posam
As filed with the Securities and Exchange Commission on April 15, 2008
Registration No. 333-138616
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 3
ON
Form S-1
TO REGISTRATION STATEMENT ORIGINALLY FILED ON FORM S-1
under
the Securities Act of 1933
Endocare, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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33-0618093 |
(State or Other Jurisdiction of
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(I.R.S. Employer |
Incorporation or Organization)
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Identification No.) |
201 Technology Drive
Irvine, California 92618
(949) 450-5400
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrants Principal Executive Offices)
Michael R. Rodriguez
Senior Vice President, Finance and Chief Financial Officer
Endocare, Inc.
201 Technology Drive
Irvine, California 92618
(949) 450-5400
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
With a Copy to:
Clint B. Davis
Senior Vice President, Legal Affairs, General Counsel and Secretary
Endocare, Inc.
201 Technology Drive
Irvine, California 92618
(949) 450-5400
Approximate date of commencement of proposed sale to the public: from time to time after
the effectiveness of this Registration Statement.
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:
þ
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: o
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: o
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: o
Indicate by check mark whether the registrant is a large accelerated filer, accelerated filer,
a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
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Large Accelerated Filer o
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Accelerated Filer þ
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Non-Accelerated Filer o
(Do not check if a smaller reporting company)
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Smaller Reporting Company o |
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 Securities and Exchange Commission, acting pursuant to
said Section 8(a), may determine.
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Proposed Maximum |
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Amount of |
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Title of Each Class of |
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Amount to be |
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Offering |
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Aggregate |
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Registration |
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Securities to be Registered |
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Registered(1) |
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Price per Share(2) |
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Offering Price(2) |
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Fee |
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Common Stock, $0.001 par value per
share(3) |
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2,824,651 shares |
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$5.355 |
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$15,126,013 |
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$1,618.48(4) |
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(1) |
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All share and price amounts in this registration statement reflect the one-for-three reverse stock split
of the Companys Common Stock that occurred on August 20, 2007. The shares being registered consist of
(i) 157,985 shares of our common stock issued and outstanding prior to the filing of the original
Registration Statement, (ii) 2,666,666 shares issuable to Fusion Capital Fund II, LLC following the
effectiveness of the original Registration Statement, and (iii) such indeterminate number of additional
shares of common stock issuable for no additional consideration 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. In the event of a
stock split, stock dividend or similar transaction involving our common stock, in order to prevent
dilution, the number of shares registered shall be automatically increased to cover the additional
shares in accordance with Rule 416(a) under the Securities Act of 1933. |
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(2) |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) based on
the average of the high and low sales prices of the registrants common stock as reported on the OTC
Bulletin Board Market on November 6, 2006, as adjusted to reflect the one-for-three reverse stock split
of the Companys Common Stock that occurred on August 20, 2007. |
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Each share of Common Stock is paired with a stock purchase right under the Registrants Stockholder
Rights Plan. |
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(4) |
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Paid previously with the filing of the original Registration Statement. |
The information in this prospectus is not complete and may be changed. The
selling stockholder 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.
SUBJECT TO COMPLETION, DATED APRIL 15, 2008
PROSPECTUS
Endocare, Inc.
2,824,651 Shares of Common Stock
This prospectus relates to the sale of up to 2,824,651 shares of our common stock by Fusion
Capital Fund II, LLC. Fusion Capital is sometimes referred to in this prospectus as the selling
stockholder. The prices at which Fusion Capital may sell the shares will be determined by the
prevailing market price for the shares or in negotiated transactions. We will not receive
proceeds from the sale of our shares by Fusion Capital.
Our common stock is registered under Section 12(b) of the Securities Exchange Act of 1934
and is listed on The NASDAQ Capital Market under the symbol ENDO. On April 10, 2008, the last
reported sale price for our common stock as reported on The NASDAQ Capital Market was $6.00 per
share.
All share and price amounts in this prospectus reflect the one-for-three reverse stock split
of our common stock that occurred on August 20, 2007.
Investing in the common stock involves certain risks. See Risk Factors beginning on page 4
for a discussion of these risks.
The selling stockholder is an underwriter within the meaning of the Securities Act of 1933,
as amended.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The date of this Prospectus is , 2008.
TABLE OF CONTENTS
No person has been authorized to give any information or to make any representations other
than those contained in this prospectus in connection with the offering made hereby, and if given
or made, such information or representations must not be relied upon as having been authorized by
Endocare, Inc., any selling securityholder or by any other person. Neither the delivery of this
prospectus nor any sale made hereunder shall, under any circumstances, create any implication that
information herein is correct as of any time subsequent to the date hereof. This prospectus does
not constitute an offer to sell or a solicitation of an offer to buy any security other than the
securities covered by this prospectus, nor does it constitute an offer to or solicitation of any
person in any jurisdiction in which such offer or solicitation may not lawfully be made.
PROSPECTUS SUMMARY
Business
Endocare, Inc. is a Delaware corporation. Our principal executive offices are located at 201
Technology Drive, Irvine, California 92618. Our telephone number is (949) 450-5400. The address
of our website is www.endocare.com. Information on our website is not part of this
prospectus.
We are a specialty medical device company focused on improving patients lives through the
development, manufacturing and distribution of health care products for cryoablation. The term
cryoablation or cryosurgery refers to the use of ice to destroy tissue, such as tumors, for
therapeutic purposes.
Today, our FDA-cleared Cryocare Surgical System occupies a growing position in the urological
market for treatment of prostate and renal cancers. Because of our initial concentration on
prostate and renal cancers, the majority of our sales and marketing resources are directed toward
the promotion of our technology to urologists. We also employ a dedicated sales team focused on
the interventional radiology market in which our products are used to treat renal, liver and lung
cancer and for palliative intervention. In addition to selling our cryoablation disposable
products to hospitals and mobile service companies, we contract directly with hospitals for the use
of our Cryocare Surgical System and disposable products on a fee-for-service basis. We intend to
continue to identify and develop new markets for our cryoablation products and technologies,
particularly in the area of tumor ablation.
The Offering
Fusion Capital, the selling stockholder under this prospectus, is offering for sale up to
2,824,651 shares of our common stock hereto. On October 25, 2006, we entered into a common stock
purchase agreement with Fusion Capital Fund II, LLC, an Illinois limited liability company. Under
the agreement, Fusion Capital is obligated, under certain conditions, to purchase shares from us in
an aggregate amount of $16 million from time to time over a 24 month period. Under the terms of
the common stock purchase agreement, Fusion Capital has received a commitment fee consisting of
157,985 shares of our common stock. We have authorized up to 2,666,666 shares of our common stock
for sale to Fusion Capital under the agreement. As of February 29, 2008, there were 11,773,293
shares outstanding (9,960,682 shares held by non-affiliates), which includes the 157,985 shares
that we issued to Fusion Capital as a commitment fee and 293,397 shares that we have sold to Fusion
Capital under the common stock purchase agreement for gross proceeds of $1.6 million. If all of
the 2,824,651 shares offered hereby were issued and outstanding as of the date hereof, the
2,824,651 shares would represent 20.0% of the total common stock outstanding or 22.9% of the
non-affiliate shares outstanding as of the date hereof. Under the terms of the common stock
purchase agreement, the number of shares ultimately offered for sale by Fusion Capital is dependent
upon the number of shares purchased by Fusion Capital under the agreement.
We do not have the right to commence any sales of our shares to Fusion Capital until the
Securities and Exchange Commission (SEC) has declared effective the registration statement of which
this prospectus is a part. The registration statement was declared effective on December 1, 2006.
After this declaration of effectiveness, generally we have the right but not the obligation from
time to time to sell our shares to Fusion Capital in amounts between $100,000 and $1
1
million depending on certain conditions. We have the right to control the timing and amount of any sales
of our shares to Fusion Capital. The purchase price of the shares will be determined based upon
the market price of our shares without any fixed discount at the time of each sale. Fusion Capital
shall not have the right or the obligation to purchase any shares of our common stock on any
business day that the price of our common stock is below $3.00. The agreement may be terminated by
us at any time at our discretion without any cost to us.
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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 forward-looking statements may include statements regarding, among other things, (a)
our projected sales and profitability, (b) our growth strategies, (c) anticipated trends in our
industry, (d) our future financing plans, and (e) our anticipated needs for working capital.
Forward-looking statements, which involve assumptions and describe our future plans, strategies,
and expectations, are generally identifiable by use of the words may, will, should, expect,
anticipate, estimate, believe, intend, or project or the negative of these words or other
variations on these words or comparable terminology. This information may involve known and
unknown risks, uncertainties, and other factors that may cause our actual results, performance, or
achievements to be materially different from the future results, performance, or achievements
expressed or implied by any forward-looking statements. Actual events or results may differ
materially from those discussed in forward-looking statements as a result of various factors,
including, without limitation, the risks outlined under Risk Factors and matters described in
this prospectus generally. In light of these risks and uncertainties, there can be no assurance
that the forward-looking statements contained or incorporated by reference in this filing will in
fact occur. In addition to the information expressly required to be included in this filing, we
will provide such further material information, if any, as may be necessary to make the required
statements, in light of the circumstances under which they are made, not misleading.
