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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 13, 1997
REGISTRATION NO. 333-17345
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MICRO THERAPEUTICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 3841 33-0569235
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
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1062 CALLE NEGOCIO #F,
SAN CLEMENTE, CALIFORNIA 92673
(714) 361-0616
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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GEORGE WALLACE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MICRO THERAPEUTICS, INC.
1062 CALLE NEGOCIO #F
SAN CLEMENTE, CALIFORNIA 92673
(714) 361-0616
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
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BRUCE FEUCHTER, ESQ. STEPHEN M. TENNIS, ESQ.
STRADLING, YOCCA, CARLSON & RAUTH MORRISON & FOERSTER LLP
660 NEWPORT CENTER DRIVE, SUITE 1600 755 PAGE MILL ROAD
NEWPORT BEACH, CALIFORNIA 92660 PALO ALTO, CALIFORNIA 94304-1018
(714) 725-4000 (415) 813-5600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
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, check the following box. [ ]
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. [ ]
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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all costs and expenses, other than
underwriting discounts and commissions, payable by the Company in connection
with the sale of the Common Stock being registered hereunder. All of the amounts
shown are estimates except for the SEC registration fee and the NASD filing fee.
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TO BE PAID BY
THE COMPANY
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SEC registration fee.................................... $ 9,060.61
NASD filing fee......................................... 3,490.00
Nasdaq National Market application fee.................. 33,762.78
Printing expenses....................................... *
Legal fees and expenses................................. *
Accounting fees and expenses............................ *
Blue sky fees and expenses.............................. *
Transfer agent and registrar fees....................... *
Miscellaneous........................................... *
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Total......................................... $ *
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* To be filed by amendment
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) As permitted by the Delaware General Corporation Law, the Restated
Certificate of Incorporation of the Company (Exhibit 3.1 hereto) eliminates the
liability of directors to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a directors, except to the extent otherwise
required by the Delaware General Corporation Law.
(b) The Restated Certificate of Incorporation provides that the Company
will indemnify each person who was or is made a party to any proceeding by
reason of the fact that such person is or was a director or officer of the
Company against all expense, liability and loss reasonably incurred or suffered
by such person in connection therewith to the fullest extent authorized by the
Delaware General Corporation Law. The Company's Bylaws (Exhibit 3.2 hereto)
provide for a similar indemnity to directors and officers of the Company to the
fullest extent authorized by the Delaware General Corporation Law.
(c) The Restated Certificate of Incorporation also gives the Company the
ability to enter into indemnification agreements with each of its directors and
officers. The Company has entered into indemnification agreements with each of
its directors and officers (Exhibit 10.1 hereto), which provide for the
indemnification of directors and officers of the Company against any an all
expenses, judgments, fines, penalties and amounts paid in settlement, to the
fullest extent permitted by law.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The following is a summary of transactions by the Company during the last
three years preceding the date hereof involving sales of the Company's
securities that were not registered under the Securities Act of 1993 (the
"Securities Act"):
(1) From time to time during the three years preceding the date
hereof, the Registrant issued incentive stock options and nonqualified
stock options to purchase Common Stock pursuant to the Registrant's
Incentive Stock Option, Nonqualified Stock Option and Restricted Stock
Purchase Plan -- 1993 (the "1993 Plan") and 1996 Stock Incentive Plan (the
"1996 Plan") to officers, directors, employees
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and consultants of the Registrant. During such three year period, options
to purchase 759,850 shares of Common Stock were granted pursuant to the
1993 Plan and options to purchase 107,900 shares of Common Stock were
granted pursuant to the 1996 Plan. Through January 9, 1997, options to
purchase 63,051 shares of Common Stock granted pursuant to the 1993 Plan
were exercised for an aggregate exercise price of $29,004, and no options
were exercised pursuant to the 1996 Plan. During the period referred to
above, options granted pursuant to 1993 Plan were exercised. Exemption from
the registration provisions of the Securities Act is claimed, with respect
to the grant of options referred to above, on the basis that the grant of
options did not involve a "sale" of securities and, therefore, registration
thereof was not required and, with respect to the exercise of options
referred to above, on the basis that such transactions met the requirements
of Rule 701 as promulgated under Section 3(b) of the Securities Act.
