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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 21, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ENDOCARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 33-0618093
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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7 STUDEBAKER
IRVINE, CALIFORNIA 92618
(949) 595-4770
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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PAUL W. MIKUS
CHIEF EXECUTIVE OFFICER
ENDOCARE, INC.
7 STUDEBAKER
IRVINE, CALIFORNIA 92618
(949) 595-4770
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
ETHAN D. FEFFER, ESQ.
BROBECK, PHLEGER & HARRISON LLP
38 TECHNOLOGY DRIVE
IRVINE, CALIFORNIA 92618
(949) 790-6300
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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 S-3 are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being offered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ______
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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Common Stock, par value $.001 per share..... 1,942,260 shares $13.91 $27,016,836.60 $7,132.44
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Section 6 and Rule 457, based on the average of the high and low
sales prices, $14.4375 and $13.375, respectively, on December 18, 2000 as
reported on the Nasdaq National Market.
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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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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ENDOCARE, INC.
1,942,260 SHARES
COMMON STOCK
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This Prospectus relates to the public offering, which is not being
underwritten, of 1,942,260 shares of our common stock and warrants to buy shares
of common stock listed in the Selling Stockholders table on page 9. The prices
at which the selling stockholders may sell the shares will be determined by the
prevailing market price for the shares or in negotiated transactions. We will
not receive any of the proceeds from the sale of the shares.
Our common stock is quoted on the Nasdaq National Market under the symbol
"ENDO." On December 18, 2000, the last reported closing bid price of our common
stock on the Nasdaq National Market was $13.4375 per share. The selling
stockholders may offer their shares of common stock from time to time, in the
open market, on The Nasdaq National Market, in privately negotiated
transactions, in an underwritten offering, or a combination of such methods, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The selling stockholders may
engage brokers or dealers who may receive commissions or discounts from the
selling stockholders. Any broker-dealer acquiring the common stock from the
selling stockholders may sell such securities in normal market making
activities, through other brokers on a principal or agency basis, in negotiated
transactions, to its customers or through a combination of such methods. See
"Plan of Distribution." We will bear all of the expenses and fees incurred in
registering the shares offered by this prospectus. The selling stockholders will
pay any brokerage commissions and discounts attributable to the sale of the
shares.
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INVESTING IN OUR STOCK INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE
3.
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THE SECURITIES AND EXCHANGE COMMISSION AND STATE SECURITIES REGULATORS HAVE
NOT APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS
IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THE DATE OF THIS PROSPECTUS IS ________, ____.
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual and quarterly reports, proxy statements and other
information with the SEC. You may read and copy this information at the
following public reference rooms of the SEC:
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Washington, D.C. New York, New York Chicago, Illinois
450 Fifth Street, N.W. 7 World Trade Center 500 West Madison Street
Room 1024 Suite 1300 Suite 1400
Washington, D.C. 20549 New York, NY 10048 Chicago, IL 60661-2511
</TABLE>
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W. Room 1024, Washington, D.C.
20549, at prescribed rates. You may obtain information on the operation of the
public reference rooms by calling the SEC at: 1-800-SEC-0330.
Our filings are also available at the SEC's website at http://www.sec.gov.
We filed with the SEC a registration statement on Form S-3 that contains
exhibits and other information regarding Endocare and the common stock offered
by this prospectus. Pursuant to SEC rules, this prospectus, which forms a part
of the registration statement, does not contain all the information in the
registration statement. You may obtain a copy of the registration statement and
all exhibits to it as described above.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until our
offering is completed.
(1) Our Annual Report on Form 10-K for the fiscal year ended December 31,
1999;
(2) Our Quarterly Report on Form 10-Q for the quarterly periods ended March
31, 2000, June 30, 2000 and September 30, 2000;
(3) Our Current Reports on Form 8-K filed on May 15, 2000 and December 15,
2000;
(4) The description of our common stock contained in a registration
statement on Form 10-SB/A Amendment No. 2, filed with the Commission on January
5, 1996.
You may request a copy of these filings, at no cost, by writing or
telephoning our Investor Relations Department at: Endocare, Inc., 7 Studebaker,
Irvine, California 92618, telephone number (949) 595-4770.
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement to it. We have authorized no one
to provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any supplement to this prospectus is
accurate as of any date other than the date on the front of the document.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this
prospectus contain forward-looking statements. These forward-looking statements
are based on our current expectations, estimates and projections about our
industry, management's beliefs and certain assumptions made by us. Words such as
"anticipates," "expects," "intends," "plans," "believes," "seeks," "estimates"
and variations of these words or similar expressions are intended to identify
forward-looking statements. These statements are not guarantees of future
performance and are subject to certain risks, uncertainties and assumptions that
are difficult to predict. Therefore, our actual results could differ
significantly from those expressed or forecasted in any forward-looking
statements as a result of a variety of factors, including those set forth in
"Risk Factors" below and elsewhere in, or incorporated by reference into, this
prospectus. We undertake no obligation to update publicly any forward-looking
statements for any reason, even if new information becomes available or other
events occur in the future.
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ENDOCARE
Endocare is a fully-integrated medical device company that develops,
manufactures and markets cryosurgical and stent technologies for applications in
oncology and urology. We have initially concentrated on developing devices for
the treatment of the two most common diseases of the prostate -- prostate cancer
and benign prostate hyperplasia. We are also developing our cryosurgical
technologies for treating tumors in other organs, including the kidney, lung,
breast and liver.
Our common stock is listed for quotation on the Nasdaq National Market
under the symbol "ENDO." Our principal executive offices are located at 7
Studebaker, Irvine, California 92618, and our telephone number is (949)
595-4770.
