As filed with the Securities and Exchange Commission on April 3, 2000
Registration No. 333-95815
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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ORATEC INTERVENTIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware 3845 94-3180773
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Classification Identification Number)
Incorporation or Code Number)
Organization)
3700 Haven Court
Menlo Park, California 94025
(650) 369-9904
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
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Kenneth W. Anstey
Chief Executive Officer
ORATEC Interventions, Inc.
3700 Haven Court
Menlo Park, California 94025
(650) 369-9904
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
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Copies to:
Mark B. Weeks Patrick T. Seaver
Laurel Finch Charles K. Ruck
Brooke Campbell Shayne Kennedy
VENTURE LAW GROUP LATHAM & WATKINS
A Professional Corporation 650 Town Center Drive
2800 Sand Hill Road Costa Mesa, CA 92626
Menlo Park, California 94025
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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.
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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 this form is a post-effective amendment filed pursuant to Rule 462(d)
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
Proposed Maximum
Title of each Class of Amount Maximum Aggregate Amount of
Securities to be To be Offering Price Offering Registration
Registered Registered(1) Per Share(2) Price(2) Fee(3)
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Common Stock, $.001 par
value................. 4,600,000 $13.00 $59,800,000 $15,787.20(3)
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(1) Includes 600,000 shares of Common Stock issuable upon exercise of the
Underwriters' over-allotment option.
(2) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(a) under the Securities Act.
(3) 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 this registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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The purpose of this Amendment No. 4 is solely to file Exhibit 10.17 to the
Registration Statement as set forth in Item 16(a) of Part II.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than the
underwriting discount and commissions, payable by ORATEC in connection with
the sale of common stock being registered. All amounts are estimates except
the Securities and Exchange Commission registration fee, the NASD filing fee
and the Nasdaq National Market listing fee.
Amount to
be Paid
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Securities and Exchange Commission registration fee............. $ 15,787
NASD filing fee................................................. 6,480
Nasdaq National Market listing fee.............................. 95,000
Printing and engraving expenses................................. 200,000
Legal fees and expenses......................................... 250,000
Accounting fees and expenses.................................... 200,000
Blue Sky qualification fees and expenses........................ 5,000
Transfer Agent and Registrar fees............................... 15,000
Miscellaneous fees and expenses................................. 12,733
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Total......................................................... $800,000(1)
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(1) Excludes approximately $1 million in initial public offering expenses,
which were written off in 1999 as a result of the postponement of the
offering.
Item 14. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
the circumstances described in Section 145 of the Delaware General Corporation
Law, for liabilities, including reimbursement for expenses incurred, arising
under the Securities Act of 1933, as amended. Article XII of ORATEC's
certificate of incorporation (Exhibit 3.2) and Article VI of ORATEC's bylaws
(Exhibit 3.4) provide for indemnification of ORATEC's directors, officers,
employees and other agents to the maximum extent permitted by Delaware Law. In
addition, ORATEC has entered into indemnification agreements (Exhibit 10.16)
with its officers and directors. The underwriting agreement (Exhibit 1.1) also
provides for cross-indemnification among ORATEC and the underwriters with
respect to the matters described in the underwriting agreement including
matters arising under the Securities Act.
Item 15. Recent Sales of Unregistered Securities
Since December 31, 1996, ORATEC has sold and issued the following
securities:
(1) In March through December 1997, we issued and sold shares of Series C
preferred stock convertible into an aggregate of 1,442,542 shares of common
stock to a total of 120 investors for an aggregate purchase price of
$4,327,626.
(2) In October 1997, we issued warrants to purchase shares of Series C
preferred stock convertible into an aggregate of 35,000 shares of common
stock to two lenders.
(3) In November and December 1997, we issued and sold shares of Series D
preferred stock convertible into an aggregate of 3,228,571 shares of common
stock to a total of 60 investors for an aggregate purchase price of
$11,299,999.
(4) In December 1998, we issued and sold shares of Series E preferred
stock convertible into an aggregate of 3,757,807 shares of common stock to
a total of 59 investors for an aggregate purchase price of $15,970,680.
