As filed with the Securities and Exchange Commission on November 30, 2001
Registration No. 333-67176
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
Amendment No. 3
To
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
________________
SYMPHONIX DEVICES, INC.
(Exact name of registrant as specified in its charter)
________________
Delaware 77-0376250
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2331 Zanker Road
San Jose, CA 95131-1109
(408) 232-0710
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
________________
Kirk B. Davis
Chief Executive Officer
Symphonix Devices, Inc.
2331 Zanker Road
San Jose, CA 95131-1109
(408) 232-0710
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
________________
Copies to:
Terence J. Griffin Issac J. Vaughn, Esq.
Chief Financial Officer Wilson Sonsini Goodrich & Rosati
Symphonix Devices, Inc. Professional Corporation
2331 Zanker Road 650 Page Mill Road
San Jose, CA 95131-1109 Palo Alto, California 94304-1050
(408) 232-0710 (650) 493-9300
________________
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 prospectus contained in this Registration Statement on Form S-3 also relates
to the Registration Statement on Form S-3 filed by Symphonix on November 20,
2000 (Registration #333-50306).
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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The information in this prospectus is not complete and may be changed. The
selling holders may not sell these securities until the registration statement,
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities, and it is not soliciting an offer to
buy these securities in any state where the offer or sale is not permitted.
PROSPECTUS (Subject to Completion)
20,733,652 SHARES
SYMPHONIX DEVICES, INC.
COMMON STOCK
This prospectus relates to the public offering, which is not being
underwritten, of 20,733,652 shares of our common stock which are held by some of
our current stockholders.
The prices at which such stockholders may sell the shares will be
determined by the prevailing market price for the shares or in negotiated
transactions. We will not receive any of the proceeds from the sale of the
shares.
Our common stock is quoted on The Nasdaq National Market under the symbol
"SMPX." On November 29, 2001, the closing price for our common stock was $0.31.
Investing in our common stock involves risks. See the section entitled
"Risk Factors" beginning on page 2 for risks and uncertainties that you should
consider.
_____________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is December __, 2001
TABLE OF CONTENTS
Page
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The Company................................................................. 1
Risk Factors................................................................ 2
Plan of Distribution........................................................ 10
Selling Stockholders........................................................ 12
Legal Matters............................................................... 14
Experts..................................................................... 14
Where You Can Find More Information......................................... 14
The Company
Symphonix Devices, Inc. develops, manufactures and markets the Vibrant
Soundbridge, a proprietary line of hearing devices for the management of hearing
impairment, a medical disorder that affects approximately 28 million people in
the United States alone. The device consists of two components. One component is
implanted in the middle ear and the other component is an external device worn
behind the ear. Accordingly, we refer to this type of Vibrant Soundbridge as
semi-implantable. Our Soundbridge products employ a middle ear implant
technology designed to vibrate the small bones in the middle ear, enhancing the
natural hearing process. Our Soundbridge products are currently being marketed
in Europe in conjunction with our European distribution partner, Siemens
Audiologische Technik GmbH, and have been approved by the U.S. Food and Drug
Administration for use in the United States. A fully implantable line of Vibrant
Soundbridge devices consisting of only one component that is implanted in the
middle ear is currently in development. We believe that our Soundbridge
technology overcomes the inherent limitations of traditional hearing devices and
represents a novel approach in the management of hearing loss.
In September 1996, we initiated clinical trials of the first-generation
Vibrant Soundbridge in both the United States and Europe. In March 1998, we
received permission in the European Union to market and sell the Vibrant
Soundbridge, and we received FDA approval in August 2000. Through a technology
alliance with Siemens, we have developed our fourth generation Vibrant
Soundbridge, based on 8-channel, digital signal processing. As of October 2000,
approximately 400 patients have been implanted with the Vibrant Soundbridge in
over 70 centers in both the United States and Europe.
Symphonix Devices, Inc. was incorporated in California in May 1994 and
reincorporated in Delaware in December 1997. Our principal executive offices
are located at 2331 Zanker Road, San Jose, California 95131-1109 and our
telephone number at that address is (408) 232-0710. Our common stock is traded
on The Nasdaq National Market and is quoted under the symbol "SMPX."
-1-
Risk Factors
You should carefully consider the risks described below, together with all
of the other information included in this prospectus, before deciding whether to
invest in our common stock. If any of the following risks actually materialize,
our business, financial condition or results of operations could be harmed. In
such case, the trading price of our common stock could decline, and you may lose
all or part of your investment.
THIS REGISTRATION STATEMENT CONTAINS FORWARD-LOOKING STATEMENTS.
This prospectus contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. Such statements are based upon
current expectations that involve risks and uncertainties. Any statements
contained herein that are not statements of historical facts may be deemed to be
forward-looking statements. For example, words such as "may," "will," "should,"
"estimates," "predicts," "potential," "continue," "strategy," "believes,"
"anticipates," "plans," "expects," "intends," and similar expressions are
intended to identify forward-looking statements. Our actual results and the
timing of events may differ significantly from the results discussed in the
forward-looking statements. Factors that might cause or contribute to such a
discrepancy include, but are not limited to, regulatory delays and issues,
competitive pressures, difficulties in growing our business to meet our
commitments, technical challenges and those discussed in this "Risk Factors"
section and the risks discussed in our other SEC filings, including our Annual
Report on Form 10-K, filed April 2, 2001.
RISKS RELATED TO OUR BUSINESS
WE HAVE A HISTORY OF LOSSES AND NEGATIVE CASH FLOWS, AND WE MAY NEVER BE
PROFITABLE.
