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As filed with the Securities and Exchange Commission on December 29, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
THE SPECTRANETICS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware The Spectranetics Corporation 84-0997049
(State or other jurisdiction 96 Talamine Court (I.R.S. employer
of incorporation or organization) Colorado Springs, Colorado 80907 identification number)
(719) 633-8333
(Address, including zip code, and
telephone number, including area code,
of registrant's principal executive offices)
JOSEPH A. LARGEY
President and Chief Executive Officer
The Spectranetics Corporation
96 Talamine Court
Colorado Springs, Colorado 80907
(719) 633-8333
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
KIMBERLY L. WILKINSON, ESQ.
KAREN E. EBERLE, ESQ.
LATHAM & WATKINS
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 391-0600
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes
effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans,
please check the following box. |_|
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans,
check the following box. |X|
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(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 Maximum Proposed Maximum
Title of each class of Securities to Amount to be Offering Price Aggregate Offering Amount of
be Registered Registered Per Unit (1) Price (1) Registration Fee
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Common Stock ($0.001 par value) 3,800,000 $2.688 $10,212,690 $2,839.13
====================================================================================================================================
(1) Estimated solely for the purpose of computing the amount of registration fee, based on the average of the high and low prices
for the Common Stock as reported on the Nasdaq National Market on December 23, 1998, in accordance with Rule 457(c) promulgated
under the Securities Act of 1933.
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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<PAGE>
PROSPECTUS
SUBJECT TO COMPLETION, DATED DECEMBER 29, 1998
THE SPECTRANETICS CORPORATION
3,800,000 Shares of Common Stock
This prospectus covers up to 3,800,000 shares (the "Shares") of common
stock, par value $0.001 per share of The Spectranetics Corporation, a Delaware
corporation (the "Company"). The Shares may be offered for sale by the
stockholders of the Company named in this prospectus and their pledgees, donees,
transferees or other successors in interest (the "Selling Stockholders"). The
Selling Stockholders, directly or through agents, dealers, underwriters or
market makers, may offer and sell from time to time all or any part of the
Shares in amounts and on terms to be determined at the time of sale, including
block trades at negotiated prices through market makers, or in the
over-the-counter market at quoted market prices then prevailing on the Nasdaq
National Market. The Selling Stockholders or any broker-dealer who may
participate in sales of the Shares may use this prospectus. See "Plan of
Distribution."
The Company will not receive proceeds from the sale of the Shares. The
Company will bear substantially all expenses of the offering of the Shares,
except that the Selling Stockholders will pay any underwriting fees, discounts
or commissions, and transfer taxes, as well as the fees and disbursements of
their counsel.
The Company's common stock is traded on the Nasdaq National Market under
the symbol "SPNC." On December 28, 1998 the last sale price for the common stock
as reported on the Nasdaq National Market was $2.8125.
--------------
Investing in the Common Stock involves
certain risks. See "Risk Factors"
beginning on page 2.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
--------------
The date of this Prospectus is ________, 1999.
--------------
The information contained in this prospectus is not complete and may be amended.
These securities may not be sold until the related registration statement filed
with the Securities and Exchange Commission or any applicable state securities
commission becomes effective. This prospectus is not an offer to sell nor is it
seeking an offer to buy these securities in any state where the offer or sale is
not permitted.
<PAGE>
THE COMPANY
The Spectranetics Corporation (the "Company" or "Spectranetics") develops,
manufactures, markets and distributes a proprietary excimer laser system (the
CVX-300(R) laser unit and fiber optic delivery devices) for the treatment of
certain coronary and vascular conditions. Spectranetics' excimer laser
technology has been designed to ablate, or remove, tissue and is the only
excimer laser system approved in the United States and Europe for use in
minimally invasive cardiovascular applications. The excimer laser system is used
for the recanalization of clogged blood vessels, or angioplasty, and for removal
of lead wires from patients with implanted pacemakers or implantable
cardioverter defibrillators. The Company has also received approval in Europe to
market its products for upper and lower limb peripheral vascular disease and
restenosed stents and is seeking regulatory approval in the United States for
these indications. The Company's wholly owned subsidiary, Polymicro
Technologies, Inc. ("Polymicro"), manufactures and distributes drawn silica
glass products including capillary tubing and specialty fiber optics.
