As filed with the Securities and Exchange Commission on April 27, 2006
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENDOLOGIX, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of incorporation or organization)
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68-0328265
(I.R.S. Employer Identification No.)
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11 Studebaker, Irvine, California 92618
(949) 595-7200
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Paul McCormick
President and Chief Executive Officer
Endologix, Inc.
11 Studebaker, Irvine, California 92618
(949) 595-7200
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Lawrence B. Cohn, Esq.
Michael A. Hedge, Esq.
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
(949) 725-4000
Approximate date of commencement of proposed sale to the public:
From time to time after the
effective date of this Registration Statement.
If the only securities being registered on this form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box.
¨
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box.
ý
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering.
¨
___
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Title of Each Class of
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Aggregate Offering
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Amount of
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Securities to be Registered
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Price(1)
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Registration Fee
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Common Stock ($0.001 par value)
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$
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50,000,000
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$
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5,350
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(1)
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Estimated solely for the purpose of calculating the registration fee in accordance with
Rule 457(o) under the Securities Act of 1933, as amended.
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The registrant hereby amends this registration statement on such date or dates as may be
necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in
accordance with section
8(a)
of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission acting pursuant to said section
8(a)
, may
determine.
The information in this prospectus is not complete and may be changed. We may not sell these
securities until the Securities and Exchange Commission declares our registration statement
effective. This prospectus is not an offer to sell these securities and 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 27, 2006
$50,000,000
Common Stock
We may, from time to time in one or more offerings, sell up to $50,000,000 in the aggregate of
our common stock.
We will provide the specific terms of the offerings of our common stock in supplements to this
prospectus. The prospectus supplement may also add, update or change information in this
prospectus. You should read this prospectus and any prospectus supplement, as well as the
documents incorporated by reference or deemed to be incorporated by reference into this prospectus,
carefully before you invest.
This prospectus may not be used to offer or sell our common stock
unless accompanied by a prospectus supplement
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Our principal executive offices are located at 11 Studebaker, Irvine, California 92618, and
our telephone number is (949) 595-7200.
Our common stock is listed on the Nasdaq National Market under the symbol “ELGX.” Each
prospectus supplement will contain information, where applicable, as to any listing on the Nasdaq
National Market or any other securities exchange covered by the prospectus supplement.
Investing in our common stock involves various risks. See the section entitled “Risk Factors”
on page 2 for more information on these risks. Additional risks associated with an investment in
us as well as with our common stock will be described in the related prospectus supplements.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of our common stock or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is __________ __, 2006.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and
Exchange Commission, or the SEC, using a “shelf” registration process. Under this shelf
registration process, we may offer from time to time up to $50,000,000 worth of our common stock.
Each time we offer our common stock, we will provide you with a prospectus supplement that
describes the specific amounts, prices and terms of the common stock we offer. The prospectus
supplement also may add, update or change information contained in this prospectus. You should
read carefully both this prospectus and any prospectus supplement together with additional
information described below under the caption “Incorporation By Reference.”
This prospectus does not contain all the information provided in the registration statement we
filed with the SEC. For further information about us or our common stock offered hereby, you
should refer to that registration statement, which you can obtain from the SEC as described below
under “Where You Can Find More Information.”
You should rely only on the information contained or incorporated by reference in this
prospectus or a prospectus supplement. We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent information, you
should not rely on it. This prospectus is not an offer to sell our common stock and it is not
soliciting an offer to buy our common stock in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus or any prospectus
supplement, as well as information we have previously filed with the SEC and incorporated by
reference, is accurate as of the date on the front of those documents only. Our business,
financial condition, results of operations and prospects may have changed since those dates.
We may sell our common stock through underwriters or dealers, through agents, directly to purchasers or through a combination
of these methods. We and our agents reserve the sole right to accept or reject in whole or in part
any proposed purchase of our common stock. The prospectus supplement, which we will provide to you
each time we offer our common stock, will set forth the names of any underwriters or agents involved in the sale of
our common stock, and any applicable fee, commission or discount arrangements with them. See “Plan
of Distribution.”