We have incurred losses every year since we began operations. At September
30, 2001, we had an accumulated deficit of $79.7 million. This deficit resulted
primarily from expenses we incurred from dedicating, since our inception in
1994, substantially all of our resources to research and development, clinical
trials, establishment of a European sales and marketing organization and the
initiation of sales and marketing activities in Europe. Even though Vibrant P
and Vibrant D Soundbridges became available for sale in the European Union in
1998 and in the United States and Canada in 2000, we have not generated
significant revenues from product sales to date. We may never realize
significant product revenues. Even if we do achieve significant product
revenues, we may never be profitable. We expect our operating losses to continue
at least through the year 2001 as we continue to, among other things:
. attempt to establish sales and marketing capabilities;
. expand research and development activities;
. conduct clinical trials in support of regulatory approvals; and
. establish commercial-scale manufacturing capabilities.
IF OUR SOUNDBRIDGE PRODUCTS DO NOT ACHIEVE MARKET ACCEPTANCE, OUR BUSINESS MAY
FAIL.
We have sold the semi-implantable Vibrant Soundbridge in Europe since 1998
and in the United States since 2000 and have sold only 321 units. This product
has not yet achieved market acceptance and may never achieve market acceptance.
Market acceptance of our current and future Soundbridge products will depend
upon their acceptance by the medical community and patients as safe, effective
and cost-effective
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compared to other devices. Our Soundbridge products may not be preferable
alternatives to existing or future products, some of which, such as the acoustic
hearing aid, do not require surgery. Patient acceptance of our Soundbridge
products will depend in part upon physician, audiologist and surgeon
recommendations as well as other factors, including the effectiveness, safety,
reliability and invasiveness of the procedure as compared to established
approaches. Prior to undergoing surgery for the implantation of our Soundbridge,
a patient may speak with a number of medical professionals, including the
patient's primary care physician, an audiologist, an ear, nose and throat
specialist, as well as surgeons who specialize in ear surgery. The failure by
any of these medical professionals to favorably recommend our products and the
surgery required to implant the Soundbridge could limit the number of potential
patients who are introduced to an ear surgeon as candidates for our Soundbridge
products. If our Soundbridge products do not achieve market acceptance, our
business may fail.
IF WE FAIL TO SUCCESSFULLY DEVELOP AND COMMERCIALIZE OUR NEXT GENERATION OF
VIBRANT SOUNDBRIDGE PRODUCTS, WE MAY NOT ACHIEVE PROFITABILITY.
Although we have offered the semi-implantable Vibrant Soundbridge for sale
in Europe since 1998, we have not realized significant sales revenues to date.
Our success depends on our ability to successfully commercialize an improved
semi-implantable Soundbridge as well as a totally implantable Soundbridge. Our
Vibrant HF and totally-implantable Soundbridge, currently under development,
will require additional development, clinical trials and regulatory approval
prior to commercialization. Successful completion of clinical trials for the
Vibrant HF and totally-implantable Soundbridge products may never occur.
Completion of clinical trials may be delayed by many factors, including research
and development difficulties, slower than anticipated patient enrollment or
adverse events occurring during clinical trials. Any delays in our clinical
trials or any failure to obtain regulatory approval for these next generation
Soundbridge products would impair our ability to achieve profitability.
IF WE DO NOT RECEIVE AND MAINTAIN REGULATORY APPROVALS FOR NEW PRODUCTS, WE WILL
NOT BE ABLE TO MANUFACTURE OR MARKET NEW PRODUCTS.
Approval from the FDA is necessary to manufacture and market medical
devices in the United States. Other countries have similar requirements.
The process that medical devices must undergo to receive necessary approval
is extensive, time-consuming and costly, and there is no guarantee that
regulatory authorities will approve any of our product candidates. FDA approval
can be delayed, limited or not granted for many reasons, including:
. a product candidate may not be safe or effective;
. even if we believe data from preclinical testing and clinical trials
should justify approval, FDA officials may disagree;
. the FDA might not approve our manufacturing processes or facilities or
the processes or facilities of our contract manufacturers or raw material
suppliers;
. the FDA may change its approval policies or adopt new regulations; and
. the FDA may approve a product candidate for indications that are narrow,
which may limit our sales and marketing activities.
-3-
The process of obtaining approvals in foreign countries is subject to delay
and failure for the same reasons.
WE FACE INTENSE COMPETITION IN OUR CURRENT AND POTENTIAL MARKETS AND IF WE
CANNOT DEMONSTRATE THE SUPERIORITY OF OUR PRODUCTS, WE MAY FAIL TO ACHIEVE
PROFITABILITY.
The medical device industry and the acoustic hearing aid market are subject
to intense competition in the United States and abroad. We believe our products
will compete primarily with hearing aids. Principal manufacturers of acoustic
hearing aids include Siemens Hearing Instruments, Inc., Starkey Laboratories
Inc., Dahlberg Inc., GN ReSound Inc., Oticon, Inc., Widex Hearing Aid Co., Inc.,
Sonic Innovations and Phonak Inc. Our products may not be as reliable or
effective as established hearing aid products. If our products are not
perceived as high quality, reliable and effective alternatives to conventional
hearing aids, we may not successfully compete with established hearing aid
products. Our competitors may also develop technologies and products in the
future that are more reliable and effective and less expensive than those being
developed by us or that do not require surgery.
Several university research groups and development-stage companies have
active research or development programs related to direct drive devices, which
employ a middle ear implant designed to vibrate the small bones in the middle
ear for sensorineural hearing loss. This type of hearing loss is the most common
form of hearing loss that affects the majority of the 28 million people in the
United States who suffers from hearing loss. One such company, IMPLEX AG Hearing
Technology, was authorized by its European reviewing body on November 15, 1999
to market and sell its device. IMPLEX has reported its intent to pursue a
clinical investigation in the United States to support FDA regulatory
requirements. A U.S.-based company, Otologics, LLC, is developing a semi-
implantable direct drive device for sensorineural hearing loss called the middle
ear transducer. This device has begun the FDA regulatory process and initiated
multicenter clinical trials. Symphonix believes St. Croix has begun clinical
trials in Europe. Soundtec, Inc. has completed clinical trials in the United
States on a hybrid implantable/ear canal based hearing aid and expects to
receive a determination by the FDA later this year on marketing their product in
the U.S. In addition, some large medical device companies, some of which are
currently marketing implantable medical devices, may develop programs in hearing
management. Many of these companies have substantially greater financial,
technical, manufacturing, marketing and other resources than we have. If we fail
to compete effectively with any or all of these companies and products, we will
not achieve profitability.