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RISK FACTORS
You should carefully consider the risks described below before purchasing our common stock.
Our most significant risks and uncertainties are described below; however, they are not the only
risks we face. If any of the following risks actually occur, our business, financial condition, or
results of operations could be materially adversely affected, the trading price of our common stock
could decline, and you may lose all or part of your investment therein. You should acquire shares
of our common stock only if you can afford to lose your entire investment.
Risks Associated With our Business
We have a limited operating history with significant losses and expect losses to continue for the
foreseeable future.
We have yet to establish any history of profitable operations. We have incurred losses from
operations of $9.3 million, $15.4 million and $16.6 million, respectively, during the fiscal years
ended December 31, 2007, 2006 and 2005. As a result, at December 31, 2007 we had an accumulated
deficit of $189.8 million. We have incurred net losses from continuing operations of $8.9 million,
$11.1 million and $14.8 million, respectively, during the fiscal years ended December 31, 2007,
2006 and 2005. Our revenues have not been sufficient to sustain our operations. We expect that
our revenues will not be sufficient to sustain our operations for the foreseeable future. We can
give no assurances when or whether we will ever be profitable.
We may require additional financing in the future to sustain our operations and without it we may
not be able to continue operations.
We had an operating cash flow deficit of $4.6 million, $13.6 million and $14.7 million for the
years ended December 31, 2007, 2006 and 2005.
On May 25, 2007, we sold $7.0 million in stock to Frazier Healthcare V, L.P. (Frazier). In
addition, as of June 30, 2007, we had sold $1.6 million in stock under our $16.0 million common
stock purchase agreement with Fusion Capital.
The availability of funds under the $16.0 million common stock purchase agreement with Fusion
Capital and our $4.0 million credit agreement with Silicon Valley Bank is subject to many
conditions, some of which are predicated on events that are not within our control. Accordingly,
we cannot guarantee that these capital resources will be available or will be sufficient to fund
our ongoing operations.
We only have the right to receive $100,000 every four business days under the agreement with
Fusion Capital unless our stock price equals or exceeds $4.50, in which case we can sell greater
amounts to Fusion Capital as the price of our common stock increases. Fusion Capital does not have
the obligation to purchase any shares of our common stock on any business day that the market price
of our common stock is less than $3.00. Since we have authorized 2,666,666 shares for sale to
Fusion Capital under the common stock purchase agreement, the selling price of our common stock to
Fusion Capital will have to average at least $6.00 per share for us to receive the maximum proceeds
of $16.0 million.
Under our credit agreement with Silicon Valley Bank, funds available for borrowing are based
on eligible trade receivables and inventory as defined. The credit agreement contains a subjective
acceleration clause and a requirement to maintain a lockbox with the lender to which
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all receivable
collections are deposited. Under the subjective acceleration clause, the lender may accelerate
repayment of amounts borrowed and/or cease making advances to us if it determines that a material
adverse change has occurred in our business or our ability to meet our obligations under the
agreement. In addition, the proceeds from the lock box will be applied to reduce the outstanding
borrowings upon an event of default (including the occurrence of a material adverse change) or if
trigger events occur. Our ability to access funds under the credit agreement will be subject to
our ability to meet all restrictive covenants and comply with all representations and warranties.
The extent to which we rely on Fusion Capital as a source of funding will depend on a number
of factors including the prevailing market price of our common stock and the extent to which we are
able to secure working capital from other sources, such as through the sale of our products. If
sufficient financing from Fusion Capital were to prove unavailable or prohibitively dilutive and if
we are unable to sell enough of our products, we may need to secure another source of funding in
order to satisfy our working capital needs. Even if we are able to access the full $16.0 million
under the common stock purchase agreement with Fusion Capital, we may still need additional capital
to fully implement our business, operating and development plans. Should the financing we require
to sustain our working capital needs be unavailable or prohibitively expensive when we require it,
the consequences could have a material adverse effect on our business, financial condition, results
of operations and cash flows.
The sale of our common stock to Fusion Capital may cause dilution and the sale of the shares of
common stock acquired by Fusion Capital could cause the price of our common stock to decline.
In connection with entering into the common stock purchase agreement with Fusion Capital, we
authorized the sale to Fusion Capital of up to 2,666,666 shares of our common stock, in addition to
the 157,985 shares that we issued to Fusion Capital as a commitment fee. The number of shares
ultimately offered for sale by Fusion Capital is dependent upon the number of shares purchased by
Fusion Capital under the agreement. The purchase price for the common stock to be sold to Fusion
Capital pursuant to the common stock purchase agreement will fluctuate based on the price of our
common stock. All 2,824,651 shares that we have registered pursuant to our registration rights
agreement with Fusion Capital are freely tradable. It is anticipated that shares registered will
be sold over a period of up to 24 months from December 14, 2006. Depending upon market liquidity
at the time, a sale of shares by Fusion Capital at any given time could cause the trading price of
our common stock to decline. Fusion Capital may ultimately purchase all or some of the 2,666,666
shares of common stock authorized for sale to Fusion Capital under the common stock purchase
agreement. After it has acquired such shares, it may sell all, some or none of such shares.
Therefore, sales to Fusion Capital by us under the common stock purchase agreement may result in
substantial dilution to the interests of other holders of our common stock. The sale of a
substantial number of shares of our common stock by Fusion Capital, or anticipation of such sales,
could make it more difficult for us to sell equity or equity-related securities in the future at a
time and at a price at which we might otherwise wish to effect sales. However, we have the right
to control the timing and amount of any sales of our shares to Fusion Capital and the agreement may
be terminated by us at any time at our discretion without any cost to us. As of February 29, 2008,
we had sold an aggregate of 293,397 shares to Fusion Capital under the common stock purchase
agreement, in addition to the 157,985 shares that we issued to Fusion Capital as a commitment fee.
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Our business may be materially and adversely impacted by the loss of our largest customer or the
reduction, delay or cancellation of orders from this customer; in addition, our business may be
materially and adversely impacted if this customer delays payment or fails to pay for products sold
to this customer.
For the three and twelve months ended December 31, 2007 our largest customer accounted for
43.3% and 42.1%, respectively, of our revenues, and as of December 31, 2007 this customer accounted
for 38.9% of our accounts receivable. Our sales to this customer may be materially and adversely
impacted by various factors relating to this customers business, financial condition, results of
operations and cash flows. Our business, financial condition, results of operations and cash flows
may be materially and adversely impacted by the loss of this customer, or the reduction, delay or
cancellation of orders. In addition, our business, financial condition, results of operations and
cash flows may be materially and adversely impacted if this customer delays payment or fails to pay
for products sold. This customer is not obligated to purchase a specific quantity of our products
or provide binding forecasts of purchases for any period.
We may be required to make tax payments that exceed our settlement estimates.
As of December 31, 2006 and 2007 we estimated that we owed $2.8 million and $2.2 million,
respectively, as of each balance sheet date in state and local taxes, primarily sales and use
taxes, in various jurisdictions in the United States. We are in the process of negotiating
resolutions of the past due tax obligations with the applicable tax authorities. While we hope
that these obligations can be settled for less than the amounts accrued, we cannot predict whether
we will obtain favorable settlement terms from the various tax authorities, or that, after
settling, we will satisfy the conditions necessary to avoid violating the settlements. Our failure
to obtain favorable settlement terms or to satisfy the settlement conditions may result in a
material adverse effect on our business, financial condition, results of operations and cash flows.
We may incur significant expenses in the future as a result of our obligation to pay legal fees for
and otherwise indemnify former officers and former directors.
Certain former officers and former directors continue to be involved in investigations and
related legal proceedings brought by the SEC and the Department of Justice. We are contractually
obligated to pay legal fees for and otherwise indemnify these former officers and former directors.
We may incur significant expenses in the future as a result of these obligations. The amount of
these expenses is unpredictable and outside of our control and could have a material adverse effect
on our business, financial condition, results of operations and cash flows.
Our success will depend on our ability to attract and retain key personnel.
In order to execute our business plan, we need to attract, retain and motivate a significant
number of highly qualified managerial, technical, financial and sales personnel. If we fail to
attract and retain skilled scientific and sales personnel, our research and development and sales
and marketing efforts will be hindered. Our future success depends to a significant degree upon
the continued services of key management personnel. None of our key management personnel is
covered by an insurance policy of which we are the beneficiary.
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Our success is reliant on the acceptance by doctors and patients of the Cryocare Surgical System as
a preferred treatment for tumor ablation.
