-K/A filed on October 15, 2012; and |
(e) | The description of the Registrants Common Stock contained in the registration statement on Form 8-A, filed with the SEC on January 31, 1990; |
Current Reports on Form 8-K, or portions thereof, containing only Regulation FD or Regulation G disclosure furnished under Items 2.02 and 7.01 of Form 8-K and any related exhibits furnished under Item 9.01 of Form 8-K are not incorporated herein by reference.
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Act (other than Current Reports on Form 8-K, or portions thereof, containing only Regulation FD or Regulation G disclosure furnished under Items 2.02 and 7.01 of Form 8-K and any related exhibits furnished under Item 9.01 of Form 8-K, unless otherwise indicated therein), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein) modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. | DESCRIPTION OF SECURITIES |
Not applicable.
ITEM 5. | INTERESTS OF NAMED EXPERTS AND COUNSEL |
Not applicable.
ITEM 6. | INDEMNIFICATION OF DIRECTORS AND OFFICERS |
Section 102 of the Delaware General Corporation Law, or DGCL, allows a corporation to eliminate the personal liability of a director of a corporation to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached his or her duty of loyalty to the corporation or its stockholders, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock purchase or redemption in violation of Delaware corporate law or obtained an improper personal benefit.
Section 145 of the DGCL provides, among other things, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the corporations request as a director, officer, employee or agent of another corporation,
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partnership, joint venture, trust or other enterprise, against expenses, including attorneys fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding. The power to indemnify applies (i) if such person is successful on the merits or otherwise in defense of any action, suit or proceeding or (ii) if such person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the persons conduct was unlawful. The power to indemnify applies to actions brought by or in the right of the corporation as well, but only to the extent of defense expenses (including attorneys fees, but excluding amounts paid in settlement) actually and reasonably incurred and not to any satisfaction of judgment or settlement of the claim itself, and with the further limitation that in such actions no indemnification shall be made in the event of any adjudication of negligence or misconduct in the performance of the persons duties to the corporation, unless a court believes that in light of all the circumstances indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director who willfully and negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was absent when the unlawful actions were approved or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered on the books containing the minutes of the proceedings of the board of directors at the time the action occurred or immediately after the absent director receives notice of the unlawful acts.
Article Tenth of the Registrants Certificate of Incorporation, as amended, provides that the Registrants directors shall not be personally liable to the Registrant and its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability:
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for any breach of the directors duty of loyalty to the Registrant or its stockholders; |
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for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
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under section 174 of the DGCL regarding unlawful dividends and stock purchases; or |
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for any transaction from which the director derived an improper personal benefit. |
The Registrants Fourth Amended and Restated By-laws provide that the Registrant shall indemnify any person who is or was a director or officer of the Registrant to the fullest extent permitted by Delaware law. The indemnification provisions contained in the Registrants By-laws are not exclusive of any other rights to which a person may be entitled by law, agreement, vote of stockholders or disinterested directors or otherwise. Any repeal or modification of the indemnification provisions of the Registrants By-laws will not adversely affect any right or protection thereunder of any indemnitee in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to the time of such repeal or modification.
The Registrant has also entered into indemnification agreements with each of its directors. These agreements are intended to indemnify such directors against certain potential liabilities that may arise as a result of their service to the Registrant, and to provide for certain other protections. The Registrant may also enter into similar agreements with certain of its officers who are not also directors. The Registrant also maintains directors and officers liability insurance.
ITEM 7. | EXEMPTION FROM REGISTRATION CLAIMED |
Not applicable.
ITEM 8. | EXHIBITS |
See the attached Exhibit Index at page 6, which is incorporated herein by reference.
ITEM 9. | UNDERTAKINGS |
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
Provided, however , that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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.
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, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Bedford, Commonwealth of Massachusetts, on the 9th day of May, 2013.