OUR LACK OF SALES, MARKETING AND DISTRIBUTION EXPERIENCE COULD DELAY AND
INCREASE THE COSTS OF INTRODUCING OUR SOUNDBRIDGE PRODUCTS INTO THOSE MARKETS
WHERE WE HAVE RECEIVED REGULATORY APPROVALS.
In the United States, a direct sales force is concentrating our product
marketing efforts on approximately 400 specialists in ear surgery. In Europe,
our sales and marketing effort is conducted through a distribution partnership
with Siemens. In other international markets, including Japan, we intend to
establish either a network of distributors or a strategic partner.
We may fail to build a direct sales force or marketing organization that
is cost effective or successful in one or more countries. In addition, we have
entered into distribution agreements with only a limited number of international
distributors. There can be no assurance that we will be able to enter into
similar agreements with other qualified distributors on a timely basis on terms
acceptable to us, or at all, or that such distributors will devote adequate
resources to selling our products. If we fail to establish an adequate direct
sales force domestically and in select international markets, and to enter into
successful distribution relationships, we will have difficulty selling our
products and our business may fail.
SINCE THIRD-PARTY REIMBURSEMENT IS NOT CURRENTLY AVAILABLE FOR PROCEDURES USING
OUR SOUNDBRIDGE PRODUCTS, OUR PRODUCTS MAY NOT ACHIEVE MARKET ACCEPTANCE.
-4-
In the United States and abroad, patients generally rely on third-party
payors, principally Medicare, Medicaid, private health insurance plans, health
maintenance organizations and other sources of reimbursement, to pay health care
expenses, including reimbursement of all or part of the cost of the procedure in
which our medical device is being used. These third-party payors are
increasingly attempting to limit both the coverage and the level of
reimbursement of procedures involving new devices. Currently, no third party-
payors will pay for procedures using our products, and patients must bear the
total cost of the procedures themselves. If third-party payors do not establish
adequate levels of reimbursement for procedures using our products, we may not
achieve market acceptance.
WE HAVE LIMITED MANUFACTURING EXPERIENCE AND IF WE ARE NOT ABLE TO EXPAND OUR
MANUFACTURING CAPABILITIES SUFFICIENTLY, WE MAY NOT DEVELOP AND DELIVER
SUFFICIENT QUANTITIES OF PRODUCTS IN A TIMELY MANNER.
We currently manufacture our products in small quantities for laboratory
testing, for clinical trials and for limited commercial sales. The manufacture
of our Soundbridge products is a complex operation involving a number of
separate processes, components and assemblies. We have no experience
manufacturing our products in the volumes or with the yields that will be
necessary for us to achieve significant commercial sales, and there can be no
assurance that we can establish high volume manufacturing capacity or, if
established, that we will be able to manufacture our products in high volumes
with commercially acceptable yields. We will need to expend significant capital
resources and develop manufacturing expertise to establish commercial-scale
manufacturing capabilities. If we are not able to successfully manufacture our
Soundbridge products in a timely manner, our business will suffer.
IF SIEMENS DOES NOT PERFORM ITS OBLIGATIONS UNDER OUR AGREEMENTS, OUR ABILITY TO
COMMERCIALIZE OUR PRODUCTS MAY BE IMPAIRED.
We depend on Siemens Audiologische Technik GmbH to market and distribute
our product in Europe. During the ten months ended October 2001, the products
sold under our marketing and distribution collaboration with Siemens in Europe
accounted for approximately $885,000, or 49.8%, of our total product revenues
over the same period. The marketing and distribution agreement which governs
this arrangement remains effective until December 1, 2004, and is subject to
automatic renewal for successive one-year periods thereafter unless terminated
by either Symphonix or Siemens with at least 12 months' prior written notice.
The marketing and distribution agreement may be terminated sooner if Symphonix
or Siemens fails to cure a material breach within 30 days' of notice of the
breach, upon insolvency or bankruptcy of Symphonix or Siemens, or if Symphonix
is acquired.
We also depend on Siemens to provide integrated circuits and software for
use in our Soundbridge products. The supply agreement which governs this
arrangement remains effective until September 30, 2004, and is subject to
automatic renewal for successive one-year periods thereafter unless terminated
by either Symphonix or Siemens with at least three months' prior written notice.
The supply agreement may also be terminated sooner if Symphonix or Siemens fails
to cure a material breach within 30 days' of notice of the breach.
In addition to marketing and distributing our products in Europe, Siemens
also manufactures and distributes its own acoustic hearing aids. Since the
hearing aids manufactured and distributed by Siemens are competitive products to
our Soundbridge products, Seimens could have an incentive to breach or terminate
our agreements. Termination or breach by Seimens of either its marketing and
distribution agreement or supply agreement with us could delay or stop the
commercialization of our products.
WE RELY ON SEVERAL SOLE SOURCE OR LIMITED SOURCE SUPPLIERS, AND OUR PRODUCTION
WILL BE SERIOUSLY HARMED IF THESE SUPPLIERS ARE NOT ABLE TO MEET OUR DEMAND AND
ALTERNATIVE SOURCES ARE NOT AVAILABLE.
A number of components and subassemblies, such as silicone, signal
processing electronics implant packaging, as well as sterilization services are
provided by single source suppliers. Furthermore, the key components of the
Vibrant P, Vibrant D and Vibrant HF Soundbridges are provided by sole source
suppliers. None of our suppliers is contractually obligated to continue to
supply us nor are we contractually obligated to buy from a particular supplier.