RISK FACTORS
You should consider carefully the following risks before you decide to buy
our common stock. Our business, financial condition, results of operations and
stock price could be significantly and negatively affected by any of the
following risks.
WE HAVE A LIMITED OPERATING HISTORY AND WE EXPECT TO CONTINUE TO GENERATE LOSSES
Since our inception, we have engaged primarily in research and development
and have minimal experience in manufacturing, marketing and selling our products
in commercial quantities.
We have incurred annual operating losses since inception. For the fiscal
years ended December 31, 1997, 1998 and 1999 and the nine month period ended
September 30, 2000, we had net losses of approximately $4.0 million, $4.9
million, $9.3 million and $9.2 million, respectively. As of September 30, 2000,
our accumulated deficit was approximately $29 million. We may not be able to
successfully develop or commercialize our current or future products, achieve
significant revenues from sales or procedures or achieve or sustain
profitability. We expect to continue to incur operating losses because our
products will require substantial expenditures relating to, among other matters,
development, clinical testing, regulatory compliance, manufacturing and
marketing.
OUR PRODUCTS MAY NOT ACHIEVE MARKET ACCEPTANCE, WHICH COULD LIMIT OUR FUTURE
REVENUE
Certain of our products, including our Cryocare System, are in the early
stages of market introduction. Our products may not be accepted by potential
customers. We believe that recommendations and endorsements of physicians and
patients and sufficient reimbursement by health care payers will be essential
for market acceptance of our Cryocare System and other products, and these
recommendations and endorsements may not be obtained and sufficient
reimbursement may not be forthcoming. Cryosurgery has existed for many years,
but has not been widely accepted due to concerns regarding safety and efficacy
of first generation technologies, limited reimbursement by third party payers
and widespread use of alternative therapies. Our ability to successfully market
our Cryocare System is dependent upon acceptance of cryosurgical procedures in
the United States and certain international markets. Any future reported adverse
events or other unfavorable publicity involving patient outcomes from the use of
cryosurgery, whether from our products or the products of our competitors, could
adversely affect acceptance of cryosurgery. Emerging new technologies and
procedures to treat cancer, prostate enlargement and other prostate disorders
also may negatively affect the market acceptance of cryosurgery. Our Cryocare
System and our other products may not gain any significant degree of market
acceptance among physicians, patients and health care payers. If our products do
not achieve market acceptance, our future revenue will be limited.
WE MAY NOT BE SUCCESSFUL IN DEVELOPING OR MARKETING OUR PRODUCTS
Our growth depends in large part on continued ability to successfully
develop and commercialize our current products under development or any new
products. Several of our products are in varying stages of development. Our
stents are in pre-clinical studies or clinical trials and have not been approved
for marketing in the United States. We also are developing enhancements to our
Cryocare System. We may experience
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difficulties that could delay or prevent the successful development and
commercialization of our current products under development or any new products.
Our products in development may not prove safe and effective in clinical trials.
Clinical trials may identify significant technical or other obstacles that must
be overcome prior to obtaining necessary regulatory or reimbursement approvals.
Our failure to successfully develop and commercialize new products or to achieve
significant market acceptance would have a significant negative effect on our
financial condition.
THERE IS UNCERTAINTY RELATING TO THIRD PARTY REIMBURSEMENT WHICH IS CRITICAL TO
MARKET ACCEPTANCE OF OUR PRODUCTS
In the United States, health care providers, such as hospitals and
physicians, that purchase our products generally rely on third party payers,
principally federal Medicare, state Medicaid and private health insurance plans,
to reimburse all or part of the cost of medical procedures involving our
products. While certain private health insurance companies pay for the
procedures in which our products are used in certain areas of the United States,
private insurance reimbursement may not be adopted nationally or by additional
insurers. Reimbursement levels from Medicare or private insurers may not be
sufficient to induce physicians to perform, and patients to elect, procedures
utilizing our products. Further, we anticipate that, under the prospective
payment system used by private health care payers, the cost of our products will
be incorporated into the overall cost of the procedures in which they are used
and that there will be no separate, additional reimbursement for our products.
This also may discourage the use of our products. Furthermore, we could be
negatively affected by changes in reimbursement policies of government or
private health care payers, particularly to the extent any such changes affect
reimbursement for procedures in which our products are used. Failure by
physicians, hospitals and other users of our products to obtain sufficient
reimbursement from health care payers for procedures involving our products
could have a significant negative effect on our financial condition.
WE HAVE LIMITED SALES AND MARKETING EXPERIENCE
We have limited sales and marketing experience and if we are unable to
expand our sales and marketing capabilities, we may not be able to effectively
commercialize our products. We have limited experience marketing and selling our
products, and do not have experience marketing and selling our products in
commercial quantities.
We derive the majority of our revenues from the sales of Cryocare Systems
and expect that sales of Cryocare Systems will continue to constitute the
majority of sales for the foreseeable future. Any factor negatively impacting
the sales or usage of Cryocare Systems would have a significant effect on our
business. In March 1999, we exercised our right to terminate our exclusive
worldwide distribution agreement with Boston Scientific Corporation pursuant to
which Boston Scientific had agreed to market and distribute the Cryocare System,
our principal product. As a result, future sales of the Cryocare System will be
dependent on our marketing efforts. We may not be able to successfully expand
our sales and marketing capabilities in order to effectively commercialize the
Cryocare System product.
