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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 1996
REGISTRATION NO. 333-07651
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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VENTRITEX, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C>
DELAWARE 77-0056340
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
</TABLE>
701 EAST EVELYN AVENUE
SUNNYVALE, CALIFORNIA 94086
(408) 738-4883
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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FRANK M. FISCHER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
VENTRITEX, INC.
701 EAST EVELYN AVENUE
SUNNYVALE, CALIFORNIA 94086
(408) 738-4883
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
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<S> <C>
J. CASEY MCGLYNN, ESQ. FRANK H. GOLAY, ESQ.
JOHN A. FORE, ESQ. SULLIVAN & CROMWELL
CHRISTOPHER D. MITCHELL, ESQ. 444 SOUTH FLOWER STREET
WILSON SONSINI GOODRICH & ROSATI SUITE 1200
PROFESSIONAL CORPORATION LOS ANGELES, CA 90071
650 PAGE MILL ROAD (213) 955-8000
PALO ALTO, CA 94304
(415) 493-9300
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Approximate date of commencement of proposed sale to the public: AS SOON AS
PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / ________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / ________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED(1) SECURITY PRICE(2) FEE
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% Convertible Subordinated Notes Due
, 2001.......................... $100,000,000 100% $100,000,000 $34,483(4)
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Common Stock, $0.001 par value...................... (3) N/A N/A N/A
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</TABLE>
(1) Includes $10,000,000 aggregate principal amount of the Notes issuable upon
exercise of an option granted by the Company to the Underwriter to cover
over-allotments.
(2) Estimated in accordance with Rule 457 under the Securities Act of 1933
solely for purposes of computing the registration fee.
(3) Such indeterminable number of shares of Common Stock as may be required for
issuance upon conversion of the Notes being registered hereunder. This
Registration Statement also applies to Rights under the Company's Preferred
Shares Rights Agreement, which are attached to and tradeable only with the
shares of Common Stock registered hereby. No registration fees are required
for such rights as they will be issued for no additional consideration.
(4) Entire amount previously paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 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> 2
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
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EXHIBIT NUMBER DESCRIPTION
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+++1.1 Form of Underwriting Agreement
+3.1 Certificate of Incorporation filed October 24, 1994
+3.2 Bylaws, as amended
+3.3 Certificate of Designations of Rights, Preferences and Privileges of Series
A Participating Preferred Stock
+3.4 Preferred Shares Rights Agreement, dated as of August 16, 1994, as amended
between the Registrant and Chemical Trust Company of California, including
the Certificate of Designation, the Form of Rights Certificate and the
Summary of Rights attached thereto as Exhibits A, B and C, respectively
++4.1 Specimen Common Stock Certificate
+++4.2 Form of Convertible Subordinated Note (included in Exhibit 4.3)
+++4.3 Form of Indenture
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
+++12.1 Statement re Computation of Ratios (see page II-5)
+++23.1 Consent of Ernst & Young LLP, Independent Auditors (see page II-6)
23.2 Consent of Counsel (included in Exhibit 5.1)
+++24.1 Power of Attorney
+++25.1 Statement of Eligibility of Trustee -- Form T-1
27.1 Financial Data Schedule
</TABLE>
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* To be filed by Amendment.
+ Incorporated by reference to the same-numbered exhibit filed with the
Registrant's Annual Report on Form 10-K for the fiscal year ended June 30,
1995.
++ Incorporated by reference to Exhibit 1 filed with the Registrant's
Registration Statement on Form 8-A filed on December 29, 1994.
+++ Previously filed.
(B) FINANCIAL STATEMENT SCHEDULES
II. Valuation and qualifying accounts.
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the
consolidated financial statements or notes thereto.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers, and controlling persons of the Registrant
pursuant to the Delaware General Corporation Law, the Bylaws of the Registrant,
Indemnification Agreements, the Underwriting Agreement, 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
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 Act and
will be governed by the final adjudication of such issue.