For some of these components and subassemblies, there are relatively few
alternative sources of supply, and we cannot quickly establish additional or
replacement suppliers for such components and subassemblies. In addition,
additional approvals will be required from the FDA before we can significantly
modify our manufacturing processes or change the supplier of a critical
component. Because of the long lead time for some components and subassemblies
that are currently available from a single source, a supplier's inability or
failure to supply such components or subassemblies in a timely manner or our
decision to change suppliers could have a material adverse effect on our
business, financial condition and results of operations.
IF WE ARE UNABLE TO PROTECT OUR INTELLECTUAL PROPERTY OUR COMPETITORS COULD
DEVELOP AND MARKET PRODUCTS WITH SIMILAR FEATURES THAT MAY REDUCE DEMAND FOR OUR
PRODUCTS.
-5-
Our success depends in part on our ability to protect our issued and
pending patents, trade secrets and other intellectual property. The strength of
this protection is uncertain. Our competitors could challenge, invalidate or
circumvent our issued patents as well as any future patents. Even if upheld,
our issued patents may not exclude competitors or otherwise provide competitive
advantages to us.
In addition, a competitor may obtain patents that will interfere with our
ability to make, use or sell our products either in the United States or in
international markets. There may be pending applications, which if issued, might
provide proprietary rights to third parties relating to products or processes
used or proposed to be used by us. We may be required to obtain licenses to
patents or proprietary rights of others. Further, the laws of some foreign
countries do not protect our intellectual property rights to the same extent as
do the laws of the United States. Litigation or regulatory proceedings, which
could result in substantial cost and uncertainty to us, may also be necessary to
enforce our patent or other intellectual property rights or to determine the
scope and validity of other parties' proprietary rights. We may not have the
financial resources to defend our patents from infringement or claims of
invalidity.
We also rely upon trade secrets and other unpatented proprietary
technology. Our competitors may independently develop substantially equivalent
proprietary information and techniques or otherwise gain access to or disclose
our proprietary technology. Our policy is to require each of our employees,
consultants, investigators and advisors to execute a confidentiality agreement
upon the commencement of an employment or consulting relationship with us.
However, these agreements may not provide meaningful protection for our
proprietary information in the event of unauthorized use or disclosure of such
information.
Title 35, Section 287 of the United States Code limits the enforcement of
patents relating to the performance of surgical or medical procedures on a body.
This law precludes medical practitioners and health care entities, which
practice these procedures, from being sued for patent infringement. Therefore,
depending upon how these limitations are interpreted by the courts, they could
have a material adverse effect on our ability to enforce any of our proprietary
methods or procedures deemed to be surgical or medical procedures on a body. In
some countries other than the United States, patent coverage relating to the
performance of surgical or medical procedures is not available. Therefore,
patent coverage in such countries will be limited to the Floating Mass
Transducer, the patented core direct drive technology upon which all of our
Soundbridge products are based, or to narrower aspects of the Floating Mass
Transducer.
The medical device industry in general has been characterized by
substantial litigation. Litigation regarding patent and other intellectual
property rights, whether with or without merit, could be time-consuming and
expensive to respond to and could distract our technical and management
personnel. We may become involved in litigation to defend against claims of
infringement, to enforce patents issued to us or to protect our trade secrets.
If any relevant claims of third-party patents are held as infringed and not
invalid in any litigation or administrative proceeding, we could be prevented
from practicing the subject matter claimed in such patents, or would be required
to obtain licenses from the patent owners of each such patent, or to redesign
our products or processes to avoid infringement. In addition, in the event of
any possible infringement, there can be no assurance that we would be successful
in any attempt to redesign our products or processes to avoid such infringement
or in obtaining licenses on terms acceptable to us, if at all. Accordingly, an
adverse determination in a judicial or administrative proceeding or failure by
us to redesign our products or processes or to obtain necessary licenses could
prevent us from manufacturing and selling our products, which would have a
material adverse effect on our business, financial condition and results of
operations. Although we have not been involved in any litigation to date, in
the future, costly and time-consuming litigation brought by us may be necessary
to enforce patents issued to us, to protect our trade secrets or know-how, or to
determine the enforceability, scope and validity of the proprietary rights of
others.
WE MAY NOT BE ABLE TO SECURE ADDITIONAL FUNDING TO SUPPORT OUR SUBSTANTIAL
FUTURE CAPITAL REQUIREMENTS.
-6-
We will expend substantial funds in the future for research and
development, preclinical and clinical testing, capital expenditures and the
manufacturing, marketing and sale of our products. The timing and amount of
spending of such capital resources cannot be accurately predicted and will
depend upon several factors not within our control, including:
. market acceptance and demand for our products in the United States and
internationally;
. the progress of our research and development efforts and preclinical
and clinical activities;
. competing technological and market developments;
. the time and costs involved in obtaining regulatory approvals;
. the time and costs involved in filing, prosecuting and enforcing
patent claims; and
. the progress and cost of commercialization of products currently under
development.
While we believe that the net proceeds of approximately $5.0 million from
the private placement offering to Siemens Audiologische Technik GmbH and the
approximately $26.0 million from the recent private placement to other
investors, together with our previously existing capital resources and projected
interest income, will be sufficient to fund our operations and capital
investments through July 2002, we may require additional financing after that
time. Such additional financing, if required, may not be available on a timely
basis on terms acceptable to us, or at all. If adequate funds are not available,
we could be required to delay development or commercialization of some of our
products, to license to third parties the rights to commercialize some products
or technologies that we would otherwise seek to commercialize for ourselves, or
to reduce the marketing, customer support or other resources devoted to some of
our products, any of which could have a material adverse effect on our business,
financial condition and results of operations.