II-1
(5) In January 1999, we issued a warrant to purchase Series E preferred
stock convertible into an aggregate of 122,353 shares of common stock to
one lender.
(6) In February 1999, we issued and sold 34,117 shares of Series B
preferred stock to an executive officer upon his exercise of a warrant.
(7) From December 31, 1996 through December 31, 1999, under our 1995
stock plan, 606,039 shares of common stock had been issued upon exercise of
options, 14,412 shares of common stock had been issued pursuant to
restricted stock purchase agreements and, as of December 31, 1999,
3,168,737 shares of common stock were issuable upon exercise of outstanding
options.
(8) From December 31, 1996 through December 31, 1999, under our 1999
stock plan, no shares of common stock had been issued upon exercise of
options or pursuant to restricted stock purchase agreements and, as of
December 31, 1999, 205,300 shares of common stock were issuable upon
exercise of outstanding options.
The issuances of the above securities were deemed to be exempt from
registration under the Securities Act in reliance on Section 4(2) of the
Securities Act as transactions by an issuer not involving any public offering.
In addition, the issuances described in Item 7 and Item 8 were deemed exempt
from registration under the Securities Act in reliance upon Rule 701
promulgated under the Securities Act. The recipients of securities in each
transaction represented their intentions to acquire the securities for
investment only and not with a view to or for sale in connection with any
distribution and appropriate legends were affixed to the share certificates
and warrants issued in the transactions. All recipients had adequate access,
through their relationships with us, to information about us.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
Number Description
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1.1+ Form of Underwriting Agreement (subject to negotiation).
3.1+ Certificate of Incorporation.
3.2+ Amended and Restated Certificate of Incorporation, post-IPO.
3.3+ Bylaws, as amended.
3.4+ Amended and Restated Bylaws, post-IPO.
4.1+ Specimen Stock Certificate.
5.1 Opinion of Venture Law Group regarding the legality of the common
stock being registered.
10.1+ Amended and Restated Investors' Rights Agreement dated December 7,
1998 among ORATEC and certain investors.
10.2+ Employment Letter Agreement dated October 29, 1997 between ORATEC
and Nancy V. Westcott.
10.3+ Employment Agreement dated July 14, 1997 between ORATEC and Kenneth
W. Anstey.
10.4+ Employment Agreement dated August 21, 1996 and First Amendment to
Employment Agreement dated July 14, 1997 between ORATEC and Hugh
Sharkey.
10.5+ Change of Control Letter Agreement dated 1996 between ORATEC and
Roger Lipton.
10.6+ Offer letter dated November 29, 1999 between ORATEC and Theresa
Mitchell.
10.7+ 1995 Stock Plan, as amended, and form of option agreement.
10.8+ 1995 Stock Plan, as amended (post-IPO).
10.9+ 1999 Stock Plan and form of option agreement.
10.10+ 1999 Stock Plan and form of option agreement (post-IPO).
10.11+ 1999 Directors' Stock Option Plan and form of option agreement.
10.12+ 1999 Employee Stock Purchase Plan and form of subscription
agreement.
10.13+ Lease dated May 7, 1998 between ORATEC and White Properties Joint
Venture (as amended).
10.14+ Lease dated August 2, 1996 between ORATEC and Huettig &
Schromm/Heaton & Keyser.
10.15+ Lease dated August 25, 1999 between ORATEC and White Properties
Joint Venture.
II-2
Number Description
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10.16+ Form of Indemnification Agreement between ORATEC and directors
and officers.
10.17**++ International Distribution Agreement dated March 30, 1999
between ORATEC and DePuy Acromed, Inc.
23.1+ Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Venture Law Group, A Professional Corporation (See
Exhibit 5.1).
23.3+ Consent of Wilson Sonsini Goodrich & Rosati, a Professional
Corporation.
23.4+ Power of Attorney (See page II-4).
27.1+ Financial Data Schedule.
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+ Previously filed.
