As filed with the Securities and Exchange Commission on November 18, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LUNAR CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Wisconsin
(State or Other
Jurisdiction of
Incorporation or
Organization)
39-1200501
(I.R.S. Employer
Identification Number)
313 West Beltline Highway
Madison, Wisconsin 53713
Telephone: (608) 274-2663
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
Richard B. Mazess, President
Lunar Corporation
313 West Beltline Highway
Madison, Wisconsin 53713
Telephone: (608) 274-2663
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent For Service)
Copy to:
Jim L. Kaput
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Approximate date of commencement of proposed sale to the public: From time
to time after this registration statement becomes effective.
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 under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
Title of Shares Amount Proposed Proposed Amount of
To Be To Be Maximum Maximum Registration
Registered Registered Aggregate Aggregate Fee
Price Offering
Per Unit Price (1)
- ----------------------------------------------------------------------
Common 250,000(1) $21.75(2) 4,990,140(2) $1,512.16
Stock, par
value $.01
per share
- ----------------------------------------------------------------------
(1) Also registered hereby are such additional and indeterminate
number of shares as may become issuable because of the provisions of the
Lunar Corporation Amended and Restated Stock Option Plan relating to
adjustments for changes resulting from stock dividends, stock splits and
similar changes.
(2) Estimated solely for the purpose of calculating the Registration Fee and,
pursuant to Rule 457(h) under the Securities Act of 1933, based upon the
exercise price for shares subject to outstanding options and the average of the
high and low sale prices of Common Stock of the Registrant on The Nasdaq Stock
Market on November 13, 1997 for all other shares.
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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
SUBJECT TO COMPLETION, DATED NOVEMBER 18, 1997
PROSPECTUS
250,000 Shares
LUNAR
Common Stock
__________________
This Prospectus relates to up to 250,000 shares of Common Stock, par
value $.01 per share ("Common Stock"), of Lunar Corporation, a Wisconsin
corporation (the "Company" or "Lunar"), which may be offered and sold to
permitted transferees of participants ("Participants") in the Lunar Corporation
Amended and Restated Stock Option Plan (the "Plan"), pursuant to nonqualified
stock options ("Stock Options") granted to such Participants under the Plan.
Upon the approval of the committee responsible for administration of the Plan
(the "Committee"), some or all of a Participant's Stock Option may be
transferred by such Participant pursuant to a domestic relations order. Each
transfer must be made in accordance with the grant documents specifying the
terms and conditions for transferring such Stock Option. This Prospectus also
relates to the offer and sale of Common Stock pursuant to such Stock Option to
the beneficiaries of such permitted transferees, or the executors or
administrators of their estates, or other persons duly authorized by law to
administer the estate or assets of such persons.
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 OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
As of the date of this Prospectus, all Stock Options granted under the Plan
have had an exercise price equal to 100% of the fair market value of a share of
Common Stock on the date of grant. Upon transfer, a Stock Option continues to
be governed by and subject to the terms and limitations of the Plan and the
relevant grant, including provisions relating to exercise price.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
The date of this Prospectus is ____________, 1997
TABLE OF CONTENTS
Page
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Description of Capital Stock . . . . . . . . . . . . . . . . . . . . . . 2
Description of the Plan and the Stock Options. . . . . . . . . . . . . . 4
Certain Federal Income Tax Consequences. . . . . . . . . . . . . . . . . 6
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Available Information. . . . . . . . . . . . . . . . . . . . . . . . . . 7
Incorporation of Certain Documents By Reference. . . . . . . . . . . . . 7
THE COMPANY
Lunar develops and sells x-ray and ultrasound bone densitometers for
the diagnosis and monitoring of osteoporosis and other metabolic bone diseases.
Lunar also develops and sells medical imaging equipment used by orthopedists
and radiologists for imaging extremities. Lunar is a Wisconsin corporation,
its principal executive offices are located at 313 West Beltline Highway,
Madison, Wisconsin 53713 and its telephone number is (608) 274-2663.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the
Common Stock for general corporate purposes.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 25,000,000
shares of Common Stock, par value $.01 per share. At September 30, 1997,
8,737,535 shares of Common Stock were outstanding and stock options to purchase
1,059,945 shares of Common Stock were outstanding. The following summary
description of the capital stock of the Company is qualified in its entirety by
reference to the Articles of Incorporation and the By-Laws of the Company and
to the Wisconsin Business Corporation Law (the "WBCL").