HOLOGIC, INC. | ||
By: |
/s/ Glenn P. Muir |
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Glenn P. Muir | ||
Executive Vice President, Finance and Administration, and Chief Financial Officer |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Robert A. Cascella and Glenn P. Muir, and each of them, acting individually and without the other, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign (i) any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement and (ii) any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them individually, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
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/s/ Robert A. Cascella |
Director and | May 9, 2013 | ||
Robert A. Cascella |
President and Chief Executive Officer (Principal Executive Officer) |
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/s/ David R. LaVance, Jr. |
Chairman of the Board | May 9, 2013 | ||
David R. LaVance, Jr. | ||||
/s/ Glenn P. Muir |
Director and | May 9, 2013 | ||
Glenn P. Muir |
Executive Vice President, Finance and Administration, and Chief Financial Officer (Principal Financial Officer) |
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/s/ Robert H. Lavallee |
Senior Vice President, | May 9, 2013 | ||
Robert H. Lavallee |
Chief Accounting Officer (Principal Accounting Officer) |
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/s/ Sally W. Crawford |
Director | May 9, 2013 | ||
Sally W. Crawford | ||||
/s/ Nancy L. Leaming |
Director | May 9, 2013 | ||
Nancy L. Leaming | ||||
/s/ Lawrence M. Levy |
Director | May 9, 2013 | ||
Lawrence M. Levy | ||||
/s/ Christiana Stamoulis |
Director | May 9, 2013 | ||
Christiana Stamoulis | ||||
/s/ Elaine S. Ullian |
Director | May 9, 2013 | ||
Elaine S. Ullian | ||||
/s/ Wayne Wilson |
Director | May 9, 2013 | ||
Wayne Wilson |
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EXHIBIT INDEX
Incorporated by
Reference |
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Exhibit
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Exhibit Description |
Form |
Filing Date/
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3.1 | Certificate of Incorporation of Hologic. | S-1 | 01/24/1990 | |||||
3.2 | Amendment to Certificate of Incorporation of Hologic. | 10-Q | 03/30/1996 | |||||
3.3 | Certificate of Amendment to Certificate of Incorporation of Hologic. | 10-K | 09/24/2005 | |||||
3.4 | Certificate of Amendment to Certificate of Incorporation of Hologic. | 8-K | 10/22/2007 | |||||
3.5 | Certificate of Amendment to Certificate of Incorporation of Hologic. | 8-K | 03/11/2008 | |||||
3.6 | Fourth Amended and Restated By-laws of Hologic. | 8-K | 03/08/2012 | |||||
4.1 | Specimen Certificate for Shares of Hologics Common Stock. | 8-A | 01/31/1990 | |||||
4.2 | Description of Capital Stock (contained in Hologics Certificate of Incorporation, as amended, filed as Exhibits 3.1, 3.2, 3.3, 3.4, and 3.5 hereto). | |||||||
5.1* | Opinion of Brown Rudnick LLP (opinion re legality). | |||||||
10.1 | Hologic, Inc. Amended and Restated 2008 Equity Incentive Plan. | 8-K | 03/11/2013 | |||||
23.1* | Consent of Independent Registered Public Accounting Firm. | |||||||
23.2* | Consent of Independent Registered Public Accounting Firm. | |||||||
23.3* | Consent of Brown Rudnick LLP (included in Exhibit 5.1). | |||||||
24* | Power of Attorney (included in this Registration Statement under Signatures). |
* | Filed herewith. |
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Exhibit 5.1
May 9, 2013
Hologic, Inc.
35 Crosby Drive
Bedford, MA 01730-1401
Re: | Registration Statement on Form S-8 Relating to Hologic, Inc. Amended and Restated 2008 Equity Incentive Plan (the Registration Statement ) |
Ladies and Gentlemen:
We are outside counsel to Hologic, Inc., a Delaware corporation (the Company). We have been asked to deliver this opinion in connection with the preparation and filing with the U.S. Securities and Exchange Commission (the SEC) under the Securities Act of 1933, as amended (the Securities Act), of the above-captioned Registration Statement on Form S-8 filed by the Company with the SEC on the date hereof. The Registration Statement relates to the registration of 11,500,000 shares of common stock, $0.01 par value per share, of the Company issuable pursuant to the Amended and Restated 2008 Equity Incentive Plan (the 2008 EIP) (the Shares).
In rendering this opinion, we have examined, are familiar with, and have relied as to factual matters solely upon, copies of the Companys Certificate of Incorporation, as amended, the Companys Fourth Amended and Restated By-laws, the 2008 EIP, the Registration Statement, and the minute books and stock records of the Company (collectively, the Documents).
For purposes of this opinion, we have assumed without any investigation: (1) the legal capacity of each natural person; (2) the genuineness of each signature; (3) the completeness of each document submitted to us as an original and the conformity with the original of each document submitted to us as a copy; and (4) the completeness, accuracy and proper indexing of all governmental records.
Our opinions contained herein are limited to the laws of the Commonwealth of Massachusetts, the General Corporation Law of the State of Delaware, including the statutory provisions, all applicable provisions of the Delaware Constitution, and reported judicial decisions interpreting these laws, and the federal law of the United States of America.
Our opinions hereafter expressed are based solely upon: (1) our review of the Documents; (2) discussions with those of our attorneys who have devoted substantive attention to the matters contained herein; and (3) such review of published sources of law as we have deemed necessary.
Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized and, when issued in accordance with the terms of the 2008 EIP, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated thereunder. This opinion speaks only as of the date hereof and we assume no obligation to update this opinion at any date subsequent to the date hereof.
Very truly yours, |
/s/ BROWN RUDNICK LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to Hologic, Inc.s Amended and Restated 2008 Equity Incentive Plan of our reports dated November 28, 2012, except for Note 19, as to which the date is January 28, 2013 with respect to the consolidated financial statements of Hologic, Inc. for the year ended September 29, 2012 included in the Current Report on Form 8-K, dated January 28, 2013 and the effectiveness of internal control over financial reporting of Hologic, Inc. as of September 29, 2012 included in its Annual Report (Form 10-K) filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
May 9, 2013
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to Hologic, Inc.s Amended and Restated 2008 Equity Incentive Plan of our report dated February 23, 2012 except for Notes 1 and 19 as to which the date is January 28, 2013, with respect to the consolidated financial statements of Gen-Probe Incorporated for the year ended December 31, 2011, included in the Current Report on Form 8-K of Hologic, Inc. filed with the Securities and Exchange Commission on January 28, 2013.
/s/ Ernst & Young LLP
San Diego, California
May 9, 2013