++ Supersedes previously filed exhibit.
** Confidential treatment has been requested with respect to portions of this
exhibit. Portions of this exhibit have been omitted.
(b) Financial Statement Schedules
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the
financial statements or notes thereto.
Item 17. Undertakings
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreement certificates in the
denominations and registered in the names as required by the underwriters to
permit prompt delivery to each purchaser.
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 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, 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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this amendment to its registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the city of Menlo
Park, State of California, on April 3, 2000
ORATEC INTERVENTIONS, INC.
*
By: _________________________________
Kenneth W. Anstey
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to its Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
* President, Chief Executive April 3, 2000
______________________________________ Officer and Director
Kenneth W. Anstey (Principal Executive
Officer)
/s/ Nancy V. Westcott Chief Financial Officer April 3, 2000
______________________________________ (Principal Financial and
Nancy V. Westcott Accounting Officer)
* Director April 3, 2000
______________________________________
Stephen Brackett
* Director April 3, 2000
______________________________________
Gary S. Fanton, M.D.
* Director April 3, 2000
______________________________________
Richard M. Ferrari
* Director April 3, 2000
______________________________________
Patrick F. Latterell
* Director April 3, 2000
______________________________________
Jeffrey A. Saal, M.D.
* Director April 3, 2000
______________________________________
Hugh R. Sharkey
/s/ Nancy V. Westcott
*By:_____________________________
(Attorney-in-fact)
II-4
EXHIBIT INDEX
Number Description
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1.1+ Form of Underwriting Agreement (subject to negotiation).
3.1+ Certificate of Incorporation.
3.2+ Amended and Restated Certificate of Incorporation, post-IPO.
3.3+ Bylaws, as amended.
3.4+ Amended and Restated Bylaws, post-IPO.
4.1+ Specimen Stock Certificate.
5.1 Opinion of Venture Law Group regarding the legality of the common
stock being registered.
10.1+ Amended and Restated Investors' Rights Agreement dated December 7,
1998 among ORATEC and certain investors.
10.2+ Employment Letter Agreement dated October 29, 1997 between ORATEC
and Nancy V. Westcott.
10.3+ Employment Agreement dated July 14, 1997 between ORATEC and Kenneth
W. Anstey.
10.4+ Employment Agreement dated August 21, 1996 and First Amendment to
Employment Agreement dated July 14, 1997 between ORATEC and Hugh
Sharkey.
10.5+ Change of Control Letter Agreement dated 1996 between ORATEC and
Roger Lipton.
10.6+ Offer letter dated November 29, 1999 between ORATEC and Theresa
Mitchell.
10.7+ 1995 Stock Plan, as amended, and form of option agreement.
10.8+ 1995 Stock Plan, as amended (post-IPO)
10.9+ 1999 Stock Plan and form of option agreement.
10.10+ 1999 Stock Plan and form of option agreement (post-IPO)
10.11+ 1999 Directors' Stock Option Plan and form of option agreement.
10.12+ 1999 Employee Stock Purchase Plan and form of subscription
agreement.
10.13+ Lease dated May 7, 1998 between ORATEC and White Properties Joint
Venture (as amended).
10.14+ Lease dated August 2, 1996 between ORATEC and Huettig &
Schromm/Heaton & Keyser.
10.15+ Lease dated August 25, 1999 between ORATEC and White Properties
Joint Venture.
10.16+ Form of Indemnification Agreement between ORATEC and officers and
directors.
10.17**++ International Distribution Agreement dated March 30, 1999 between
ORATEC and DePuy Acromed, Inc.
23.1+ Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Venture Law Group, A Professional Corporation (See
Exhibit 5.1).
23.3+ Consent of Wilson Sonsini Goodrich & Rosati, a Professional
Corporation.
23.4+ Power of Attorney (See page II-4).
27.1+ Financial Data Schedule.
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+ Previously filed.
++ Supersedes previously filed exhibit.
** Confidential treatment has been requested with respect to portions of this
exhibit. Portions of this exhibit have been omitted.