Cryoablation has existed for many years, but has not been widely accepted primarily due to
concerns regarding safety and efficacy and widespread use of alternative therapies. Because the
technology previously lacked precise monitoring capabilities, prostate cryoablation procedures
performed in the 1970s resulted in high cancer recurrence and negative side effects, such as rectal
fistulae and incontinence, and gave cryoablation treatment negative publicity. To overcome these
negative side effects, we have developed ultrasound guidance and temperature sensing to enable more
precise monitoring in our Cryocare Surgical System. Nevertheless, we will need to overcome the
earlier negative publicity associated with cryoablation in order to obtain market acceptance for
our products. In addition, use of our Cryocare Surgical System requires significant physician
education and training. As a result, we may have difficulty obtaining recommendations and
endorsements of physicians and patients for our Cryocare Surgical System. We may also have
difficulty raising the brand awareness necessary to generate interest in our Cryocare Surgical
System. Any adverse side effects, including impotence or incontinence, recurrence of cancer or
future reported adverse events or other unfavorable publicity involving patient outcomes from the
use of cryoablation, whether from our products or the products of our competitors, could adversely
affect acceptance of cryoablation. In addition, emerging new technologies and procedures to treat
prostate cancer may negatively affect the market acceptance of cryoablation. If our Cryocare
Surgical System does not achieve broad market acceptance, we will likely remain unprofitable.
We are faced with intense competition and rapid technological and industry change, which may make
it more difficult for us to achieve significant market penetration.
The medical device industry generally, and the cancer treatment market in particular, are
characterized by rapid technological change, changing customer needs and frequent new product
introductions. If our competitors existing products or new products are more effective than or
considered superior to our products, the commercial opportunity for our products will be reduced or
eliminated. We face intense competition from companies in the cryoablation marketplace as well as
companies offering other treatment options, including radical prostatectomy, radiation therapy and
hormone therapy. If we are successful in penetrating the market for treatment of prostate cancer
with our cryoablation treatment, other medical device companies may be attracted to the
marketplace. Many of our potential competitors are significantly larger than we are and have
greater financial, technical, research, marketing, sales, distribution and other resources than we
do. We believe there will be intense price competition for products developed in our markets. Our
competitors may develop or market technologies and products that are more effective or commercially
attractive than any that we are developing or marketing. Our competitors may obtain regulatory
approval and introduce and commercialize products before we do. These developments could have a
material adverse effect on our business, financial condition, results of operations and cash flows.
Even if we are able to compete successfully, we may not be able to do so in a profitable manner.
If we are unable to continue to enhance our Cryocare Surgical System, our business will suffer.
Our growth depends in part on continued ability to successfully develop, manufacture and
commercialize enhancements to our Cryocare Surgical System. We may experience difficulties that
could delay or prevent the successful development, manufacturing and commercialization of these
products. Our products in development may not prove safe and effective in clinical trials.
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Clinical trials may identify significant technical or other obstacles that must be overcome before
obtaining necessary regulatory or reimbursement approvals. In addition, our competitors may
succeed in developing commercially viable products that render our products obsolete or less
attractive. Failure to successfully develop, manufacture and commercialize new products and
enhancements could have a material adverse effect on our business, financial condition, results of
operations and cash flows.
There is uncertainty relating to third-party reimbursement, which is critical to market acceptance
of our products.
Hospitals and other health care providers in the United States generally rely on third-party
payers, principally federal Medicare, state Medicaid and private health insurance plans, to
reimburse all or part of the cost of medical procedures involving our products. While private
health insurers in some areas of the United States provide reimbursement for procedures in which
our products are used, we can provide no assurance that private insurance reimbursement will be
adopted nationally or by additional insurers. Furthermore, those private insurance companies
currently paying for procedures in which our products are used may terminate such coverage. If
reimbursement levels from Medicare, Medicaid, other governmental health care programs or private
insurers are not sufficient, physicians may choose not to recommend, and patients may not choose,
procedures using our products.
International market acceptance of our products may depend, in part, upon the availability of
reimbursement within prevailing health care payment systems. Reimbursement and health care payment
systems in international markets vary significantly by country, and include both government
sponsored health care and private insurance. We may not obtain international reimbursement
approvals in a timely manner, if at all. Our failure to receive international reimbursement
approvals may negatively impact market acceptance of our products in the international markets in
which those approvals are sought.
From time to time significant attention has been focused on reforming the health care system
in the United States and other countries. Any changes in Medicare, Medicaid or third-party medical
expense reimbursement, which may arise from health care reform, may have a material adverse effect
on reimbursement for our products or procedures in which our products are used and may reduce the
price we are able to charge for our products. In addition, changes to the health care system may
also affect the commercial acceptance of products we are currently developing and products we may
develop in the future. Potential changes that have been considered include controls on health care
spending and price controls. Several proposals have been made in the United States Congress and
various state legislatures recently that, if adopted, would potentially reduce health care
spending, which may result in a material adverse effect on our business, financial condition,
results of operations and cash flows.
If we fail to protect our intellectual property rights, our competitors may take advantage of our
ideas and compete directly against us.
Our success will depend to a significant degree on our ability to secure and protect
intellectual property rights and to enforce patent and trademark protections relating to our
technology. From time to time, litigation may be advisable to protect our intellectual property
position. However, these legal means afford only limited protection and may not adequately protect
our rights or permit us to gain or keep any competitive advantage. Any litigation in this regard
could be costly, and it is possible that we will not have sufficient resources to fully pursue
litigation or to protect our other intellectual property rights. Litigation could result in the
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rejection or invalidation of our existing and future patents. Any adverse outcome in litigation
relating to the validity of our patents, or any failure to pursue litigation or otherwise to
protect our patent position, could have a material adverse effect on our business, financial
condition, results of operations and cash flows. Also, even if we prevail in litigation, the
litigation would be costly in terms of management distraction as well as in terms of money. In
addition, confidentiality agreements with our employees, consultants, customers, and key vendors
may not prevent the unauthorized disclosure or use of our technology. It is possible that these
agreements could be breached or that they might not be enforceable in every instance, and that we
might not have adequate remedies for any such breach. Enforcement of these agreements may be
costly and time consuming. Furthermore, the laws of foreign countries may not protect our
intellectual property rights to the same extent as the laws of the United States.
Because the medical device industry is litigious, we may be sued for allegedly violating the
intellectual property rights of others.
The medical technology industry has in the past been characterized by a substantial amount of
litigation and related administrative proceedings regarding patents and intellectual property
rights. In addition, major medical device companies have used litigation against emerging growth
companies as a means of gaining or preserving a competitive advantage.
Should third parties file patent applications or be issued patents claiming technology also
claimed by us in pending applications, we may be required to participate in interference
proceedings in the United States Patent and Trademark Office to determine the relative priorities
of our inventions and the third parties inventions. We could also be required to participate in
interference proceedings involving our issued patents and pending applications of another entity.
An adverse outcome in an interference proceeding could require us to cease using the technology or
to license rights from prevailing third parties.
Third parties may claim we are using their patented inventions and may go to court to stop us
from engaging in our normal operations and activities. These lawsuits are expensive to defend and
conduct and would also consume and divert the time and attention of our management. A court may
decide that we are infringing a third partys patents and may order us to cease the infringing
activity. A court could also order us to pay damages for the infringement. These damages could be
substantial and could have a material adverse effect on our business, financial condition, results
of operations and cash flows.
If we are unable to obtain any necessary license following an adverse determination in
litigation or in interference or other administrative proceedings, we would have to redesign our
products to avoid infringing a third partys patent and could temporarily or permanently have to
discontinue manufacturing and selling some of our products. If this were to occur, it would
negatively impact future sales and, in turn, our business, financial condition, results of
operations and cash flows.
If we fail to obtain or maintain necessary regulatory clearances or approvals for products, or if
approvals are delayed or withdrawn, we will be unable to commercially distribute and market our
products or any product modifications.
Government regulation has a significant impact on our business. Government regulation in the
United States and other countries is a significant factor affecting the research and development,
manufacture and marketing of our products. In the United States, the Food and Drug Administration
(FDA) has broad authority under the federal Food, Drug and Cosmetic
9
Act (the FD&C Act) to regulate
the development, distribution, manufacture and sale of medical devices. Foreign sales of drugs and
medical devices are subject to foreign governmental regulation and restrictions, which vary from
country to country. The process of obtaining FDA and other required regulatory clearances and
approvals (collectively, approvals) is lengthy and expensive. We may not be able to obtain or
maintain necessary approvals for clinical testing or for the manufacturing or marketing of our
products. Failure to comply with applicable regulatory approvals can, among other things, result
in fines, suspension or withdrawal of regulatory approvals, product recalls, operating restrictions
and criminal prosecution. In addition, governmental regulations may be established which could
prevent, delay, modify or rescind regulatory approval of our products. Any of these actions by the
FDA, or change in FDA regulations, could have a material adverse effect on our business, financial
condition, results of operations and cash flows.