COMMON STOCK
Holders of Common Stock are entitled to one vote for each share held
on all matters submitted to a vote of shareholders. Holders of Common Stock do
not have cumulative voting rights in the election of directors and have no
preemptive, subscription or redemption rights. All outstanding shares of Common
Stock are, and those offered hereby will be, validly issued, fully paid and
nonassessable, except for certain statutory liabilities which may be imposed by
Section 180.0622 of the WBCL for unpaid employee wages. Section 180.0622 of the
WBCL provides that shares held by shareholders of corporations incorporated in
Wisconsin may be assessed up to their par value to satisfy obligations to
employees for services rendered, but not exceeding six months' service in the
case of any individual employee. The par value of the Company's Common Stock is
$.01 per share. Holders of Common Stock are entitled to suchdividends as may be
declared by the Board of Directors out of funds legally available therefor.
Upon liquidation, dissolution or winding-up of the Company, the assets legally
available for distribution to shareholders are distributable ratably among the
holders of Common Stock at that time outstanding subject to prior distribution
rights of creditors of the Company.
CERTAIN ARTICLES OF INCORPORATION AND BY-LAWS PROVISIONS
Certain provisions of the Articles of Incorporation and the By-Laws
could have anti-takeover effects and may delay, defer or prevent a takeover
attempt that a shareholder might consider in the shareholder's best interest.
These provisions are intended to enhance the likelihood of continuity and
stability in the composition of and in the policies formulated by the Board of
Directors. In addition, these provisions are also intended to ensure that the
Board of Directors will have sufficient time to act in what the Board of
Directors believes to be the best interests of the Company and its shareholders.
Classified Board of Directors. The Articles of Incorporation
provide for a Board of Directors divided into three classes of directors serving
staggered three-year terms. The classification of directors has the effect of
making it more difficult for shareholders to change the composition of the
Board of Directors in a short period of time. The Board currently has six
directors. At least two annual meetings of shareholders, instead of one, will
generally be required to effect a change in a majority of the Board of
Directors.
Number of Directors; Filling Vacancies; Removal. The Articles of
Incorporation and the By-Laws provide that the Board of Directors will consist
of at least six and no more than twelve members as determined by the Board. The
By-Laws provide that the Board of Directors, acting by majority vote of the
directors then in office, may fill any newly created directorships or vacancies
on the Board of Directors except for a vacancy resulting from the removal by
shareholders of a director, in which case the shareholders may fill such
vacancy by the affirmative vote of eighty percent (80%) of the outstanding
shares entitled to vote thereon. The Articles of Incorporation and the By-Laws
provide that a director may be removed only upon the affirmative vote of
eighty percent (80%) of the outstanding shares entitled to vote for the
election of such directors.
CERTAIN WISCONSIN BUSINESS CORPORATION LAW PROVISIONS
Restrictions on Business Combinations. Section 180.1141 of the WBCL
provides that a "resident domestic corporation", such as the Company, may not
engage in a "business combination" with an "interested stockholder" (a person
beneficially owning 10% of the voting power of the outstanding voting stock),
for three years after the date (the "stock acquisition date") the interested
stockholder acquired its 10% or greater interest, unless the business
combination (or acquisition of 10% or greater interest) was approved before the
stock acquisition date by the corporation's board of directors. After the
3-year period, a business combination that was not so approved can be
consummated only if it is approved by the majority of the outstanding voting
shares not held by the interested stockholder or is made at a specified formula
price intended to provide a fair price for the shares held by noninterested
stockholders.
