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As filed with the Securities and Exchange Commission on May 8, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENDOLOGIX, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of incorporation or organization)
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68-0328265
(I.R.S. Employer Identification No.) |
11 Studebaker, Irvine, California 92618
(949) 595-7200
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
John McDermott
Chief Executive Officer
Endologix, Inc.
11 Studebaker, Irvine, California 92618
(949) 595-7200
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Lawrence B. Cohn
Michael A. Hedge
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
(949) 725-4000
Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
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. þ
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. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) 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. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
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):
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Large accelerated filer o |
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Accelerated filer þ |
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Non-accelerated filer o
(Do not check if a smaller reporting company) |
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Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Amount of |
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Aggregate Offering |
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Registration Fee |
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Title of Each Class of Securities to be Registered (1) |
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Price (2) |
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(3) |
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Common Stock, par value $0.001 per share |
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Preferred Stock, par value $0.001 per share |
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Debt Securities |
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Warrants |
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Total |
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$50,000,000 |
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$2,790 |
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(1) |
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There are being registered hereunder such indeterminate number of shares of common
stock and preferred stock, such indeterminate principal amount of debt securities, and such
indeterminate number of warrants to purchase common stock, preferred stock or debt securities
as shall have an aggregate initial offering price not to exceed $50,000,000. If any debt
securities are issued at an original issue discount, then the offering price of such debt
securities shall be in such greater principal amount as shall result in an aggregate initial
offering price not to exceed $50,000,000, less the aggregate dollar amount of all securities
previously issued hereunder. This registration statement also registers such indeterminate
amount of securities as may be issued upon conversion of, or in exchange for, the securities
registered and, pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
Securities Act), such indeterminable number of shares as may be issued from time to time
upon conversion or exchange as a result of stock splits, stock dividends or similar
transactions. |
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(2) |
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The proposed maximum aggregate offering price per class of security will be
determined from time to time by the registrant in connection with the issuance by the
registrant of the securities registered hereunder and is not specified as to each class of
security pursuant to General Instruction II.D. of Form S-3 under the Securities Act. |
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(3) |
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Calculated pursuant to Rule 457(o) of the Securities Act, based on the proposed
maximum aggregate offering price of the securities listed. |
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.
The information in this prospectus is not complete and may be changed. We may not sell these
securities until the Securities and Exchange Commission declares our registration statement
effective. This prospectus is not an offer to sell these securities and is not soliciting an offer
to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion, dated May 8, 2009
$50,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
This prospectus relates to common stock, preferred stock, debt securities, and warrants for
debt or equity securities that we may sell from time to time in one or more transactions. The
aggregate public offering price of the securities we may sell in these transactions will not exceed
$50,000,000. We will provide the specific terms and conditions of these transactions and the
securities we may sell in supplements to this prospectus prepared in connection with each
transaction. The applicable prospectus supplement will contain information, where applicable, as to
other listings, if any, on The NASDAQ Global Market or any securities exchange of the securities
covered by the prospectus supplement. Any such prospectus supplement may also add, update or change
information in this prospectus. We may also authorize one or more free writing prospectuses to be
provided to you in connection with these offerings. You should read this prospectus, any applicable
prospectus supplement and any related free writing prospectuses, as well as the documents
incorporated by reference or deemed to be incorporated by reference into this prospectus, carefully
before you invest. This prospectus may not be used to offer or sell securities unless accompanied
by a prospectus supplement.
Our principal executive offices are located at 11 Studebaker, Irvine, California, 92618, and
our telephone number is (949) 595-7200.
Our common stock currently is traded on The NASDAQ Global Market under the symbol ELGX. On
May 7, 2009, the closing price of our common stock was $2.28 per share.
Investing in these securities involves a high degree of risk. Before deciding whether to
invest in these securities, you should consider carefully the risks that we have described on page
2 of this prospectus under the caption Risk Factors. We may also include specific risk factors
in supplements to this prospectus under the caption Risk Factors.
These securities may be sold directly by us to investors, through agents designated from time
to time or to or through underwriters or dealers. For additional information on the methods of
sale, you should refer to the section entitled Plan of Distribution in this prospectus. If any
underwriters are involved in the sale of these securities with respect to which this prospectus is
being delivered, the names of such underwriters and any applicable commissions or discounts and
over-allotment options will be set forth in a prospectus supplement. The price to the public of
such securities and the net proceeds that we expect to receive from such sale will also be set
forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of our common stock or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is
___, 2009.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and
Exchange Commission, or the SEC, utilizing a shelf registration process. Under this shelf
registration process, we may, from time to time, sell common stock, preferred stock, debt
securities and warrants for debt and equity securities in one or more transactions. The aggregate
public offering price of the securities we sell in these transactions will not exceed $50,000,000.
This prospectus provides you with a general description of the securities we may sell in these
transactions. Each time we sell any securities under this prospectus, we will provide a prospectus
supplement that will contain specific information about the terms of that offering. The prospectus
supplement also may add, update or change information contained in this prospectus. We may also
authorize one or more free writing prospectuses to be provided to you that may contain material
information relating to these offerings.
This prospectus does not contain all of the information included in the registration statement
we filed with the SEC. For further information about us or the securities offered hereby, you
should carefully read this prospectus, any applicable prospectus supplement, any related free
writing prospectuses, the information and documents incorporated herein by reference and the
additional information under the heading Where You Can Find Additional Information before making
an investment decision.
You should rely only on the information contained or incorporated by reference in this
prospectus, any applicable prospectus supplement and any related free writing prospectuses that we
may authorize to be provided to you. We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent information, you
should not rely on it. This prospectus and the accompanying supplement to this prospectus are not
an offer to sell these securities and it is not soliciting an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that the information
appearing in this prospectus, any applicable prospectus supplement or any related free writing
prospectuses, as well as information we have previously filed with the SEC and incorporated by
reference, is accurate only as of the date on the cover of those documents. Our business, financial
condition, results of operations and prospects may have changed since those dates.
This prospectus may not be used to consummate sales of any of these securities unless it is
accompanied by a prospectus supplement. To the extent there are inconsistencies between any
prospectus supplement, this prospectus and/or any documents incorporated by reference, the document
with the most recent date will control.
ABOUT ENDOLOGIX, INC.
We develop, manufacture, market and sell innovative treatments for aortic disorders. Our
principle product, the Powerlink® System is a minimally invasive device for the treatment of
abdominal aortic aneurysm, or AAA. AAA is a weakening of the wall of the aorta, the largest artery
of the body. Once AAA develops, it continues to enlarge and if left untreated becomes increasingly
susceptible to rupture. The overall patient mortality rate for ruptured AAAs is approximately 75%,
making it a leading cause of death in the United States today.
The Powerlink System is a catheter and endoluminal stent graft, or ELG, system. The device
consists of a self-expanding cobalt chromium alloy stent cage covered by ePTFE, a common surgical
graft material. The Powerlink ELG is implanted in the abdominal aorta, which is accessed through
the femoral artery. Once the Powerlink ELG is deployed into its proper position, blood flow is
shunted away from the weakened or aneurismal section of the aorta, reducing pressure and the
potential for the aorta to rupture. Our clinical trials demonstrated that implantation of our
products reduces the mortality and morbidity rates associated with conventional AAA surgery, and
provides a clinical alternative for many patients who could not undergo conventional surgery. Sales
of our Powerlink System in the United States, Europe, Japan, and Latin America is the primary
source of our reported revenues.
More comprehensive information about our products and us is available through our website at
www.endologix.com. The information on our website is not incorporated by reference into this
prospectus. Our main offices are located at 11 Studebaker, Irvine, California, 92618, and our
telephone number is (949) 595-7200.