We believe that, to become and remain competitive, we will need to continue
to develop third party international distribution channels and a direct sales
force for our products. If we enter into third party marketing arrangements, our
percentage share of product revenues is likely to be lower than if we directly
marketed and sold our products through our own sales force. Establishing
marketing and sales capabilities sufficient to support sales in commercial
quantities will require significant resources. We may not be able to recruit and
retain direct sales personnel, succeed in establishing and maintaining any third
party distribution channels or succeed in our future sales and marketing
efforts.
WE ARE DEPENDENT ON ADEQUATE PROTECTION OF OUR PATENT AND PROPRIETARY RIGHTS
We may not be able to obtain effective patents to protect our technologies
from use by other companies with competitive products, and patents of other
companies could prevent us from developing or marketing our products. Our
success will depend, to a significant degree, on our ability to secure and
protect intellectual
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property rights relating to our technology. While we believe that the protection
of patents or licenses is important to our business, we also rely on trade
secrets, know-how and continuing technological innovation to maintain our
competitive position. We cannot ensure that (1) we were the first to invent the
technologies covered by our patents or pending patent applications, (2) we were
the first to file patent applications for these inventions, (3) any of our
pending patent applications will result in issued patents, (4) others will not
independently develop similar or alternative technologies or duplicate any of
our technologies, (5) our patents will provide a basis for commercially viable
products or will provide us with any competitive advantages, and (6) our
processes or products do not or will not infringe patents or proprietary rights
of others. We are currently involved in patent infringement lawsuits initiated
by the Company in the U.S. District Court for the Central District of California
against two competitors. The complaints seek damages and injunctive relief to
prevent these competitors from marketing cryosurgical systems and components
incorporating our patented combination of cryocooling, ultrasound and
temperature monitoring technology. Counterclaims have been made against us by
one of our competitors in this litigation alleging that our cryosurgical system
infringes on the competitor's proprietary rights. This litigation and any other
litigation necessary to protect our patent position could be costly, and it is
possible that we will not have sufficient resources to fully pursue this
litigation or to protect our other patent rights. If we are unsuccessful in
these lawsuits, our competitors may be able to use certain of our cryosurgical
systems technology. This outcome, or any adverse outcome in litigation relating
to the validity of our patents, or any other failure to pursue litigation or
otherwise to protect our patent position, could materially harm our business and
financial condition. In addition, from time to time, we have received
correspondence alleging infringement of proprietary rights of third parties. We
may have to pay substantial damages, possibly including treble damages, for past
infringement if it is ultimately determined that our products infringe a third
party's patents. Further, we may be prohibited from selling our products before
we obtain a license, which, if available at all, may require us to pay
substantial royalties. Even if infringement claims against us are without merit,
defending a lawsuit takes significant time, may be expensive and may divert
management attention from other business concerns. We try to preserve the
confidentiality of our technology by entering into confidentiality agreements
with our employees, consultants, customers, and key vendors and by other means.
These measures may not, however, prevent the unauthorized disclosure or use of
such technology.
WE ARE FACED WITH INTENSE COMPETITION AND RAPID TECHNOLOGICAL AND INDUSTRY
CHANGE
We are faced with intense competition and rapid technological and industry
change and, if our competitors' existing products or new products are more
effective than our products, the commercial opportunity for our products will be
reduced or eliminated. The commercial opportunity for our products will be
reduced or eliminated if our competitors develop and market products that are
superior to our products. We face intense competition from other surgical device
manufacturers, as well as, in some cases, from pharmaceutical companies. Many of
our competitors are significantly larger than us and have greater financial,
technical, research, marketing, sales, distribution and other resources than us.
We believe there will be intense price competition for products developed in our
markets. Our competitors may develop or market technologies and products,
including drug-based treatments, that are more effective or commercially
attractive than any that we are developing or marketing. Our competitors may
succeed in obtaining regulatory approval, and introducing or commercializing
products before we do. Such developments could have a significant negative
effect on our financial condition. Even if we are able to compete successfully,
we may not be able to do so in a profitable manner. The medical device industry
generally, and the urological disease treatment market in particular, are
characterized by rapid technological change, changing customer needs, and
frequent new product introductions. Our products may be rendered obsolete as a
result of future innovations.
WE MAY NEED ADDITIONAL LONG TERM FINANCING
If we undertake or accelerate significant research and development projects
for new products or pursue corporate acquisitions, we may require additional
outside financing. Such additional funds may be raised through the sale of our
equity securities or the incurrence of additional debt or through collaborative
arrangements. Any additional equity financing may be dilutive to shareholders,
and debt financing, if available, may involve restrictive covenants.
Collaborative arrangements, if necessary to raise additional funds,
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may require us to relinquish rights to certain of our technologies, products or
marketing territories. Our failure to raise capital when needed could have a
significant negative effect on our business, operating results, financial
condition and prospects.
WE HAVE LIMITED MANUFACTURING EXPERIENCE
We have limited experience in producing our products in commercial
quantities. Manufacturers often encounter difficulties in scaling up production
of new products, including problems involving production yields, quality control
and assurance, component supply and shortages of qualified personnel. Our
failure to overcome these manufacturing problems could negatively impact our
business and financial condition. We use internal manufacturing capacity in our
manufacturing efforts. Certain of our purchased components and processes are
currently available from or performed by a single vendor. Any supply
interruption from a single source vendor would have a significant negative
effect on our ability to manufacture our products until a new source of supply
is qualified and, as a result, could have a significant negative effect on our
business and financial condition. Further, the ability of third party
manufacturing sources to deliver components will affect our ability to
commercialize our products, and our dependence on third party sources may have a
negative effect on our profit margins. Our success will depend in part upon our
ability to manufacture our products in compliance with the FDA's Good
Manufacturing Practices regulations and other regulatory requirements in
sufficient quantities and on a timely basis, while maintaining product quality
and acceptable manufacturing costs. Failure to increase production volumes in a
timely or cost-effective manner or to maintain compliance with the FDA's Good
Manufacturing Practices or other regulatory requirements could have a
significant negative effect on our financial condition.