The Company is a Delaware corporation formed in 1984. Its principal
executive offices are located at 96 Talamine Court, Colorado Springs, Colorado
80907, telephone (719) 633-8333.
RISK FACTORS
This prospectus and the documents incorporated by reference herein contain
projections and other forward-looking statements within the meanings of Section
27A of the Securities Act of 1933, as amended (the "Securities Act") and Section
21E of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
These projections and forward-looking statements involve risks and
uncertainties. Actual results could differ materially from these projections and
forward-looking statements as a result of certain circumstances, including those
set forth below. The Company's business, results of operations and financial
condition are, and will continue to be, subject to the following risks:
Continued Losses. The Company has incurred net losses since inception in
June 1984. The Company anticipates that net losses will continue in the
foreseeable future. The Company may not be able to achieve increased sales or
profitability.
Quarterly Fluctuations in Operating Results. The Company's results of
operations have varied in the past based on the timing of capital equipment
sales, investment in clinical trials, product development, and sales and
marketing activities. The Company expects that its results of operations will
continue to fluctuate from quarter to quarter based on these factors, as well
as:
o the timing of regulatory approvals;
o market acceptance of products and new product introductions;
o implementation of health care reforms;
o changes in product mix between laser units and disposable devices;
o the Company's ability to manufacture products efficiently; and
o competition from other technologies.
Lack of Liquidity. The Company believes that its existing cash, cash from
operations and the proceeds from this Offering should be sufficient to execute
its plans through December 31, 1999. However, the Company may need additional
funds prior to that time. Additional financing, if required, may not be
available on satisfactory terms, or at all. If financing is not available on
acceptable terms, the
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Company may be unable to make capital expenditures, compete effectively or
withstand the effects of adverse market and economic conditions. Cash flow from
operating activities may not be sufficient to sustain the Company's long-term
operations unless the Company is able to increase sales and control expenses. To
the extent the Company finances future operations through the issuance of equity
securities, existing stockholders may suffer dilution.
Limited Marketing Capability. The Company has limited sales and marketing
capabilities. Many of the Company's competitors have extensive and well-funded
sales and marketing operations. Competition for sales and marketing personnel is
intense, and the Company has had and may continue to have difficulty attracting
and retaining qualified sales and marketing personnel. The Company is in the
process of establishing a direct sales force for its principal European markets.
The Company has limited experience in managing an international sales force. The
Company may be unable to develop a European sales force, and its sales and
marketing efforts in Europe could be unsuccessful.
Potential Difficulties in Managing Business Undergoing Rapid Change. The
Company's future success will depend to a significant extent on the ability of
its management personnel to operate effectively, both independently and as a
group. To compete successfully against current and future competitors, complete
clinical trials in progress, prepare additional products for clinical trials and
develop future products, the Company believes that it must continue to expand
its operations, particularly in the areas of research and development, sales and
marketing, training, and manufacturing. If the Company were to experience
significant growth in the future, such growth would likely result in new and
increased responsibilities for management personnel and place significant strain
upon the Company's management, operating and financial systems and resources. To
accommodate such growth and compete effectively, the Company must continue to
implement and improve information systems, procedures and controls, and to
expand, train, motivate and manage its workforce. The Company's personnel,
systems, procedures and controls may not be adequate to support the Company's
future operations.
Exposure from International Operations. Changes in overseas economic
conditions, currency exchange rates, foreign tax laws or tariffs or other trade
regulations could adversely affect the Company's ability to market its products
internationally. Certain of the Company's sales and expenses have been, and are
expected to be, subject to the effect of foreign currency fluctuations. As the
Company expands its international operations, it expects its sales and expenses
denominated in foreign currencies to expand. Further, any significant changes in
the political, regulatory or economic environments in which the Company conducts
international operations may have a material impact on revenues and profits.
Dependence on Key Personnel. The Company is dependent upon a limited number
of key management and technical personnel, and the future success of the Company
will depend in part upon its ability to attract and retain highly qualified
personnel. The Company will compete for such personnel with other companies,
academic institutions, government entities and other organizations. The Company
could be adversely affected if it loses key personnel or is unable to hire or
retain qualified personnel in the future.