Regulatory approvals, if granted, may include significant limitations on the indicated uses
for which our products may be marketed. In addition, to obtain such approvals, the FDA and foreign
regulatory authorities may impose numerous other requirements on us. FDA enforcement policy
prohibits the marketing of approved medical devices for unapproved uses. In addition, product
approvals can be withdrawn for failure to comply with regulatory standards or unforeseen problems
following initial marketing. We may not be able to obtain or maintain regulatory approvals for our
products on a timely basis, or at all, and delays in receipt of or failure to receive such
approvals, the loss of previously obtained approvals or failure to comply with existing or future
regulatory requirements could have a material adverse effect on our business, financial condition,
results of operations and cash flows.
Our products may be subject to product recalls even after receiving FDA clearance or approval,
which would harm our reputation and our business.
The FDA and similar governmental authorities in other countries have the authority to request
and, in some cases, require the recall of our products in the event of material deficiencies or
defects in design, manufacture or labeling or in the event of patient injury. A governmental
mandated or voluntary recall by us could occur as a result of component failures, manufacturing
errors or design defects. Any recall of product would divert managerial and financial resources
and harm our reputation with customers and our business, impact our ability to distribute the
recalled product in the future, require costly redesign or manufacturing changes and leave the
company vulnerable to additional regulatory sanctions and product liability litigation.
We could be negatively impacted by future interpretation or implementation of the federal
anti-kickback and Stark laws and other federal and state anti-self-referral and anti-kickback laws.
Centers for Medicare & Medicaid Services (CMS) recently issued a final rule, making a number
of changes to the current Stark law regulations. The final rule, which was effective December 4,
2007, does not change the current status of our financial relationships. However, CMS also
recently issued additional proposed changes to the Stark Law regulations which could, depending on
the final version of those regulations and how they are interpreted, change the status of certain
physician-owned entities that purchase or lease our products. As of November 2007, CMS has decided
to delay publication of the final version of those proposed Stark law rules. We expect that CMS
will issue the new rules, and may issue additional guidance, in 2008. However, we are unable to
predict whether, and the extent to which, the new rules or guidance will affect our business.
Depending on the content of the new rules or guidance, we may incur significant time and expenses
in the future to restructure existing business relationships.
10
If we become subject to product liability claims, we may be required to pay damages that exceed our
insurance coverage.
Our business exposes us to potential product liability claims that are inherent in the
testing, production, marketing and sale of medical devices. While we believe that we are
reasonably insured against these risks, we may not maintain insurance in amounts or scope
sufficient to provide us with adequate coverage. A claim in excess of our insurance coverage would
have to be paid out of cash reserves, which could have a material adverse effect on our business,
financial condition, results of operations and cash flows. In addition, any product liability
claim could harm our reputation in the industry and our business.
Our intangible assets could become impaired.
Intangible assets acquired in a purchase, such as intellectual property or developed
technology, are generally amortized over various periods depending on their anticipated economic
benefits or useful lives. Long-lived assets, including amortizable intangibles, are reviewed for
impairment whenever events or changes in circumstances indicate that the carrying amount of an
asset may not be recoverable. Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of an asset to undiscounted future net cash flows expected to be
generated by the asset. Following a review, if such assets are considered to be impaired, the
impairment to be recognized is measured by the amount by which the carrying value of the assets
exceeds the fair value of the assets. Significant estimates, including assumptions regarding
future events and circumstances that cannot be easily predicted, are required to perform an
analysis of the value of intangible assets. These estimates and assumptions may differ materially
from actual outcomes and occurrences.
Our facilities and systems are vulnerable to natural disasters or other catastrophic events.
Our headquarters, cryoablation products manufacturing facilities, research facilities and much
of our infrastructure, including computer servers, are located in California, an area that is
susceptible to earthquakes and other natural disasters. A natural disaster or other catastrophic
event, such as an earthquake, fire, flood, severe storm, break-in, terrorist attack or other
comparable problems could cause interruptions or delays in our business and loss of data or render
us unable to accept and fulfill customer orders in a timely manner, or at all. We have no formal
disaster recovery plan and our business interruption insurance may not adequately compensate us for
losses that may occur. In the event that an earthquake, natural disaster or other catastrophic
event were to destroy any part of our facilities or interrupt our operations for any extended
period of time, or if harsh weather conditions prevent us from delivering products in a timely
manner, it could have a material adverse effect on our business, financial condition, results of
operations and cash flows.
Risks Associated with an Investment in Our Common Stock
The market price of our common stock is highly volatile.
The market price of our common stock has been and is expected to continue to be highly
volatile. Various factors, including announcements of technological innovations by us or other
companies, regulatory matters, new or existing products or procedures, concerns about our financial
position, operating results, litigation, government regulation, developments or disputes relating
to agreements, patents or proprietary rights, may have a significant impact on the market
11
price of
our stock. If our operating results are below the expectations of securities analysts or
investors, the market price of our common stock may fall abruptly and significantly.
Future sales of shares of our common stock may negatively affect our stock price.
Future sales of our common stock, including shares issued upon the exercise of outstanding
options and warrants or hedging or other derivative transactions with respect to our stock, could
have a significant negative effect on the market price of our common stock. These sales also might
make it more difficult for us to sell equity securities or equity-related securities in the future
at a time and price that we would deem appropriate.
We had an aggregate of 11,773,293 shares of common stock outstanding as of February 29, 2008,
which includes 1,878,448 shares of our common stock that we issued on March 11, 2005 in a private
placement financing, 451,382 shares of our common stock that we have issued to Fusion Capital since
October 2006 (which includes the 157,985 shares issued to Fusion Capital as a commitment fee) and
1,085,271 shares of our common stock that we issued to Frazier on May 25, 2007.
Investors in our March 2005 financing also received warrants to purchase an aggregate of
657,446 shares of our common stock at an exercise price of $10.50 per share and 657,446 shares of
our common stock at an exercise price of $12.00 per share. These warrants have an anti-dilution
clause that in certain circumstances reduces the effective exercise price of the warrants and
proportionately increases the number of shares underlying the warrants to preserve the ownership of
the warrant holders. As a result of our issuances to Fusion Capital and Frazier described above,
the exercise price of the Series A Warrants decreased to $10.02 to effectively provide holders the
right to purchase an additional 31,667 shares and the exercise price of the Series B Warrants
decreased to $11.37 to effectively provide holders the right to purchase an additional 37,191
shares.
We entered into registration rights agreements in connection with these financings pursuant to
which we agreed to register for resale by the investors the shares of common stock issued. Sales
of shares covered by these registration statements could have a material adverse effect on the
market price of our shares.
We could be difficult to acquire due to anti-takeover provisions in our charter, our stockholders
rights plan and Delaware law.
Provisions of our certificate of incorporation and bylaws may have the effect of making it
more difficult for a third party to acquire, or of discouraging a third party from attempting to
acquire control of our company. In addition, we have adopted a stockholder rights plan in which
preferred stock purchase rights were distributed as a dividend. These provisions may make it more
difficult for stockholders to take corporate actions and may have the effect of delaying or
preventing a change in control. These provisions also could deter or prevent transactions that
stockholders deem to be in their interests. In addition, we are subject to the anti-takeover
provisions of Section 203 of the Delaware General Corporation Law. Subject to specified
exceptions, this section provides that a corporation may not engage in any business combination
with any interested stockholder during the three-year period following the time that such
stockholder becomes an interested stockholder. This provision could have the effect of delaying or
preventing a change of control of our company. The foregoing factors could reduce the price that
investors or an acquirer might be willing to pay in the future for shares of our common stock.
12
USE OF PROCEEDS
This prospectus relates to shares of our common stock that may be offered and sold from time
to time by the selling stockholder. We will receive no proceeds from the sale of shares of common
stock in this offering. However, we may receive up to $16 million in proceeds from the sale of our
common stock to Fusion Capital under the common stock purchase agreement. Any proceeds from Fusion
Capital we receive under the common stock purchase agreement will be used for working capital and
general corporate purposes. We are obligated to pay a transaction fee equal to 6.0 percent of any
proceeds we receive to an investment advisory firm under a pre-existing capital advisory agreement.