II-2
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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
Registration Statement 333-07651 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Sunnyvale, State of California, on the
9th day of August, 1996.
VENTRITEX, INC.
By: DAVID R. BUNKER
David R. Bunker
Controller
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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NAME TITLE DATE
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PRINCIPAL EXECUTIVE OFFICER, AND
PRINCIPAL FINANCIAL OFFICER:
/s/ FRANK M. FISCHER* President, Chief Executive Officer, August 9, 1996
- ------------------------------------- Director and Acting Chief Financial
Frank M. Fischer Officer
PRINCIPAL ACCOUNTING OFFICER:
/s/ DAVID R. BUNKER Controller August 9, 1996
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David R. Bunker
/s/ RICHARD L. KARRENBROCK* Director August 9, 1996
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Richard L. Karrenbrock
/s/ C. RAYMOND LARKIN, JR.* Director August 9, 1996
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C. Raymond Larkin, Jr.
/s/ ROBERT R. MOMSEN* Director August 9, 1996
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Robert R. Momsen
Director
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Walter J. McNerny
*By: /s/ DAVID R.
BUNKER
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David R. Bunker
Attorney-in-fact
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II-4
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EXHIBIT INDEX
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EXHIBIT NUMBER DESCRIPTION PAGE
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+++1.1 Form of Underwriting Agreement......................................
+3.1 Certificate of Incorporation filed October 24, 1994.................
+3.2 Bylaws, as amended..................................................
+3.3 Certificate of Designations of Rights, Preferences and Privileges of
Series A Participating Preferred Stock
+3.4 Preferred Shares Rights Agreement, dated as of August 16, 1994, as
amended between the Registrant and Chemical Trust Company of
California, including the Certificate of Designation, the Form of
Rights Certificate and the Summary of Rights attached thereto as
Exhibits A, B and C, respectively...................................
++4.1 Specimen Common Stock Certificate...................................
+++4.2 Form of Convertible Subordinated Note (included in Exhibit 4.3).....
+++4.3 Form of Indenture...................................................
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
+++12.1 Statement re Computation of Ratios (see page II-5)..................
+++23.1 Consent of Ernst & Young LLP, Independent Auditors (see page
II-6)...............................................................
23.2 Consent of Counsel (included in Exhibit 5.1)........................
+++24.1 Power of Attorney...................................................
+++25.1 Statement of Eligibility of Trustee -- Form T-1.....................
27.1 Financial Data Schedule.............................................
</TABLE>
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* To be filed by Amendment.
+ Incorporated by reference to the same-numbered exhibit filed with the
Registrant's Annual Report on Form 10-K for the fiscal year ended June 30,
1995.
++ Incorporated by reference to Exhibit 1 filed with the Registrant's
Registration Statement on Form 8-A filed on December 29, 1994.
+++ Previously filed.
<PAGE> 1
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Telephone 415-493-9300 Facsimile 415-493-6811
WWW.WSGR.COM
EXHIBIT 5.1
August 12, 1996
Ventritex, Inc.
701 East Evelyn Avenue
Sunnyvale, California 94086
Re: Ventritex, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 (File No.
333-07651) (the "Registration Statement") filed by Ventritex, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") on
July 3, 1996, as amended by Amendment No. 1 thereto filed with the Commission on
August 5, 1996 and Amendment No. 2 thereto filed with the Commission on August
12, 1996 (such registration statement, as so amended, herein the "Registration
Statement"), in connection with the registration under the Securities Act of
1933, as amended (the "Act"), of up $100,000,000 in aggregate principal amount
of the Company's ___% Convertible Subordinated Notes due 2001 (including up to
$10,000,000 in aggregate principal amount subject to an over-allotment option to
be granted to the Underwriter) (the "Notes") and the Company's Common Stock,
$0.001 par value, into which the Notes may be converted (the "Common Stock")
pursuant to the terms of the Notes and the indenture filed in substantially the
form as an exhibit to the Registration Statement (the "Indenture"), to be
entered into by the Company and State Street Bank and Trust Company, as trustee
thereunder (the "Trustee"). The Notes are to be issued pursuant to the Indenture
and sold pursuant to an underwriting agreement (the "Underwriting Agreement") in
substantially in the form filed as an exhibit to the Registration Statement.