(2) In September 1993, the Registrant issued 650,000 shares of Common
Stock in connection with the formation and organization of the Registrant.
The shares were issued to the following persons: (i) George Wallace; (ii)
Andrew Cragg; (iii) Novel Biomedical Inc.; and (iv) JK Holdings, Inc.
(3) In September 1993, the Registrant issued 295,747 shares of Common
Stock at a price of $.46 per share to thirteen individuals in connection
with an initial financing of the Registrant.
(4) In December 1993, the Registrant issued 541,667 shares of Series
A-1 Preferred Stock at a price of $1.38 per share to Menlo Ventures, L.P.
and a related partnership.
(5) In July 1994, the Registrant issued 585,000 shares of Series A-2
Preferred Stock at a price of $1.85 per share to Menlo Ventures and a
related partnership, and 5 other purchasers.
(6) In February 1995, the Registrant issued 1,229,091 shares of Series
B Preferred Stock at a price of $4.23 per share to Menlo Ventures and a
related partnership, Mayfield Partners and 2 other purchasers.
(7) In May and June 1996, the Registrant issued 1,256,906 shares of
Series C Preferred Stock at a price of $6.46 per share to Menlo Ventures
and a related partnership, two related Mayfield partnerships, and twelve
other purchasers.
Except as set forth in item (1) above, exemption from the registration
requirements of the Securities Act for the transactions described above was
claimed under Section 4(2) of the Securities Act, among others, on the basis
that such transactions did not involve any public offering and the purchasers
were sophisticated with access to the kind of information registration would
provide. No underwriting or broker's commissions were paid in connection with
the foregoing transactions.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
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EXHIBIT
NO. DESCRIPTION
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1.1 Form of Underwriting Agreement.(1)
2.1 Agreement and Plan of Merger between the Company and Micro Therapeutics, Inc., a
California corporation, effective November 6, 1996.(1)
3.1 Certificate of Incorporation of the Company.(1)
3.2 Bylaws of the Company, as currently in effect.(1)
3.3 Specimen Certificate of Common Stock.*
3.4 Amended and Restated Certificate of Incorporation (to be filed).*
4.1 Warrant Agreement dated December 20, 1995 between the Company and Comdisco, Inc.(1)
4.2 Warrant Agreement dated May 21, 1996 between the Company and Comdisco, Inc.(1)
5.1 Opinion of Stradling, Yocca, Carlson & Rauth, a Professional Corporation.*
10.1 Form of Directors' and Officers' Indemnification Agreement.(1)
10.2 License Agreement dated June 1, 1993 between the Company and Andrew Cragg.(1)
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EXHIBIT
NO. DESCRIPTION
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10.3 Consulting Agreement dated October 1, 1996 between the Company and Andrew Cragg.(1)
10.4 Real Property Lease dated April 15, 1996 between the Company and Reuben L.
Casey.(1)
10.5 Amended and Restated Investors Rights Agreement dated February 9, 1995, among the
Company, the Investors named therein and the Common Holders named therein, as
amended on May 17, 1996 and June 27, 1996.(1)
10.6 1993 Incentive Stock Option, Nonqualified Stock Option and Restricted Stock
Purchase Plan.(1)
10.7 1996 Stock Incentive Plan.(1)
10.8 Employee Stock Purchase Plan.(1)
10.9 Equipment Leasing Line of Credit dated December 20, 1995 between the Company and
ComDisco Ventures, as amended on May 21, 1996.(1)
16.1 Letter from Ernst & Young LLP on changes in certifying accountant.
21.1 Subsidiaries of the Registrant.(1)
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional Corporation (see
Exhibit 5.1).*
23.2 Consent of Coopers & Lybrand L.L.P.(1)
23.3 Consent of Breimayer Law Office.(1)
23.4 Consent of Burns, Doane, Swecker & Mathis.(1)
23.5 Consent of Crockett & Fish.(1)
24.1 Power of Attorney (see page II-4).(1)
27.1 Financial Data Schedule.(1)
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* To be filed by amendment.
(1) Previously filed.
(B) FINANCIAL STATEMENT SCHEDULES
All other schedules for which provision is made in the applicable
accounting regulation of the Securities and Exchange Commission are not required
under the related instructions or are inapplicable, and therefore have been
omitted.