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RISK FACTORS
Before making an investment decision, you should carefully consider the risks described under
Risk Factors in the applicable prospectus supplement and in our most recent Annual Report on
Form 10-K, or any updates in our Quarterly Reports on Form 10-Q, together with all of the other
information appearing in this prospectus or incorporated by reference into this prospectus and any
applicable prospectus supplement, in light of your particular investment objectives and financial
circumstances. Our business, financial condition or results of operations could be materially
adversely affected by any of these risks. The trading price of our common stock could decline due
to any of these risks, and you may lose all or part of your investment.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement, any related free writing prospectuses and the
documents incorporated by reference herein include forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of
the Securities Exchange Act of 1934, as amended, or the Exchange Act. Forward-looking statements
are those that predict or describe future events or trends and that do not relate solely to
historical matters. You can generally identify forward-looking statements as statements containing
the words believe, expect, will, anticipate, intend, estimate, project, plan,
assume or other similar expressions, or negatives of those expressions, although not all
forward-looking statements contain these identifying words. All statements contained or
incorporated by reference in this prospectus, any prospectus supplement and any related free
writing prospectuses regarding our future strategy, future operations, projected financial
position, estimated future revenues, projected costs, future prospects, the future of our
industries and results that might be obtained by pursuing managements current plans and objectives
are forward-looking statements.
You should not place undue reliance on our forward-looking statements because the matters they
describe are subject to known and unknown risks, uncertainties and other unpredictable factors,
many of which are beyond our control. Our forward-looking statements are based on the information
currently available to us and speak only as of the date on the cover of this prospectus, the date
of any prospectus supplement, the date of any related free writing prospectus or, in the case of
forward-looking statements incorporated by reference, as of the date of the filing that includes
the statement. New risks and uncertainties arise from time to time, and it is impossible for us to
predict these matters or how they may affect us. Over time, our actual results, performance or
achievements will likely differ from the anticipated results, performance or achievements that are
expressed or implied by our forward-looking statements, and such difference might be significant
and materially adverse to our security holders. We do not undertake and specifically decline any
obligation to update any forward-looking statements or to publicly announce the results of any
revisions to any statements to reflect new information or future events or developments.
We have identified some of the important factors that could cause future events to differ from
our current expectations and they are described in this prospectus and supplements to this
prospectus under the caption Risk Factors as well as in our most recent Annual Report on
Form 10-K, including, without limitation, under the captions Risk Factors and Managements
Discussion and Analysis of Financial Condition and Results of Operations and in other documents
that we may file with the SEC, all of which you should review carefully. Please consider our
forward-looking statements in light of those risks as you read this prospectus, any prospectus
supplement and any related free writing prospectuses.
RATIO OF EARNINGS TO FIXED CHARGES
Our earnings were insufficient to cover fixed charges in each of the years in the five-year
period ended December 31, 2008 and in the three months ended March 31, 2009. For the periods
indicated in the foregoing sentence, we had no outstanding shares of preferred stock with required
dividend payments. Our deficiency of earnings available to cover fixed charges for the years ended
December 31, 2008, 2007, 2006, 2005 and 2004 and the three months ended March 31, 2009 was, in each
case, $(11,992,000), $(15,075,000), $(17,543,000), $(15,518,000), $(9,683,000) and ($1,177,000),
respectively. Since earnings were insufficient to cover fixed charges for the five-year period
ended December 31, 2008 and the three months ended March 31, 2009, we are unable to provide ratios
of earnings to fixed charges for each respective period.
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USE OF PROCEEDS
We will retain broad discretion over the use of the net proceeds from the sale of any of the
securities offered under this prospectus. Unless otherwise indicated in any applicable prospectus
supplement or in any free writing prospectuses in connection with a specific offering, we intend to
use any net proceeds from the sale of such securities for our operations and for other general
corporate purposes, including, but not limited to, working capital, development of our products,
strategic acquisitions and other transactions, and other general corporate purposes. Pending our
use of the net proceeds as described above, we intend to invest the net proceeds in
investment-grade, interest-bearing securities.
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DESCRIPTION OF CAPITAL STOCK WE MAY OFFER
General
Our authorized capital stock consists of 60,000,000 shares of common stock, par value $0.001
per share, and 5,000,000 shares of preferred stock, par value $0.001 per share. As of May 5, 2009,
there were 43,895,449 shares of common stock outstanding and no shares of preferred stock
outstanding.
The following description of our common stock and preferred stock, together with the
additional information included in any applicable prospectus supplements or related free writing
prospectuses, summarizes the material terms and provisions of these types of securities, but it is
not complete. For the complete terms of our common stock and preferred stock, please refer to our
amended and restated certificate of incorporation, as amended, and our amended and restated bylaws
that are incorporated by reference into the registration statement which includes this prospectus
and, with respect to preferred stock, any certificate of designation that we may file with the SEC
for a series of preferred stock we may designate, if any.
We will describe in a prospectus supplement or related free writing prospectuses, the specific
terms of any common stock or preferred stock we may offer pursuant to this prospectus. If indicated
in a prospectus supplement, the terms of such common stock or preferred stock may differ from the
terms described below.
Common Stock
The holders of our common stock are entitled to one vote for each share held of record on all
matters submitted to a vote of the stockholders. The holders of common stock are not entitled to
cumulative voting rights with respect to the election of directors, and as a consequence, minority
stockholders will not be able to elect directors on the basis of their votes alone.
Subject to preferences that may be applicable to any then outstanding shares of preferred
stock, holders of common stock are entitled to receive ratably such dividends as may be declared by
the board of directors out of funds legally available therefor. In the event of a liquidation,
dissolution or winding up of us, holders of the common stock are entitled to share ratably in all
assets remaining after payment of liabilities and the liquidation preferences of any then
outstanding shares of preferred stock. Holders of common stock have no preemptive rights and no
right to convert their common stock into any other securities. There are no redemption or sinking
fund provisions applicable to our common stock. All outstanding shares of common stock are, and all
shares of common stock to be issued under this prospectus will be, fully paid and non-assessable.
The rights, preferences and privileges of holders of our common stock are subject to, and may be
adversely affected by, the rights of the holders of shares of any of our outstanding preferred
stock.
Our common stock is listed on The NASDAQ Global Market under the symbol ELGX. The transfer
agent and registrar for our common stock is American Stock Transfer and Trust Company.
Dividends
We have not declared any cash dividends on our common stock and we do not anticipate paying
any cash dividends on our common stock in the foreseeable future.
Preferred Stock
Our amended and restated certificate of incorporation, as amended, provides that our board of
directors has the authority, without further action by the stockholders, to issue up to 5,000,000
shares of preferred stock in one or more series and to fix the number of shares constituting any
series or the designation of a series and to determine or alter for each series or designation of a
series the voting powers, if any, and the designations, preferences, and relative, participating,
optional, or other rights, and the qualifications, limitations or restrictions, of any series or
the designation of a series. It is not possible to state the actual effect of the issuance of any
shares of preferred stock upon the rights of holders of the common stock until the board of
directors determines the specific rights of the
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holders of this preferred stock. However, the effects might include, among other things:
restricting dividends on the common stock; diluting the voting power of the common stock; impairing
the liquidation rights of the common stock; or delaying or preventing a change in control of our
company without further action by the stockholders.
Prior to the issuance of shares of each series of preferred stock, the board of directors is
required by the General Corporation Law of the State of Delaware, or the DGCL, and our amended and
restated certificate of incorporation, as amended, to adopt resolutions and file a certificate of
designation with the Secretary of State of the State of Delaware. The certificate of designation
fixes for each class or series of preferred stock the rights, preferences, and privileges of such
class or series.