Uncertain Market Acceptance. Excimer laser technology is a relatively new
procedure that competes with more established therapies, including balloon
angioplasty, stent implantation and open chest surgery, as well as other
evolving technologies, such as atherectomy. Market acceptance of the excimer
laser system will depend on the perceived clinical efficacy of and patient need
for excimer laser angioplasty and lead removal. Cost is another significant
factor affecting market acceptance of the Company's products. The Company's
products are expensive, and the marketplace may not be receptive to the
Company's excimer laser systems. See "Limitations on Third-Party Reimbursement."
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Intense Competition. Competitors include manufacturers of balloon
angioplasty devices, stents, products used in transmyocardial revascularization
and percutaneous transmyocardial revascularization, and atherectomy devices. The
Company also experiences competition from companies that develop lead extraction
devices or removal methods. Almost all of the Company's competitors have
substantially greater financial, manufacturing, marketing and technical
resources than the Company. Spectranetics expects competition to intensify. The
Company believes that the primary competitive factors in the interventional
cardiovascular market are:
o the ability to treat a variety of lesions safely and effectively;
o the impact of managed care practices and procedure costs;
o ease of use;
o size and effectiveness of sales forces; and
o research and development capabilities.
Dependence on Single Product Line. The Company derives approximately
two-thirds of its revenues from the sale or lease of the CVX-300 laser unit and
the sale of disposable devices. The Company's results of operations could be
adversely affected if the Company's disposable devices fail to generate
favorable clinical results or do not receive regulatory approvals in a timely
manner or at all.
Uncertain Impact of Health Care Reform. The federal government and certain
states have already implemented or are considering legislation to effect health
care reform. In addition, other legislative and industry groups are studying
various health care issues. The Company cannot predict the timing of any such
health care reform or its ultimate effect on the Company.
Limitations on Third-Party Reimbursement. Hospitals generally purchase the
CVX-300 laser unit. Hospitals then bill various third-party payors, such as
government programs and private insurance plans, for the health care services
provided to their patients. Unlike balloon angioplasty and atherectomy, laser
angioplasty requires the purchase of expensive capital equipment. The federal
Food and Drug Administration ("FDA") has required that the label for the CVX-300
laser unit indicate that adjunctive balloon angioplasty was performed in the
majority of the procedures submitted to the FDA in the Company's application for
pre-market approval. Adjunctive balloon angioplasty requires the purchase of a
balloon catheter in addition to the laser catheter. Third-party payors may deny
reimbursement for procedures they believe to be duplicative.
Payors may also deny reimbursement if they determine that a device used in
a procedure was experimental, was used for a non-approved indication or was not
used in accordance with established pay protocols regarding cost effective
treatment methods. In the future, laser angioplasty using the CVX-300 laser unit
could be considered too costly by third-party payors, reimbursement could be
unavailable for procedures using the Company's laser unit or, if available,
payors' reimbursement policies could affect the Company's ability to sell its
products profitably.
Hospitals face increasing pressures from many payor sources to control
health care costs. In addition, there are increasing pressures from public and
private payors to limit increases in reimbursement rates for medical devices.
The market for the Company's products and the Company's revenues and
profitability could also be adversely affected by changes in governmental and
private third-party payors' policies or by recent federal legislation that
reduces reimbursements under the capital cost pass-through system for the
Medicare program.
Costs and Uncertainty of Regulatory Compliance. The Company is subject to
extensive regulation by the FDA and comparable state and foreign agencies.
Complying with these regulations can
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be costly and time consuming. Failure to comply with applicable regulatory
requirements may result in, among other things, fines, suspensions of approvals,
seizures or recalls of products, operating restrictions and criminal
prosecutions. The Company may be unable to obtain future regulatory approval in
a timely manner or at all if existing regulations are changed or new regulations
are adopted.
The Company is subject to international regulatory requirements that vary
from country to country. International regulatory approval processes may take
longer than the FDA approval process. In addition, the Company could encounter
significant costs and requests for additional information in its efforts to
obtain regulatory approvals. The Company may not be able to obtain or maintain
international regulatory approvals for its products in the future. Any of these
events could substantially delay or preclude the Company from marketing its
products internationally.