THE FUSION TRANSACTION
General
On October 25, 2006, we entered into a common stock purchase agreement with Fusion Capital
Fund II, LLC, an Illinois limited liability company. Under the agreement, Fusion Capital is
obligated, under certain conditions, to purchase shares from us in an aggregate amount of $16
million from time to time over a 24 month period. Under the terms of the common stock purchase
agreement, Fusion Capital has received a commitment fee consisting of 157,985 shares of our common
stock. We have authorized up to 2,666,666 shares of our common stock for sale to Fusion Capital
under the agreement. As of February 29, 2008, there were 11,773,293 shares outstanding (9,960,682
shares held by non-affiliates), which includes the 157,985 shares that we issued to Fusion Capital
as a commitment fee and 293,397 shares that we have sold to Fusion Capital under the common stock
purchase agreement for gross proceeds of $1.6 million. If all of the 2,824,651 shares offered
hereby were issued and outstanding as of the date hereof, the 2,824,651 shares would represent
20.0% of the total common stock outstanding or 22.9% of the non-affiliate shares outstanding as of
the date hereof. Under the terms of the common stock purchase agreement, the number of shares
ultimately offered for sale by Fusion Capital is dependent upon the number of shares purchased by
Fusion Capital under the agreement.
We do not have the right to commence any sales of our shares to Fusion Capital until the SEC
has declared effective the registration statement of which this prospectus is a part. The
registration statement was declared effective on December 1, 2006. After this declaration of
effectiveness, generally we have the right but not the obligation from time to time to sell our
shares to Fusion Capital in amounts between $100,000 and $1 million depending on certain
conditions. We have the right to control the timing and amount of any sales of our shares to
Fusion Capital. The purchase price of the shares will be determined based upon the market price of
our shares without any fixed discount at the time of each sale. Fusion Capital shall not have the
right or the obligation to purchase any shares of our common stock on any business day that the
price of our common stock is below $3.00. The agreement may be terminated by us at any time at our
discretion without any cost to us.
13
Purchase Of Shares Under The Common Stock Purchase Agreement
Under the common stock purchase agreement, on any business day selected by us, we may direct
Fusion Capital to purchase up to $100,000 of our common stock. The purchase price per share is
equal to the lesser of:
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the lowest sale price of our common stock on the purchase date; or |
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the average of the three (3) lowest closing sale prices of our common stock
during the twelve (12) consecutive business days prior to the date of a purchase
by Fusion Capital. |
The purchase price will be equitably adjusted for any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction occurring during the business days used to
compute the purchase price. We may direct Fusion Capital to make multiple purchases from time to
time in our sole discretion no sooner then every four (4) business days.
Our Right To Increase the Amount to be Purchased
In addition to purchases of up to $100,000 every four (4) business days, we may also from time
to time elect on any single business day selected by us to require Fusion Capital to purchase our
shares in an amount up to $150,000, provided that our share price is not below $4.50 during the two
(2) business days prior to and on the purchase date. We may increase this amount to up to $250,000
if our share price is not below $7.50 during the two (2) business days prior to and on the purchase
date. This amount may also be increased to up to $500,000 if our share price is not below $12.00
during the two (2) business days prior to and on the purchase date. This amount may also be
increased to up to $750,000 if our share price is not below $15.00 during the two (2) business days
prior to and on the purchase date. This amount may also be increased to up to $1 million if our
share price is not below $18.00 during the two (2) business days prior to and on the purchase date.
We may direct Fusion Capital to make multiple large purchases from time to time in our sole
discretion; however, at least two (2) business days must have passed since the most recent large
purchase was completed. The price at which our common stock would be purchased in this type of
larger purchases will be the lesser of (i) the lowest sale price of our common stock on the
purchase date, and (ii) the lowest purchase price (as described above) during the previous five (5)
business days prior to the purchase date.
Minimum Purchase Price
Under the common stock purchase agreement, we have set a minimum purchase price (floor
price) of $3.00. Fusion Capital shall not have the right or the obligation to purchase shares of
our common stock on any business day that the market price of our common stock is below $3.00.
Events of Default
Generally, Fusion Capital may terminate the common stock purchase agreement without any
liability or payment to the Company upon the occurrence of any of the following events of default:
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the effectiveness of the registration statement of which this prospectus is a part of
lapses for any reason (including, without limitation, the issuance of a stop order) or is
unavailable to Fusion Capital for sale of our common stock offered hereby and such lapse
or unavailability continues for a period of ten (10) consecutive business days or for more
than an aggregate of thirty (30) business days in any 365-day period; |
14
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suspension by our principal market of our common stock from trading for a period of
three (3) consecutive business days; |
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the delisting of our common stock from our principal market provided our common stock
is not immediately thereafter trading on The NASDAQ Global Market, The NASDAQ Capital
Market, the New York Stock Exchange or AMEX; |
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the transfer agents failure for five (5) business days to issue to Fusion Capital
shares of our common stock which Fusion Capital is entitled to under the common stock
purchase agreement; |
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any material breach of the representations or warranties or covenants contained in the
common stock purchase agreement or any related agreements which has or which could have a
material adverse effect on us subject to a cure period of five (5) business days; or |
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any participation or threatened participation in insolvency or bankruptcy proceedings
by or against us. |
Our Termination Rights
We have the unconditional right at any time for any reason to give notice to Fusion Capital
terminating the common stock purchase agreement without any cost to us.
No Short-Selling or Hedging by Fusion Capital
Fusion Capital has agreed that neither it nor any of its affiliates shall engage in any direct
or indirect short-selling or hedging of our common stock during any time prior to the termination
of the common stock purchase agreement.
Commitment Shares Issued to Fusion Capital
Under the terms of the common stock purchase agreement, Fusion Capital has received a
commitment fee consisting of 157,985 shares of our common stock. Generally, unless an event of
default occurs, Fusion Capital must own at least 157,985 shares of our common stock until 24 months
from the date of the agreement or until the agreement is terminated.
Effect of Performance of the Common Stock Purchase Agreement on Our Stockholders
All 2,824,651 shares registered in this offering are expected to be freely tradable. It is
anticipated that shares registered in this offering will be sold over a period of up to 24 months
from December 14, 2006. The sale by Fusion Capital of a significant amount of shares registered in
this offering at any given time could cause the market price of our common stock to decline and to
be highly volatile. Fusion Capital may ultimately purchase all, some or none of the 2,373,269
shares of common stock not yet issued but registered in this offering. After it has acquired such
shares, it may sell all, some or none of such shares. Therefore, sales to Fusion Capital by us
under the agreement may result in substantial dilution to the interests of other holders of our
common stock. However, we have the right to control the timing and amount of any sales of our
shares to Fusion Capital and the agreement may be terminated by us at any time at our discretion
without any cost to us.
15
In connection with entering into the agreement, we authorized the sale to Fusion Capital of up
to 2,666,666 shares of our common stock. The number of shares ultimately offered for sale by
Fusion Capital under this prospectus is dependent upon the number of shares purchased by Fusion
Capital under the agreement. The following table sets forth the amount of gross proceeds we would
receive from Fusion Capital from the sale of shares at varying purchase prices:
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Percentage of Outstanding |
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Gross Proceeds from the Sale of Shares to |
Assumed Average |
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Number of Shares to be |
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Shares After Giving Effect to the |
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Fusion Capital Under the Common Stock |
Purchase Price |
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Issued if Full Purchase |
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Issuance to Fusion Capital(1) |
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Purchase Agreement |
$3.00 |
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2,666,666 |
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19.97 |
% |
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$ |
8,000,000 |
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$3.75 |
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2,666,666 |
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19.97 |
% |
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$ |
10,000,000 |
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$4.50 |
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2,666,666 |
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19.97 |
% |
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$ |
12,000,000 |
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$5.25 |
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2,666,666 |
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19.97 |
% |
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$ |
14,000,000 |
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$5.85 |
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2,666,666 |
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19.97 |
% |
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$ |
15,600,000 |
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$6.00 |
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2,666,666 |
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19.97 |
% |
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$ |
16,000,000 |
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$7.38(2) |
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2,168,021 |
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17.04 |
% |
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$ |
16,000,000 |
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$7.50 |
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2,133,333 |
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16.83 |
% |
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$ |
16,000,000 |
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$9.00 |
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1,777,777 |
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14.60 |
% |
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$ |
16,000,000 |
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$12.00 |
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1,333,333 |
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11.64 |
% |
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$ |
16,000,000 |
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(1) |
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Based on 11,773,293 shares outstanding as of February 29, 2008. Includes the 157,985 shares
issued to Fusion Capital as a commitment fee and the number of shares issuable under the
agreement at the corresponding assumed purchase price set forth in the adjacent column. |
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(2) |
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Closing sale price of our shares on February 29, 2008. |
16
THE SELLING STOCKHOLDER
The following table presents information regarding the selling stockholder. Neither the
selling stockholder nor any of its affiliates has held a position or office, or had any other
material relationship, with us.
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Percentage of |
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Shares Beneficially |
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Percentage of Outstanding |
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Shares to be |
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Outstanding Shares |
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Owned Before |
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Shares Beneficially Owned |
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Sold in the |
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Beneficially Owned |
Selling Stockholder |
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Offering |
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Before Offering (1) |
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Offering |
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After Offering |
Fusion Capital Fund II, LLC (1) (2) |
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157,985 |
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1.3 |
% |
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2,824,651 |
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0 |
% |
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(1) |
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Prior to the filing of the original registration statement, 157,985 shares of our common stock
had been acquired by Fusion Capital as a commitment fee under the common stock purchase agreement.
