<PAGE>
As filed with the Securities and Exchange Commission on February 4, 1999
REGISTRATION NO. 333-69829
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- --------------------------------------------------------------------------------
WASHINGTON, D.C. 20549
-------------------------
AMENDMENT NO.1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
THE SPECTRANETICS CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
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)
</TABLE>
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. / /
---------------------
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.
<PAGE>
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>
PROSPECTUS
SUBJECT TO COMPLETION, DATED FEBRUARY 4, 1999
THE SPECTRANETICS CORPORATION
3,800,000 SHARES OF COMMON STOCK
This prospectus covers up to 3,800,000 shares of Spectranetics' common
stock that may be offered for sale by the stockholders named in this prospectus
and their pledgees, donees or other transferees. The selling stockholders and
any broker-dealer who may participate in sales of the shares may use this
prospectus. See "Plan of Distribution."
We will not receive proceeds from the sale of the shares. We will bear
substantially all expenses of registration of the shares, and the selling
stockholders will pay any underwriting fees, discounts or commissions, and
transfer taxes.
Our common stock is traded on the Nasdaq National Market under the symbol
"SPNC." On February 3, 1999 the last sale price for the common stock as
reported on the Nasdaq National Market was $3.09.
______________
INVESTING IN THE COMMON STOCK INVOLVES MATERIAL RISKS.
SEE "RISK FACTORS" BEGINNING ON PAGE 2.
NEITHER THE SEC 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.
______________
<PAGE>
SUMMARY OF OUR BUSINESS
Spectranetics develops, manufactures, markets and distributes a
proprietary excimer laser system for the treatment of certain coronary and
vascular conditions. Excimer laser technology delivers cool ultraviolet
light in short, controlled energy pulses to ablate, or remove, tissue. Our
excimer laser system includes the CVX-300-Registered Trademark- laser unit
and various fiber optic delivery devices, including disposable catheters and
sheaths. Our excimer laser system is the only excimer laser system approved
in the United States and Europe for use in minimally invasive cardiovascular
applications. Our excimer laser system is used in angioplasty to open
clogged or obstructed arteries. It is also used to remove lead wires from
patients with implanted pacemakers or implantable cardioverter
defibrillators, devices that regulate the heart beat. We have also received
approval in Europe to market our products to treat artery blockages in the
upper and lower leg and to treat clogged stents. Stents are implanted metal
tubes designed to hold open arteries with restricted bloodflow. We are
seeking regulatory approval in the United States to market our products for
these treatments.
Our subsidiary, Polymicro Technologies, Inc., manufactures and distributes
drawn silica glass products consisting of fine glass tubing and glass fibers.
Polymicro's products are used primarily with analytical or testing equipment.
Spectranetics is a Delaware corporation formed in 1984. Our principal
executive offices are located at 96 Talamine Court, Colorado Springs, Colorado
80907. Our telephone number is (719) 633-8333.
RISK FACTORS
THIS PROSPECTUS AND THE DOCUMENTS INCORPORATED BY REFERENCE IN THIS
PROSPECTUS CONTAIN PROJECTIONS AND OTHER FORWARD-LOOKING STATEMENTS WITHIN THE
MEANINGS OF SECTION 27A OF THE SECURITIES ACT OF 1933 AND SECTION 21E OF THE
SECURITIES EXCHANGE ACT OF 1934. 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. YOU SHOULD CONSIDER THE
FOLLOWING FACTORS CAREFULLY BEFORE DECIDING TO PURCHASE SHARES OF COMMON STOCK.
CONTINUED LOSSES. We have incurred net losses since our inception in June
1984. At December 31, 1998, we had accumulated approximately $72.8 million in
net losses since inception. We anticipate that our net losses will continue in
the foreseeable future. We may be unable to increase sales or achieve
profitability.
LIMITED CASH ON HAND. We believe that our existing cash, cash from
operations and the proceeds from our private placement to the selling
stockholders should be sufficient to support our plans through at least the next
12 months. However, we may need to raise additional cash prior to that time.
We may be unable to obtain additional financing, if needed, on satisfactory
terms or at all. If financing is not available on acceptable terms, we 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 our long-term operations unless we
are able to increase sales and control expenses. If we finance future
operations through additional issuances of equity securities, you may suffer
dilution and the price of the common stock may fall.
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SMALL SALES AND MARKETING TEAM. Many of our competitors have larger sales
and marketing operations than ours, enabling those companies with more resources
to more effectively interface with our mutual customers.