IF WE CANNOT RETAIN OR HIRE KEY PERSONNEL OUR BUSINESS WILL SUFFER.
Our future success depends in significant part upon the continued service
of key scientific, technical, sales and marketing, and management personnel.
Competition for such personnel is intense. There can be no assurance that we
can retain our key scientific, technical, sales and marketing and managerial
personnel or that we can attract, assimilate or retain other highly qualified
scientific, technical sales and marketing, and managerial personnel in the
future. The loss of key personnel, especially if without advance notice, or the
inability to hire or retain qualified personnel could impair our ability to
commercialize our Vibrant Soundbridge products and develop future products.
COMPLICATIONS MAY RESULT FROM THE USE OF OUR SOUNDBRIDGE PRODUCTS, AND INSURANCE
MAY BE INSUFFICIENT OR UNAVAILABLE TO COVER POTENTIALLY SIGNIFICANT PRODUCT
LIABILITY EXPENSES IF WE ARE SUED.
Our business involves the inherent risk of product liability claims. We
maintain limited product liability insurance at coverage levels which we believe
to be commercially reasonable and adequate given our current operations.
However, this insurance may not to be available in the future on commercially
reasonable terms, or at all. Even if it is available, it may not be adequate to
cover liabilities that may arise. If we are sued for an injury caused by our
products, the resulting liability could result in significant expense, which
would harm our business and financial condition.
-7-
OUR INTERNATIONAL SALES AND OPERATIONS EXPOSE US TO FOREIGN CURRENCY AND
POLITICAL RISKS.
We desire to continue to expand our operations outside of the United States
and to enter additional international markets, which will require significant
management attention and financial resources and subject us further to the risks
of operating internationally. These risks include:
. unexpected changes in regulatory requirements;
. delays resulting from difficulty in obtaining export licenses for
certain technology;
. tariffs and other barriers and restrictions;
. the burdens of complying with a variety of foreign laws and
regulations; and
. difficulty in staffing and managing international operations.
We are also subject to general political and economic risks in connection with
our international operations, such as political instability, changes in
diplomatic and trade relationships and general economic fluctuations in specific
countries or markets. We cannot predict whether quotas, duties, taxes, or other
charges or restrictions will be imposed by the United States, the European
Union, Japan, or other countries upon the import or export of our products in
the future, or what effect any such actions would have on our business,
financial condition or results of operations. There can be no assurance that
regulatory, geopolitical and other factors will not adversely affect our
business in the future or require us to modify our current business practices.
In addition, because most of our international sales, and a large portion
of the associated expenses, are denominated in foreign currencies, gains and
losses on the conversion to U.S. dollars of accounts receivable and accounts
payable arising from international operations may contribute to fluctuations in
our operating results. Further, fluctuations in currency exchange rates may
negatively impact our ability to compete in terms of price against products
denominated in local currencies. To date, we have not found it appropriate to
hedge the risks associated with fluctuations in exchange rates. However, even if
we undertake such transactions in the future, they may fail.
RISKS RELATED TO THIS OFFERING
CONCENTRATION OF OWNERSHIP AMONG OUR EXISTING EXECUTIVE OFFICERS, DIRECTORS AND
PRINCIPAL STOCKHOLDERS MAY PREVENT NEW INVESTORS FROM INFLUENCING SIGNIFICANT
CORPORATE DECISIONS.
As of September 30, 2001 our directors, entities affiliated with our
directors and our executive officers will beneficially own, in the aggregate,
approximately 68% of our outstanding common stock. These stockholders as a group
will be able to substantially influence our management and affairs. This
concentration of ownership may also delay or prevent a change in our control at
a premium price if these stockholders oppose it.
-8-
SYMPHONIX MAY BE DELISTED ON THE NASDAQ NATIONAL MARKET.
The minimum per share bid price required under market place Rule 4450(a)(5)
to maintain a listing on the Nasdaq National Market is $1.00. Our common stock
has traded below $1.00 since August 2, 2001. Accordingly, our common stock may
be delisted from the Nasdaq National Market. A delisting could impair our
ability to raise additional working capital. If we are able to raise additional
capital, the terms may not be favorable and your investment may be diluted.
Furthermore, because prices for delisted stock are often not publicly available,
a delisting would impair the liquidity of our common stock and make it difficult
for you to sell your shares, and you may lose some or all of your investment.
OUR STOCK PRICE IS SUBJECT TO SIGNIFICANT VOLATILITY.
Our stock price has been and may continue to be subject to significant
volatility. The trading price of our common stock may be affected significantly
by our quarterly forecasts and results of operations which may vary greatly
based on a number of factors, including:
. the introduction and market acceptance of new products offered by us
and our competitors;
. the receipt and timing of regulatory approvals for new products;
. changes in our product mix;
. our success in expanding our U.S. and international operations;
. the costs of conducting sales, marketing and distribution;
. our ability to continue to attract and retain personnel necessary for
future product development;
. changes in U.S. and international health care regulations and
practices; and
. the costs involved in prosecuting and defending patent claims or other
litigation.
Any shortfall in revenues or earnings from levels expected by securities
analysts could cause the market price of our common stock to decline. Further,
we participate in a highly dynamic industry, which often results in significant
volatility in the market price of our common stock irrespective of company
performance. Fluctuations in the price of our common stock may be exacerbated
by conditions in the medical device and technology industry segments or
conditions in the financial markets generally.