Control Share Voting Restrictions. Section 180.1150 of the WBCL
provides that, absent a contrary provision in the Articles of Incorporation,
the voting power of shares (including shares issuable upon conversion of
convertible securities or upon exercise of options or warrants) of an "issuing
public corporation" (generally defined as a Wisconsin corporation with at least
100 shareholders of record who are Wisconsin residents) held by any person in
excess of 20% of the voting power in the election of directors is limited to
10% of the full voting power of such excess shares unless, at a special meeting
of shareholders called in accordance with certain procedures, the shareholders
of such corporation approve a resolution restoring full voting power to such
shares. The requisite vote for approval of such resolution is the affirmative
vote of a majority of the voting power represented at the meeting and entitled
to vote on the subject matter. Shares of an issuing public corporation held or
acquired from the issuing public corporation or acquired under an agreement
entered into at a time when the issuing public corporation was not an issuing
public corporation are excluded from the application of these provisions. Such
provisions would not apply to the shares held by Dr. Richard Mazess, founder of
the Company.
Limited Liability of Directors. Under Section 180.0828 of the WBCL,
directors of a corporation are not subject to personal liability to the
corporation, its shareholders, or any person asserting rights on behalf thereof
for damages, settlements, fees, fines, penalties or other monetary liabilities
arising from breaches or failures to perform any duty resulting solely from
their status as a directors, unless the person asserting liability proves that
the breach or failure constituted: (I) a willful failure to deal fairly with
the corporation or its shareholders in connection with a matter in which the
director had a material conflict of interest, (ii) a violation of criminal
law, unless the director had reasonable cause to believe his or her conduct was
lawful or had no reasonable cause to believe his or her conduct was unlawful,
(iii) a transaction from which the director derived an improper personal
profit, or (iv) willful misconduct. These provisions pertain only to breaches
of duty by directors as directors and not in any other corporate capacity, such
as officers. As a result of such provisions, shareholders may be unable to
recover monetary damages against directors for actions taken by them which
constitute negligence or gross negligence or which are in violation of their
fiduciary duties, although it may be possible to obtain injunctive or other
equitable relief with respect to such actions. If equitable remedies are found
not to be available to shareholders in any particular case, shareholders may
not have any effective remedy against the challenged conduct.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Company's By-Laws and the WBCL, directors and officers of
the Company are entitled to mandatory indemnification from the Company against
certain liabilities and expenses (a) to the extent such officers or directors
are successful in the defense of a proceeding and (b) in proceedings in which
the director or officer is not successful in the defense thereof, unless it is
determined the director or officer breached or failed to perform such person's
duties to the Company and such breach or failure constituted: (I) a willful
failure to deal fairly with the Company or its shareholders in connection with
a matter in which the director or officer had a material conflict of interest,
(ii) a violation of criminal law, unless the director or officer had reasonable
cause to believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful, (iii) a transaction from which the
director or officer derived an improper personal profit, or (iv) willful
misconduct. The Company's By-Laws provide that the Company may purchase and
maintain insurance on behalf of an individual who is a director or officer of
the Company against liability asserted against or incurred by such individual
in his or her capacity as a director or officer regardless of whether the
Company is required or authorized to indemnify or allow expenses to the
individual against the same liability under the By-Laws.
DESCRIPTION OF THE PLAN AND THE STOCK OPTIONS
THE PLAN
The purpose of the Plan is to provide incentives to officers, key
employees and consultants of the Company and its subsidiaries and members of
the Board of Directors to contribute to the success and prosperity of the
Company by granting Stock Options to such persons. The maximum number of
shares of Common Stock available under the Plan is 1,500,000. At the 1997
Annual Meeting of Shareholders to be held on November 21, 1997, the Shareholders
will vote on a proposal to increase the number of shares available under the
Plan by 500,000 shares.
The Committee administers the Plan and has the authority, subject to
the terms of the Plan, to establish eligibility guidelines, select officers,
key employees, consultants, and non-employee directors for participation in the
Plan and determine the number of shares of Common Stock subject to a Stock
Option granted thereunder, the exercise price of such shares of Common Stock,
the time and conditions of vesting or exercise, and all other terms and
conditions of the Stock Option.