Uncertainties Related to Clinical Trials. All of the Company's potential
products are subject to extensive regulation and will require approval from the
FDA and other regulatory agencies prior to commercial sale. The results from
pre-clinical testing and early clinical trials may not be predictive of results
obtained in large clinical trials. Companies in the medical device industry have
suffered significant setbacks in various stages of clinical trials, even in
advanced clinical trials after promising results had been obtained in earlier
trials.
The development of safe and effective products is highly uncertain and
subject to numerous risks. Product candidates that may appear to be promising in
development may not reach the market for a number of reasons. Product candidates
may:
o be found ineffective;
o take longer to progress through clinical trials than had been
anticipated;
o fail to receive necessary regulatory approval; or
o prove impracticable to manufacture in commercial quantities at
reasonable cost and with acceptable quality.
The product development process may take several years, depending on the type,
complexity, novelty and intended use of the product.
Sole Source Suppliers and Other Manufacturing Risks. The Company purchases
certain components of its CVX-300 laser unit from several sole source suppliers.
The Company does not have guaranteed commitments from these suppliers and orders
products through purchase orders placed with these suppliers from time to time.
While the Company believes that it could obtain replacement components from
alternative suppliers, it may be unable to do so. In addition, the Company may
encounter difficulties in scaling up production of laser units and disposable
devices and hiring and training additional qualified manufacturing personnel.
Any of these difficulties could lead to quarterly fluctuations in operating
results and adversely affect the Company.
Product Liability and Sufficiency of Insurance Coverage. The Company is
subject to risk of product liability claims. The Company maintains product
liability insurance with coverage and aggregate maximum amounts of $5 million.
The coverage limits of the Company's insurance policies may be inadequate, and
insurance coverage with acceptable terms could be unavailable in the future.
Technological Change Resulting in Product Obsolescence. The health care
industry is characterized by rapid technological progress. New developments are
expected to continue at an accelerated pace in both industry and academia. Sales
of the Company's products could be adversely
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affected by technological changes. Many companies, some of which have
substantially greater resources than the Company, are engaged in research and
development for the treatment and prevention of coronary artery disease. These
include pharmaceutical approaches as well as development of new or improved
angioplasty, atherectomy or other devices. The Company's products could be
rendered obsolete as a result of future innovations in the treatment of vascular
disease.
Uncertainty Related to Patents and Proprietary Rights. The Company holds
patents and licenses to use patented technology, and has patent applications
pending. Any patents currently applied for by the Company may not be granted. In
addition, the Company's patents may not be sufficiently broad to protect the
Company's technology or to provide it with any competitive advantage. The
Company's patents could be challenged as invalid or circumvented by competitors.
In addition, the laws of certain foreign countries do not protect the Company's
intellectual property rights to the same extent as do the laws of the United
States. The Company could be adversely affected if any of its licensors
terminate the Company's licenses to use patented technology.
The Company is aware of patents and patent applications owned by others
relating to laser and fiber-optic technologies, which, if determined to be valid
and enforceable, may be infringed by the Company. Holders of certain patents,
including holders of patents involving the use of lasers in the body, have
contacted the Company and requested that the Company enter into license
agreements for the underlying technology. While the Company does not believe
that it infringes upon any valid claim of these patents, a patent holder may
file a lawsuit against the Company and may prevail. If the Company decides that
it needs to license this technology, the Company may be unable to obtain these
licenses on favorable terms or at all. The Company may not be able to develop or
otherwise obtain alternative technology.
Litigation concerning patents and proprietary rights is time-consuming,
expensive, unpredictable and could divert the efforts of the Company's
management. An adverse ruling could subject the Company to significant
liability, require the Company to seek licenses and restrict the Company's
ability to manufacture and sell its products.
The Company also relies on trade secrets and unpatented know-how to protect
its proprietary technology and may be vulnerable to competitors who attempt to
copy its products or gain access to its trade secrets and know-how.
Potential Anti-Takeover Effects of Rights Plan, Certificate of
Incorporation and Bylaws. The Company has a stockholder rights plan that may
prevent an unsolicited change of control of the Company. The rights plan may
adversely affect the market price of the Company's common stock (the "Common
Stock") or the ability of stockholders to participate in a transaction in which
they might otherwise receive a premium for their shares. Under the rights plan,
rights to purchase preferred stock in certain circumstances have been issued
(and will be issued for any newly outstanding common stock) to holders of
outstanding shares of Common Stock. Holders of the preferred stock are entitled
to certain dividend, voting and liquidation rights that could make it more
difficult for a third party to acquire the Company.