ABOUT ENDOLOGIX
We develop, manufacture, sell and market minimally invasive therapies for the treatment of
cardiovascular disease. Our product, the Powerlink
®
System, is a catheter-based alternative
treatment for abdominal aortic aneurysm, or AAA. AAA is a weakening of the wall of the aorta, the
largest artery of the body. Once AAA develops, it continues to enlarge and if left untreated
becomes increasingly susceptible to rupture. The overall patient mortality rate for ruptured AAAs
is approximately 75%, making it the 13th leading cause of death in the United States today.
The Powerlink System is a catheter and endoluminal graft system. The self-expanding cobalt
chromium alloy stent cage is covered by ePTFE, a common surgical graft material. The Powerlink
System is implanted in the abdominal aorta, which is accessed through the femoral artery. Once
deployed into its proper position, the blood flow is shunted away from the weakened or “aneurysmal”
section of the aorta, reducing pressure and the potential for the aorta to rupture. We believe that
implantation of our products will reduce the mortality and morbidity rates associated with
conventional AAA surgery, as well as provide a clinical alternative to many patients that could not
undergo conventional surgery.
More comprehensive information about our products and us is available through our worldwide
web site at www.endologix.com. The information on our website is not incorporated by reference into
this prospectus. Our main offices are located at 11 Studebaker, Irvine, California 92618, and our
telephone number is (949) 595-7200.
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RISK FACTORS
Before making an investment decision, you should carefully consider the risks described under
“Risk Factors” in the applicable prospectus supplement and in our most recent Annual Report on Form
10-K, or any updates in our Quarterly Reports on Form 10-Q, together with all of the other
information appearing in this prospectus or incorporated by reference into this prospectus and any
applicable prospectus supplement, in light of your particular investment objectives and financial
circumstances. Our business, financial condition or results of operations could be materially
adversely affected by any of these risks. The trading price of our common stock could decline due
to any of these risks, and you may lose all or part of your investment.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents incorporated by reference herein
include forward-looking statements within the meaning of Section 27A of the Securities Act of 1933,
as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as
amended, or the Exchange Act. Forward-looking statements are those that predict or describe future
events or trends and that do not relate solely to historical matters. You can generally identify
forward-looking statements as statements containing the words “believe,” “expect,” “will,”
“anticipate,” “intend,” “estimate,” “project,” “plan,” “assume” or other similar expressions, or
negatives of those expressions, although not all forward-looking statements contain these
identifying words. All statements contained or incorporated by reference in this prospectus and
any prospectus supplement regarding our future strategy, future operations, projected financial
position, estimated future revenues, projected costs, future prospects, the future of our
industries and results that might be obtained by pursuing management’s current plans and objectives
are forward-looking statements.
You should not place undue reliance on our forward-looking statements because the matters they
describe are subject to known and unknown risks, uncertainties and other unpredictable factors,
many of which are beyond our control. Our forward-looking statements are based on the information
currently available to us and speak only as of the date on the cover of this prospectus, the date
of any prospectus supplement, or, in the case of forward-looking statements incorporated by
reference, as of the date of the filing that includes the statement. New risks and uncertainties
arise from time to time, and it is impossible for us to predict these matters or how they may
affect us. Over time, our actual results, performance or achievements will likely differ from the
anticipated results, performance or achievements that are expressed or implied by our
forward-looking statements, and such difference might be significant and materially adverse to our
security holders. We do not undertake and specifically decline any obligation to update any
forward-looking statements or to publicly announce the results of any revisions to any statements
to reflect new information or future events or developments.
We have identified some of the important factors that could cause future events to differ from
our current expectations and they are described in this prospectus and supplements to this
prospectus under the caption “Risk Factors” as well as in our most recent Annual Report on Form
10-K, including, without limitation, under the captions “Risk Factors” and “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” and in other documents that we may
file with the SEC, all of which you should review carefully. Please consider our forward-looking
statements in light of those risks as you read this prospectus and any prospectus supplement.