WE ARE DEPENDENT ON KEY PERSONNEL
Failure to attract and retain skilled personnel could hinder our research
and development and sales and marketing efforts and our ability to obtain
financing. Our future success depends to a significant degree upon the continued
services of key technical and senior management personnel, including Paul W.
Mikus, our Chief Executive Officer. None of these individuals is bound by an
employment agreement or covered by an insurance policy of which we are the
beneficiary. Our future success also depends on our continuing ability to
attract, retain and motivate highly qualified managerial, technical and sales
personnel. The inability to retain or attract qualified personnel could have a
significant negative effect upon our research and development and sales and
marketing efforts and our ability to obtain financing and thereby materially
harm our business and financial condition.
GOVERNMENT REGULATION CAN HAVE A SIGNIFICANT IMPACT ON OUR BUSINESS
Government regulation in the United States and other countries is a
significant factor affecting the research and development, manufacture and
marketing of our products. In the United States, the FDA has broad authority
under the federal Food, Drug and Cosmetic Act and the Public Health Service Act
to regulate the distribution, manufacture and sale of medical devices. Foreign
sales of drugs and medical devices are subject to foreign governmental
regulation and restrictions which vary from country to country. The process of
obtaining FDA and other required regulatory approvals is lengthy and expensive.
We may not be able to obtain necessary approvals for clinical testing or for the
manufacturing or marketing of our products. Failure to comply with applicable
regulatory approvals can, among other things, result in fines, suspension of
regulatory approvals, product recalls, operating restrictions, and criminal
prosecution. In addition, governmental regulations may be established which
could prevent, delay, modify or rescind regulatory approval of our products. Any
such position by the FDA, or change of position by the FDA, may adversely impact
our business and financial condition. Regulatory approvals, if granted, may
include significant limitations on the indicated uses for which our products may
be marketed. In addition, to obtain such approvals, the FDA and foreign
regulatory authorities may impose numerous other requirements on us. FDA
enforcement policy strictly prohibits the marketing of approved medical devices
for unapproved uses. In addition, product approvals can be withdrawn for failure
to comply with regulatory standards or the occurrence of unforeseen problems
following initial marketing. We may not be able to obtain regulatory approvals
for our products on a
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timely basis, or at all, and delays in receipt of or failure to receive such
approvals, the loss of previously obtained approvals, or failure to comply with
existing or future regulatory requirements would have a significant negative
effect on our financial condition. In addition, the health care industry in the
United States is generally subject to fundamental change due to regulatory, as
well as political, influences. We anticipate that Congress and state
legislatures will continue to review and assess alternative health care delivery
and payment systems. Potential approaches that have been considered include
controls on health care spending through limitations on the growth of private
purchasing groups and price controls. We cannot predict what impact the adoption
of any federal or state health care reform measures may have on our business.
WE MAY BE NEGATIVELY IMPACTED BY PRODUCT LIABILITY AND PRODUCT RECALL
The manufacture and sale of medical products entails significant risk of
product liability claims or product recalls. Our existing insurance coverage
limits may not be adequate to protect us from any liabilities we might incur in
connection with the clinical trials or sales of our products. We may require
increased product liability coverage as our products are commercialized.
Insurance is expensive and may not be available on acceptable terms, or at all.
A successful product liability claim or series of claims brought against us in
excess of our insurance coverage, or a recall of our products, could have a
significant negative effect on our business and financial condition.
WE MAY EXPERIENCE FLUCTUATIONS IN OUR FUTURE OPERATING RESULTS
If our revenue declines in a quarter from the revenue in the previous
quarter, our earnings will likely decline because many of our expenses are
relatively fixed. In particular, research and development, sales and marketing
and general and administrative expenses are not affected directly by variations
in revenue. In some future quarter or quarters, due to a decrease in revenue or
for some other reason, our operating results likely will be below the
expectations of securities analysts or investors. In this event, the market
price of our common stock may fall abruptly and significantly.
OUR BUSINESS IS EXPOSED TO RISKS RELATED TO ACQUISITIONS AND MERGERS
As part of our strategy to commercialize our products, we may acquire one
or more businesses, such as a related company that would use our products in
clinical applications. In June 1999, we consummated a business combination with
Advanced Medical Procedures, LLC, a regional mobile cryosurgery service company
that provides our cryosurgical equipment for the treatment of prostate and liver
cancer on a procedural basis. We may not be able to effectively integrate our
business with any other business we may acquire or merge with or effectively
utilize the business acquired to develop and market our products. The failure to
integrate an acquired company or acquired assets into our operations may cause a
drain on our financial and managerial resources, and thereby have a significant
negative effect on our business and financial results.
OUR COMMON STOCK HAS A LIMITED MARKET AND TRADING HISTORY
If we fail to satisfy the continued listing requirements of the Nasdaq
National Market or Nasdaq SmallCap Market, our stock could become subject to the
SEC's Penny Stock Rules, making the stock difficult to sell. Our common stock
began trading on the Nasdaq SmallCap Market on February 28, 1997 and has a
limited trading history. Our common stock was recently listed and is currently
traded on the Nasdaq National Market. If we are unable to maintain the standards
for quotation on the Nasdaq National Market or the Nasdaq SmallCap Market, the
ability of our investors to resell their shares may be limited. In addition, our
securities may be subjected to "penny stock" rules that impose additional sales
practice and market making requirements on broker-dealers who sell or make a
market in such securities. This could affect the ability or willingness of
broker-dealers to sell or make a market in our securities and the ability of
holders of our securities to sell their securities in the secondary market.