As of February 29, 2008, we had sold to Fusion Capital 293,397 shares under the common stock
purchase agreement for gross proceeds of $1.6 million, in addition to the 157,985 shares acquired
by Fusion Capital as a commitment fee. Fusion Capital may acquire up to an aggregate of 2,666,666
shares under the common stock purchase agreement, in addition to the 157,985 shares acquired by
Fusion Capital as a commitment fee. Percentage of outstanding shares is based on 11,773,293 shares
of common stock outstanding as of February 29, 2008. |
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(2) |
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Steven G. Martin and Joshua B. Scheinfeld, the principals of Fusion Capital, are deemed to be
beneficial owners of all of the shares of common stock owned by Fusion Capital. Messrs. Martin and
Scheinfeld have shared voting and disposition power over the shares being offered under this
prospectus. |
17
PLAN OF DISTRIBUTION
The common stock offered by this prospectus is being offered by Fusion Capital Fund II, LLC,
the selling stockholder. The common stock may be sold or distributed from time to time by the
selling stockholder directly to one or more purchasers or through brokers, dealers, or underwriters
who may act solely as agents at market prices prevailing at the time of sale, at prices related to
the prevailing market prices, at negotiated prices, or at fixed prices, which may be changed. The
sale of the common stock offered by this prospectus may be effected in one or more of the following
methods:
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ordinary brokers transactions; |
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transactions involving cross or block trades; |
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through brokers, dealers, or underwriters who may act solely as agents |
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at the market into an existing market for the common stock; |
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in other ways not involving market makers or established trading markets,
including direct sales to purchasers or sales effected through agents; |
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in privately negotiated transactions; or |
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any combination of the foregoing. |
In order to comply with the securities laws of certain states, if applicable, the shares may
be sold only through registered or licensed brokers or dealers. In addition, in certain states,
the shares may not be sold unless they have been registered or qualified for sale in the state or
an exemption from the registration or qualification requirement is available and complied with.
Brokers, dealers, underwriters, or agents participating in the distribution of the shares as
agents may receive compensation in the form of commissions, discounts, or concessions from the
selling stockholder and/or purchasers of the common stock for whom the broker-dealers may act as
agent. The compensation paid to a particular broker-dealer may be less than or in excess of
customary commissions.
Fusion Capital is an underwriter within the meaning of the Securities Act.
Neither we nor Fusion Capital can presently estimate the amount of compensation that any agent
will receive. We know of no existing arrangements between Fusion Capital, any other stockholder,
broker, dealer, underwriter, or agent relating to the sale or distribution of the shares offered by
this prospectus. At the time a particular offer of shares is made, a prospectus supplement, if
required, will be distributed that will set forth the names of any agents, underwriters, or dealers
and any compensation from the selling stockholder, and any other required information.
We will pay all of the expenses incident to the registration, offering, and sale of the shares
to the public other than commissions or discounts of underwriters, broker-dealers, or agents. We
have also agreed to indemnify Fusion Capital and related persons against specified liabilities,
including liabilities under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to our directors, officers, and controlling persons, we have been advised that in the opinion of
the SEC this indemnification is against public policy as expressed in the Securities Act and is
therefore, unenforceable.
18
Fusion Capital and its affiliates have agreed not to engage in any direct or indirect short
selling or hedging of our common stock during the term of the common stock purchase agreement.
We have advised Fusion Capital that while it is engaged in a distribution of the shares
included in this prospectus it is required to comply with Regulation M promulgated under the
Securities Exchange Act of 1934, as amended. With certain exceptions, Regulation M precludes the
selling stockholder, any affiliated purchasers, and any broker-dealer or other person who
participates in the distribution from bidding for or purchasing, or attempting to induce any person
to bid for or purchase any security which is the subject of the distribution until the entire
distribution is complete. Regulation M also prohibits any bids or purchases made in order to
stabilize the price of a security in connection with the distribution of that security. All of the
foregoing may affect the marketability of the shares offered by this prospectus.
This offering will terminate on the date that all shares offered by this prospectus have been
sold by Fusion Capital.
19
LEGAL MATTERS
Certain legal matters with respect to the validity of the issuance of the common stock offered
hereby have been passed upon by Clint B. Davis, our General Counsel. Mr. Davis, a full-time
employee of ours, holds options to purchase 83,333 shares of our common stock. In addition, Mr.
Davis holds 40,000 restricted stock units and 24,439.71 deferred stock units (each representing the
right to receive one share of common stock in the future, subject to certain conditions). 46,874
of the options are vested and exercisable within 60 days of February 29, 2008. All of the deferred
stock units are vested but none of the shares underlying the deferred stock units are issuable
within 60 days of February 29, 2008.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for the year ended
December 31, 2007, and the effectiveness of our internal control over financial reporting as of
December 31, 2007, as set forth in their reports, which are incorporated by reference in this
prospectus and elsewhere in the registration statement. Our financial statements and schedule are
incorporated by reference in reliance on Ernst & Young LLPs reports, given on their authority as
experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1, including exhibits and
schedules, in connection with the common stock to be sold in this offering. This prospectus is
part of the registration statement and does not contain all the information included in the
registration statement. For further information about us and the common stock to be sold in this
offering, please refer to the registration statement. When a reference is made in this prospectus
to any contract, agreement or other document, the reference may not be complete and you should
refer to the copy of that contract, agreement or other document filed as an exhibit to the
registration statement or to one of our previous SEC filings.
We also file annual, quarterly and special reports, proxy statements, and other information
with the SEC. You may read and copy the registration statement or any other document we file with
the SEC at the SECs public reference rooms in Washington, D.C., New York, New York and Chicago,
Illinois. You can request copies of these documents by writing to the SEC and paying a fee for the
copying cost. Please call the SEC at l-800-SEC-0330 for further information on the public
reference rooms. Our SEC filings are also available to the public from the SECs website at
www.sec.gov. In addition, our SEC filings may be accessed at our website www.endocare.com
via a link to the SECs website. Information contained on our website is not incorporated into,
and does not constitute any part of, this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference into this prospectus certain information that
we file with it. This means that we can disclose important information to you by referring you to
another document that we filed separately with the SEC. The information in this prospectus updates
(and, to the extent of any conflict, supersedes) information incorporated by reference that we have
filed with the SEC prior to the date of this prospectus, while information that we file with the
SEC after the date of this prospectus that is incorporated by reference will automatically update
(and, to the extent of any conflict, supersede) the information in this prospectus. You
20
should read the information incorporated by reference because it is an important part of this
prospectus.
We incorporate by reference the following documents that we have filed with the SEC:
1. Our annual report on Form 10-K filed with the SEC on March 17, 2008;
2. Our definitive proxy statement filed with the SEC on April 9, 2008;
3. Our current reports on Form 8-K filed with the SEC on the following dates: February 11,
2008 and March 5, 2008;
4. The description of our common stock contained in the Registration Statement on Form 10-SB
filed under Section 12(g) of the Exchange Act filed with the SEC on November 14, 1995, including
any subsequent amendment or report filed for the purpose of amending such description; and
5. The description of the stock purchase rights under our stockholder rights plan contained
in the Registration Statement on Form 8-A filed under Section 12(g) of the Exchange Act filed with
the SEC on June 28, 2005, including any subsequent amendment or report filed for the purpose of
amending such description.
The documents incorporated by reference in this prospectus may be obtained from us at no cost.
You may obtain a copy of the documents by submitting a written request to Endocares Corporate
Secretary at 201 Technology Drive, Irvine, California 92618 or by calling Endocare at
(949) 450-5400. In addition, these documents may be accessed at our website www.endocare.com via a
link to the SECs website. Information contained on our website is not incorporated into, and does
not constitute any part of, this prospectus.
21
2,824,651 Shares
Endocare, Inc.
Common Stock
PROSPECTUS
, 2008
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following is an estimate, subject to future contingencies, of the expenses to be incurred
by us in connection with the issuance and distribution of the securities being registered. None of
the following expenses will be borne by the selling securityholders.
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Registration Fee |
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$ |
1,618 |
|
Legal Fees and Expenses |
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Accounting Fees and Expenses |
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25,000 |
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Printing and Engraving Fees |
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Listing Fees |
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Transfer Agents Fees |
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1,000 |
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Miscellaneous |
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Total |
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$ |
27,618 |
|
Item 14. Indemnification of Directors and Officers.