USE OF PROCEEDS
We intend to use the net proceeds from sales of our common stock for the purposes set forth in
the applicable prospectus supplement relating to a specified offering of shares.
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PLAN OF DISTRIBUTION
We may sell the shares of common stock through underwriters or dealers, through agents, or
directly to one or more purchasers or through a combination of these methods. The applicable
prospectus supplement will describe the terms of the offering of the common stock, including:
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the name or names of any underwriters, if any, and if required, any dealers or agents;
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the purchase price of the securities and the proceeds we will receive from the sale;
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any underwriting discounts and other items constituting underwriters’ compensation;
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any discounts or concessions allowed or reallowed or paid to dealers; and
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any securities exchange or market on which the securities may be listed.
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We may distribute the common stock from time to time in one or more transactions at:
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a fixed price or prices, which may be changed;
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market prices prevailing at the time of sale;
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prices related to such prevailing market prices; or
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negotiated prices.
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Only underwriters named in the prospectus supplement are underwriters of the common stock
offered by the prospectus supplement.
If we use underwriters in the sale, they will acquire the common stock for their own account
and may resell the shares from time to time in one or more transactions at a fixed public offering
price or at varying prices determined at the time of sale. We may offer the common stock to the
public through underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Any public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may change from time to time.
If we use a dealer in the sale of the common stock being offered pursuant to this prospectus
or any prospectus supplement, we will sell the common stock to the dealer, as principal. The
dealer may then resell the common stock to the public at varying prices to be determined by the
dealer at the time of resale.
We may sell the common stock directly or through agents we designate from time to time. We
will name any agent involved in the offering and sale of common stock and we will describe any
commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement
states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by institutional investors to
purchase common stock from us at the public offering price set forth in the prospectus supplement
pursuant to delayed delivery contracts providing for payment and delivery on a specified date in
the future. We will describe the conditions to these contracts and the commissions we must pay for
solicitation of these contracts in the prospectus supplement.
In connection with the sale of the common stock, underwriters, dealers or agents may receive
compensation from us or from purchasers of the common stock for whom they act as agents in the form
of discounts, concessions or commissions. Underwriters may sell the common stock to or through
dealers, and those dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents that participate in the distribution of the common stock,
and any institutional investors or others that purchase common stock directly and then resell the
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common stock, may be deemed to be underwriters, and any discounts or commissions received by
them from us and any profit on the resale of the common stock by them may be deemed to be
underwriting discounts and commissions under the Securities Act.
We may provide agents and underwriters with indemnification against particular civil
liabilities, including liabilities under the Securities Act, or contribution with respect to
payments that the agents or underwriters may make with respect to such liabilities. Agents and
underwriters may engage in transactions with, or perform services for, us in the ordinary course of
business.
In addition, we may enter into derivative transactions with third parties (including the
writing of options), or sell common stock not covered by this prospectus to third parties in
privately negotiated transactions. If the applicable prospectus supplement indicates, in
connection with such a transaction the third parties may, pursuant to this prospectus and the
applicable prospectus supplement, sell common stock covered by this prospectus and the applicable
prospectus supplement. If so, the third party may use common stock borrowed from us or others to
settle such sales and may use common stock received from us to close out any related short
positions. We may also loan or pledge common stock covered by this prospectus and the applicable
prospectus supplement to third parties, who may sell the loaned common stock or, in an event of
default in the case of a pledge, sell the pledged common stock pursuant to this prospectus and the
applicable prospectus supplement. The third party in such sale transactions will be an underwriter
and will be identified in the applicable prospectus supplement or in a post-effective amendment.
Underwriters may engage in stabilizing and syndicate covering transactions in accordance with
Rule 104 under the Exchange Act. Rule 104 permits stabilizing bids to purchase the common stock
being offered as long as the stabilizing bids do not exceed a specified maximum. Underwriters may
over-allot the offered common stock in connection with the offering, thus creating a short position
in their account. Syndicate covering transactions involve purchases of the offered common stock by
underwriters in the open market after the distribution has been completed in order to cover
syndicate short positions. Underwriters may also cover an over-allotment or short position by
exercising their over-allotment option, if any. Stabilizing and syndicate covering transactions
may cause the price of the offered common stock to be higher than it would otherwise be in the
absence of these transactions. These transactions, if commenced, may be discontinued at any time.