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OUR STOCK PRICE MAY FLUCTUATE SIGNIFICANTLY
Our stock price may fluctuate significantly, making it difficult to resell
shares when an investor wants to at prices they find attractive. The market
prices for securities of emerging companies have historically been highly
volatile. Future announcements concerning us or our competitors could cause such
volatility including: our operating results, technological innovations or new
commercial products, corporate collaborations, government regulation,
developments concerning proprietary rights, litigation or public concern as to
the safety of our products, investor perception of us and our industry, and
general economic and market conditions. In addition, the stock market is subject
to price and volume fluctuations that affect the market prices for companies in
general, and small-capitalization, high technology companies in particular,
which are often unrelated to the operating performance of these companies.
THE FUTURE SALES OF SHARES OF OUR COMMON STOCK MAY NEGATIVELY AFFECT OUR STOCK
PRICE
Future sales of our common stock (including shares issued upon the exercise
of outstanding options and warrants and the conversion of convertible
debentures) could have a significant negative effect on the market price of our
common stock. Such sales also might make it more difficult for us to sell equity
securities or equity-related securities in the future at a time and price that
we would deem appropriate.
ANTI-TAKEOVER PROVISIONS IN OUR CHARTER MAY HAVE A POSSIBLE NEGATIVE EFFECT ON
OUR STOCK PRICE
Certain provisions of our Certificate of Incorporation and Bylaws may have
the effect of making it more difficult for a third party to acquire, or of
discouraging a third party from attempting to acquire, control of us. In March
1999, our board of directors adopted a stockholder rights plan in which
preferred stock purchase rights were distributed as a dividend. These provisions
may make it more difficult for stockholders to take certain corporate actions
and may have the effect of delaying or preventing a change in control. Such
provisions could limit the price that certain investors might be willing to pay
in the future for shares of our common stock.
USE OF PROCEEDS
The shares of common stock offered by this prospectus will be sold by the
selling stockholders and, accordingly, Endocare will not receive any of the
proceeds from the sale of the shares.
8
<PAGE> 10
SELLING STOCKHOLDERS
The shares of common stock set forth in the table below includes shares
that may be acquired by the selling stockholders upon conversion of debentures
or exercise of warrants to purchase common stock. Except as indicated in the
footnotes, none of the selling stockholders has had a material relationship with
Endocare within the past three years other than as a result of the ownership of
securities of Endocare. No estimate can be given as to the amount of shares that
will be held by the selling stockholders after completion of this offering
because the selling stockholders may sell all or some of the shares. The shares
offered by this prospectus may be offered from time to time by the selling
stockholders.
<TABLE>
<CAPTION>
SHARES OF PERCENT OF
COMMON STOCK COMMON STOCK SHARES OF
BENEFICIALLY BENEFICIALLY COMMON
OWNED PRIOR OWNED PRIOR STOCK OFFERED
NAME OF SELLING TO THIS TO THIS IN THIS
STOCKHOLDER OFFERING** OFFERING** OFFERING
--------------- ------------ ------------ -------------
<S> <C> <C> <C>
Mac & Co.(1) 106,200 * 106,200
Coralbasin & Co.(2) 833,625 5.56% 833,625
Coralrock & Co.(3) 448,920 3.00% 448,920
Narragansett I, L.P.(4) 43,875 * 43,875
Narragansett Offshore, Ltd.(5) 68,625 * 68,625
SDS Merchant Fund, L.P.(6) 196,875 1.32% 196,875
Technology Funding Medical Partners I, 797,857 5.33% 30,000
L.P.(7)
Technology Funding Venture Partners IV, an 797,857 5.33% 3,750
Aggressive Growth Fund, LP(7)
Douglas Chinn, MD(8) 69,455 * 30,000
CIBC World Markets Corp.(9) 50,000 * 50,000
Pequot Capital Management(10) 50,000 * 50,000
Thomas McNamara/George Mednik(11) 52,000 * 50,000
Mahlon Chinn(12) 20,000 * 20,000
Transamerica Business Credit Corporation(13) 10,390 * 10,390
---------
TOTAL: 1,942,260
=========
</TABLE>
---------------
* Less than 1%.
** As of December 18, 2000, based on stockholders' representations regarding
their shares.
(1) The 106,200 share figure in the table includes 11,800 shares of common
stock which may be acquired by Mac & Co. at an exercise price of $13.9125
per share pursuant to a warrant issued in November 2000. The warrant is
exercisable for five years from the date of issue.
(2) The 833,625 share figure in the table includes 92,625 shares of common
stock which may be acquired by Coralbasin & Co. at an exercise price of
$13.9125 per share pursuant to a warrant issued in November 2000. The
warrant is exercisable for five years from the date of issue.
(3) The 448,920 share figure in the table includes 49,880 shares of common
stock which may be acquired by Coralrock & Co. at an exercise price of
$13.9125 per share pursuant to a warrant issued in November 2000. The
warrant is exercisable for five years from the date of issue.
(4) The 43,875 share figure in the table includes 4,875 shares of common stock
which may be acquired by Narragansett I, LP at an exercise price of
$13.9125 per share pursuant to a warrant issued in November 2000. The
warrant is exercisable for five years from the date of issue.