Whenever preferred stock is to be sold pursuant to this prospectus, we will file a prospectus
supplement or related free writing prospectuses relating to that sale which will specify:
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the title and stated value of the preferred stock; |
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the number of shares of the preferred stock offered, the liquidation preference per
share and the offering price of the preferred stock; |
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the dividend rate, period and payment date and method of calculation for dividends; |
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whether dividends are cumulative or non-cumulative and, if cumulative, the date from
which dividends on the preferred stock will accumulate; |
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the procedures for any auction and remarketing, if any; |
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the provisions for a sinking fund, if any, for the preferred stock; |
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any listing of the preferred stock on any securities exchange; |
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the provision for redemption, if applicable, of the preferred stock; |
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the terms and conditions, if applicable, upon which the preferred stock will be
convertible into any other class or classes of capital stock, including the conversion
price or manner of calculation and conversion period; |
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voting rights, if any, of the preferred stock; |
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preemption rights, if any; |
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discussion of any material or special U.S. federal income tax considerations
applicable to the preferred stock; |
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the relative ranking and preferences of the preferred stock as to dividend rights
and rights upon the liquidation, dissolution or winding up of our affairs; |
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any limitations on issuance of any class or series of preferred stock ranking senior
to or on a parity with the series of preferred stock as to dividend rights and rights
if we liquidate, dissolve or wind up our affairs; and |
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any other specific terms, preferences, rights or limitations of, or restrictions on,
the preferred stock. |
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The DGCL provides that the holders of preferred stock will have the right to vote separately
as a class on any proposed fundamental change in the rights of the preferred stock. This right is
in addition to any voting rights that may be provided for in the applicable certificate of
designation.
All shares of preferred stock offered by this prospectus will, when issued, be fully paid and
nonassessable and will not have any preemptive or similar rights.
Our board of directors could authorize the issuance of additional shares of preferred stock
with terms and conditions that could have the effect of discouraging a takeover or other
transaction that might involve a premium price for holders of the shares, or that holders might
believe to be in their best interests.
Anti-Takeover Provisions
As a corporation organized under the laws of the State of Delaware, we are subject to Section
203 of the DGCL, which restricts our ability to enter into business combinations with an interested
stockholder or a stockholder owning 15% or more of our outstanding voting stock, or that
stockholders affiliates or associates, for a period of three years. These restrictions do not
apply if:
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prior to becoming an interested stockholder, our board of directors approves either
the business combination or the transaction in which the stockholder becomes an
interested stockholder; |
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upon consummation of the transaction in which the stockholder becomes an interested
stockholder, the interested stockholder owns at least 85% of our voting stock
outstanding at the time the transaction commenced, subject to exceptions; or |
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on or after the date a stockholder becomes an interested stockholder, the business
combination is both approved by our board of directors and authorized at an annual or
special meeting of our stockholders by the affirmative vote of at least two-thirds of
the outstanding voting stock not owned by the interested stockholder. |
Each of our amended and restated certificate of incorporation, as amended, and amended and
restated bylaws also include a number of other provisions that may have the effect of deterring
hostile takeovers or delaying or preventing changes in control or our management. First, our
amended and restated certificate of incorporation, as amended, and amended and restated bylaws
provide for a classified board of directors comprised of three classes of directors with each class
serving a staggered three-year term. Under Delaware law, directors of a corporation with a
classified board may be removed only for cause unless the corporations certificate of
incorporation provides otherwise. Our amended and restated certificate of corporation, as amended,
does not provide otherwise. Second, our amended and restated bylaws provide that all stockholder
action must be effected at a duly called meeting of stockholders and not by a consent in writing.
Third, our amended and restated bylaws provide that stockholders seeking to present proposals
before a meeting of stockholders or to nominate candidates for election as directors at a meeting
of stockholders must provide timely notice in writing. Our amended and restated bylaws also specify
requirements as to the form and content of a stockholders notice. These provisions may delay or
preclude stockholders from bringing matters before a meeting of stockholders or from making
nominations for directors at a meeting of stockholders, which could delay or deter takeover
attempts or changes in management. Fourth, our amended and restated certificate of incorporation,
as amended, provides that all vacancies, including newly created directorships, may, except as
otherwise required by law, be filled by the affirmative vote of a majority of our directors then in
office, even if less than a quorum. Fifth, our board of directors has the authority to issue
preferred stock, which could potentially be used to discourage attempts by third parties to obtain
control of us through a merger, tender offer, proxy or consent solicitation or otherwise, by making
those attempts more difficult to achieve or more costly.
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DESCRIPTION OF DEBT SECURITIES WE MAY OFFER
This prospectus describes the general terms and provisions of our debt securities. When we
offer to sell a particular series of debt securities, we will provide the specific terms of the
series in a prospectus supplement or any related free writing prospectuses relating to the series,
including any pricing supplement. Accordingly, for a description of the terms of any series of debt
securities, you must refer to the prospectus supplement and any free writing prospectuses relating
to that series and the description of the debt securities in this prospectus. To the extent the
information contained in the prospectus supplement differs from this summary description, you
should rely on the information in the prospectus supplement.
The debt securities offered by this prospectus will be issued under an indenture between us
and the trustee, for one or more series of debt securities designated in the applicable prospectus
supplement. The indenture is subject to, and governed by, the Trust Indenture Act of 1939, as
amended. We incorporate by reference the form of indenture as an exhibit to the registration
statement of which this prospectus forms a part and you should read the indenture carefully for the
provisions that may be important to you. We have summarized selected portions of the indenture
below. The summary is not complete. Terms used in the summary and not defined in this prospectus
have the meanings specified in the indenture.
General
We may offer under this prospectus up to $50,000,000 in aggregate principal amount of secured
or unsecured debt securities, or if debt securities are issued at a discount, or in a foreign
currency or composite currency, such principal amount as may be sold for an initial public offering
price of up to $50,000,000. The debt securities may be either senior debt securities, senior
subordinated debt securities or subordinated debt securities.
We can issue an unlimited amount of debt securities under the indenture that may be in one or
more series with the same or various maturities, at par, at a premium or at a discount. The terms
of each series of debt securities will be established by or pursuant to a resolution of our board
of directors and detailed or determined in the manner provided in a board of directors resolution,
an officers certificate or by a supplemental indenture.
We will set forth in a prospectus supplement (including any pricing supplement) and any free
writing prospectuses relating to any series of debt securities being offered, the initial offering
price, the aggregate principal amount and the following terms of the debt securities:
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the title of the debt securities; |
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the price or prices (expressed as a percentage of the aggregate principal amount) at
which we will sell the debt securities; |
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any limit on the aggregate principal amount of the debt securities; |
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the date or dates on which we will pay the principal on the debt securities; |
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the rate or rates (which may be fixed or variable) per annum or the method used to
determine the rate or rates (including any commodity, commodity index, stock exchange
index or financial index) at which the debt securities will bear interest, the date or
dates from which interest will accrue, the date or dates on which interest will
commence and be payable and any regular record date for the interest payable on any
interest payment date; |
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the place or places where the principal of, premium, and interest on the debt
securities will be payable; |
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the terms and conditions upon which we may redeem the debt securities; |
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any obligation we have to redeem or purchase the debt securities pursuant to any
sinking fund or analogous provisions or at the option of a holder of debt securities; |
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the dates on which and the price or prices at which we will repurchase the debt
securities at the option of the holders of debt securities and other detailed terms and
provisions of these repurchase obligations; |
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the denominations in which the debt securities will be issued, if other than
denominations of $1,000 and any integral multiple thereof; |
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whether the debt securities will be issued in the form of certificated debt
securities or global debt securities; |
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the portion of principal amount of the debt securities payable upon declaration of
acceleration of the maturity date, if other than the principal amount; |
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the currency of denomination of the debt securities; |
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the designation of the currency, currencies or currency units in which payment of
principal of, premium and interest on the debt securities will be made; |
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if payments of principal of, premium or interest on the debt securities will be made
in one or more currencies or currency units other than that or those in which the debt
securities are denominated, the manner in which the exchange rate with respect to these
payments will be determined; |
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the manner in which the amounts of payment of principal of, premium or interest on
the debt securities will be determined, if these amounts may be determined by reference
to an index based on a currency or currencies other than that in which the debt
securities are denominated or designated to be payable or by reference to a commodity,
commodity index, stock exchange index or financial index; |
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any provisions relating to any security provided for the debt securities; |
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any subordination provisions relating to the debt securities; |
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any addition to or change in the events of default described in this prospectus or
in the indenture with respect to the debt securities and any change in the acceleration
provisions described in this prospectus or in the indenture with respect to the debt
securities; |
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any addition to or change in the covenants described in this prospectus or in the
indenture with respect to the debt securities; |
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any other terms of the debt securities, which may modify or delete any provision of
the indenture as it applies to that series; and |
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any depositaries, interest rate calculation agents, exchange rate calculation agents
or other agents with respect to the debt securities. |
We may issue debt securities that are exchangeable and/or convertible into shares of our
common stock. The terms, if any, on which the debt securities may be exchanged for and/or converted
will be set forth in the applicable prospectus supplement and any related free writing
prospectuses. Such terms may include provisions for conversion, either mandatory, at the option of
the holder or at our option, in which case the number of shares of common stock or other securities
to be received by the holders of debt securities would be calculated as of a time and in the manner
stated in the prospectus supplement and any related free writing prospectuses.