INABILITY TO GENERATE REVENUES IN EUROPE. In January 1999, we established
a direct sales force for our principal European markets. We may be unable to
develop an effective European sales force, and our sales and marketing efforts
in Europe could be unsuccessful.
EXPOSURE FROM INTERNATIONAL OPERATIONS. For the nine months ended
September 30, 1998, our revenues from international operations represented
12% of consolidated revenues. Of these revenues, 70% were derived from sales
in Germany. Changes in overseas economic conditions, currency exchange
rates, foreign tax laws or tariffs or other trade regulations could adversely
affect our ability to market our products in these and other countries. We do
not expect the Euro conversion to have a significant impact on our
operations. As we expand our international operations, we expect our sales
and expenses denominated in foreign currencies to expand.
UNCERTAIN MARKET ACCEPTANCE. Excimer laser technology is a relatively
new procedure that competes with more established therapies for restoring
circulation to clogged or obstructed arteries. Market acceptance of the
excimer laser system depends on our ability to provide adequate clinical and
economic data that shows the clinical efficacy of and patient need for
excimer laser angioplasty and lead removal.
HIGHLY COMPETITIVE INDUSTRY. Our primary competitors are manufacturers of
products used in competing therapies, such as:
- balloon angioplasty, which uses a balloon to push obstructions out of
the way;
- stent implantation;
- open chest bypass surgery; and
- atherectomy, a mechanical method for removing arterial blockages.
We also compete with companies that develop lead extraction devices or removal
methods, such as mechanical sheaths. Almost all of our competitors have
substantially greater financial, manufacturing, marketing and technical
resources than we do. We expect competition to intensify.
We believe that the primary competitive factors in the interventional
cardiovascular market are:
- the ability to treat a variety of lesions safely and effectively;
- the impact of managed care practices and procedure costs;
- ease of use;
- size and effectiveness of sales forces; and
- research and development capabilities.
SCIMED Life Systems, Inc. (a subsidiary of Boston Scientific
Corporation), Cordis Corporation (a subsidiary of Johnson & Johnson
Interventional Systems), Advanced Cardiovascular Systems, Inc. (a subsidiary
of Guidant Corporation), Bard and Schneider (a subsidiary of Pfizer Inc.) are
the leading balloon angioplasty manufacturers. SCIMED Life Systems, Inc.,
Cordis Corporation, Advanced Cardiovascular Systems, Inc. and Medtronic, Inc.
are the leading stent providers in the United States. Manufacturers of
atherectomy devices include Devices for Vascular Intervention, Inc. (a
subsidiary of Guidant Corporation) and Heart Technology, Inc. (a subsidiary
of Boston Scientific Corporation).
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LIMITATIONS ON THIRD-PARTY REIMBURSEMENT. We sell our CVX-300 laser
unit primarily to hospitals, which then bill third-party payors, such as
government programs and private insurance plans, for the services they
provide using the CVX-300 laser unit. Unlike balloon angioplasty and
atherectomy, laser angioplasty requires the purchase of expensive capital
equipment. In some circumstances, the amount reimbursed to hospitals for
procedures involving our products may not be adequate to cover a hospital's
costs.
In addition, the FDA has required that the label for the CVX-300 laser
unit state that adjunctive balloon angioplasty was performed together with
laser angioplasty in most of the procedures we submitted to the FDA for
pre-market approval. Adjunctive balloon angioplasty requires the purchase of
a balloon catheter in addition to the laser catheter. While all approved
procedures using the excimer laser system are reimbursable, some third-party
payors attempt to deny reimbursement for procedures they believe are
duplicative, such as adjunctive balloon angioplasty performed together with
laser angioplasty. Third-party payors may also attempt to 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.
Hospitals that have experienced reimbursement problems or expect to
experience reimbursement problems may not purchase our excimer laser systems
in the future.
COSTS AND UNCERTAIN TIMING OF REGULATORY COMPLIANCE. The industry in
which we compete is subject to extensive regulation by the FDA and comparable
state and foreign agencies. Complying with these regulations is costly and
time consuming. International regulatory approval processes may take longer
than the FDA approval process. If we fail to comply with applicable
regulatory requirements, we may be subject to, among other things, fines,
suspensions of approvals, seizures or recalls of products, operating
restrictions and criminal prosecutions. We 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. For example, the FDA approval
process for the use of excimer laser technology in clearing blocked arteries
in the lower leg has taken longer than we anticipated, due to requests for
additional clinical data and changes in regulatory requirements.