-9-
Plan of Distribution
We are registering all 20,733,652 shares of common stock on behalf of
selling stockholders who purchased all of these shares from us pursuant to a
Common Stock Purchase Agreement dated as of September 18, 2000. We will receive
no proceeds from this offering. The selling stockholders named in the table
below or pledgees, donees, transferees or other successors-in-interest selling
shares received from a named selling stockholder as a gift, partnership
distribution or other non-sale-related transfer after the date of this
prospectus may sell the shares from time to time. The selling stockholders will
act independently of Symphonix in making decisions with respect to the timing,
manner and size of each sale. The sales may be made on one or more exchanges or
in the over-the-counter market or otherwise, at prices and at terms then
prevailing at prices related to the then current market price or in negotiated
transactions. The selling stockholders may effect such transactions by selling
the shares to or through broker-dealers. The shares may be sold by one or more
of, or a combination of, the following:
. a block trade in which the broker-dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
. purchases by a broker-dealer as principal and resale by such broker-
dealer for its account pursuant to this prospectus;
. an exchange distribution in accordance with the rules of such
exchange;
. ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
. in privately negotiated transactions.
To the extent required, this prospectus may be amended or supplemented from
time to time to describe a specific plan of distribution. In effecting sales,
broker-dealers engaged by the selling stockholders may arrange for other broker-
dealers to participate in the resales.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling stockholders. Broker-dealers
or agents may also receive compensation from the purchasers of the shares for
whom they act as agents or to whom they sell as principals, or both.
Compensation as to a particular broker-dealer might be in excess of customary
commissions and will be in amounts to be negotiated in connection with the sale.
Broker-dealers or agents and any other participating broker-dealers or the
selling stockholders may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act in connection with sales of the shares.
Accordingly, any such commission, discount or concession received by them and
any profit on the resale of the shares purchased by them 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(11) of the Securities Act, the selling stockholders will be subject to the
prospectus delivery requirements of the Securities Act. In addition, any
securities covered by this prospectus which qualify for sale pursuant to Rule
144 promulgated under the Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus. The selling stockholders have advised Symphonix
that they have not entered into any agreements, understandings or arrangements
with any underwriters or broker-dealers regarding the sale of their securities.
There is no underwriter or coordinating broker acting in connection with the
proposed sale of shares by selling stockholders.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
some states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
-10-
Under applicable rules and regulations of the Exchange Act, any person
engaged in the distribution of the shares may not simultaneously engage in
market making activities with respect to our common stock for a period of two
business days prior to the commencement of such distribution. In addition, each
selling stockholder will be subject to applicable provisions of the Exchange Act
and the associated rules and regulations under the Exchange Act, including
Regulation M, which provisions may limit the timing of purchases and sales of
shares of our common stock by the selling stockholders. We will make copies of
this prospectus available to the selling stockholders and have informed them of
the need for delivery of copies of this prospectus to purchasers at or prior to
the time of any sale of the shares.
We will file a supplement to this prospectus, if required, pursuant to Rule
424(b) promulgated under the Securities Act upon being notified by a selling
stockholder that any material arrangement has been entered into with a broker-
dealer for the sale of shares through a block trade, special offering, exchange
distribution or secondary distribution or a purchase by a broker or dealer.
Such supplement will disclose:
. the name of each such selling stockholder and of the participating
broker-dealer(s);
. the number of shares involved;
. the price at which such shares were sold;
. the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
. that such 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.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sales of the shares. The selling
stockholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against some liabilities,
including liabilities arising under the Securities Act.
-11-
Selling Stockholders
Of the 21,186,170 shares beneficially owned by the selling stockholders
prior to this offering, 20,733,652 shares were acquired pursuant to the terms of
the Common Stock Purchase Agreement between us and the selling stockholders
dated September 18, 2000. Under the terms of the Common Stock Purchase
Agreement, Symphonix initially sold 6,397,632 shares at a per share price of
$4.064 to the selling stockholders for an aggregate purchase price of
approximately $26 million on November 10, 2000. The Common Stock Purchase
Agreement provided for a purchase price adjustment that allowed the selling
stockholders to calculate, one time prior to November 10, 2002, an adjusted per
share purchase price equal to the average closing market price of Symphonix
common stock as reported on the Nasdaq National Market for the 33 consecutive
trading days immediately preceding the date of adjustment. Those selling
stockholders participating in the adjustment would receive additional shares of
common stock, for no additional consideration, equal to the difference between
the number of shares which each selling stockholder could have purchased based
on the adjusted per share purchase price at the selling stockholder's original
investment amount and the number of shares originally purchased.
On June 25, 2001, certain selling stockholders notified Symphonix that they
were exercising their purchase price adjustment pursuant to the Common Stock
Purchase Agreement. All selling stockholders agreed to participate in the
adjustment, and on July 12, 2001, Symphonix subsequently issued, for no
additional consideration, an additional 14,336,020 shares to the selling
stockholders based on an adjusted per share purchase price of approximately
$1.254.
The following table sets forth the number of shares beneficially owned by
each of the selling stockholders. Percentage ownership is based on 35,602,396
shares of common stock outstanding as of October 31, 2001. None of the selling
stockholders, with the exception of J.P. Morgan Capital, L.P., APAX Excelsior
VI, L.P., Cassin Family Trust, or their respective affiliated entities,
has held any position or office or had a material relationship with Symphonix
within the past three years other than as a result of the ownership of the
shares or other securities of Symphonix or as a result of their employment with
Symphonix as of the date of the issuance of the shares to the selling
stockholders. Martin Friedman, one of our directors, is a Vice President of J.P.
Morgan Capital, L.P. Adele Oliva, one of our directors, is a partner of APAX
Excelsior VI Partners, L.P., which is the general partner of APAX Excelsior VI,
L.P., Patricof Private Investment Club III, L.P., APAX Excelsior VI-A, C.V. and
APAX Excelsior VI-B, C.V.
