sv8
As Filed With the Securities and Exchange Commission on August 7, 2006
Registration No. 333-____________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ENDOLOGIX, INC.
(Exact name of registrant as specified in its charter)
|
|
|
Delaware
|
|
68-0328265 |
(State or other jurisdiction of
|
|
(I.R.S. Employer |
incorporation or organization)
|
|
Identification No.) |
11 Studebaker, Irvine, California 92618
(949) 595-7200
(Address, including zip code, and telephone number, including area code of registrants principal executive
offices)
2006 STOCK INCENTIVE PLAN
2006 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Paul McCormick
President and Chief Executive Officer
Endologix, Inc.
11 Studebaker, Irvine, California 92618
(949) 595-7200
(Name, address, including zip code, and telephone number, including area code of agent for service)
Copies to:
Lawrence B. Cohn
Michael A. Hedge
Stradling Yocca Carlson & Rauth,
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
(949) 725-4000
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed maximum |
|
|
Proposed maximum |
|
|
|
|
|
Title of securities to be |
|
|
Amount to be |
|
|
offering |
|
|
aggregate offering |
|
|
Amount of registration |
|
|
registered |
|
|
registered(1) |
|
|
price per share (2) |
|
|
price |
|
|
fee |
|
|
Common Stock, par value
$0.001 per share |
|
|
3,123,212 shares |
|
|
$ |
3.73 |
|
|
|
$ |
11,649,581 |
|
|
|
$ |
1,246.51 |
|
|
|
|
|
|
(1) |
|
Includes an indeterminate number of additional shares of the registrants common stock which
may be necessary to adjust the number of shares issued pursuant to the 2006 Stock Incentive
Plan and the 2006
Employee Stock Purchase Plan as the result of stock splits, stock dividends or similar
adjustments to the registrants outstanding common stock. |
|
(2) |
|
Estimated solely for the purpose of calculating the registration fee, in accordance with Rule
457(h)(1) under the Securities Act of 1933, as amended (the Securities Act), on the basis of the
price of securities of the same class, as determined in accordance with Rule 457(c) under the
Securities Act, using the average of the high and low prices reported by the Nasdaq National Market
for our common stock on August 1, 2006, which was $3.73 per share. |
TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below have been filed by Endologix, Inc. (referred to herein as the
Company, we, us or our) with the United States Securities and Exchange Commission (the
SEC) and are incorporated herein by reference:
(a) our Annual Report on Form 10-K for the fiscal year ended December 31, 2005, as filed with
the SEC on March 16, 2006;
(b) our Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2006 and June
30, 2006, as filed with the SEC on May 10, 2006 and August 4, 2006, respectively;
(c) the description of our common stock contained in our Registration Statement on Form 8-A,
as filed with the SEC on May 3, 1996, including any amendment or report filed for the purpose of
updating such description; and
(d) all other reports filed by us pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the Exchange Act), since the end of the fiscal year covered by
the Annual Report on Form 10-K referred to in (a) above.
All documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the date of filing of
such documents, except as to any portion of any future annual or quarterly report to stockholders
or document that is not deemed filed under such provisions. For the purposes of this registration
statement, any statement in a document incorporated by reference shall be deemed to be modified or
superseded to the extent that a statement contained in this registration statement modifies or
supersedes a statement in such document. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this registration statement.
Unless specifically stated otherwise, none of the information that we disclose under Items 2.02 or
7.01 in our Current Reports on Form 8-K, nor any exhibits relating to such information, furnished
to the SEC prior to, on or subsequent to the date of this registration statement will be deemed to
be incorporated by reference into, or otherwise included in, this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify
any person made a party to an action (other than an action by or in the right of the corporation)
by reason of the fact that he or she was a director, officer, employee or agent of the corporation
or was serving at the request of the corporation against expenses (including attorneys fees),
judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action if he or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation and, with respect to
any criminal action (other than an action by or in the right of the corporation), has no reasonable
cause to believe his or her conduct was unlawful.
1
Our restated certificate of incorporation, as amended, limits, to the maximum extent permitted
by Delaware law, the personal liability of directors for monetary damages for breach of their
fiduciary duties as a director. Our amended and restated bylaws provide that we shall indemnify our
officers and directors and may indemnify our employees and other agents to the fullest extent
permitted by Delaware law.
Our directors and officers are covered by insurance policies indemnifying against certain
liabilities, including certain liabilities arising under the Securities Act of 1933, which might be
incurred by them in such capacities and against which they cannot be indemnified by us. We have
entered into indemnification agreements with all of our executive officers and directors which
provide indemnification under certain circumstances for acts and omissions in the course of their
employment with us.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this registration statement:
|
|
|
Exhibit Number |
|
Description |
4.1
|
|
Amended and Restated Certificate of Incorporation. |
|
|
|
4.2
|
|
Amended and Restated Bylaws (Incorporated by reference
to Exhibit 3.2 to the Companys Annual Report on Form
10-K filed with the SEC on March 29, 2001). |
|
|
|
4.3
|
|
Specimen Certificate of Common Stock (Incorporated by
reference to Exhibit 4.1 to the Companys Amendment No.