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We may issue debt securities that provide for an amount less than their stated principal
amount to be due and payable upon declaration of acceleration of their maturity pursuant to the
terms of the indenture. We will provide you with information on the federal income tax
considerations and other special considerations applicable to any of these debt securities in the
applicable prospectus supplement and any related free writing prospectuses.
If we denominate the purchase price of any of the debt securities in a foreign currency or
currencies or a foreign currency unit or units, or if the principal of and any premium and interest
on any series of debt securities is payable in a foreign currency or currencies or a foreign
currency unit or units, we will provide you with information on the restrictions, elections,
general tax considerations, specific terms and other information with respect to that issue of debt
securities and such foreign currency or currencies or foreign currency unit or units in the
applicable prospectus supplement and any related free writing prospectuses.
Transfer and Exchange
Each debt security will be represented by either one or more global securities registered in
the name of The Depository Trust Company, as depositary, or a nominee of the depositary (we will
refer to any debt security represented by a global debt security as a book-entry debt security), or
a certificate issued in definitive registered form (we will refer to any debt security represented
by a certificated security as a certificated debt security), as described in the applicable
prospectus supplement and any related free writing prospectuses. Except as described under Global
Debt Securities and Book-Entry System below, book-entry debt securities will not be issuable in
certificated form.
Certificated Debt Securities. You may transfer or exchange certificated debt securities at the
trustees office or paying agencies in accordance with the terms of the indenture. No service
charge will be made for any transfer or exchange of certificated debt securities, but we may
require payment of a sum sufficient to cover any tax or other governmental charge payable in
connection with a transfer or exchange.
You may transfer certificated debt securities and the right to receive the principal of,
premium and interest on, certificated debt securities only by surrendering the old certificate
representing those certificated debt securities and either we or the trustee will reissue the old
certificate to the new holder or we or the trustee will issue a new certificate to the new holder.
Global Debt Securities and Book-Entry System. Each global debt security representing
book-entry debt securities will be deposited with, or on behalf of, the depositary, and registered
in the name of the depositary or a nominee of the depositary.
We will require the depositary to agree to follow the following procedures with respect to
book-entry debt securities.
Ownership of beneficial interests in book-entry debt securities will be limited to persons
that have accounts with the depositary for the related global debt security, whom we refer to as
participants, or persons that may hold interests through participants. Upon the issuance of a
global debt security, the depositary will credit, on its book-entry registration and transfer
system, the participants accounts with the respective principal amounts of the book-entry debt
securities represented by the global debt security beneficially owned by such participants. The
accounts to be credited will be designated by any dealers, underwriters or agents participating in
the distribution of the book-entry debt securities. Ownership of book-entry debt securities will be
shown on, and the transfer of the ownership interests will be effected only through, records
maintained by the depositary for the related global debt security (with respect to interests of
participants) and on the records of participants (with respect to interests of persons holding
through participants). The laws of some states may require that certain purchasers of securities
take physical delivery of such securities in definitive form. These laws may impair the ability to
own, transfer or pledge beneficial interests in book-entry debt securities.
So long as the depositary for a global debt security, or its nominee, is the registered owner
of that global debt security, the depositary or its nominee, as the case may be, will be considered
the sole owner or holder of the book-entry debt securities represented by such global debt security
for all purposes under the indenture. Except as
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described herein, beneficial owners of book-entry debt securities will not be entitled to have
securities registered in their names, will not receive or be entitled to receive physical delivery
of a certificate in definitive form representing securities and will not be considered the owners
or holders of those securities under the indenture. Accordingly, to exercise any rights of a holder
under the indenture, each person beneficially owning book-entry debt securities must rely on the
procedures of the depositary for the related global debt security and, if that person is not a
participant, on the procedures of the participant through which that person owns its interest.
We will make payments of principal of, and premium and interest on, book-entry debt securities
to the depositary or its nominee, as the case may be, as the registered holder of the related
global debt security. We, the trustee and any other agent of ours or agent of the trustee will not
have any responsibility or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in a global debt security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
We expect that the depositary, upon receipt of any payment of principal of, premium or
interest on, a global debt security, will immediately credit participants accounts with payments
in amounts proportionate to the respective amounts of book-entry debt securities held by each
participant as shown on the records of the depositary. We also expect that payments by participants
to owners of beneficial interests in book-entry debt securities held through those participants
will be governed by standing customer instructions and customary practices, as is now the case with
the securities held for the accounts of customers in bearer form or registered in street name,
and will be the responsibility of those participants.
We will issue certificated debt securities in exchange for each global debt security if the
depositary is at any time unwilling or unable to continue as depositary or ceases to be a clearing
agency registered under the Exchange Act, and a successor depositary registered as a clearing
agency under the Exchange Act is not appointed by us within 90 days. In addition, we may at any
time and in our sole discretion determine not to have any of the book-entry debt securities of any
series represented by one or more global debt securities and, in that event, we will issue
certificated debt securities in exchange for the global debt securities of that series. Global debt
securities will also be exchangeable by the holders for certificated debt securities if an event of
default with respect to the book-entry debt securities represented by those global debt securities
has occurred and is continuing. Any certificated debt securities issued in exchange for a global
debt security will be registered in such name or names as the depositary shall instruct the
trustee. We expect that such instructions will be based upon directions received by the depositary
from participants with respect to ownership of book-entry debt securities relating to such global
debt security.
We have obtained the foregoing information in this section concerning the depositary and the
depositarys book-entry system from sources we believe to be reliable. We take no responsibility
for the depositarys performance of its obligations under the rules and regulations governing its
operations.
No Protection in the Event of a Change in Control
Unless we provide otherwise in the applicable prospectus supplement or any related free
writing prospectuses, the debt securities will not contain any provisions which may afford holders
of the debt securities protection in the event we have a change in control or in the event of a
highly leveraged transaction (whether or not such transaction results in a change in control) that
could adversely affect holders of debt securities.
Covenants
We will describe in the applicable prospectus supplement and any related free writing
prospectuses any restrictive covenants applicable to an issue of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge into, or convey, transfer or lease all or substantially
all of our properties and assets to, any person, such person to be referred to as a successor
person, and we may not permit any person to merge into, or convey, transfer or lease its
properties and assets substantially as an entirety to us, unless:
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the successor person is a corporation, partnership, trust or other entity organized
and validly existing under the laws of any U.S. domestic jurisdiction and expressly
assumes our obligations on the debt securities and under the indenture; |
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immediately after giving effect to the transaction, no event of default, and no
event which, after notice or lapse of time, or both, would become an event of default,
shall have occurred and be continuing under the indenture; and |
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certain other conditions are met. |
Events of Default
Event of default means, with respect to any series of debt securities, any of the following:
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default in the payment of any interest upon any debt security of that series when it
becomes due and payable, and continuance of that default for a period of 30 days
(unless the entire amount of such payment is deposited by us with the trustee or with a
paying agent prior to the expiration of the 30-day period); |
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default in the payment of principal of or premium on any debt security of that
series when due and payable; |
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default in the deposit of any sinking fund payment, when and as due in respect of
any debt security of that series; |
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default in the performance or breach of any other covenant or warranty by us in the
indenture (other than a covenant or warranty that has been included in the indenture
solely for the benefit of a series of debt securities other than that series), which
default continues uncured for a period of 60 days after we receive written notice from
the trustee or we and the trustee receive written notice from the holders of at least a
majority in principal amount of the outstanding debt securities of that series as
provided in the indenture; |
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certain events of our bankruptcy, insolvency or reorganization; and |
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any other event of default provided with respect to debt securities of that series
that is described in the applicable prospectus supplement accompanying this prospectus. |
No event of default with respect to a particular series of debt securities (except as to
certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an event of
default with respect to any other series of debt securities. An event of default may also be an
event of default under our bank credit agreements or other debt securities in existence from time
to time and under certain guaranties by us of any subsidiary indebtedness. In addition, certain
events of default or an acceleration under the indenture may also be an event of default under some
of our other indebtedness outstanding from time to time.