Section 145 of the Delaware Corporation Law provides that a Delaware corporation may indemnify
any person against expenses, judgments, fines and settlements actually and reasonably incurred by
any such person in connection with a threatened, pending or completed action, suit or proceeding in
which he is involved by reason of the fact that he is or was a director, officer, employee or agent
of such corporation, provided that (i) he acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation, and (ii) with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. If
the action or suit is by or in the name of the corporation, the corporation may indemnify such
person against expenses actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, except that no indemnification
may be made in respect to any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation for negligence or misconduct in the performance of his
duty to the corporation, unless and only to the extent that the Delaware Court of Chancery or the
court in which the action or suit is brought determines upon application that, despite the
adjudication of liability but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
As permitted by Section 102 of the Delaware General Corporation Law, the Company has adopted
provisions in its restated certificate of incorporation and amended and restated bylaws that limit
or eliminate the personal liability of its directors for a breach of their fiduciary duty of care
as a director. The duty of care generally requires that, when acting on behalf of the Company,
directors exercise an informed business judgment based on all material information reasonably
available to them. Consequently, a director will not be personally liable to the Company or its
stockholders for monetary damages or breach of fiduciary duty as a director, except for liability
for:
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any breach of the directors duty of loyalty to the Company or its stockholders; |
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any act or omission not in good faith or that involves intentional misconduct or a
knowing violation of law; |
II-1
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any act related to unlawful stock repurchases, redemptions or other distributions
or payment of dividends; or |
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any transaction from which the director derived an improper personal benefit. |
These limitations of liability do not affect the availability of equitable remedies such as
injunctive relief or rescission.
As permitted by Section 145 of the Delaware General Corporation Law, the Companys amended and
restated bylaws provide that:
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the Company may indemnify its directors, officers and employees to the fullest
extent permitted by the Delaware General Corporation Law, subject to limited
exceptions; |
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the Company may advance expenses to its directors, officers and employees in
connection with a legal proceeding to the fullest extent permitted by the Delaware
General Corporation Law, subject to limited exceptions; and |
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the rights provided in its amended and restated bylaws are not exclusive. |
The Company has entered into indemnification agreements with each of its directors, as well as
with certain officers, employees and consultants. These indemnification agreements provide that
the Company holds harmless and indemnifies each such director, officer, employee and consultant to
the fullest extent authorized or permitted by law. In addition, subject to certain conditions,
these indemnification agreements provide for payment of expenses (including attorneys fees)
actually and reasonably incurred in connection with any threatened, pending or completed proceeding
to which the indemnified director, officer or employee is, was or at any time becomes a party, or
is threatened to be made a party, by reason of the fact that he or she is, was or at any time
becomes a director, officer, employee or agent of the Company, or is or was serving or at any time
serves at the request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. In
addition, the Company has purchased policies of directors and officers liability insurance, which
insure the Companys directors and officers against the cost of defense, settlement or payment of a
judgment in some circumstances.
Item 15. Recent Sales of Unregistered Securities.
Since January 1, 2005, we have issued and sold the following securities in unregistered
transactions:
1. On March 11, 2005, we completed a private placement of 1,878,459 shares of our common
stock and warrants to purchase 1,314,916 common shares at an offering price of $8.31 per share, for
aggregate gross proceeds of $15.6 million in a financing involving a total of 32 accredited
investors;
2. On October 25, 2006, we issued 157,985 shares of our common stock to Fusion Capital Fund
II, LLC as a commitment fee pursuant to the common stock purchase agreement described in the
prospectus contained in this Registration Statement; and
II-2
3. On May 24, 2007, we issued 1,085,271 shares of our common stock to Frazier Healthcare V,
L.P. at an offering price of $6.45 per share.
The offers and sales of securities described in paragraph (1) above were deemed to be exempt
from registration under the Securities Act in reliance on Rule 506 of Regulation D in that the
offers and sales of securities did not involve a public offering. The recipients of securities in
each of these transactions acquired the securities for investment only and not with a view to or
for sale in connection with any distribution thereof and appropriate legends were affixed to the
securities issued in these transactions. Each of the recipients of securities in these transactions
was an accredited investor under Rule 501 of Regulation D.
The offers and sales of securities described in paragraphs (2) and (3) above were deemed to be
exempt from registration under the Securities Act in reliance on Section 4(2) of the Securities Act
in that the offers and sales did not involve a public offering. Each of the issuees represented to
us the issuees intention to acquire the shares for investment only and not with a view to or for
sale in connection with any distribution thereof and appropriate legends were affixed to the
certificate evidencing the shares.
Item 16. Exhibits and Financial Statement Schedules
A list of exhibits filed with this Registration Statement is set forth on the Exhibit Index
following the signature page. The Exhibit Index is hereby incorporated by reference herein.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
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(i) |
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To include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933; |
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(ii) |
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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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement; and |
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(iii) |
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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 this 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
II-3
securities offered herein, 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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
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(i) |
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If the registrant is relying on Rule 430B: |
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(A) |
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and |
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(B) |
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Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii), or (x) for the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed to be part
of and included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or the
date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of
the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such
effective date; or |
(ii) If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it
is first used after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement or made in
a document incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such first use, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such date of first use.
(b) 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 existing
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 of 1933 and is,
II-4
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.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused
this post-effective amendment no. 3 to registration statement (no. 333-138616) to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California,
on April 14, 2008.
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ENDOCARE, INC.
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By: |
/s/ Craig T. Davenport
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Craig T. Davenport |
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Chairman, President and Chief Executive Officer |
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Pursuant to the requirements of the Securities Act of 1933, this post-effective amendment no.
3 to registration statement (no. 333-138616) has been signed by the following persons in the
capacities and on the dates indicated:
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Signature |
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Title |
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Date |
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/s/ Craig T. Davenport
Craig T. Davenport
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Chairman, President and Chief
Executive Officer (principal
executive officer)
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April 14, 2008 |
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/s/ Michael R. Rodriguez
Michael R. Rodriguez
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Senior Vice President, Finance
and Chief Financial Officer
(principal financial and
accounting officer)
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April 14, 2008 |
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Director
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April 14, 2008 |
John R. Daniels, M.D. |
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Director
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April 14, 2008 |
David L. Goldsmith |
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Director
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April 14, 2008 |
Eric S. Kentor |
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Director
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April 14, 2008 |
Terrence A. Noonan |
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Director
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April 14, 2008 |
Thomas R. Testman |
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*By:
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/s/ Michael R. Rodriguez
Michael R. Rodriguez
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Attorney-in-Fact |
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II-6
EXHIBIT INDEX
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Exhibit No. |
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Description |
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2.1(1)
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Stock Purchase Agreement, dated as of January 13, 2006, by and among Plethora
Solutions Holdings plc, Endocare, Inc. and Timm Medical Technologies, Inc. The
schedules and other attachments to this exhibit were omitted. The Company
agrees to furnish a copy of any omitted schedules or attachments to the
Securities and Exchange Commission upon request. |
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2.2(2)
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$1,425,000 Secured Convertible Promissory Note, dated as of February 10, 2006,
from Plethora Solutions Holdings plc to Endocare, Inc. |
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3.1(3)
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Certificate of Amendment of Restated Certificate of Incorporation of the
Company. |
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3.2(3)
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Certificate of Designation of Series A Junior Participating Preferred Stock of
the Company. |
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3.3(3)
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Restated Certificate of Incorporation. |
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3.4(4)
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Amended and Restated Bylaws of the Company. |
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3.5(34)
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Amendment No. 1 to Amended and Restated Bylaws of Endocare, Inc. |
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4.1(5)
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Form of Stock Certificate. |
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4.2(6)
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Form of Series A Warrant. |
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4.3(6)
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Form of Series B Warrant. |
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4.4(7)
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Rights Agreement, dated as of March 31, 1999, between the Company and
U.S. Stock Transfer Corporation, which includes the form of Certificate of
Designation for the Series A Junior Participating Preferred Stock as
Exhibit A, the form of Rights Certificate as Exhibit B and the Summary of
Rights to Purchase Series A Preferred Shares as Exhibit C. |
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4.5(8)
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Amendment No. 1 to Rights Agreement, dated as of September 24, 2005, between
the Company and U.S. Stock Transfer Corporation. |
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5.1(36)
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Opinion of Counsel. |
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10.1(9)
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Lease Agreement, dated as of November 26, 2001, by and between the Company and
The Irvine Company. |
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10.2(9)
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Form of Indemnification Agreement by and between the Company and its directors. |