The Company's Restated Certificate of Incorporation, as amended, and Bylaws
contain provisions relating to issuance of preferred stock, special meetings of
stockholders and amendment of Bylaws that could have the effect of delaying,
deferring or preventing an unsolicited change in the control of the Company. The
Company's Board of Directors are elected for staggered three-year terms, which
prevents stockholders from electing all directors at each annual meeting and may
have the effect of delaying or deferring a change in control of the Company.
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Potential Volatility of Stock Price. The market price of the shares of the
Common Stock, similar to other health care companies, has been, and is likely to
continue to be, highly volatile. Factors such as fluctuations in operating
results, announcements of technological innovations or new products by the
Company or its competitors, governmental regulation, developments with respect
to patents or proprietary rights, public concern regarding the safety of
products developed by the Company or others and general market conditions may
have a significant effect on the market price of the Common Stock.
Lack of Dividends. The Company has not declared or paid any dividends with
respect to its Common Stock. The Company does not anticipate paying any
dividends in the foreseeable future.
Year 2000 Issues. The Company installed and implemented new computer
systems at its Colorado and Arizona facilities in the first half of 1998.
Although the Company's new software is designed to be year 2000 compliant, the
Company cannot assure that this software contains all necessary data code
changes. The Company is currently evaluating its other computer systems for year
2000 compliance. Although the Company expects all of its critical systems to be
year 2000 compliant by June 30, 1999, there is a risk that some or all of the
Company's systems will not be year 2000 compliant by 2000.
Upon review of its product offerings, the Company has determined that the
software within its products does not contain date-sensitive fields. As a
result, the Company does not believe that its products will be affected by year
2000 issues. The Company cannot assure, however, that all of its products are
year 2000 compliant.
The Company is in the process of obtaining information from outside vendors
regarding systems that interface with the Company's systems. Based on currently
available information, the Company does not believe that year 2000 issues
relating to these systems will adversely affect the Company. However, since
third party year 2000 compliance is not within the Company's control, the
Company cannot assure that any year 2000 issues affecting its outside vendors
will not adversely affect the Company.
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THE SELLING STOCKHOLDERS
The following table provides information with respect to the Shares held
and to be offered under this prospectus from time to time by each Selling
Stockholder. Because the Selling Stockholders may sell all, some or none of
their Shares pursuant to this prospectus, no estimate can be given as to the
number and percentage of shares of Common Stock that will be held by each
Selling Stockholder after any particular sale. See "Plan of Distribution."
Each Selling Stockholder acquired its Shares from the Company in private
placement transactions (the "Private Placement") pursuant to Stock Purchase
Agreements, dated as of December 22, 1998, at a purchase price per share of
$2.00.
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Number of Shares Owned
Name of Selling Stockholder Prior to this Offering Number of Shares Being Offered
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Bond Survivor Trust 100,000 100,000
Castle Creek Healthcare Partners LLC 250,000 250,000
Clarion Capital Corp. 125,000 125,000
Clarion Offshore Fund LTD 31,250 31,250
Clarion Partners, L.P. 93,750 93,750
Michael T. Jackson Trust, New
Technologies Fund 200,000 200,000
Pequot Private Equity Fund, L.P. 1,331,400 1,331,400
Pequot Offshore Private Equity Fund,
Inc. 168,600 168,600
Special Situations Cayman Fund L.P. 300,000 300,000
Special Situations Private Equity
Fund L.P. 450,000 450,000
Special Situations Fund III L.P. 750,000 750,000
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Total 3,800,000 3,800,000
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</TABLE>
Cornelius C. Bond, Jr., the Trustee of the Bond Survivor Trust, is a
director and stockholder of the Company. The Company is unaware of any other
material relationship between any of the Selling Stockholders and the Company in
the past three years, other than as a result of ownership of the Shares.