If an event of default with respect to debt securities of any series at the time outstanding
occurs and is continuing (other than certain events of our bankruptcy, insolvency or
reorganization), then the trustee or the holders of not less than a majority in principal amount of
the outstanding debt securities of that series may, by written notice to us (and to the trustee if
given by the holders), declare to be due and payable immediately the principal (or, if the debt
securities of that series are discount securities, that portion of the principal amount as may be
specified in the terms of that series) of and accrued and unpaid interest, if any, of all debt
securities of that series. In the case of an event of default resulting from certain events of
bankruptcy, insolvency or reorganization, the principal (or such specified amount) of and accrued
and unpaid interest, if any, of all outstanding debt securities will become and be immediately due
and payable without any declaration or other act by the trustee or any holder of outstanding debt
securities. At any time after a declaration of acceleration with respect to debt securities of any
series has been made, but before the trustee has obtained a judgment or decree for payment of the
money due, the holders of a majority in
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principal amount of the outstanding debt securities of that series may, subject to our having
paid or deposited with the trustee a sum sufficient to pay overdue interest and principal which has
become due other than by acceleration and certain other conditions, rescind and annul such
acceleration if all events of default, other than the non-payment of accelerated principal and
interest, if any, with respect to debt securities of that series, have been cured or waived as
provided in the indenture. For information as to waiver of defaults see the discussion under
Modification and Waiver below. We refer you to the applicable prospectus supplement and any free
writing prospectuses relating to any series of debt securities that are discount securities for the
particular provisions relating to acceleration of a portion of the principal amount of the discount
securities upon the occurrence of an event of default and the continuation of an event of default.
The indenture provides that the trustee will be under no obligation to exercise any of its
rights or powers under the indenture at the request of any holder of outstanding debt securities,
unless the trustee receives indemnity satisfactory to it against any loss, liability or expense.
Subject to certain rights of the trustee, the holders of a majority in principal amount of the
outstanding debt securities of any series shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the trustee or exercising any trust or
power conferred on the trustee with respect to the debt securities of that series.
No holder of any debt security of any series will have any right to institute any proceeding,
judicial or otherwise, with respect to the indenture or for the appointment of a receiver or
trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice of a continuing event
of default with respect to debt securities of that series; and |
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the holders of at least a majority in principal amount of the outstanding debt
securities of that series have made written request, and offered reasonable indemnity,
to the trustee to institute such proceeding as trustee, and the trustee shall not have
received from the holders of a majority in principal amount of the outstanding debt
securities of that series a direction inconsistent with that request and has failed to
institute the proceeding within 60 days. |
Notwithstanding the foregoing, the holder of any debt security will have an absolute and
unconditional right to receive payment of the principal of, premium and any interest on that debt
security on or after the due dates expressed in that debt security and to institute suit for the
enforcement of payment.
The indenture requires us, within 90 days after the end of our fiscal year, to furnish to the
trustee a certificate as to compliance with the indenture. The indenture provides that the trustee
may withhold notice to the holders of debt securities of any series of any default or event of
default (except in payment on any debt securities of that series) with respect to debt securities
of that series if it in good faith determines that withholding notice is in the interest of the
holders of those debt securities.
Modification and Waiver
We and the trustee may modify and amend the indenture with the consent of the holders of at
least a majority in principal amount of the outstanding debt securities of each series affected by
the modifications or amendments. We and the trustee may not make any modification or amendment
without the consent of the holder of each affected debt security then outstanding if that amendment
will:
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change the amount of debt securities whose holders must consent to an amendment or
waiver; |
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reduce the rate of or extend the time for payment of interest (including default
interest) on any debt security; |
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reduce the principal of or premium on or change the fixed maturity of any debt
security or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation with respect to any series of debt securities; |
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reduce the principal amount of discount securities payable upon acceleration of
maturity; |
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waive a default in the payment of the principal of, premium or interest on any debt
security (except a rescission of acceleration of the debt securities of any series by
the holders of at least a majority in aggregate principal amount of the then
outstanding debt securities of that series and a waiver of the payment default that
resulted from that acceleration); |
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make the principal of or premium or interest on any debt security payable in
currency other than that stated in the debt security; |
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make any change to certain provisions of the indenture relating to, among other
things, the right of holders of debt securities to receive payment of the principal of,
premium and interest on those debt securities, the right of holders to institute suit
for the enforcement of any payment or the right of holders to waive past defaults or to
amend the limitations described in this bullet point; or |
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waive a redemption payment with respect to any debt security or change any of the
provisions with respect to the redemption of any debt securities. |
Except for certain specified provisions, the holders of at least a majority in principal
amount of the outstanding debt securities of any series may, on behalf of the holders of all debt
securities of that series, waive our compliance with provisions of the indenture. The holders of a
majority in principal amount of the outstanding debt securities of any series may, on behalf of the
holders of all the debt securities of that series, waive any past default under the indenture with
respect to that series and its consequences, except a default in the payment of the principal of,
premium or any interest on any debt security of that series; provided, however, that the holders of
a majority in principal amount of the outstanding debt securities of any series may rescind an
acceleration and its consequences, including any related payment default that resulted from the
acceleration.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance. The indenture provides that, unless the terms of the applicable series of
debt securities provide otherwise, we may be discharged from any and all obligations in respect of
the debt securities of any series (except for certain obligations to register the transfer or
exchange of debt securities of the series, to replace stolen, lost or mutilated debt securities of
the series, and to maintain paying agencies and certain provisions relating to the treatment of
funds held by paying agents). We will be so discharged upon the deposit with the trustee, in trust,
of money and/or U.S. government obligations or, in the case of debt securities denominated in a
single currency other than U.S. dollars, foreign government obligations (as described at the end of
this section), that, through the payment of interest and principal in accordance with their terms,
will provide money in an amount sufficient in the opinion of a nationally recognized firm of
independent public accountants to pay and discharge each installment of principal, premium and
interest on and any mandatory sinking fund payments in respect of the debt securities of that
series on the stated maturity of such payments in accordance with the terms of the indenture and
those debt securities.
This discharge may occur only if, among other things, we have delivered to the trustee an
officers certificate and an opinion of counsel stating that we have received from, or there has
been published by, the U.S. Internal Revenue Service a ruling or, since the date of execution of
the indenture, there has been a change in the applicable U.S. federal income tax law, in either
case to the effect that holders of the debt securities of such series will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of the deposit, defeasance and
discharge and will be subject to U.S. federal income tax on the same amount and in the same manner
and at the same times as would have been the case if the deposit, defeasance and discharge had not
occurred.