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10.3(9)
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Form of Indemnification Agreement by and between the Company and its executive
officers. |
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10.4(10)
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1995 Director Option Plan (as amended and restated through March 2, 1999). |
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10.5(11)
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1995 Stock Plan (as amended and restated through December 30, 2003). |
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10.6(13)
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Employment Agreement, dated as of December 15, 2003, by and between the
Company and Craig T. Davenport. |
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10.7(14)
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Employment Agreement, dated as of August 11, 2004, by and between the Company
and Michael R. Rodriguez. |
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10.8(15)
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2004 Stock Incentive Plan. |
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10.9(16)
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2004 Non-Employee Director Option Program under 2004 Stock Incentive Plan. |
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10.10(16) |
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Form of Award Agreement Under 2004 Stock Incentive Plan. |
II-7
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Exhibit No. |
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Description |
10.11(17)
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Confidential Settlement Agreement and Release, dated as of February 18, 2005,
by and between the Company and Great American E&S Insurance Company. |
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10.12(6)
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Purchase Agreement, dated as of March 10, 2005, by and between the Company and
the Investors (as defined therein). |
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10.13(6)
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Registration Rights Agreement, dated as of March 10, 2005, by and between the
Company and the Investors (as defined therein). |
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10.14(18)
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First Amendment to Employment Agreement with Craig T. Davenport, dated as of
April 28, 2005. |
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10.15(2)
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Loan and Security Agreement, dated as of October 26, 2005, by and among the
Company, Timm Medical Technologies, Inc. and Silicon Valley Bank. |
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10.16(2)
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Commercialization Agreement, dated as of November 8, 2005, by and between the
Company and CryoDynamics, LLC. |
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10.17(19)
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Employment Agreement, dated as of January 17, 2006, by and between the Company
and Clint B. Davis. |
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10.18(20)
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Amendment to Loan Documents, dated as of April 24, 2006, by and between the
Company and Silicon Valley Bank. |
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10.19(21)
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Amendment to Loan Documents, dated as of February 10, 2006, between the
Company, Timm Medical Technologies, Inc. and Silicon Valley Bank. |
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10.20(22)
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Employee Deferred Stock Unit Program, effective as of May 18, 2006. |
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10.21(22)
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Non-Employee Director Deferred Stock Unit Program, effective as of May 18,
2006. |
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10.22(23)
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First Amendment to Lease, dated as of May 19, 2006, between the Company and
The Irvine Company. |
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10.23(23)*
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Customer Quote, dated as of January 9, 2006, to Advanced Medical Partners, Inc. |
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10.24(23)*
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Amended and Restated Endocare Service Agreement, dated as of January 9, 2006,
between the Company and Advanced Medical Partners, Inc. |
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10.25(24)
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Common Stock Purchase Agreement, dated as of October 25, 2006, by and between
the Company and Fusion Capital Fund II, LLC. |
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10.26(24)
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Registration Rights Agreement, dated as of October 25, 2006, by and between
the Company and Fusion Capital Fund II, LLC. |
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10.27(25)
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Non-Prosecution Agreement, dated as of July 18, 2006, by and between the
Company and the Department of Justice. |
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10.28(25)
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Consent to Entry of Judgment, dated as of July 14, 2006, in favor of the
Securities and Exchange Commission. |
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10.29(26)
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Form of Retention Agreement. |
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10.30(27)
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Amendment to Loan Documents, dated as of December 22, 2006, by and between
Endocare, Inc. and Silicon Valley Bank. |
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10.31(28)
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Standard Form of RSU Agreement under 2004 Stock Incentive Plan. |
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10.32(28)
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Form of RSU Agreement used for Mr. Davenport under 2004 Stock Incentive Plan. |
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10.33(28)
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Summary Description of 2007 MICP. |
II-8
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Exhibit No. |
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Description |
10.34(29)
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Amendment to Loan Documents, dated as of February 23, 2007, by and between the
Company and Silicon Valley Bank. |
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10.35(30)
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Common Stock Subscription Agreement, dated as of May 24, 2007, by and between
the Company and Frazier Healthcare V, L.P. |
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10.36(30)
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Registration Rights Agreement, dated as of May 25, 2007, by and between the
Company and Frazier Healthcare V, L.P. |
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10.37(31)
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First Amendment to Employee Deferred Stock Unit Program, dated August 6, 2007. |
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10.38(31)
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First Amendment to Non-Employee Director Deferred Stock Unit Program, dated
August 6, 2007. |
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10.39(32)
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Memorandum of Understanding, dated September 11, 2007, between the Company and
KPMG LLP. |
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10.40(33)
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Amendment to Loan Documents, dated as of February 8, 2008, by and between
Endocare, Inc. and Silicon Valley Bank. |
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10.41(34)
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Third Amendment to Employment Agreement, dated February 28, 2008, between
Craig T. Davenport and Endocare, Inc. |
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10.42(34)
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Summary Description of 2008 MICP. |
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10.43(35)
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Description of Non-Employee Director Compensation, as amended on December 20,
2007. |
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10.44(35)
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Non-Employee Director RSU Program. |
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10.45(35)
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Form of RSU Agreement under Non-Employee Director RSU Program. |
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23.1
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Consent of Independent Registered Public Accounting Firm. |
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23.2(36)
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Consent of Counsel (included in Exhibit 5.1). |
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24.1(37)
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Power of Attorney. |
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Management contract or compensatory plan or arrangement. |
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* |
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Certain confidential portions of this exhibit were omitted and provided separately
to the SEC pursuant to a request for confidential treatment. |
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(1) |
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Previously filed as an exhibit to our Form 8-K filed on January 18, 2006. |
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(2) |
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Previously filed as an exhibit to our Form 10-K filed on March 16, 2006. |
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(3) |
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Previously filed as an exhibit to our Registration Statement on Form S-3 filed on
September 20, 2001. |
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(4) |
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Previously filed as an exhibit to our Form 10-K filed on March 16, 2004. |
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(5) |
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Previously filed as an exhibit to our Form 10-K for the year ended December 31, 1995. |
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(6) |
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Previously filed as an exhibit to our Form 8-K filed on March 16, 2005. |
II-9
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(7) |
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Previously filed as an exhibit to our Form 8-K filed on June 3, 1999. |
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(8) |
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Previously filed as an exhibit to our Form 8-K filed on June 28, 2005. |
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(9) |
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Previously filed as an exhibit to our Form 10-K filed on March 29, 2002. |
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(10) |
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Previously filed as an exhibit to our Registration Statement on Form S-8 filed on
June 2, 1999. |
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(11) |
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Previously filed as an appendix to our Definitive Proxy Statement filed on
December 3, 2003. |
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(12) |
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Previously filed as an exhibit to our Form 10-K filed on December 3, 2003. |
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(13) |
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Previously filed as an exhibit to our Form 8-K filed on December 16, 2003. |
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(14) |
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Previously filed as an exhibit to our Form 8-K filed on August 12, 2004. |
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(15) |
|
Previously filed as an appendix to our Definitive Proxy Statement filed on August 6,
2004. |
|
(16) |
|
Previously filed as an exhibit to our Form 10-K filed on March 16, 2005. |
|
(17) |
|
Previously filed as an exhibit to our Form 10-Q filed on May 10, 2005. |
|
(18) |
|
Previously filed as an exhibit to our Form 8-K filed on May 3, 2005. |
|
(19) |
|
Previously filed as an exhibit to our Form 8-K filed on January 12, 2006. |
|
(20) |
|
Previously filed as an exhibit to our Form 8-K filed on April 25, 2006. |
|
(21) |
|
Previously filed as an exhibit to our Form 10-Q filed on May 10, 2006. |
|
(22) |
|
Previously filed as an exhibit to our Form 8-K filed on May 22, 2006. |
|
(23) |
|
Previously filed as an exhibit to our Form 10-Q filed on August 8, 2006. |
|
(24) |
|
Previously filed as an exhibit to our Form 8-K filed on October 30, 2006. |
|
(25) |
|
Previously filed as an exhibit to our Form 10-Q filed on November 9, 2006. |
|
(26) |
|
Previously filed as an exhibit to our Form 8-K filed on December 13, 2006. |
|
(27) |
|
Previously filed as an exhibit to our Form 8-K filed on December 22, 2006. |
|
(28) |
|
Previously filed as an exhibit to our Form 8-K filed on February 27, 2007. |
|
(29) |
|
Previously filed as an exhibit to our Form 8-K filed on February 28, 2007. |
|
(30) |
|
Previously filed as an exhibit to our Form 8-K filed on May 29, 2007. |
|
(31) |
|
Previously filed as an exhibit to our Form 8-K filed on August 8, 2007. |
II-10
|
|
|
(32) |
|
Previously filed as an exhibit to our Form 10-Q filed on November 6, 2007. |
|
(33) |
|
Previously filed as an exhibit to our Form 8-K filed on February 11, 2008. |
|
(34) |
|
Previously filed as an exhibit to our Form 8-K filed on March 5, 2008. |
|
(35) |
|
Previously filed as an exhibit to our Form 10-K filed on March 17, 2008. |
|
(36) |
|
Previously filed as an exhibit to our Form S-1 filed on November 13, 2006. |
|
(37) |
|
Included on the signature page of our Form S-1 filed on November 13, 2006. |
II-11