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PLAN OF DISTRIBUTION
The Company is registering the Shares on behalf of the Selling
Stockholders. As used herein, "Selling Stockholders" includes donees, pledgees
and transferees or other 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 offered hereby will
be borne by the Company. Brokerage commissions and similar selling expenses, if
any, attributable to the sale of Shares will be borne by the Selling
Stockholders. Sales of Shares may be effected by Selling Stockholders from time
to time in one or more types of transactions (which may include block
transactions) on the Nasdaq National Market or other national securities
exchanges on which the Shares are traded, in the over-the-counter market, in
negotiated transactions, through put or call option transactions relating to the
Shares, through short sales of Shares, or a combination of such methods of sale,
at market prices prevailing at the time of sale, at negotiated prices or at
fixed prices. Such transactions may or may not involve brokers or dealers. The
Selling Stockholders have advised the Company 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 coordinating broker acting in connection with the proposed sale
of Shares by the Selling Stockholders.
The Selling Stockholders may effect such transactions in any manner
permitted by law, including 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 the 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).
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.
Because Selling Stockholders may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, the Selling Stockholders will be
subject to the prospectus delivery requirements of the Securities Act. The
Company 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.
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.
Upon the Company being notified by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of Shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such shares were sold, (iv) the commissions paid or discounts
or concessions allowed to such broker-dealer(s), where applicable, (v) that such
broker-dealer(s) did not conduct any investigation to verify the information set
out or incorporated by reference in this prospectus and (vi) other facts
material to the transaction. In addition, upon the Company being notified by a
Selling
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Stockholder that a donee, pledgee or other transferee intends to sell more than
500 shares, a supplement to this prospectus will be filed if required by law.
The Company has agreed to pay all fees and expenses incident to the filing
of the Registration Statement on Form S-3 with respect to the Shares (including
all amendments thereto, the "Registration Statement"). The Company has also
agreed to indemnify the Selling Stockholders and any other person who sells
Shares pursuant to this Prospectus, and any officer, director or agent of such
person, against certain civil liabilities, including liabilities 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.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for the
Company by Latham & Watkins, San Francisco, California.
EXPERTS
The consolidated financial statements of The Spectranetics Corporation and
subsidiaries as of December 31, 1997 and 1996, and for each of the years in the
three-year period ended December 31, 1997, have been incorporated by reference
herein and in the Registration Statement in reliance upon the reports of KPMG
Peat Marwick, LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
AVAILABLE INFORMATION
As permitted by the rules and regulations of the Securities and Exchange
Commission (the "Commission"), this prospectus does not contain all of the
information set forth in the Registration Statement with respect to the Shares
and the exhibits and schedules to the Registration Statement. For further
information about the Company and the Shares, reference is made to the
Registration Statement.
The Company is subject to the informational requirements of the Exchange
Act, and in accordance with the Exchange Act, files annual and quarterly
reports, proxy materials and other information with the Commission. You can
inspect and copy reports and other information filed by the Company with the
Commission at the Commission's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may also obtain information on the operation of the
Public Reference Room by calling the Commission at 1-800-SEC-0300. The
Commission also maintains an internet site at http://www.sec.gov that contains
reports, proxy and information statements regarding issuers, including the
Company, that file electronically with the Commission.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company under the Exchange Act with
the Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, containing audited financial statements for each of
the years in the three year period ended December 31, 1997.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 000-19711)
which was declared effective by the Commission on December 5, 1991.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this prospectus and prior to the
termination of the offering of the securities offered hereby shall be deemed to
be incorporated by reference in this prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this prospectus to the extent that a
statement contained herein or in any subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this prospectus.
A copy of any or all of the documents incorporated by reference in this
prospectus (other than exhibits to such documents which are not specifically
incorporated by reference therein) will be provided without charge to any person
to whom a copy of this prospectus is delivered, upon written or oral request.
Copies of this prospectus, as amended or supplemented from time to time, and any
other documents (or parts of documents) that constitute part of this prospectus
under Section 10(a) of the Securities Act will also be provided without charge
to each such person, upon written or oral request. Requests for such copies
should be addressed to James P. McCluskey, Treasurer and Secretary, 96 Talamine
Court, Colorado Springs, Colorado 80907 (telephone number (719) 633-8333).
11
<PAGE>
================================================================================
No dealer, sales person or any other person has been authorized to give any
information or to make any representations not contained or incorporated by
reference in this prospectus in connection with the offering herein contained,
and, if given or made, such information or representations must not be relied
upon as having been authorized by the Company or the Selling Stockholders. This
prospectus does not constitute an offer to sell, or a solicitation of an offer
to buy, the securities offered hereby in any jurisdiction where, or to any
person to whom, it is unlawful to make such offer or solicitation. Neither the
delivery of this prospectus nor any sale made hereafter shall, under any
circumstances, create any implications that the information contained herein is
correct as of any date subsequent to the date hereof.