Defeasance of Certain Covenants. The indenture provides that, unless the terms of the
applicable series of debt securities provide otherwise, upon compliance with certain conditions, we
may omit to comply with the restrictive covenants contained in the indenture, as well as any
additional covenants contained in a supplement to the indenture, a board resolution or an officers
certificate delivered pursuant to the indenture. The conditions include:
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depositing with the trustee money and/or U.S. government obligations or, in the case
of debt securities denominated in a single currency other than U.S. dollars, foreign
government obligations, that, through the payment of interest and principal in
accordance with their terms, will provide money in an amount sufficient in the opinion
of a nationally recognized firm of independent public accountants to pay principal,
premium and interest on and any mandatory sinking fund payments in respect of the debt
securities of that series on the stated maturity of those payments in accordance with
the terms of the indenture and those debt securities; and |
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delivering to the trustee an opinion of counsel to the effect that the holders of
the debt securities of that series will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of the deposit and related covenant defeasance
and will be subject to U.S. federal income tax in the same amount and in the same
manner and at the same times as would have been the case if the deposit and related
covenant defeasance had not occurred. |
Covenant Defeasance and Events of Default. In the event we exercise our option, as described
above, not to comply with certain covenants of the indenture with respect to any series of debt
securities and the debt securities of that series are declared due and payable because of the
occurrence of any event of default, the amount of money and/or U.S. government obligations or
foreign government obligations on deposit with the trustee will be sufficient to pay amounts due on
the debt securities of that series at the time of their stated maturity but may not be sufficient
to pay amounts due on the debt securities of that series at the time of the acceleration resulting
from the event of default. However, we will remain liable for those payments.
Foreign government obligations means, with respect to debt securities of any series that are
denominated in a currency other than U.S. dollars:
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direct obligations of the government that issued or caused to be issued such
currency for the payment of which obligations its full faith and credit is pledged,
which are not callable or redeemable at the option of the issuer thereof; or |
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obligations of a person controlled or supervised by or acting as an agency or
instrumentality of that government the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by that government, which are not
callable or redeemable at the option of the issuer thereof. |
Governing Law
The indenture and the debt securities will be governed by, and construed in accordance with,
the internal laws of the State of New York.
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DESCRIPTION OF WARRANTS WE MAY OFFER
We may issue warrants to purchase debt securities, preferred stock, common stock or any
combination of the foregoing. We may issue warrants independently or together with any other
securities we offer under a prospectus supplement. The warrants may be attached to or separate from
the securities. We will issue each series of warrants under a separate warrant agreement that we
will enter into with a bank or trust company, as warrant agent. The statements made in this
section relating to the warrant agreement are summaries only. These summaries are not complete.
When we issue warrants, we will provide the specific terms of the warrants and the applicable
warrant agreement in a prospectus supplement and any related free writing prospectuses. To the
extent the information contained in the prospectus supplement differs from this summary
description, you should rely on the information in the prospectus supplement.
Debt Warrants
We will describe in the applicable prospectus supplement and any related free writing
prospectuses the terms of the debt warrants being offered, the warrant agreement relating to the
debt warrants and the debt warrant certificates representing the debt warrants, including:
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the title of the debt warrants; |
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the aggregate number of the debt warrants; |
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the price or prices at which the debt warrants will be issued; |
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the designation, aggregate principal amount and terms of the debt securities
purchasable upon exercise of the debt warrants, and the procedures and conditions
relating to the exercise of the debt warrants; |
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the designation and terms of any related debt securities with which the debt
warrants are issued, and the number of the debt warrants issued with each security; |
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the date, if any, on and after which the debt warrants and the related debt
securities will be separately transferable; |
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the principal amount of debt securities purchasable upon exercise of each debt
warrant, and the price at which the principal amount of the debt securities may be
purchased upon exercise; |
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the date on which the right to exercise the debt warrants will commence, and the
date on which the right will expire; |
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the maximum or minimum number of the debt warrants that may be exercised at any
time; |
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information with respect to book-entry procedures, if any; |
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a discussion of the material U.S. federal income tax considerations applicable to
the exercise of the debt warrants; and |
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any other terms of the debt warrants and terms, procedures and limitations relating
to the exercise of the debt warrants. |
Holders may exchange debt warrant certificates for new debt warrant certificates of different
denominations, and may exercise debt warrants at the corporate trust office of the warrant agent or
any other office indicated in the applicable prospectus supplement and any related free writing
prospectuses. Prior to the exercise of their debt warrants, holders of debt warrants will not have
any of the rights of holders of the securities purchasable
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upon the exercise and will not be entitled to payments of principal, premium or interest on
the securities purchasable upon the exercise of debt warrants.
Equity Warrants
We will describe in the applicable prospectus supplement and any related free writing
prospectuses the terms of the preferred stock warrants or common stock warrants being offered, the
warrant agreement relating to the preferred stock warrants or common stock warrants and the warrant
certificates representing the preferred stock warrants or common stock warrants, including:
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the title of the warrants; |
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the securities for which the warrants are exercisable; |
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the price or prices at which the warrants will be issued; |
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if applicable, the number of warrants issued with each share of preferred stock or
share of common stock; |
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if applicable, the date on and after which the warrants and the related preferred
stock or common stock will be separately transferable; |
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the date on which the right to exercise the warrants will commence, and the date on
which the right will expire; |
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the maximum or minimum number of warrants which may be exercised at any time; |
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information with respect to book-entry procedures, if any; |
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a discussion of the material U.S. federal income tax considerations applicable to
exercise of the warrants; and |
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any other terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the warrants. |
Unless otherwise provided in the applicable prospectus supplement or any related free writing
prospectuses, holders of equity warrants will not be entitled, by virtue of being such holders, to
vote, consent, receive dividends, receive notice as stockholders with respect to any meeting of
stockholders for the election of our directors or any other matter, or to exercise any rights
whatsoever as stockholders.
Except as provided in the applicable prospectus supplement or any related free writing
prospectuses, the exercise price payable and the number of shares of common stock or preferred
stock purchasable upon the exercise of each warrant will be subject to adjustment in certain
events, including the issuance of a stock dividend to holders of common stock or preferred stock or
a stock split, reverse stock split, combination, subdivision or reclassification of common stock or
preferred stock. In lieu of adjusting the number of shares of common stock or preferred stock
purchasable upon exercise of each warrant, we may elect to adjust the number of warrants. Unless
otherwise provided in the applicable prospectus supplement or any related free writing
prospectuses, no adjustments in the number of shares purchasable upon exercise of the warrants will
be required until all cumulative adjustments require an adjustment of at least 1% thereof. We may,
at our option, reduce the exercise price at any time. No fractional shares will be issued upon
exercise of warrants, but we will pay the cash value of any fractional shares otherwise issuable.
Notwithstanding the foregoing, except as otherwise provided in the applicable prospectus supplement
or any related free writing prospectuses, in case of any consolidation, merger, or sale or
conveyance of our property as an entirety or substantially as an entirety, the holder of each
outstanding warrant will have the right to the kind and amount of shares of stock and other
securities and property, including cash, receivable by a holder of the number of
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shares of common stock or preferred stock into which each warrant was exercisable immediately
prior to the particular triggering event.
Exercise of Warrants
Each warrant will entitle the holder of the warrant to purchase for cash at the exercise price
provided in the applicable prospectus supplement or any related free writing prospectuses the
principal amount of debt securities or shares of preferred stock or shares of common stock being
offered. Holders may exercise warrants at any time up to the close of business on the expiration
date provided in the applicable prospectus supplement or any related free writing prospectuses.
After the close of business on the expiration date, unexercised warrants are void.
Holders may exercise warrants as described in the prospectus supplement or any free writing
prospectuses relating to the warrants being offered. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office of the warrant agent
or any other office indicated in the prospectus supplement or any related free writing
prospectuses, we will, as soon as practicable, forward the debt securities, shares of preferred
stock or shares of common stock purchasable upon the exercise of the warrant. If less than all of
the warrants represented by the warrant certificate are exercised, we will issue a new warrant
certificate for the remaining warrants.