RISKS RELATED TO CLINICAL TRIALS. All of Spectranetics' potential
products are subject to extensive regulation and will require approval from
the Food and Drug Administration 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. The product development process may take several
years, depending on the type, complexity, novelty and intended use of the
product. Product candidates that may appear to be promising in development
may not reach the market for a number of reasons. Product candidates may:
- be found ineffective;
- take longer to progress through clinical trials than had been
anticipated; or
- require additional clinical data and testing.
In particular, our Prima-Registered Trademark- laser guidewire, which
allows excimer laser energy to assist in crossing totally blocked arteries, has
not been as effective as we expected. Also, during the course of
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review of the Prima guidewire by the FDA, alternative technologies have
surfaced which may limit market acceptance of the Prima guidewire. We cannot
guarantee that the clinical trials relating to any of our products will be
successful.
SOLE SOURCE SUPPLIERS. We purchase certain components of our CVX-300
laser unit from several sole source suppliers. We do not have guaranteed
commitments from these suppliers and order products through purchase orders
placed with these suppliers from time to time. While we believe that we
could obtain replacement components from alternative suppliers, we may be
unable to do so.
PRODUCT LIABILITY AND SUFFICIENCY OF INSURANCE COVERAGE. We are
subject to risk of product liability claims. We maintain product liability
insurance with coverage and aggregate maximum amounts of $5 million. The
coverage limits of our insurance policies may be inadequate, and insurance
coverage with acceptable terms could be unavailable in the future.
TECHNOLOGICAL CHANGE RESULTING IN PRODUCT OBSOLESCENCE. We derive
approximately two-thirds of our revenues from the sale or lease of the
CVX-300 laser unit and the sale of disposable devices. Technological progress
or new developments in our industry could adversely affect sales of our
products. Many companies, some of which have substantially greater resources
than we do, 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. Our products could be rendered obsolete as a result of
future innovations in the treatment of vascular disease.
POTENTIAL INVALIDITY OF PATENTS AND PROPRIETARY RIGHTS. We hold
patents and licenses to use patented technology, and have patent applications
pending. Any patents for which we have applied may not be granted. In
addition, our patents may not be sufficiently broad to protect our technology
or to give us any competitive advantage. Our patents could be challenged as
invalid or circumvented by competitors. In addition, the laws of certain
foreign countries do not protect our intellectual property rights to the same
extent as do the laws of the United States. We could be adversely affected
if any of our licensors terminate our licenses to use patented technology.
We are 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 Spectranetics. Holders of certain
patents, including holders of patents involving the use of lasers in the
body, have contacted us and requested that we enter into license agreements
for the underlying technology. We have responded that we do not believe we
infringe upon these patents. We cannot guarantee you that a patent holder
will not file a lawsuit against us and may prevail. If we decide that we
need to license this technology, we may be unable to obtain these licenses on
favorable terms or at all. We 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 our management. An
adverse ruling could subject us to significant liability, require us to seek
licenses and restrict our ability to manufacture and sell our products.
STOCKHOLDER RIGHTS SET FORTH IN OUR RIGHTS PLAN, CHARTER AND BYLAWS.
We have a stockholder rights plan that may prevent an unsolicited change of
control of Spectranetics. The rights plan may adversely affect the market
price of our 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 to holders of outstanding
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shares of common stock, and rights will be issued in the future for any newly
issued 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 Spectranetics.
Our charter and bylaws contain provisions relating to issuance of
preferred stock, special meetings of stockholders and amendments of the
bylaws that could have the effect of delaying, deferring or preventing an
unsolicited change in the control of Spectranetics. Our 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.
POTENTIAL VOLATILITY OF STOCK PRICE. The market price of our common
stock, similar to other health care companies, has been, and is likely to
continue to be, highly volatile. The following factors may significantly
affect the market price of our common stock:
- fluctuations in operating results;
- announcements of technological innovations or new products by
Spectranetics or our competitors;
- governmental regulation;
- developments with respect to patents or proprietary rights;
- public concern regarding the safety of products developed by
Spectranetics or others; and
- general market conditions.
YEAR 2000 ISSUES. We installed and implemented new computer systems at
our Colorado and Arizona facilities in the first half of 1998. Although our
new software is designed to be year 2000 compliant, we cannot assure that
this software contains all necessary data code changes. We are currently
evaluating our other computer systems for year 2000 compliance. Although we
expect all of our critical systems to be year 2000 compliant by June 30,
1999, there is a risk that some or all of our systems will not be year 2000
compliant by 2000.
Upon review of our product offerings, we have determined that the
software within our products does not contain date-sensitive fields. As a
result, we do not believe that our products will be affected by year 2000
issues. We cannot assure, however, that all of our products are year 2000
compliant.