Only nonqualified stock options may be granted under the Plan. The
option price per share of Common Stock purchasable upon exercise of a Stock
Option is 100% of the fair market value of a share of Common Stock on the date
of grant of such Stock Option. The Committee determines the period of exercise
of a Stock Option and whether a Stock Option will be exercisable in cumulative
or non-cumulative installments or in full at any time.
THE STOCK OPTIONS
At the time of grant, the Committee establishes the exercise price,
the expiration date and the times and installments in which the Stock Options
may be exercised. As of the date of this Prospectus, all Stock Options granted
under the Plan have had expiration dates ten years from the date of grant with
an exercise price equal to 100% of the fair market value of a share of Common
Stock on the date of grant. Such grants generally have provided that the
Stock Options become exercisable in equal annual installments over the
three-year or five-year period following the date of grant. If any change shall
occur in or affect shares of Common Stock or Stock Options on account of a
merger, reorganization, stock dividend, stock split or similar changes, the
Committee shall make adjustments in, among other things, (I) the number of
shares exercisable under each Stock Option and (ii) the exercise price or the
unexercised portion of each Stock Option.
TRANSFERABILITY
The Plan provides that Stock Options are generally not transferable
by a Participant except by will or the laws of descent and distribution and are
exercisable during the Participant's lifetime only by the Participant.
Notwithstanding the foregoing, under certain circumstances, the Committee may
consent to the transfer or transferability of any particular Stock Option in
the manner approved by the Committee. The Committee has determined to allow
the transfer of certain Stock Options pursuant to a domestic relations order.
Any such permitted transferee of a Participant's Stock Options shall be
referred to herein as a "Stock Option Transferee" and such Participant shall
be referred to herein as a "Participant Transferor."
This Prospectus relates to up to 250,000 shares of Common Stock of
the Company which may be offered and sold to Stock Option Transferees pursuant
to Stock Options that may be transferred as described in the immediately
preceding paragraph. This Prospectus also relates to the offer and sale of
Common Stock pursuant to such Stock Options to the beneficiaries of such Stock
Option Transferees or the executors or administrators of their estates, or
other persons duly authorized by law to administer the estate or assets of such
persons. Upon transfer to a Stock Option Transferee, a Stock Option is
governed by and subject to the terms and limitations of the Plan and the
relevant grant, as such grant may be amended by the Committee in consenting to
a transfer of the Stock Option, and, subject to any such amendment, the Stock
Option Transferee is entitled to the same rights as the Participant Transferor
thereunder, as if no transfer had taken place. Accordingly, the rights of the
Stock Option Transferee are subject to the terms and conditions of the original
grant to the Participant Transferor, as amended, including provisions relating
to expiration date, exercisability, exercise price and forfeiture. For
information regarding the terms of a particular Stock Option grant, Stock
Option Transferees may contact the Corporate Secretary at the Company's
principal executive offices. Once a Stock Option has been transferred to a
Stock Option Transferee, it may not be subsequently transferred by the Stock
Option Transferee except with the consent of the Committee or by will or the
laws of descent and distribution.
EXERCISE OF STOCK OPTIONS BY STOCK OPTION TRANSFEREES
A Stock Option may be exercised by a Stock Option Transferee at any
time from the time first set by the Committee in the original grant to the
Participant Transferor until the close of business on the expiration date of
the Stock Option, or the earlier date on which the Stock Option terminates due
to the Participant Transferor's termination of employment or service as
director, as discussed below. Stock Options generally become exercisable in
equal annual installments over the three-year or five-year period following the
date of grant. The exercise price of the shares as to which Stock Options are
exercised shall be paid to the Company at the time of exercise in cash.
A Stock Option will be deemed exercised on the date the Lunar
Corporate Secretary's office has received written notice of exercise of the
Stock Option signed by the Stock Option Transferee specifying the number of
shares of Common Stock with respect to the Stock Option being exercised
(accompanied by a check in satisfaction of the exercise price). The Stock
Option shares will generally be transferred to the Stock Option Transferee as
of the day following the date that (i) the above conditions have been met, (ii)
the funds paid by the Stock Option Transferee in satisfaction of the exercise
price have been received by the Company, and (iii) the Company has received
confirmation that all tax withholding obligations have been satisfied. Any
required income tax withholding must be satisfied by the Stock Option
Transferee as discussed below under the heading "CERTAIN FEDERAL INCOME TAX
CONSEQUENCES". Once the exercise is completed as described above, stock
certificates for the appropriate number of shares will be delivered to the
Stock Option Transferee or his or her estate or beneficiaries, or such shares
shall otherwise be delivered in such manner as the person(s) entitled thereto
may direct.