----------
TABLE OF CONTENTS
Page
The Company ............................................................... 2
Risk Factors .............................................................. 2
The Selling Stockholders .................................................. 8
Plan of Distribution ...................................................... 9
Legal Matters ............................................................. 10
Experts ................................................................... 10
Available Information ..................................................... 10
Incorporation of Certain
Information by Reference ................................................ 11
================================================================================
3,800,000 SHARES
THE SPECTRANETICS CORPORATION
COMMON STOCK
----------
PROSPECTUS
----------
____________, 1999
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses relating to the registration of the Shares will be borne by
the Company. Such expenses are set forth in the table below. All amounts are
estimates except the Securities Act registration fee.
Securities Act Registration Fee ....................... $ 2,839
Legal Fees and Expenses* .............................. 185,000
Accounting Fees and Expenses* ......................... 12,500
Miscellaneous ......................................... 8,661
Total ................................................. $208,000
========
* Estimated.
Item 15. Indemnification of Directors and Officers.
The Company's Restated Certificate of Incorporation (as amended, the
"Certificate of Incorporation") provides that to the fullest extent permitted by
the Delaware General Corporation Law ("Delaware Law"), a Director of the Company
shall not be liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a Director. Under current Delaware Law, liability of
a director may not be limited (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or that involve intentional misconduct or a knowing violation of law,
(iii) in respect of certain unlawful dividend payments or stock redemptions or
repurchases and (iv) for any transaction from which the director derives an
improper personal benefit. The effect of the provision of the Company's
Certificate of Incorporation is to eliminate the rights of the Company and its
stockholders (through stockholders' derivative suits on behalf of the Company)
to recover monetary damages against a director for breach of the fiduciary duty
of care as a director (including breaches resulting from negligent or grossly
negligent behavior) except in the situations described in clauses (i) through
(iv) above. This provision does not limit or eliminate the rights of the Company
or any stockholder to seek nonmonetary relief such as an injunction or
rescission in the event of a breach of a director's duty of care. In addition,
the Company's Certificate of Incorporation provides that the Company shall
indemnify its directors, officers, employees and agents against losses incurred
by any such person by reason of the fact that such person was acting in such
capacity.
In addition, the Company has entered into agreements (the "Indemnification
Agreements") with each of the directors of the Company pursuant to which the
Company has agreed to indemnify such director from claims, liabilities, damages,
expenses, losses, costs, penalties or amounts paid in settlement incurred by
such director and arising out of his capacity as a director, employee and/or
agent of the corporation of which he is a director to the maximum extent
provided by applicable law. In addition, such director will be entitled to an
advance of expenses to the maximum extent authorized or permitted by law to meet
the obligations indemnified against. The Indemnification Agreements also
obligate the Company to purchase and maintain insurance for the benefit and on
behalf of its directors insuring against all liabilities that may be incurred by
such director in or arising out of his capacity as a director, employee and/or
agent of the Company.
To the extent that the Board of Directors or the stockholders of the
Company may in the future wish to limit or repeal the ability of the Company to
indemnify directors, such repeal or limitation may not be effective as to
directors who are currently parties to the Indemnification Agreements, because
their
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<PAGE>
rights to full protection are contractually assured by the Indemnification
Agreements. It is anticipated that similar contracts may be entered into, from
time to time, with future directors of the Company.
Item 16. Exhibits.
The following documents are filed as part of this Registration Statement.
Exhibit Number Description
- -------------- -----------
5.1 Opinion of Latham & Watkins.
23.1 Consent of Latham & Watkins (included in its opinion
filed as Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick, LLP.
24.1 Power of Attorney (included on signature page).
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 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 any decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any derivation from the low end 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
20% change in the maximum aggregate offering price set forth the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously discussed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the 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
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<PAGE>
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration, by means of a post-effective amendment,
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
(c) 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 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
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 hereunder, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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<PAGE>
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 Colorado Springs, State of Colorado, on the 29th day
of December, 1998.