(5) The 68,625 share figure in the table includes 7,625 shares of common stock
which may be acquired by Narragansett Offshore, Ltd. at an exercise price
of $13.9125 per share pursuant to a warrant issued in November 2000. The
warrant is exercisable for five years from the date of issue.
9
<PAGE> 11
(6) The 196,875 share figure in the table includes 21,875 shares of common
stock which may be acquired by SDS Merchant Fund, LP at an exercise price
of $13.9125 per share pursuant to a warrant issued in November 2000. The
warrant is exercisable for five years from the date of issue.
(7) The 797,857 share figure in the table consists of the total number of
shares, options and warrants owned by these entities combined: Technology
Funding Partners III, L.P., Technology Funding Venture Partners IV, an
Aggressive Growth Fund, L.P., Technology Funding Venture Partners V, an
Aggressive Growth Fund, L.P., and Technology Funding Medical Partners I,
L.P. (collectively the "Funds"). The warrants were issued by Endocare in
August 1996 to Technology Funding Medical Partners I, L.P. and Technology
Funding Venture Partners IV, an Aggressive Growth Fund, L.P. which are
exercisable for five years from the date of issue at a price of $3.00 per
share. Peter F. Bernardoni is an officer of Technology Funding, Inc. and a
partner of Technology Funding, Ltd., each a general partner of the Funds.
Mr. Bernardoni disclaims beneficial ownership of the shares owned by the
Funds except to the extent of his pecuniary interest therein.
(8) The 69,455 share figure in the table consists of the total number of
shares, options and warrants owned by Douglas Chinn, MD. Douglas Chinn, MD
may acquire shares under a warrant issued in February 1997 and a second
warrant issued in January 1999 by Endocare. The February 1997 warrant
originally covered 25,000 shares of common stock of which 5,000 shares were
exercised in July 1999, 10,000 shares were exercised in September 1999 and
10,000 shares remain. The February 1997 warrant is exercisable for five
years from the date of issue at a price of $4.375 per share. The January
1999 warrant covers 20,000 shares of common stock and is exercisable for
five years from the date of issue at a price of $9.00 per share.
(9) CIBC World Markets Corp. may acquire the shares under a warrant issued in
June 1999 by Endocare. The warrant covers 50,000 shares of common stock and
is exercisable for five years from the date of issue at a price of $4.41
per share.
(10) Pequot Capital Management may acquire the shares under a warrant granted in
July 1999 by Endocare. The warrant covers 50,000 shares of common stock and
is exercisable until June 30, 2001 at a price of $5.125 per share.
(11) The 52,000 share figure in the table consists of 2,000 shares of common
stock owned by Thomas McNamara and a warrant issued to Thomas
McNamara/George Mednick in October 1999 by Endocare. The warrant covers
50,000 shares of common stock and is exercisable for four years from the
date of issue at a price of $5.125 per share.
(12) Mahlon Chinn may acquire the shares under a warrant issued in January 2000
by Endocare. The warrant covers 20,000 shares of common stock and is
exercisable for five years from the date of issue at a price of $9.00 per
share.
(13) Transamerica Business Credit Corporation may acquire the shares under a
warrant issued in April 2000 by Endocare. The warrant covers 10,390 shares
of common stock and is exercisable for five years from the date of issue at
a price of $15.40 per share.
10
<PAGE> 12
DESCRIPTION OF ENDOCARE'S CAPITAL STOCK
The following summary is a description of certain provisions of Endocare's
Certificate of Incorporation, as amended and restated. Such summary does not
purport to be complete and is subject to, and is qualified in its entirety by,
all of the provisions of the Certificate of Incorporation.
Endocare's authorized capital stock consists of 50,000,000 shares of common
stock, $0.001 par value, and 1,000,000 shares of Preferred Stock, $0.001 par
value.
COMMON STOCK
As of December 18, 2000, there were 14,913,908 shares of common stock
issued and outstanding.
Selling stockholders of common stock are entitled to one vote for each
share held of record on all matters submitted to a vote of stockholders. There
are no cumulative voting rights applicable to the common stock.
Subject to the preferences or other rights applicable to shares of
preferred stock that may be issued from time to time, holders of shares of
common stock are entitled to participate ratably in dividends, if, when and as
declared by the Board of Directors from funds legally available therefor and are
entitled, in the event of liquidation or dissolution of Endocare, to share
ratably in all assets available for distribution to stockholders after payment
of liabilities and preferred stock preferences, if any.
The authorized but unissued shares of common stock are available for
issuance without further action by Endocare's stockholders, unless such action
is required by applicable law or the rules of any stock exchange on which the
common stock may be listed. Shares of common stock are not redeemable and there
are no sinking fund provisions.
PREFERRED STOCK
Endocare's Certificate of Incorporation authorizes Endocare's Board of
Directors, without any vote or action by the holders of common stock, to issue
preferred stock from time to time in one or more series. The Board is authorized
to determine the number of shares and designation of any series of preferred
stock and the dividend rights, dividend rate, conversion rights and terms,
voting rights (full or limited, if any), redemption rights and terms,
liquidation preferences and sinking fund terms and the other designations,
preferences and relative, participating, optional and other special rights and
such qualifications, limitations or restrictions of any series of preferred
stock. The preferred stock would be subject to the applicable rules of The
Nasdaq Stock Market, Inc. or other organizations on whose systems the stock of
Endocare may then be quoted or listed. Depending upon the terms of the preferred
stock established by the Board, any or all series of preferred stock could have
preference over the common stock with respect to dividends and other
distributions and upon liquidation of Endocare. Issuance of any such shares with
voting powers, or issuance of additional shares of common stock, would dilute
the voting power of the outstanding common stock. As of December 4, 2000,
Endocare had no outstanding shares of preferred stock.