We are in the process of obtaining information from outside vendors
regarding systems that interface with our systems. Based on currently
available information, we do not believe that year 2000 issues relating to
these systems will adversely affect our business. However, since third party
year 2000 compliance is not within our control, we cannot assure that any
year 2000 issues affecting our outside vendors will not adversely affect our
business.
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THE SELLING STOCKHOLDERS
The following table provides information regarding 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 using this prospectus, we cannot estimate the number and
percentage of shares that each selling stockholder will hold after any
particular sale. We sold the shares to the selling stockholders in a private
placement transaction for $2.00 per share.
<TABLE>
<CAPTION>
NUMBER OF SHARES OWNED
NAME OF SELLING STOCKHOLDER PRIOR TO THIS OFFERING NUMBER OF SHARES BEING OFFERED
- --------------------------- ---------------------- ------------------------------
<S> <C> <C>
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
--------- ---------
--------- ---------
</TABLE>
Cornelius C. Bond, Jr., the trustee of the Bond Survivor Trust, is a
director and stockholder of Spectranetics. We are unaware of any other
material relationship between any selling stockholder and Spectranetics in
the past three years, other than as a result of ownership of the shares.
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PLAN OF DISTRIBUTION
We are registering the shares on behalf of the selling stockholders.
When we use the term "selling stockholders" in this prospectus, it includes
donees, pledgees and other transferees who are selling shares received after
the date of this prospectus from a selling stockholder whose name appears in
"The Selling Stockholders."
Selling stockholders may sell shares from time to time in a number of ways,
including:
- in block transactions;
- on the Nasdaq National Market or other national securities exchange 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 through a combination of these methods of sale, at market prices
prevailing at the time of sale, at negotiated prices or at fixed prices. The
selling stockholders have advised us that they have not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares, nor is there an
underwriter or coordinating broker acting in connection with any proposed
sale of shares by the selling stockholders.
The selling stockholders may sell shares 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. These 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.
The compensation paid to a particular broker-dealer might be in excess of
customary commissions.
The selling stockholders and any broker-dealers who act in connection
with the sale of shares may be deemed to be "underwriters" within the meaning
of Section 2(a)(11) of the Securities Act. Any commissions received by these
broker-dealers and any profit on shares they resell while acting as
principals may 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(a)(11) of the Securities Act,
the selling stockholders will be subject to the prospectus delivery
requirements of the Securities Act. We have informed the selling
stockholders that the anti-manipulation provisions of Regulation M 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 Rule 144.
If we are 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, we will file a supplement
to this prospectus, if required, under Rule 424(b) under the Securities Act.
The prospectus supplement will disclose:
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- the names of the selling stockholder and the participating broker-
dealer(s);
- the number of shares involved;
- the price at which the shares were sold;
- the commissions paid or discounts or concessions allowed to the
broker-dealer(s), where applicable;
- that the broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this
prospectus; and
- other facts material to the transaction.
In addition, if we are notified by a selling stockholder that a donee,
pledgee or other transferee intends to sell more than 500 shares, we will
file a supplement to this prospectus if required by law.
We will pay all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will pay all brokerage
commissions and similar selling expenses, if any, attributable to the sale of
shares.
We have agreed to indemnify the selling stockholders and any other
person who sells shares using this prospectus, and any officer, director or
agent of such a 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.
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LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for
Spectranetics 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
LLP, independent certified public accountants, incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
As permitted by the rules and regulations of the SEC, 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 Spectranetics and the shares,
reference is made to the registration statement.
Spectranetics is subject to the informational requirements of the
Securities Exchange Act of 1934, and in accordance with the Securities
Exchange Act of 1934, files annual and quarterly reports, proxy materials and
other information with the SEC. You can inspect and copy reports and other
information filed by Spectranetics with the SEC at the SEC'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 SEC
at 1-800-SEC-0300. The SEC also maintains an internet site at
http://www.sec.gov that contains reports, proxy and information statements
regarding issuers, including Spectranetics, that file electronically with the
SEC.
The following documents are incorporated by reference in this prospectus:
(a) Spectranetics' 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) Spectranetics' Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998.
(c) The description of common stock contained in Spectranetics'
registration statement on Form 8-A (File No. 000-19711) which was
declared effective by the SEC on December 5, 1991.
(d) Spectranetics' Current Report on Form 8-K filed with the SEC on
February 2, 1999.
All documents we file under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this prospectus and before
the termination of the offering of the shares shall be deemed to be
incorporated by reference in this prospectus and to be a part hereof from
their dates of filing. Any statement contained in a document incorporated or
deemed to be incorporated by reference in this prospectus is deemed to be
modified or superseded for purposes of this prospectus to the extent that a
statement contained in this prospectus or in any subsequently filed document
which also is or is
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deemed to be incorporated by reference in this prospectus 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.