ITEM 17. UNDERTAKINGS
The Company hereby undertakes to provide to the Underwriters at the closing
specified in the Underwriting Agreement certificates in such denominations and
registered in such names as required by the Underwriters to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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 of 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 Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a
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form of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 the Registrant
has duly caused this Amendment No. 2 to Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of San
Clemente of California, on the 13th day of January, 1997.
MICRO THERAPEUTICS, INC.
By: /s/ GEORGE WALLACE
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George Wallace
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 2 to Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ GEORGE WALLACE President, Chief Executive January 13, 1997
- ---------------------------------------- Officer and Director (Principal
George Wallace Executive Officer)
/s/ THOMAS BERRYMAN* Vice-President of Finance and January 13, 1997
- ---------------------------------------- Chief Financial Officer
Thomas Berryman (Principal Financial and
Principal Accounting Officer)
/s/ H. DUBOSE MONTGOMERY* Chairman and Director January 13, 1997
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H. DuBose Montgomery
/s/ WENDE HUTTON* Director January 13, 1997
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Wende Hutton
/s/ DICK Director January 13, 1997
ALLEN*
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Dick Allen
*By: /s/ GEORGE WALLACE January 13, 1997
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George Wallace,
as Attorney-In-Fact
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EXHIBIT INDEX
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SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
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1.1 Form of Underwriting Agreement (1)........................................
2.1 Agreement and Plan of Merger between the Company and Micro Therapeutics,
Inc.,
a California corporation, effective November 6, 1996 (1)..................
3.1 Certificate of Incorporation of the Company (1)...........................
3.2 Bylaws of the Company, as currently in effect (1).........................
3.3 Specimen Certificate of Common Stock*.....................................
3.4 Amended and Restated Certificate of Incorporation (to be filed)*..........
4.1 Warrant Agreement dated December 20, 1995 between the Company and
Comdisco, Inc. (1) .......................................................
4.2 Warrant Agreement dated May 21, 1996 between the Company
and Comdisco, Inc. (1) ...................................................
5.1 Opinion of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation*..............................................................
10.1 Form of Directors' and Officers' Indemnification Agreement (1)............
10.2 License Agreement dated June 1, 1993 between the Company and Andrew Cragg
(1).......................................................................
10.3 Consulting Agreement dated October 1, 1996 between the Company and
Andrew Cragg (1)..........................................................
10.4 Real Property Lease dated April 15, 1996 between the Company
and Reuben L. Casey (1)...................................................
10.5 Amended and Restated Investors Rights Agreement dated February 9, 1995,
among the Company, the Investors named therein and the Common Holders
named therein, as amended on May 17, 1996 and June 27, 1996 (1)...........
10.6 1993 Incentive Stock Option, Nonqualified Stock Option and Restricted
Stock Purchase Plan (1)...................................................
10.7 1996 Stock Incentive Plan (1).............................................
10.8 Employee Stock Purchase Plan (1)..........................................
10.9 Equipment Leasing Line of Credit dated December 20, 1995 between the
Company and ComDisco Ventures, as amended on May 21, 1996 (1).............
16.1 Letter from Ernst & Young LLP on changes in certifying accountant.........
21.1 Subsidiaries of the Registrant (1)........................................
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional Corporation
(see Exhibit 5.1)*........................................................
23.2 Consent of Coopers & Lybrand L.L.P.(1)....................................
23.3 Consent of Breimayer Law Office(1)........................................
23.4 Consent of Burns, Doane, Swecker & Mathis(1)..............................
23.5 Consent of Crockett & Fish(1).............................................
24.1 Power of Attorney (see page II-4)(1)......................................
27.1 Financial Data Schedule (1)...............................................
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* To be filed by amendment.
(1) Previously filed.
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EXHIBIT 16.1
[ERNST & YOUNG LLP LETTERHEAD]
January 10, 1997
Securities and Exchange Commission
450 5th Street N.W.
Washington, D.C. 20549
Gentlemen:
We have read the Section entitled "Experts" contained in the Micro
Therapeutics, Inc. Registration Statement on Form SB-2, as filed with the
Securities and Exchange Commission on December 5, 1996, and are in agreement
with the statements contained in the second and third paragraphs of that
section.
Very truly yours,
/s/ ERNST & YOUNG LLP