PREEMPTION RIGHTS
Investors who purchased shares of Endocare's common stock pursuant to a
Common Stock Purchase Agreement dated November 22, 2000, by and among such
investors and Endocare, have the right to purchase, subject to certain
exceptions and restrictions, a pro rata portion of any Endocare new securities
which Endocare may, from time to time, propose to sell and issue. Such right
expires upon the first anniversary of the effective date of the registration
statement filed by Endocare pursuant to the terms of the Common Stock Purchase
Agreement. This preemption right is described in greater detail in the Common
Stock Purchase Agreement, which is filed as an exhibit to the Current Report on
Form 8-K filed by Endocare on December 15, 2000.
No other holder of Endocare capital stock has preemption rights to
subscribe for or purchase any securities of Endocare, of any class or type.
11
<PAGE> 13
ANTI-TAKEOVER PROVISIONS
As discussed in the Risk Factors section of this Registration Statement, in
March 1999, Endocare's Board of Directors adopted a stockholder rights plan in
which preferred stock purchase rights were distributed as a dividend. The plan
is designed to guard against partial tender offers and other abusive and
coercive tactics that may be used in an attempt to gain control of Endocare. The
stockholder rights plan is attached as an exhibit to our Current Report on Form
8-K filed on June 3, 1999.
In addition, certain provisions of Endocare's Certificate of Incorporation
and Bylaws may have the effect of making it more difficult for a third party to
acquire, or of discouraging a third party from attempting to acquire, control of
the company.
TRANSFER AGENT
Endocare's registrar and transfer agent for its common stock is U.S. Stock
Transfer Corporation.
12
<PAGE> 14
PLAN OF DISTRIBUTION
Endocare is registering the shares of common stock covered by this
prospectus on behalf of the selling stockholders. The term "selling stockholder"
means the selling stockholder of the shares and includes donees, pledgees and
successors in interest selling shares received from a named selling stockholder
after the date of this prospectus. All costs, expenses and fees in connection
with the registration of the shares will be borne by Endocare. Brokerage
commissions and similar selling expenses, if any, attributable to the sale of
shares will be paid by the selling stockholders. We will not realize any
proceeds from the sale of the shares by the selling stockholders. Sales of
shares may be effected by selling stockholders from time to time in one or more
types of transactions, at prices related to the prevailing market prices, or at
negotiated prices or at fixed prices, which may be changed. The shares may be
sold in one or more of the following methods: (i) ordinary brokers'
transactions, which may include long sales or short sales effected after the
effective date of the registration statement of which this prospectus is a part;
(ii) transactions involving cross or block trades or otherwise on The Nasdaq
National Market; (iii) purchases by brokers, dealers or underwriters as
principal and resale by such purchasers for their own accounts pursuant to this
prospectus; (iv) "at the market" to or through market makers or into an existing
market for the shares; (v) in other ways not involving market makers or
established trading markets, including direct sales to purchasers or sales
effected through agents; (vi) through transactions in options, swaps or other
derivatives (whether exchange-listed or otherwise); or (vii) any combination of
the foregoing, or by any other legally available means. These transactions may
or may not involve brokers or dealers. The selling stockholders have advised
Endocare that they have not entered into any agreements, understandings or
arrangements with any underwriters or broker-dealers regarding the sale of their
securities, nor is there an underwriter or coordinated broker acting in
connection with the proposed sale of shares by the selling stockholders.
The selling stockholders may enter into hedging transactions with
broker-dealers or other financial institutions. In connection with such
transactions, broker-dealers or other financial institutions may engage in short
sales of the shares or of securities convertible into or exchangeable for the
shares in the course of hedging positions they assume with selling stockholders.
The selling stockholders may also enter into options or other transactions with
broker-dealers or other financial institutions which require the delivery to
such broker-dealers or other financial institutions of shares offered by this
prospectus, which shares such broker-dealer or other financial institution may
resell pursuant to this prospectus (as amended or supplemented to reflect such
transaction).
The selling stockholders may effect such transactions by selling shares
directly to purchasers or to or through broker-dealers, which may act as agents
or principals. Such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from selling stockholders and/or the
purchasers of shares for whom such broker-dealers may act as agents or to whom
they sell as principal, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions).
In addition, from time to time, a selling stockholder may pledge its shares
to broker-dealers or other financial institutions. Upon a default by a selling
stockholder, the broker-dealer or financial institution may offer and sell the
pledged shares from time to time.
The selling stockholders and any broker-dealers that act in connection with
the sale of shares might be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act, and any commissions received by such
broker-dealers and any profit on the resale of the shares sold by them while
acting as principals might be deemed to be underwriting discounts or commissions
under the Securities Act. Neither we nor any selling stockholder can presently
estimate the amount of this compensation. We know of no existing arrangements
between any selling stockholder, or any other stockholder, broker, dealer,
underwriter or agent relating to the sale or distribution of the shares.
Endocare has agreed to indemnify each selling stockholder against certain
liabilities, including liabilities arising under the Securities Act. The selling
stockholders may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of the shares against certain
liabilities, including liabilities arising under the Securities Act.
13
<PAGE> 15
The selling stockholders will be subject to the prospectus delivery
requirements of the Securities Act. Endocare has informed the selling
stockholders that the anti-manipulative provisions of Regulation M promulgated
under the Exchange Act may apply to their sales in the market.
The selling stockholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the requirements of such Rule.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with by us and the selling
stockholders.