17
PLAN OF DISTRIBUTION
We may sell the securities through underwriters or dealers, through agents, or directly to one
or more purchasers or through a combination of these methods. The applicable prospectus supplement
(and any related free writing prospectus that we may authorize to be provided to you) will describe
the terms of the offering of the securities, including:
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the name or names of any underwriters, if any, and if required, any dealers or
agents; |
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the purchase price or other consideration to be paid in connection with the sale of
the securities being offered and the proceeds we will receive from the sale; |
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any underwriting discounts or agency fees and other items constituting underwriters
or agents compensation; |
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any discounts or concessions allowed or reallowed or paid to dealers; and |
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any securities exchange or market on which the securities may be listed. |
We may distribute the securities from time to time in one or more transactions at:
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fixed price or prices, which may be changed from time to time; |
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market prices prevailing at the time of sale; |
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prices related to such prevailing market prices; or |
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negotiated prices. |
Only underwriters named in the prospectus supplement are underwriters of the securities
offered by the prospectus supplement.
If we utilize an underwriter in the sale of the securities being offered, we will execute an
underwriting agreement with the underwriter at the time of sale. Any underwriters used in the sale
will acquire the securities for their own account and may resell the securities from time to time
in one or more transactions at a fixed public offering price or at varying prices determined at the
time of sale. The obligations of the underwriters to purchase the securities will be subject to the
conditions set forth in the applicable underwriting agreement. We may offer the securities to the
public through underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate.
In connection with the sale of the securities, we, or the purchasers of the securities for
whom the underwriter may act as agent, may compensate the underwriter in the form of underwriting
discounts or commissions. The underwriter may sell the securities to or through dealers, and the
underwriter may compensate those dealers in the form of discounts, concessions or commissions.
Subject to certain conditions, the underwriters will be obligated to purchase all of the securities
offered by the prospectus supplement. We may change from time to time the public offering price and
any discounts or concessions allowed or reallowed or paid to dealers.
We may directly solicit offers to purchase the securities. We may also designate agents to
solicit offers to purchase the securities from time to time. We will name in a prospectus
supplement any agent involved in the offer or sale of our securities. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts basis for the period of its
appointment.
If we utilize a dealer in the sale of the securities being offered by this prospectus, we will
sell the securities to the dealer, as principal. The dealer may then resell the securities to the
public at varying prices to be determined by the dealer at the time of resale.
18
We may authorize agents or underwriters to solicit offers by institutional investors to
purchase securities from us at the public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and delivery on a specified date in
the future. We will describe the conditions to these contracts and the commissions we must pay for
solicitation of these contracts in the prospectus supplement.
Underwriters, dealers and agents participating in the distribution of the securities may be
deemed to be underwriters within the meaning of the Securities Act, and any discounts and
commissions received by them and any profit realized by them on resale of the securities may be
deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify
underwriters, dealers and agents against civil liabilities, including liabilities under the
Securities Act, or to contribute to payments they may be required to make in respect thereof.
In addition, we may enter into derivative transactions with third parties (including the
writing of options), or sell securities not covered by this prospectus to third parties in
privately negotiated transactions. If the applicable prospectus supplement indicates, in connection
with such a transaction, the third parties may, pursuant to this prospectus and the applicable
prospectus supplement, sell securities covered by this prospectus and the applicable prospectus
supplement. If so, the third party may use securities borrowed from us or others to settle such
sales and may use securities received from us to close out any related short positions. We may also
loan or pledge securities covered by this prospectus and the applicable prospectus supplement to
third parties, who may sell the loaned securities or, in an event of default in the case of a
pledge, sell the pledged securities pursuant to this prospectus and the applicable prospectus
supplement. The third party in such sale transactions will be an underwriter and will be identified
in the applicable prospectus supplement or in a post-effective amendment.
All securities we offer, other than common stock, will be new issues of securities with no
established trading market. Any underwriters may make a market in these securities, but will not be
obligated to do so and may discontinue any market making at any time without notice. We cannot
guarantee the liquidity of the trading markets for any securities.
Underwriters may engage in stabilizing and syndicate covering transactions in accordance with
Rule 104 under the Exchange Act. Rule 104 permits stabilizing bids to purchase the securities being
offered as long as the stabilizing bids do not exceed a specified maximum. Underwriters may
over-allot the offered securities in connection with the offering, thus creating a short position
in their account. Syndicate covering transactions involve purchases of the offered securities by
underwriters in the open market after the distribution has been completed in order to cover
syndicate short positions. Underwriters may also cover an over-allotment or short position by
exercising their over-allotment option, if any. Stabilizing and syndicate covering transactions may
cause the price of the offered securities to be higher than it would otherwise be in the absence of
these transactions. These transactions, if commenced, may be discontinued at any time.
Any underwriters who are qualified market makers on The NASDAQ Global Market may engage in
passive market making transactions in the securities on The NASDAQ Global Market in accordance with
Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the
commencement of offers or sales of the common stock. Passive market makers must comply with
applicable volume and price limitations and must be identified as passive market makers. In
general, a passive market maker must display its bid at a price not in excess of the highest
independent bid for such security; if all independent bids are lowered below the passive market
makers bid, however, the passive market makers bid must then be lowered when certain purchase
limits are exceeded.
In compliance with guidelines of the Financial Industry Regulatory Authority, or FINRA, the
maximum consideration or discount to be received by any FINRA member or independent broker dealer
may not exceed 8% of the aggregate amount of the securities offered pursuant to this prospectus and
any applicable prospectus supplement.
The underwriters, dealers and agents may engage in other transactions with us, or perform
other services for us, in the ordinary course of their business. We will describe such
relationships in the prospectus supplement naming the underwriter and the nature of any such
relationship.
19
LEGAL MATTERS
The validity of the securities being offered hereby will be passed on by Stradling Yocca
Carlson & Rauth, a Professional Corporation, Newport Beach, California.
EXPERTS
The consolidated financial statements and managements assessment of the effectiveness of
internal control over financial reporting (which is included in Managements Report on Internal
Control Over Financial Reporting) incorporated in this prospectus by reference to the Annual Report
on Form 10-K for the year ended December 31, 2008 have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed a registration statement on Form S-3 with the SEC with respect to the securities
covered by this prospectus. This prospectus does not include all of the information contained in
the registration statement. You should refer to the registration statement and its exhibits for
additional information. Whenever we make reference in this prospectus to any of our contracts,
agreements or other documents, the references are not necessarily complete and you should refer to
the exhibits attached to the registration statement for copies of the actual contract, agreement or
other document.
We are subject to the informational requirements of the Exchange Act and in accordance
therewith file periodic reports, current reports, proxy statements and other information with the
SEC. You may read and copy any document we file at the SECs public reference room at 100 F Street,
N.E., Washington, D.C. 20549. Please call the SEC toll free at 1-800-SEC-0330 for information about
its public reference room. The SEC maintains an internet site that contains reports, proxy and
information statements, and other information regarding issuers that file electronically with the
SEC, where our SEC filings are also available. The address of the SECs website is
http://www.sec.gov. We maintain a website at www.endologix.com. Information contained in or
accessible through our website does not constitute part of this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with it, which means
that we can disclose important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus. Information in this
prospectus supersedes information incorporated by reference that we filed with the SEC prior to the
date of this prospectus, while information that we file later with the SEC will automatically
update and supersede the information in this prospectus. We incorporate by reference into this
registration statement and prospectus the documents listed below, and any future filings we make
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the
initial registration statement but prior to effectiveness of the registration statement and after
the date of this prospectus but prior to the termination of the offering of the securities covered
by this prospectus, except for information furnished under Item 2.02 or Item 7.01 of Form 8-K which
is neither deemed filed nor incorporated by reference herein:
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2008 as filed
with the SEC on March 10, 2009, as amended by Amendment No. 1 to Annual Report on Form
10-K as filed with the SEC on April 30, 2009; |
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our Quarterly Report on Form 10-Q, as filed with the SEC on
May 8, 2009; |
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our Current Reports on Form 8-K as filed with the SEC on January 2, 2009, February
5, 2009, and March 5, 2009; and |
20
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the description of our common stock contained in our Registration Statement on
Form 8-A, filed with the SEC on June 18, 1996, including any amendment or report filed
for the purpose of updating such description. |
You may request a copy of these filings (other than an exhibit to a filing unless that exhibit
is specifically incorporated by reference into that filing) at no cost, by writing to us at the
following address: Investor Relations, Endologix, Inc., 11 Studebaker, Irvine, California 92618,
or by telephoning us at the following telephone number: (949) 595-7200.