Except as otherwise indicated, the selling stockholders named in the table
have sole voting and investment power with respect to all shares of common stock
shown as beneficially owned by them, subject to community property laws where
applicable. No estimate can be given as to the number of shares that will be
held by the selling stockholders after completion of this offering because the
selling stockholders may offer all or some of the shares and because there
currently are no agreements, arrangements or understandings with respect to the
sale of any of the shares. The shares offered by this prospectus may be offered
from time to time by the selling stockholders named below:
Shares Beneficially Shares Beneficially
Owned Prior to Owned After
Offering Number of Shares Offering
------------------------------- Registered for Sale ---------------------
Name of Selling Stockholder Number Percent Hereby (1) Number Percent
- ------------------------------------------------ --------------- -------------- -------------------- ---------- ----------
Entities affiliated with J.P. Morgan Capital, L.P. 7,974,482 (2) 22.4% 7,974,482 (2) -- *
Entities affiliated with APAX Excelsior VI, L.P. 7,974,482 (3) 22.4% 7,974,482 (3) -- *
Entities affiliated with Special Situations Private
Equity Fund, L.P. 3,189,792 (4) 9.0% 3,189,792 (4) -- *
Entities affiliated with Cassin Family Trust 1,249,966 (5) 3.5% 797,448 (6) 452,518 1.3
Entities affiliated with Richard M. Lucas Foundation 797,448 (7) 2.2% 797,448 (7) -- *
------------- -------------- ----------
Total 21,186,170 20,733,652 452,518
========== ========== ==========
______________________________
* Represents beneficial ownership of less than 1% of the outstanding shares
of common stock.
(1) This registration statement also shall cover any additional shares of
common stock which become issuable in connection with the shares registered
for sale hereby by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of outstanding
shares of our common stock.
(2) Share number consists of 6,380,902 shares held by J.P. Morgan Capital, L.P.
and 1,593,580 shares held by Sixty Wall Street Fund, L.P., which is an
affiliate of J.P. Morgan Capital, L.P. No single individual has voting or
investment power over the shares beneficially owned by J.P. Morgan Capital,
L.P. or Sixty Wall Street Fund, L.P. Those powers are exercised under the
direction of the board of directors of J.P. Morgan Capital, L.P. and the
managing members of Sixty Wall Street Fund, L.P., respectively. Martin
Friedman, one of our directors, is a Vice President of J.P. Morgan Capital,
L.P. J.P. Morgan Capital, L.P. and Sixty Wall Street Fund, L.P. are
affiliates of a broker-dealer. The shares acquired by J.P. Morgan Capital,
L.P. and Sixty Wall Street Fund, L.P. were acquired for investment
purposes, in the ordinary course of business, and neither J.P. Morgan
Capital, L.P. nor Sixty Wall Street Fund, L.P. has any agreements or
understandings, directly or indirectly, with any person to distribute the
shares.
(3) Share number consists of 6,816,974 shares held by APAX Excelsior VI, L.P.,
and 557,185 shares held by APAX Excelsior VI-A, C.V., 371,456 shares held
by APAX Excelsior VI-B, C.V., and 228,867 shares held by Patricof Private
Investment Club III, L.P., which are affiliates of APAX Excelsior VI,
L.P. No single individual has voting or investment power over the shares
beneficially owned by APAX Excelsior VI, L.P., APAX Excelsior VI-A, C.V.,
APAX Excelsior VI-B, C.V., or Patricof Private Investment Club III, L.P.
Those powers are exercised under the direction of the board of directors of
APAX Managers, Inc., the general partner of APAX Excelsior VI Partners,
L.P., which in turn is the general partner of each of APAX Excelsior VI,
L.P., APAX Excelsior VI-A, C.V., APAX Excelsior VI-B, C.V., and Patricof
Private Investment Club III, L.P. Adele Oliva, one of our directors, is a
general partner of APAX Excelsior VI Partners, L.P.
(4) Share number consists of 2,192,982 shares held by Special Situations
Private Equity Fund, L.P. and 996,810 shares held by Special Situations
Technology Fund, L.P., an affiliate of Special Situations Private Equity
Fund, L.P. No single individual has voting or investment power over the
shares beneficially owned by Special Situations Private Equity Fund, L.P.
or Special Situations Technology Fund, L.P. Those powers are exercised
under the direction of the managing members of Special Situations Private
Equity Fund, L.P. and Special Situations Technology Fund, L.P.,
respectively.
(5) Share number consists of 646,329 shares held by Cassin Family Trust, 15,913
shares held for the benefit of Cassin Family Trust and 294,749 shares held
by Cassin Family Partners and 199,362 shares held by Robert S. Cassin
Charitable Trust, which are affiliates of Cassin Family Trust. B.J. Cassin,
one of our directors, holds voting and dispositive power over the shares
held by Cassin Family Trust, Cassin Family Partners and Robert S. Cassin
Charitable Trust. Also includes 910 shares held by B.J. Cassin and options
directly owned by B.J. Cassin to purchase up to 92,703 shares exercisable
within 60 days after June 30, 2001.
-12-
(6) Share number consists of 398,724 shares held by Cassin Family Trust, and
199,362 shares held by Cassin Family Partners and 199,362 shares held by
Robert S. Cassin Charitable Trust, which are affiliates of Cassin Family
Trust. B.J. Cassin, one of our directors, holds voting and dispositive
power over the shares held by Cassin Family Trust, Cassin Family Partners
and Robert S. Cassin Charitable Trust.
(7) Share number consists of 199,362 shares held by Richard M. Lucas
Foundation, and 199,362 shares held by Donald L. Lucas Profit Sharing
Trust, 199,362 shares held by David Ferris Ellison Trust and 199,362 shares
held by Margaret Elizabeth Ellison Trust, which are affiliates of Richard
M. Lucas Foundation. Donald L. Lucas holds voting and investment power over
the shares beneficially owned by Richard M. Lucas Foundation, Donald L.
Lucas Profit Sharing Trust, David Ferris Ellison Trust, and Margaret
Elizabeth Ellison Trust.
-13-
Legal Matters
The validity of the securities offered pursuant to this prospectus will be
passed upon for Symphonix by Wilson Sonsini Goodrich & Rosati, Professional
Corporation, Palo Alto, California.