EFFECT OF TERMINATION OF EMPLOYMENT OR SERVICE
Because Stock Options transferred to Stock Option Transferees
continue to be governed by the terms of the Plan and the original grant, their
exercisability continues to be affected by the Participant Transferor's
employment or service status. If a Participant Transferor terminates
employment or service with the Company for any reason other than death or
retirement after age 60, all outstanding unexercised Stock Options granted to
such Participant Transferor, including those held by a Stock Option Transferee,
may be exercised during the 30-day period following the date of termination of
employment or service, but only to the extent exercisable on such date and in
no event after the expiration dates of such Stock Options. If a Participant
Transferor terminates employment or service by reason of death or retirement
after age 60, all outstanding unexercised Stock Options granted to such
Participant Transferor, including those held by a Stock Option Transferee, may
be exercised during the one-year period following the date of death or date of
termination of employment or service, but only to the extent exercisable on
such date, and in no event after the expiration dates of such Stock Options.
If a Participant Transferor dies during the 30-day period following termination
of employment or service for any reason other than retirement after age 60, or
if a Participant Transferor dies during the one-year period following
termination of employment or service by reason of retirement after age 60, all
outstanding unexercised Stock Options granted to such Participant Transferor,
including those held by a Stock Option Transferee, may be exercised during the
one-year period following the date of death, but only to the extent exercisable
on such date, and in no event after the expiration dates of such Stock Options.
The Company has no obligation to notify any Stock Option Transferee of the
termination of employment of the Participant Transferor.
CHANGE IN CONTROL
In the event of a change in control of the Company, any Stock Option
not previously exercisable in full will become fully exercisable. As more
fully set forth in the Plan, a change in control generally is the acquisition,
subject to certain exceptions, by any person of beneficial ownership of 50% or
more of the Common Stock, a change in the majority of the Board of Directors or
approval by the shareholders of a reorganization, merger, consolidation, or
sale of all or substantially all of the assets of the Company unless certain
conditions are satisfied.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
Prior to making a transfer of a Stock Option, a Participant should
consult with his or her personal tax advisors concerning the possible federal,
state and local income and other tax consequences of such a transfer. A Stock
Option Transferee should consult with his or her personal tax advisors
concerning the possible federal, state and local income and other tax
consequences of the exercise of a Stock Option. The federal income tax
consequences of a transfer to a former spouse of a Stock Option pursuant to a
domestic relations order and of the exercise of the Stock Option are discussed
below. State and local income tax consequences are not addressed herein.
INCOME TAX CONSEQUENCES FOR PARTICIPANT TRANSFEROR
The Company has been advised by its tax counsel that a Participant
who transfers a Stock Option to a Stock Option Transferee pursuant to a
domestic relations order will not recognize income at the time of the transfer.
As discussed in the following paragraph, where the Participant Transferor and
the Stock Option Transferee both are domiciled in a community property state,
such as Wisconsin, the Stock Option Transferee and not the Participant
Transferor will recognize ordinary income at the time the Stock Option
Transferee exercises the Stock Option.
INCOME TAX CONSEQUENCES FOR STOCK OPTION TRANSFEREE
Tax counsel has also advised the Company that, where the Participant
Transferor and the Stock Option Transferee are both domiciled in a community
property state, such as Wisconsin, upon exercise of a Stock Option that was
transferred pursuant to a domestic relations order, the Stock Option Transferee
will recognize ordinary income in an amount equal to the excess of the fair
market value of the shares purchased on the date of exercise (which will not
necessarily be equal to the price at which such shares are sold, even if sold
on the same day as exercise) over the exercise price. If either the Participant
Transferor or the Stock Option Transferee is not domiciled in a community
property state, the Participant Transferor and Stock Option Transferee should
consult their personal tax advisors. The Company will generally be entitled to
claim a federal income tax deduction at such time and in the same amount that
the Stock Option Transferee recognizes ordinary income. The Internal Revenue
Service has ruled in private letter rulings that the amount required to be
included in income by the Stock Option Transferee is subject to Federal Income
Contributions Act (FICA) and income tax withholding.