We have examined instruments, documents and records that we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the following: (a) the authenticity of
original documents and the genuineness of all signatures; (b) the conformity to
the originals of all documents submitted to us as copies; and (c) the truth,
accuracy and completeness of the information, representations and warranties
contained in the records, documents, instruments and certificates we have
reviewed.
<PAGE> 2
Ventritex, Inc.
August 12, 1996
Page 2
We are advised by the Company that its Common Stock is quoted on the
Nasdaq National Market, and we have relied on that fact in rendering our
opinions set forth below. In addition, we express no opinion as to the validity
or binding effect of the Notes and the Indenture at any future date if on such
date the Company no longer has any security quoted on the Nasdaq National Market
or if the Nasdaq National Market ceases to be certified by the California
Commissioner of Corporations pursuant to subdivision (o) of Section 25100 of the
California Corporations Code.
Based on such examination, we are of the opinion that:
1. When the Indenture and the issuance of the Notes has been duly
authorized by appropriate corporate action of the Company and the Notes, in the
form filed as an exhibit to the Registration Statement, have been appropriately
completed and duly executed, authenticated and delivered in accordance with the
Indenture and sold pursuant to the Underwriting Agreement and as described in
the Registration Statement, assuming hat the Indenture has been appropriately
completed and duly authorized, executed and delivered by the Company and the
Trustee, the Notes will be valid and binding obligations of the Company.
2. When the issuance of the Common Stock has been duly authorized by
appropriate corporate action of the Company and the Common Stock has been duly
issued, sold and delivered in accordance with the Indenture and as described in
the Registration Statement, the Common Stock will be legally and validly issued,
fully paid and nonassessable.
Our opinion that Notes will be valid and binding is qualified as to:
(a) limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or other laws
relating to or affecting the rights of creditors generally;
(b) rights to indemnification and contribution, which may be
limited by applicable law or equitable principles;
(c) general principles of equity, including without limitation
concepts of materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief, regardless
of whether such validity and binding effect are considered in a proceeding in
equity or at law; and
(d) enforceability of the wavier of rights or defenses
contained in Section 515 of the Indenture.
<PAGE> 3
Ventritex, Inc.
August 12, 1996
Page 3
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement and to the use of our name whether it
appears in the Registration Statement, the prospectus included therein, or in
any amendment or supplement thereto. In giving such consent, we do not believe
that we are "experts" within the meaning of such terms as used in the Act or the
rules and regulations of the Securities and Exchange Commission issued
thereunder with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLAR
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JUN-30-1996
<PERIOD-START> JUL-01-1995
<PERIOD-END> JUN-30-1996
<EXCHANGE-RATE> 1
<CASH> 9,299
<SECURITIES> 13,254
<RECEIVABLES> 11,142
<ALLOWANCES> 484
<INVENTORY> 15,427
<CURRENT-ASSETS> 49,987
<PP&E> 52,507
<DEPRECIATION> 29,852
<TOTAL-ASSETS> 73,461
<CURRENT-LIABILITIES> 19,501
<BONDS> 0
0
0
<COMMON> 21
<OTHER-SE> 53,939
<TOTAL-LIABILITY-AND-EQUITY> 73,461
<SALES> 54,942
<TOTAL-REVENUES> 54,942
<CGS> 48,774
<TOTAL-COSTS> 48,774
<OTHER-EXPENSES> 68,896
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (2,747)
<INCOME-PRETAX> (59,981)
<INCOME-TAX> 0
<INCOME-CONTINUING> (59,981)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (59,981)
<EPS-PRIMARY> (2.89)
<EPS-DILUTED> (2.89)
</TABLE>