2 to Registration Statement on Form S-1, No. 333-04560,
filed with the SEC on June 10, 1996). |
|
|
|
5.1
|
|
Opinion of Stradling Yocca Carlson & Rauth, a
Professional Corporation. |
|
|
|
23.1
|
|
Consent of Stradling Yocca Carlson & Rauth, a
Professional Corporation (included in Exhibit 5.1). |
|
|
|
23.2
|
|
Consent of Independent Registered Public Accounting Firm. |
|
|
|
24.1
|
|
Power of Attorney (included on signature page to the
Registration Statement). |
|
|
|
99.1
|
|
2006 Stock Incentive Plan (incorporated by reference to
Exhibit 10.1 of the Companys Current Report on Form
8-K, filed with the SEC on May 26, 2006). |
|
|
|
99.2
|
|
2006 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.2 of the Companys Current
Report on Form 8-K, filed with the SEC on May 26, 2006). |
Item 9. 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 the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in
the information set forth in the registration
2
statement; and
(iii) To include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not
apply if the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the Commission
by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrants annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plans annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934), that is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
3
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-8 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Irvine, State of California, on the 7th day of August,
2006.
|
|
|
|
|
|
ENDOLOGIX, INC.
|
|
|
By: |
/s/ Paul McCormick
|
|
|
|
Paul McCormick |
|
|
|
President and Chief Executive Officer |
|
|
POWER OF ATTORNEY
We, the undersigned directors and officers of Endologix, Inc., do hereby constitute and
appoint Paul McCormick and Robert J. Krist, or either of them, our true and lawful attorneys and
agents, to do any and all acts and things in our name and behalf in our capacities as directors and
officers and to execute any and all instruments for us and in our names in the capacities indicated
below, which said attorneys and agents, or either of them, may deem necessary or advisable to
enable said corporation to comply with the Securities Act of 1933, as amended, and any rules,
regulations, and requirements of the Securities and Exchange Commission, in connection with this
registration statement, including specifically, but without limitation, power and authority to sign
for us or any of us in our names and in the capacities indicated below, any and all amendments
(including post-effective amendments) to this registration statement, or any related registration
statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933, as amended; and we do hereby ratify and confirm all that the said attorneys and agents, or
either of them, shall 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 date indicated.
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/ Paul McCormick
Paul McCormick
|
|
President, Chief Executive Officer and
Director
(Principal Executive Officer)
|
|
August 7, 2006 |
|
|
|
|
|
/s/ Robert J. Krist
Robert J. Krist
|
|
Chief Financial Officer and Secretary
(Principal Financial and Accounting Officer)
|
|
August 7, 2006 |
|
|
|
|
|
/s/ Franklin D. Brown
Franklin D. Brown
|
|
Chairman of the Board
|
|
August 7, 2006 |
|
|
|
|
|
/s/ Ronald H. Coelyn
Ronald H. Coelyn
|
|
Director
|
|
August 7, 2006 |
|
|
|
|
|
/s/ Roderick de Greef
Roderick de Greef
|
|
Director
|
|
August 7, 2006 |
|
|
|
|
|
/s/ Edward B. Deithrich, M.D.
Edward B. Diethrich, M.D.
|
|
Director
|
|
August 7, 2006 |
|
|
|
|
|
/s/ Jeffrey F. ODonnell
Jeffrey F. ODonnell
|
|
Director
|
|
August 7, 2006 |
|
|
|
|
|
/s/ Gregory D. Waller
Gregory D. Waller
|
|
Director
|
|
August 7, 2006 |
EXHIBIT INDEX
|
|
|
Exhibit Number |
|
Description |
4.1
|
|
Amended and Restated Certificate of Incorporation. |
|
|
|
4.2
|
|
Amended and Restated Bylaws (Incorporated by reference to
Exhibit 3.2 to the Companys Annual Report on Form 10-K
filed with the SEC on March 29, 2001). |
|
|
|
4.3
|
|
Specimen Certificate of Common Stock (Incorporated by
reference to Exhibit 4.1 to the Companys Amendment No. 2
to Registration Statement on Form S-1, No. 333-04560,
filed with the SEC on June 10, 1996). |
|
|
|
5.1
|
|
Opinion of Stradling Yocca Carlson & Rauth, a
Professional Corporation. |
|
|
|
23.1
|
|
Consent of Stradling Yocca Carlson & Rauth, a
Professional Corporation (included in Exhibit 5.1). |
|
|
|
23.2
|
|
Consent of Independent Registered Public Accounting Firm. |
|
|
|
24.1
|
|
Power of Attorney (included on signature page to the
Registration Statement). |
|
|
|
99.1
|
|
2006 Stock Incentive Plan (incorporated by reference to
Exhibit 10.1 of the Companys Current Report on Form 8-K,
filed with the SEC on May 26, 2006). |
|
|
|
99.2
|
|
2006 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.2 of the Companys Current Report
on Form 8-K, filed with the SEC on May 26, 2006). |