21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs and expenses, other than underwriting
discounts and commissions, payable by us in connection with the offering of the securities being
registered. All the amounts shown are estimates, except for the SEC registration fee.
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SEC registration fees |
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$ |
2,790 |
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Printing fees and expenses |
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* |
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Legal fees and expenses |
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* |
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Accounting fees and expenses |
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* |
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Miscellaneous expenses |
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* |
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Total |
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* |
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* |
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To be filed by amendment with a Current Report on Form 8-K or Rule 424 filing. |
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify
any person made a party to an action (other than an action by or in the right of the corporation)
by reason of the fact that he or she was a director, officer, employee or agent of the corporation
or was serving at the request of the corporation against expenses (including attorneys fees),
judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action if he or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation and, with respect to
any criminal action (other than an action by or in the right of the corporation), has no reasonable
cause to believe his or her conduct was unlawful.
Our amended and restated certificate of incorporation, as amended, limits, to the maximum
extent permitted by Delaware law, the personal liability of directors for monetary damages for
breach of their fiduciary duties as a director. Our amended and restated bylaws provide that we
shall indemnify our officers and directors and may indemnify our employees and other agents to the
fullest extent permitted by Delaware law.
Our directors and officers are covered by insurance policies indemnifying against certain
liabilities, including certain liabilities arising under the Securities Act of 1933, which might be
incurred by them in such capacities and against which they cannot be indemnified by us. We have
entered into indemnification agreements with all of our executive officers and directors which
provide indemnification under certain circumstances for acts and omissions in the course of their
employment with us.
Item 16. Exhibits.
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Exhibit |
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Number |
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Description |
1.1
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Form of Underwriting Agreement (1) |
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3.1
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Amended and Restated Certificate of Incorporation (Incorporated by reference to
Exhibit 4.1 to Endologix Registration Statement on Form S-8, filed with the SEC on
August 7, 2006). |
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3.2
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Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.2 to Endologix
Annual Report on Form 10-K filed with the SEC on March 29, 2001). |
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4.1
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Specimen Certificate of Common Stock (Incorporated by reference to Exhibit 4.1 to
Amendment No. 2 to Endologix Registration Statement on Form S-1, No. 333-04560,
filed with the SEC on June 10, 1996). |
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4.2
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Form of Indenture |
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4.3
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Form of Debt Security (1) |
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4.4
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Form of Warrant Agreement, including form of warrant (1) |
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5.1
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Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation |
II-1
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Exhibit |
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Number |
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Description |
12.1
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Statement Regarding the Computation of Ratio of Earnings to Fixed Charges |
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23.1
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
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23.2
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Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in
its opinion filed as Exhibit 5.1 hereto) |
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24.1
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Power of Attorney (included on signature page hereto) |
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25.1
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Statement of Eligibility of Trustee on Form T-1 (1) |
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(1) |
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To be filed as an exhibit to a Current Report on Form 8-K and 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), (a)(1)(ii) and (a)(1)(iii) of this section 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 Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be
part of the registration statement as of the date the filed prospectus was deemed part of and
included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to
II-2
Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the offering described in
the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that
is at that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement or prospectus that
is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document
immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act
of 1933 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.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrants 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 plans 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.
(c) The undersigned registrant hereby undertakes (1) to use its best efforts to distribute
prior to the opening of bids, to prospective bidders, underwriters, and dealers, a reasonable
number of copies of a prospectus which at that time meets the requirements of section 10(a) of the
Securities Act, and relating to the securities offered at competitive bidding, as contained in the
registration statement, together with any supplements thereto, and (2) to file an amendment to the
registration statement reflecting the results of bidding, the terms of the reoffering and related
matters to the extent required by the applicable form, not later than the first use, authorized by
the issuer after the opening of bids, of a prospectus relating to the securities offered at
competitive bidding, unless no further public offering of such securities by the issuer and no
reoffering of such securities by the purchasers is proposed to be made.
(d) The undersigned registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by the Commission under
section 305(b)2 of the Trust Indenture Act.
II-3
(e) 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
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.
II-4
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 Irvine, State of California, on May 8, 2009.
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ENDOLOGIX, INC.
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By: |
/s/ John McDermott
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John McDermott |
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Chief Executive Officer
(Principal Executive Officer) |
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POWER OF ATTORNEY
We, the undersigned directors and officers of Endologix, Inc., do hereby constitute and
appoint John McDermott and Robert J. Krist, or either of them, our true and lawful attorneys and
agents, to do any and all acts and things in our name and behalf in our capacities as directors and
officers and to execute any and all instruments for us and in our names in the capacities indicated
below, which said attorneys and agents, or either of them, may deem necessary or advisable to
enable said corporation to comply with the Securities Act of 1933, as amended, and any rules,
regulations, and requirements of the Securities and Exchange Commission, in connection with this
registration statement, including specifically, but without limitation, power and authority to sign
for us or any of us in our names and in the capacities indicated below, any and all amendments
(including post-effective amendments) to this registration statement, or any related registration
statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933, as amended; and we do hereby ratify and confirm all that the said attorneys and agents, or
either of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ John McDermott
John McDermott
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Chief Executive Officer and Director
(Principal Executive Officer)
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May 8, 2009 |
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|
/s/ Robert J. Krist
Robert J. Krist
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Chief Financial Officer and Secretary
(Principal Financial and Accounting Officer)
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May 8, 2009 |
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/s/ Franklin D. Brown
Franklin D. Brown
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Chairman of the Board
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May 8, 2009 |
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/s/ Roderick de Greef
Roderick de Greef
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Director
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May 8, 2009 |
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/s/ Edward B. Deithrich, M.D.
Edward B. Deithrich, M.D.
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Director
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May 8, 2009 |
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/s/ Paul McCormick
Paul McCormick
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Director
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May 8, 2009 |
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/s/ Jeffrey F. ODonnell
Jeffrey F. ODonnell
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Director
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May 8, 2009 |
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/s/ Gregory D. Waller
Gregory D. Waller
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Director
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May 8, 2009 |
EXHIBIT INDEX
|
|
|
Exhibit |
|
|
Number |
|
Description |
1.1
|
|
Form of Underwriting Agreement (1) |
|
|
|
3.1
|
|
Amended and Restated Certificate of Incorporation (Incorporated by reference to
Exhibit 4.1 to Endologix Registration Statement on Form S-8, filed with the SEC on
August 7, 2006). |
|
|
|
3.2
|
|
Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.2 to Endologix
Annual Report on Form 10-K filed with the SEC on March 29, 2001). |
|
|
|
4.1
|
|
Specimen Certificate of Common Stock (Incorporated by reference to Exhibit 4.1 to
Amendment No. 2 to Endologix Registration Statement on Form S-1, No. 333-04560,
filed with the SEC on June 10, 1996). |
|
|
|
4.2
|
|
Form of Indenture |
|
|
|
4.3
|
|
Form of Debt Security (1) |
|
|
|
4.4
|
|
Form of Warrant Agreement, including form of warrant (1) |
|
|
|
5.1
|
|
Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation |
|
|
|
12.1
|
|
Statement Regarding the Computation of Ratio of Earnings to Fixed Charges |
|
|
|
23.1
|
|
Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm |
|
|
|
23.2
|
|
Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in
its opinion filed as Exhibit 5.1 hereto) |
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24.1
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|
Power of Attorney (included on signature page hereto) |
|
|
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25.1
|
|
Statement of Eligibility of Trustee on Form T-1 (1) |
|
|
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(1) |
|
To be filed as an exhibit to a Current Report on Form 8-K and incorporated herein by
reference. |
6