THE SPECTRANETICS CORPORATION,
a Delaware corporation
By: /s/ Joseph A. Largey
-------------------------------------
Joseph A. Largey
President and Chief Executive Officer
and Director
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Joseph
A. Largey and James P. McCluskey, and each of them, with full power of
substitution and full power to act without the other, his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign and file (i) any and all amendments (including
post-effective amendments) to this Registration Statement, and to file this
Registration Statement, with all exhibits thereto, and other documents in
connection therewith, and (ii) a registration statement, and any and all
amendments thereto, relating to the offering covered hereby filed pursuant to
Rule 462(b) under the Securities Act of 1933, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in order to effectuate the same as fully, to
all intents and purposes, as they or he might or could do in person, hereby
ratifying and confirming all that such attorneys-in-fact and agents, or any of
them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Emile J. Geisenheimer Chairman of the Board December 29, 1998
- --------------------------- and Director
Emile J. Geisenheimer
/s/ Joseph A. Largey President, December 29, 1998
- --------------------------- Chief Executive Officer
Joseph A. Largey and Director
(Principal Executive Officer)
/s/ James P. McCluskey Vice President, Finance, December 29, 1998
- --------------------------- Chief Financial Officer, Secretary
James P. McCluskey and Treasurer
(Principal Financial and
Accounting Officer)
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<PAGE>
/s/ Gary R. Bang Director December 29, 1998
- ---------------------------
Gary R. Bang
/s/ Cornelius C. Bond, Jr. Director December 29, 1998
- ---------------------------
Cornelius C. Bond, Jr.
/s/ James A. Lent Director December 29, 1998
- ---------------------------
James A. Lent
/s/ Joseph M. Ruggio, M.D. Director December 29, 1998
- ---------------------------
Joseph M. Ruggio, M.D.
/s/ John G. Schulte Director December 29, 1998
- ---------------------------
John G. Schulte
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<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
5.1 Opinion of Latham & Watkins.
23.1 Consent of Latham & Watkins (included in its opinion
filed as Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick, LLP.
24.1 Power of Attorney (included on signature page).
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EXHIBIT 5.1
[LATHAM & WATKINS LETTERHEAD]
December 29, 1998
The Spectranetics Corporation
96 Talamine Court
Colorado Springs, Colorado 80907
Ladies and Gentlemen:
In connection with the registration of up to 3,800,000 shares of common stock of
The Spectranetics Corporation (the "Company"), par value $.001 per share (the
"Shares"), under the Securities Act of 1933, as amended (the "Act"), pursuant to
a Registration Statement on Form S-3 (the "Registration Statement") to be filed
by you with the Securities and Exchange Commission, to be sold by certain
selling stockholders (the "Selling Stockholders"), you have requested our
opinion with respect to the matters set forth below.
In our capacity as your counsel in connection with such registration, we are
familiar with the proceedings taken by the Company in connection with the
authorization, issuance and sale of the Shares. In addition, we have made such
legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as well have deemed necessary
or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to authentic original documents of all documents submitted to us as copies.
We are opining herein as to the effect on the subject transaction of only the
General Corporation Law of the State of Delaware and we express no opinion with
respect to the applicability thereto or the effect thereon of any other laws or
as to any matters of municipal law or any other local agencies within any state.
Subject to the foregoing, and in reliance thereon, it is our opinion that the
Shares have been duly authorized and, upon issuance, delivery and payment
therefor, will be validly issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the Registration
Statement and the reference to our firm contained under the heading "Legal
Matters" in the prospectus included therein.
Very truly yours,
/s/ LATHAM & WATKINS
EXHIBIT 23.2
Consent of Independent Auditors
The Board of Directors and Stockholders
The Spectranetics Corporation:
We consent to the incorporation by reference in the registration statement on
Form S-3 of The Spectranetics Corporation of our report dated January 28, 1998
relating to the consolidated balance sheets of The Spectranetics Corporation and
subsidiaries as of December 31, 1997 and 1996, and the related consolidated
statements of operations, shareholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1997, which report appears in
the December 31, 1997 Annual Report on Form 10-K of The Spectranetics
Corporation, and to the reference to our firm under the heading "Experts" in the
prospectus.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Denver, Colorado
December 28, 1998