LEGAL MATTERS
The validity of the common stock being offered hereby will be passed on by Stradling Yocca
Carlson & Rauth, a Professional Corporation, Newport Beach, California.
EXPERTS
The consolidated financial statements and management’s assessment of the effectiveness of
internal control over financial reporting (which is included in Management’s Report on Internal
Control Over Financial Reporting) incorporated in this prospectus by reference to the Annual Report
on Form 10-K for the year ended December 31, 2005 have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed a registration statement on Form S-3 with the SEC with respect to the common
stock covered by this prospectus or any prospectus supplement. This prospectus does not include all
of the information contained in the registration statement. You should refer to the registration
statement and its exhibits for additional information. Whenever we make reference in this
prospectus to any of our contracts, agreements or other documents, the references are not
necessarily complete and you should refer to the exhibits attached to the registration statement
for copies of the actual contract, agreement or other document.
We are subject to the informational requirements of the Exchange Act and in
accordance therewith file periodic reports, current reports, proxy statements and other information
with the SEC. You may read and copy any document we file at the SEC’s public reference room at 100
F Street, N.E., Washington, D.C. 20549.
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Please call the SEC toll free at 1-800-SEC-0330 for information about its public reference
room. You may also read our filings at the SEC’s web site at http://www.sec.gov.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with it, which means
that we can disclose important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus and information that
we file subsequently with the SEC will automatically update and supercede this prospectus. We
incorporate by reference the following documents listed below and any future filings we make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until this
offering of common stock is terminated, including all filings made after the date of the initial registration statement and prior to the
effectiveness of the registration statement, except for information furnished under Item 2.02 or Item
7.01 of our Current Reports on Form 8-K which is not deemed filed and not incorporated by reference
herein:
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2005 as filed
with the SEC on March 16, 2006;
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our Current Report on Form 8-K as filed with the SEC on February 1, 2006; and
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the description of our common stock contained in our Registration Statement on Form
8-A, filed with the SEC on May 3, 1996, including any amendment or report filed for the
purpose of updating such description.
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You may request a copy of these filings (other than an exhibit to a filing unless that exhibit
is specifically incorporated by reference into that filing) at no cost, by writing to or
telephoning us at the following address: Investor Relations, Endologix, Inc., 11 Studebaker,
Irvine, California 92618; (949) 595-7200.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
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The following table sets forth the costs and expenses, other than underwriting discounts,
payable by the registrant in connection with the offering of the common stock being registered.
All the amounts shown are estimates except for the SEC registration fee.
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SEC registration fees
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$
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5,350
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Printing fees and expenses
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$
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*
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Legal fees and expenses
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$
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*
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Accounting fees and expenses
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$
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*
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Miscellaneous expenses
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$
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*
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Total
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$
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*
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*
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To be filed by amendment on Form 8-K or Rule 424 filing.
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Item 15. Indemnification of Directors and Officers
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Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify
any person made a party to an action (other than an action by or in the right of the corporation)
by reason of the fact that he or she was a director, officer, employee or agent of the corporation
or was serving at the request of the corporation against expenses (including attorneys’ fees),
judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action if he or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation and, with respect to
any criminal action (other than an action by or in the right of the corporation), has no reasonable
cause to believe his or her conduct was unlawful.
Our restated certificate of incorporation, as amended, limits, to the maximum extent permitted
by Delaware law, the personal liability of directors for monetary damages for breach of their
fiduciary duties as a director. Our amended and restated bylaws provide that we shall indemnify our
officers and directors and may indemnify our employees and other agents to the fullest extent
permitted by Delaware law.
Our directors and officers are covered by insurance policies indemnifying against certain
liabilities, including certain liabilities arising under the Securities Act of 1933, which might be
incurred by them in such capacities and against which they cannot be indemnified by us. We have
entered into indemnification agreements with all of our executive officers and directors which
provide indemnification under certain circumstances for acts and omissions in the course of their
employment with us.