INCOME TAX CONSEQUENCES UPON THE SUBSEQUENT SALE OF STOCK
If shares acquired upon exercise of a Stock Option that was
transferred pursuant to a domestic relations order are later sold or exchanged,
then the difference between the sale price and the Stock Option Transferee's
tax basis for the shares will generally be taxable as long-term or short-term
capital gain or loss (assuming that the stock is a capital asset of the
taxpayer) depending upon whether the stock has been held for more than 18
months after the exercise date. The tax basis for the shares in the hands of
the Stock Option Transferee would be the exercise price for the Stock Option
plus the amount of income recognized by the Stock Option Transferee at the time
of exercise.
LEGAL MATTERS
The legality of the Securities offered hereby will be passed upon
for the Company by Charles V. Sweeney, Corporate General Counsel.
EXPERTS
The consolidated financial statements and schedule of Lunar
Corporation as of June 30, 1997 and 1996 and for each of the years in the
three-year period ended June 30, 1997 contained in Lunar's Annual Report on
Form 10-K for the year ended June 30, 1997 have been incorporated by reference
herein in reliance upon the reports of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. To the extent
that KPMG Peat Marwick LLP audits and reports on financial statements of the
Company issued at future dates, and consents to the use of their reports
thereon, such financial statements also will be incorporated by reference
herein in reliance upon their reports and said authority.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The Company has
filed with the Commission a registration statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the shares of Common Stock offered hereby.
This Prospectus, which constitutes a part of the Registration Statement, does
not contain all information set forth in the Registration Statement and
reference is hereby made to the Registration Statement and the exhibits thereto
for further information with respect to the Company and the shares of Common
Stock offered hereby. Such reports, proxy statements, Registration Statement
and exhibits and other information omitted from this Prospectus can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at
its Northeast Regional Office located at 7 World Trade Center, Suite 1300, New
York, New York 10048 and Midwest Regional Office located at Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of
such material can be obtained at prescribed rates from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission at http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Commission by the
Company under the Exchange Act are incorporated herein by reference:
(a) the Annual Report of the Company on Form 10-K for the year
ended June 30, 1997;
(b) the Quarterly Report of the Company on Form 10-Q for the
quarter ended September 30, 1997; and the description of the Common Stock
contained in the Company's Registration Statement on Form 8-A filed under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the Common Stock contemplated
hereby shall be deemed to be incorporated by reference into this Prospectus and
to be made a part hereof from the respective dates 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
the Registration Statement and this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of the Registration
Statement or this Prospectus.
Copies of the above documents (other than exhibits to such documents
unless such exhibits are specifically incorporated by reference into such
documents) may be obtained upon written or oral request without charge from the
Company, 313 West Beltline Highway, Madison, Wisconsin 53713 (telephone number
(608) 274-2663), Attention: Investor Relations.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimated, except the
SEC registration fee.
SEC registration fee. . . . . . . . . . 1,512.16
Legal fees and expenses . . . . . . . . 10,000.00
Fees of accountants . . . . . . . . . . 2,000.00
----------
13,512.16
==========
Item 15. Indemnification of Directors and Officers.
Under Article IX of the Company's By-Laws, directors and officers of
the Company are entitled to mandatory indemnification from the Company against
certain liabilities and expenses (a) to the extent such officers or directors
are successful in the defense of a proceeding and (b) in proceedings in which
the director or officer is not successful in the defense thereof, unless it is
determined the director or officer breached or failed to perform such person's
duties to the Company and such breach or failure constituted: (I) a willful
failure to deal fairly with the Company or its shareholders in connection with a
matter in which the director or officer had a material conflict of interest,
(ii) a violation of criminal law, unless the director or officer had reasonable
cause to believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful, (iii) a transaction from which the
director or officer derived an improper personal profit, or (iv) willful
misconduct. The Company's By-Laws provide that the Company may purchase and
maintain insurance on behalf of an individual who is a director or officer of
the Company against liability asserted against or incurred by such individual in
his or her capacity as a director or officer regardless of whether the Company
is required or authorized to indemnify or allow expenses to the individual
against the same liability under the By-Laws.
