Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
Document/ExhibitDescriptionPagesSize 1: S-1/A Cynosure, Inc. HTML 51K
6: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 8K
2: EX-1.1 EX-1.1 Form of Underwriting Agreement 54 202K
3: EX-5.1 EX-5.1 Opinion of Wilmer Cutler Pickering Hale and 2 14K
Dorr LLP
4: EX-10.11 Form of Reimbursement Agreement 4 16K
5: EX-21.1 EX-21.1 Subsidiaries of the Registrant 1 4K
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this Registration
Statement is declared effective.
If any of the securities being registered on this form are
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, as amended (the
“Securities Act”) please check the following
box. o
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, 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(d) 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 delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following
box. o
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until 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 or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant
to Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 3 to the Registrant’s Registration
Statement on Form S-1 (File No. 333-127463) is being
filed solely for the purpose of filing exhibits, and no changes
or additions are being made hereby to the prospectus which forms
a part of the Registration Statement. Accordingly, the
prospectus has been omitted from this filing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13.
Other Expenses of Issuance and Distribution
The following table indicates the expenses to be incurred in
connection with the offering described in this Registration
Statement, other than underwriting discounts and commissions,
all of which will be paid by the Registrant. All amounts are
estimated except the Securities and Exchange Commission
registration fee and the National Association of Securities
Dealers Inc. filing fee.
Amount
Securities and Exchange Commission registration fee
$
8,828
National Association of Securities Dealers, Inc. fee
8,000
Nasdaq Stock Market listing fee
100,000
Accountants’ fees and expenses
600,000
Legal fees and expenses
1,050,000
Blue Sky fees and expenses
10,000
Transfer Agent’s fees and expenses
5,000
Printing and engraving expenses
250,000
Miscellaneous
68,172
Total Expenses
$
2,100,000
Item 14.
Indemnification of Directors and Officers
Section 102 of the General Corporation Law of the State of
Delaware permits a corporation to eliminate the personal
liability of directors of a corporation to the corporation or
its stockholders for monetary damages for a breach of fiduciary
duty as a director, except where the director breached his duty
of loyalty, failed to act in good faith, engaged in intentional
misconduct or knowingly violated a law, authorized the payment
of a dividend or approved a stock repurchase in violation of
Delaware corporate law or obtained an improper personal benefit.
The Registrant’s certificate of incorporation provides that
no director of the Registrant shall be personally liable to it
or its stockholders for monetary damages for any breach of
fiduciary duty as director, notwithstanding any provision of law
imposing such liability, except to the extent that the General
Corporation Law of the State of Delaware prohibits the
elimination or limitation of liability of directors for breaches
of fiduciary duty.
Section 145 of the General Corporation Law of the State of
Delaware provides that a corporation has the power to indemnify
a director, officer, employee, or agent of the corporation and
certain other persons serving at the request of the corporation
in related capacities against expenses (including
attorneys’ fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred by the person in
connection with an action, suit or proceeding to which he is or
is threatened to be made a party by reason of such position, if
such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, and, in any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, except
that, in the case of actions brought by or in the right of the
corporation, no indemnification shall be made with respect to
any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or other adjudicating
court determines 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
which the Court of Chancery or such other court shall deem
proper.
II-1
Our restated certificate of incorporation provides that we will
indemnify each person who was or is a party or threatened to be
made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of
Cynosure) by reason of the fact that he or she is or was, or has
agreed to become, a director or officer of Cynosure, or is or
was serving, or has agreed to serve, at our request as a
director, officer, partner, employee or trustee of, or in a
similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise, including any employee
benefit plan, (all such persons being referred to hereafter as
an “Indemnitee”), or by reason of any action alleged
to have been taken or omitted in such capacity or in any other
capacity while serving as a director, officer, partner, employee
or trustee, against all expenses (including attorneys’
fees), liability, loss, judgments, fines, ERISA taxes or
penalties and amounts paid in settlement actually and reasonably
incurred by or on behalf of Indemnitee in connection with such
action, suit or proceeding and any appeal therefrom, if such
Indemnitee acted in good faith and in a manner which Indemnitee
reasonably believed to be in, or not opposed to, our best
interests, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her
conduct was unlawful. Our certificate of incorporation provides
that we will indemnify any Indemnitee who was or is a party to
or threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of Cynosure to
procure a judgment in our favor by reason of the fact that the
Indemnitee is or was, or has agreed to become, a director or
officer of Cynosure, or is or was serving, or has agreed to
serve, at our request, as a director, officer, partner, employee
or trustee of or in a similar capacity with, another
corporation, partnership, joint venture, trust or other
enterprise, (including any employee benefit plan), or by reason
of any action alleged to have been taken or omitted in such
capacity, or in any other capacity while serving as a director,
officer, partner, employee or trustee, against all expenses
(including attorneys’ fees) and, to the extent permitted by
law, amounts paid in settlement actually and reasonably incurred
by or on behalf of Indemnitee in connection with such action,
suit or proceeding and any appeal therefrom, if Indemnitee acted
in good faith and in a manner which Indemnitee reasonably
believed to be in, or not opposed to, the best interests of
Cynosure, except that no indemnification shall be made with
respect to any claim, issue or matter as to which Indemnitee
shall have been adjudged to be liable to us, unless, and only to
the extent, that the Court of Chancery of Delaware or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but
in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnity for such expense
(including attorney’s fees) which the Court of Chancery of
Delaware or such other court shall deem proper. Notwithstanding
the foregoing, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any
action, suit or proceeding, Indemnitee shall be indemnified by
us against all expenses (including attorneys’ fees)
actually and reasonably incurred in connection therewith.