Item 16. Exhibits
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Exhibit
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Number
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Description
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4.1
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Amended and Restated Certificate of Incorporation (Incorporated by reference to
Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K, filed with the SEC on
March 26, 2004).
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4.2
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Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.2 to the
Registrant’s Annual Report on Form 10-K filed with the SEC on March 29, 2001).
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4.3
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Specimen Certificate of Common Stock (Incorporated by reference to Exhibit 4.1 to
Registrant’s Amendment No. 2 to Registration Statement on Form S-1, No. 333-04560,
filed with the SEC on June 10, 1996).
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5.1
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Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation.
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23.1
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.
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23.3
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Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in
its opinion filed as Exhibit 5.1 hereto).
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24.1
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Power of Attorney (included on signature page).
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Item 17. Undertakings
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(a) The undersigned registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in
the information set forth in the registration 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 Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided, however
, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If the registrant is relying on Rule 430B:
(A) 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
(B) 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
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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.
(5) That, for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned
registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its securities
provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934), that is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed
to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating
to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial
bona fide
offering thereof.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Irvine, State of California, on April 27, 2006.
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ENDOLOGIX, INC.
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By:
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/s/ Paul McCormick
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Paul McCormick
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President and Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned directors and officers of Endologix, Inc., do hereby constitute and
appoint Paul McCormick and Robert J. Krist, or either of them, our true and lawful attorneys and
agents, to do any and all acts and things in our name and behalf in our capacities as directors and
officers and to execute any and all instruments for us and in our names in the capacities indicated
below, which said attorneys and agents, or either of them, may deem necessary or advisable to
enable said corporation to comply with the Securities Act of 1933, as amended, and any rules,
regulations, and requirements of the Securities and Exchange Commission, in connection with this
registration statement, including specifically, but without limitation, power and authority to sign
for us or any of us in our names and in the capacities indicated below, any and all amendments
(including post-effective amendments) to this registration statement, or any related registration
statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933, as amended; and we do hereby ratify and confirm all that the said attorneys and agents, or
either of them, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Paul McCormick
Paul McCormick
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President, Chief Executive
Officer and Director
(Principal Executive Officer)
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April 27, 2006
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/s/ Robert J. Krist
Robert J. Krist
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Chief Financial Officer and
Corporate Secretary
(Principal Financial and
Accounting Officer)
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April 27, 2006
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/s/ Franklin D. Brown
Franklin D. Brown
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Chairman of the Board
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April 27, 2006
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/s/ Ronald H. Coelyn
Ronald H. Coelyn
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Director
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April 27, 2006
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/s/ Roderick de Greef
Roderick de Greef
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Director
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April 27, 2006
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/s/ Edward B. Diethrich, M.D.
Edward B. Diethrich, M.D.
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Director
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April 27, 2006
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/s/ Jeffrey F. O’Donnell
Jeffrey F. O’Donnell
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Director
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April 27, 2006
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/s/ Gregory D. Waller
Gregory D. Waller
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Director
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April 27, 2006
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II-4
EXHIBIT INDEX
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Exhibit
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Number
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Description
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4.1
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Amended and Restated Certificate of Incorporation (Incorporated by reference to
Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K, filed with the SEC on
March 26, 2004).
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4.2
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Amended and Restated Bylaws (Incorporated by reference to Exhibit 3.2 to the
Registrant’s Annual Report on Form 10-K filed with the SEC on March 29, 2001).
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4.3
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Specimen Certificate of Common Stock (Incorporated by reference to Exhibit 4.1 to
Registrant’s Amendment No. 2 to Registration Statement on Form S-1, No. 333-04560,
filed with the SEC on June 10, 1996).
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5.1
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Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation.
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23.1
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Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.
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23.3
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Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in
its opinion filed as Exhibit 5.1 hereto).
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24.1
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Power of Attorney (included on signature page).
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II-5