Upon request, you may obtain without charge 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). Upon request, you may also obtain without charge 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 of 1933. Requests for such copies
should be addressed to James P. McCluskey, Treasurer and Secretary, The
Spectranetics Corporation, 96 Talamine Court, Colorado Springs, Colorado
80907 (telephone number (719) 633-8333).
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- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR OTHER PERSON TO GIVE ANY
INFORMATION OR REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU MUST
NOT RELY ON ANY UNAUTHORIZED INFORMATION. THIS PROSPECTUS DOES NOT OFFER TO
SELL OR BUY ANY SHARES IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL. THE
INFORMATION IN THIS PROSPECTUS IS CURRENT ONLY AS OF ITS DATE.
________________
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Summary of Our Business. . . . . . . . . . . . . . . . . . . 2
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . 2
The Selling Stockholders . . . . . . . . . . . . . . . . . . 7
Plan of Distribution . . . . . . . . . . . . . . . . . . . . 8
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . 10
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Where You Can Find
More Information . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
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3,800,000 SHARES
THE SPECTRANETICS
CORPORATION
COMMON STOCK
__________________
PROSPECTUS
__________________
____________, 1999
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<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
Spectranetics. Such expenses are set forth in the table below. All amounts are
estimates except the Securities Act registration fee.
<TABLE>
<S> <C>
Securities Act Registration Fee.............................. $ 2,839
Legal Fees and Expenses*..................................... 170,000
Accounting Fees and Expenses*................................ 30,000
Miscellaneous................................................ 5,161
--------
Total........................................................ $208,000
--------
--------
</TABLE>
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Spectranetics' Restated Certificate of Incorporation, as amended,
provides that to the fullest extent permitted by the Delaware General
Corporation Law, a Director of Spectranetics shall not be liable to
Spectranetics 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 Spectranetics 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 Spectranetics' Certificate of Incorporation is to eliminate the rights of
Spectranetics and its stockholders (through stockholders' derivative suits on
behalf of Spectranetics) 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 Spectranetics 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, Spectranetics' Certificate
of Incorporation provides that Spectranetics 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, Spectranetics has entered into agreements with each of the
directors of Spectranetics pursuant to which Spectranetics 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. These indemnification agreements also
obligate Spectranetics 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 Spectranetics.
To the extent that the Board of Directors or the stockholders of
Spectranetics may in the future wish to limit or repeal the ability of
Spectranetics to indemnify directors, such repeal or limitation may not be
effective as to directors who are currently parties to the indemnification
agreements, because their
<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 Spectranetics.
ITEM 16. EXHIBITS.
The following documents are filed as part of this registration statement.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<S> <C>
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 LLP.
24.1* Power of Attorney (included on signature page).
- ------------------
</TABLE>
*Previously filed
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
<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 SEC 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.
<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 Amendment to its
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Colorado Springs, State of Colorado, on February
4, 1999.
THE SPECTRANETICS CORPORATION,
a Delaware corporation
By: /s/ James P. McCluskey
----------------------------------------
James P. McCluskey
Vice President, Finance, Chief Financial
Officer, Secretary and Treasurer
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ *
- ----------------------------- Chairman of the Board February 4, 1999
Emile J. Geisenheimer and Director
/s/ *
- ----------------------------- President, February 4, 1999
Joseph A. Largey Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ James P. McCluskey
- ----------------------------- Vice President, Finance, February 4, 1999
James P. McCluskey Chief Financial Officer, Secretary
and Treasurer
(Principal Financial and
Accounting Officer)
/s/ *
- ----------------------------- Director February 4, 1999
Gary R. Bang
/s/ *
- ----------------------------- Director February 4, 1999
Cornelius C. Bond, Jr.
/s/ *
- ----------------------------- Director February 4, 1999
James A. Lent
/s/ *
- ----------------------------- Director February 4, 1999
Joseph M. Ruggio, M.D.
<PAGE>
/s/ *
- ----------------------------- Director February 4, 1999
John G. Schulte
* By: /s/ James P. McCluskey
- -----------------------------
James P. McCluskey
Attorney-in-fact
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<S> <C>
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 LLP.
24.1 Power of Attorney (included on signature page).*
</TABLE>
- ----------------------------
*Previously filed.
<PAGE>
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 Amendment No. 1 to 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 LLP
KPMG LLP
Denver, Colorado
February 3, 1999