Expenses must be advanced to an Indemnitee under certain
circumstances.
We maintain a general liability insurance policy which covers
certain liabilities of directors and officers of our corporation
arising out of claims based on acts or omissions in their
capacities as directors or officers.
In any underwriting agreement we enter into in connection with
the sale of common stock being registered hereby, the
underwriters will agree to indemnify, under certain conditions,
us, our directors, our officers and persons who control us with
the meaning of the Securities Act of 1933, as amended, against
certain liabilities.
II-2
Item 15.
Recent Sales of Unregistered Securities
Set forth below is information regarding shares of common stock
issued, and options granted, by us within the past three years.
Also included is the consideration, if any, received by us for
such shares and options and information relating to the section
of the Securities Act, or rule of the Securities and Exchange
Commission, under which exemption from registration was claimed.
(a) Issuances of Capital Stock
1. In November 2003, we issued an aggregate of
3,499 shares of class B common stock to El.En. for no
consideration pursuant to an anti-dilution protection we
provided to El.En.
2. From September through November 2004, we issued an
aggregate of 789,947 shares of class B common stock at
an approximate price per share of $2.67 to individual investors,
including certain of our executive officers and El.En. The
shares issued to our executive officers were issued in
consideration of the performance of services, for which we
recorded compensation expense in the amount of $3.00 per share,
and were not issued for cash.
3. In April 2005, we issued an aggregate of
495,000 shares of our class B common stock at a price
per share of $3.00 to individual investors, including certain of
our executive officers.
No underwriters were involved in the foregoing sales of
securities. The securities described in this
paragraph (a) of Item 15 were issued to a
combination of foreign and U.S. investors in reliance upon
the exemption from the registration requirements of the
Securities Act, as set forth in Section 4(2) under the
Securities Act and Rule 506 of Regulation D
promulgated thereunder relative to sales by an issuer not
involving any public offering, to the extent an exemption from
such registration was required.
(b) Stock Option Grants
From the period beginning August 10, 2002 through
December 6, 2005, we have granted stock options under our
stock option plans for an aggregate of 1,808,659 shares of
class B common stock (net of exercises, expirations and
cancellations) at exercise prices of $3.00 to $4.50 per share.
During the same period, no options to purchase stock were
exercised.
The issuances of stock options and the shares of common stock
issuable upon the exercise of the options as described in this
paragraph (b) of Item 15 were issued pursuant to
written compensatory plans or arrangements with our employees,
directors and consultants, in reliance on the exemption provided
by Section 3(b) of the Securities Act and Rule 701
promulgated thereunder. All recipients either received adequate
information about us or had access, through employment or other
relationships, to such information.
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting
agreement, certificates in such denominations and registered in
such names as required by the underwriters to permit prompt
delivery to each purchaser.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that, in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or
II-3
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(i) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in the form of
prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of the registration statement as
of the time it was declared effective.
(ii) For purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant has duly caused this Amendment No. 3 to
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Westford,
Commonwealth of Massachusetts on the 6th day of December,
2005.
President, Chief Executive Officer and
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act, this
Amendment No. 3 to Registration Statement has been signed
by the following persons in the capacities and on the dates
indicated.
Confidential treatment requested as to certain portions, which
portions have been omitted and filed separately with the
Securities and Exchange Commission.
Dates Referenced Herein and Documents Incorporated by Reference