Experts
The consolidated financial statements as of December 31, 1999 and for each
of the two years in the period ended December 31, 1999 incorporated in this
prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 2000 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The consolidated financial statements and schedules of Symphonix Devices,
Inc. and subsidiaries as of and for the year ended December 31, 2000, have been
incorporated by reference herein and in the registration statement in reliance
upon the report 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
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file at the SEC's Public Reference Room, 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the Public Reference Room. Our SEC filings are
also available to the public from the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information filed with the
SEC will update and supersede this information. We incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13a, 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
until this offering is completed:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
2000, filed April 2, 2001, as amended September 26, 2001, November 9, 2001 and
November 30, 2001;
(b) Definitive Proxy Statement on Schedule 14A in connection with
Symphonix's 2001 Annual Meeting of Stockholders, filed April 2, 2001;
(c) Current Report on Form 8-K filed January 30, 2001;
(d) Current Report on Form 8-K filed February 12, 2001;
(e) Current Report on Form 8-K filed April 9, 2001;
(f) Current Report on Form 8-K filed July 2, 2001;
(g) Quarterly Report on Form 10-Q for the quarter ended March 31, 2001,
filed May 7, 2001;
(h) Quarterly Report on Form 10-Q for the quarter ended June 30, 2001,
filed August 3, 2001;
(i) Quarterly Report on Form 10-Q for the quarter ended September 30,
2001, filed November 13, 2001; and
(j) The description of Symphonix common stock contained in its
registration statement on Form 8-A filed February 10, 1998.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Chief Financial Officer
Symphonix Devices, Inc.
2331 Zanker Road
San Jose, California 95131-1109
(408) 232-0710
You should rely only on the information incorporated by reference or
provided in this prospectus or in any prospectus supplement. We have not
authorized anyone to provide you with different information. We are not making
an offer of these securities in any state where the offer is not permitted. You
should not assume that the information in this prospectus or in any prospectus
supplement is accurate as of any date other than the date on the front of the
prospectus or any prospectus supplement.
-14-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the registrant in connection
with the sale of common stock being registered. All amounts are estimates
except the SEC registration fee.
SEC Registration Fee $ 2,688
Legal Fees and Expenses 30,000
Accounting Fees and Expenses 10,000
Printing Fees 9,000
Transfer Agent Fees 1,000
Miscellaneous 6,812
-------
Total $59,500
=======
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
The registrant's Restated Certificate of Incorporation provides that to the
fullest extent permitted by the Delaware General Corporation Law, no director of
the registrant shall be personally liable to the registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director. The Restated
Certificate of Incorporation also provides that no amendment or repeal of such
provision shall apply to or have any effect on the right to indemnification
permitted thereunder with respect to claims arising from acts or omissions
occurring in whole or in part before the effective date of such amendment or
repeal whether asserted before or after such amendment or repeal.
The registrant's Bylaws provide that the registrant shall indemnify to the
fullest extent authorized by law each of its directors, officers, employees and
other agents against expenses actually and reasonably incurred in connection
with any proceeding arising by reason of the fact that such person is or was an
agent of the corporation.
The registrant has entered into indemnification agreements with its
directors and executive officers, in addition to the indemnification provided
for in the registrant's Bylaws, and intends to enter into indemnification
agreements with any new directors or executive officers in the future. The
registrant has also entered into indemnification agreements with J.P. Morgan
Capital, L.P. and Patricof & Co. Ventures, Inc., as well as APAX Excelsior VI,
L.P. and Patricof Private Investment Club III, L.P., which are affiliates of
Patricof & Co. Ventures, Inc. J.P. Morgan Capital, L.P., APAX Excelsior VI,
L.P. and Patricof Private Investment Club III, L.P. purchased shares of common
stock from the registrant pursuant to the Common Stock Purchase Agreement. Each
of J.P. Morgan Capital, L.P. and Patricof & Co. Ventures, Inc., through its
investor affiliates, has beneficial ownership of approximately 22.5% of the
outstanding capital of the registrant.
II-1
Item 16. Exhibits
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.2* Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1)
23.3 Consent of KPMG LLP, independent certified public accountants
24.1* Power of Attorney
* Previously filed
Item 17. Undertakings
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; (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 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.
(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 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.
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 Section 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 this 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.
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 therefore is 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 and will be governed by the final adjudication of such issue.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of San Jose, State of California, on this 30th day of
November, 2001.
SYMPHONIX, INC.
By: /s/ Kirk B. Davis
__________________________
Kirk B. Davis
President, Chief Executive Officer and
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons on
behalf of Symphonix, Inc. and in the capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Kirk B. Davis
____________________________ President, Chief Executive Officer (Principal November 30, 2001
Kirk B. Davis Executive Officer) and Chairman of the Board
/s/ Terence J. Griffin
____________________________ Vice President Finance and Chief Financial November 30, 2001
Terence J. Griffin Officer (Principal Financial and Accounting Officer)
/s/ Geoffrey R. Ball*
____________________________ Vice President, Chief Technology Officer and November 30, 2001
Geoffrey R. Ball Director
/s/ B.J. Cassin*
____________________________ Director November 30, 2001
B.J. Cassin
/s/ Adele Oliva*
____________________________ Director November 30, 2001
Adele Oliva
/s/ Roger Radke*
____________________________ Director November 30, 2001
Roger Radke
/s/ Martin Friedman*
____________________________ Director November 30, 2001
Martin Friedman
* By: /s/ Terence J. Griffin
_________________________
Terence J. Griffin
Attorney-in-Fact
II-3
INDEX TO EXHIBITS
Exhibit
Number Exhibit Title
- ------ ---------------------------------------------------------------------
5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants
23.2* Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(included in Exhibit 5.1)
23.3 Consent of KPMG LLP, independent certified public accountants
24.1* Power of Attorney
* Previously Filed
II-4