The Wisconsin Business Corporation Law contains provisions for
mandatory indemnification of directors and officers against certain liabilities
and expenses that are similar to those contained in the Company's By-Laws.
Under Section 180.0828 of the Wisconsin Business Corporation Law, directors of
the Company are not subject to personal liability to the Company, its
shareholders or any person asserting rights on behalf thereof for damages,
settlements, fees, fines, penalties or other monetary liabilities arising from
breaches or failures to perform any duty resulting solely from their status as
such directors, except in circumstances paralleling those in clauses (I) through
(iv) in the preceding paragraph. These provisions pertain only to breaches of
duty by directors as directors and not in any other corporate capacity, such as
officers. As a result of such provisions, shareholders may be unable to recover
monetary damages against directors for actions taken by them which constitute
negligence or gross negligence or which are in violation of their fiduciary
duties, although it may be possible to obtain injunctive or other equitable
relief with respect to such actions. If equitable remedies are found not to be
available to shareholders in any particular case, shareholders may not have any
effective remedy against the challenged conduct.
Item 16. Exhibits.
A list of exhibits included as part of this Registration Statements is
set forth in the Exhibit Index appearing elsewhere herein and is incorporated
herein by reference.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. 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; provided,
however, that paragraphs (a)(1)(I) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering. (b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Madison, State of Wisconsin, on this 14th day of
November, 1997.
LUNAR CORPORATION
By: /s/ Richard B. Mazess
Richard B. Mazess, Ph.D.
President
POWER OF ATTORNEY
KNOW ALL PEOPLE BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard B. Mazess and Robert A. Beckman,
and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
Name Title Date
/s/ Richard B. Mazess President and November 14, 1997
Richard B. Mazess, Ph.D. Director (Principal
Executive Officer)
/s/ Robert A. Beckman Vice President of November 14, 1997
Robert A. Beckman Finance (Principal
Financial and
Accounting Officer)
/s/ Samuel E. Bradt Director November 14, 1997
Samuel E. Bradt
/s/ John W. Brown Director November 3, 1997
John W. Brown
/s/ Reed Coleman Director November 4, 1997
Reed Coleman
/s/ John J. McDonough Director November 14, 1997
John J. McDonough
/s/ Malcolm R. Powell Director November 3, 1997
Malcolm R. Powell, M.D.
EXHIBIT INDEX
Exhibit
Number
4.1 Articles of Amendment and Restated Articles of Incorporation of Lunar
Corporation, as amended. (1) (Exhibit 3.1)
4.2 By-laws of Lunar Corporation. (2) (Exhibit 3.2)
*5 Opinion of Charles V. Sweeney regarding the legality of the securities
being registered.
*8 Opinion of Sidley & Austin regarding certain tax matters.
*23.1 Consent of KPMG Peat Marwick LLP.
*23.2 Consent of Charles V. Sweeney. (included in Exhibit 5)
*23.3 Consent of Sidley & Austin. (included in Exhibit 8)
*24 Powers of Attorney. (included elsewhere herein)
*99.1 Lunar Corporation Amended and Restated Stock Option Plan.
*99.2 Form of Stock Option Agreements.
*filed herewith
(1) Incorporated by reference to exhibits filed with Registrant's Annual
Report on Form 10-K for the year ended June 30, 1996 (File No. 0-18643).
Parenthetical references to exhibit numbers are to the exhibit numbers on the
Form 10-K.
(2) Incorporated by reference to exhibits filed with Registrant's Form 10-Q
for the quarter ended December 31, 1996 (File No. 0-18643). Parenthetical
references to exhibit numbers are to the exhibit numbers on the Form 10-Q.