LEGAL OPINION
The validity of the shares offered hereby is passed upon for Endocare by
Brobeck, Phleger & Harrison LLP, Irvine, California.
EXPERTS
The financial statements and schedule of Endocare as of December 31, 1999
and 1998 and for each of the years in the three year period ended December 31,
1999 have been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
14
<PAGE> 16
------------------------------------------------------
------------------------------------------------------
We have not authorized any person to make a statement that differs from what is
in this prospectus. If any person does make a statement that differs from what
is in this prospectus, you should not rely on it. This prospectus is not an
offer to sell, nor is it seeking an offer to buy, these securities in any state
in which the offer or sale is not permitted. The information in this prospectus
is complete and accurate as of its date, but the information may change after
that date.
-------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find Additional
Information......................... 2
Forward-Looking Statements............ 2
Endocare.............................. 3
Risk Factors.......................... 3
Use of Proceeds....................... 8
Selling Stockholders.................. 9
Description of Endocare's Capital
Stock............................... 11
Plan of Distribution.................. 13
Legal Opinion......................... 14
Experts............................... 14
</TABLE>
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
ENDOCARE, INC.
1,942,260 SHARES
OF COMMON STOCK
------------------------
PROSPECTUS
------------------------
________, ____
------------------------------------------------------
------------------------------------------------------
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
All fees are estimates except for the SEC Registration Fee.
<TABLE>
<S> <C>
SEC Registration Fee........................................ $ 7,132
Nasdaq additional listing fees.............................. $15,000
Accounting fees and expenses................................ $ 5,000
Legal fees and expenses..................................... $40,000
-------
Total............................................. $67,132
=======
</TABLE>
All such expenses will be borne by Endocare.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware Corporation Law provides that a Delaware
corporation may indemnify any person against expenses, judgments, fines and
settlements actually and reasonably incurred by any such person in connection
with a threatened, pending or completed action, suit or proceeding in which he
is involved by reason of the fact that he is or was director, officer, employee
or agent of such corporation, provided that (i) he acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation and (ii) with respect to any criminal action or proceeding, he had
no reasonable cause to believe his conduct was unlawful. If the action or suit
is by or in the name of the corporation, the corporation may indemnify any such
person against expense actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be made in
respect to any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation for negligence or misconduct in the
performance of his duty to the corporation, unless and only to the extent that
the Delaware Court of Chancery or the court in which the action or suit is
brought determines upon application that, despite the adjudication of liability
but in view of all of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expense as the court deems proper.
Endocare's Certificate of Incorporation provides that to the fullest extent
permitted by the Delaware Corporation Law, no director of Endocare shall be
personally liable to Endocare or its stockholders for monetary damages for
breach of fiduciary duty as a director. The Certificate of Incorporation also
provides that no amendment or repeal of such provision shall apply to or have
any effect on the right to indemnification permitted thereunder with respect to
claims arising from acts or omissions occurring in whole or in part before the
effective date of such amendment or repeal whether asserted before or after such
amendment or repeal.
Endocare's Bylaws provide that Endocare shall indemnify to the full extent
authorized by law each of its directors and officers against expenses incurred
in connection with any proceeding arising by reason of the fact that such person
is or was an agent of the corporation.
Endocare has entered into indemnification agreements with its directors and
certain of its officers.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.1+ Specimen Certificate of Endocare's common stock.
5.1 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in
Exhibit 5).
24.1 Powers of Attorney with respect to Endocare (included in
signature page).
</TABLE>
---------------
+ Previously filed with Endocare's Annual Report on Form 10-K for the year ended
December 31, 1995, and incorporated herein by reference.
II-1
<PAGE> 18
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(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 (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15 of the
Exchange Act, that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act(and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer, or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-2
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 December 21, 2000.
ENDOCARE, INC.
By: /s/ PAUL W. MIKUS
------------------------------------
Paul W. Mikus
Chief Executive Officer and
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Paul W. Mikus his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (unless
revoked in writing), to sign any and all amendments to this Registration
Statement, including any post-effective amendments as well as any related
registration statement (or amendment thereto) filed in reliance upon Rule 462(b)
under the Securities Act, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following person in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ PAUL W. MIKUS Chief Executive Officer, December 21, 2000
----------------------------------------------------- President and Director
Paul W. Mikus (Principal Executive
Officer)
/s/ WILLIAM R. HUGHES Chief Financial Officer, December 21, 2000
----------------------------------------------------- Senior Vice President and
William R. Hughes Secretary (Principal
Financial and Accounting
Officer)
/s/ PETER F. BERNARDONI Director December 19, 2000
-----------------------------------------------------
Peter F. Bernardoni
/s/ ROBERT F. BYRNES Director December 21, 2000
-----------------------------------------------------
Robert F. Byrnes
/s/ BENJAMIN GERSON, M.D. Director December 21, 2000
-----------------------------------------------------
Benjamin Gerson, M.D.
/s/ ALAN L. KAGANOV, SC.D Director December 21, 2000
-----------------------------------------------------
Alan L. Kaganov, Sc.D
/s/ MICHAEL J. STRAUSS, M.D. Director December 20, 2000
-----------------------------------------------------
Michael J. Strauss, M.D.
</TABLE>
II-3
<PAGE> 20
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.1+ Specimen Certificate of Endocare's common stock.
5.1 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP (included in
Exhibit 5).
24.1 Powers of Attorney with respect to Endocare (included in
signature page).
</TABLE>
---------------
+ Previously filed with Endocare's Annual Report on Form 10-K for the year ended
December 31, 1995, and incorporated herein by reference.
