EndoChoice Holdings, Inc. - FORM S-1/A - June 3, 2015

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EX-5.1 - EX-5.1 - EndoChoice Holdings, Inc.d829480dex51.htm

As filed with the Securities and Exchange Commission on June 3, 2015.

Registration No. 333-203883

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 3 to

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

ECPM HOLDINGS, LLC

to be converted as described herein to a corporation named

EndoChoice Holdings, Inc.

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   3841   90-0886803
(State or other jurisdiction of
incorporation or organization)		   (Primary Standard Industrial
Classification Code Number)		  

(I.R.S. Employer

Identification Number)

11810 Wills Road

Alpharetta, Georgia 30009

(888) 682-3636

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

Mark Gilreath

President and Chief Executive Officer

ECPM Holdings, LLC

11810 Wills Road

Alpharetta, Georgia 30009

(888) 682-3636

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

with copies to:

 

Keith M. Townsend

Jeffrey M. Stein

Laura I. Bushnell

King & Spalding LLP

1180 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 572-4600

  

David N. Gill

Chief Financial Officer

ECPM Holdings, LLC

11810 Wills Road

Alpharetta, Georgia 30009

(888) 682-3636

  

Richard D. Truesdell, Jr.

Sophia Hudson

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

(212) 450-4000

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date 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:  ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

If this Form is a post effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

If this Form is a post effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

Indicate by check mark whether the Registrant is a large accelerated filer, an 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.:

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   x  (do not check if a smaller reporting company)    Smaller reporting company   ¨

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Each Class of

Securities to be Registered

Proposed

Maximum

Aggregate

Offering Price(1)(2)

Amount of

Registration Fee(3)

Common Stock, par value $0.001 per share

   $122,187,500   $14,199

 

 

 

(1) Includes shares issuable upon exercise of the underwriters’ option to purchase additional shares from us and shares from the selling stockholders. See “Underwriting.”
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act.
(3) Previously paid.

 

 

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.

 

 

 

EXPLANATORY NOTE

The sole purpose of this amendment is to provide certain exhibits to the Registration Statement as indicated in Item 16 of Part II of this amendment. No change is made to the preliminary prospects constituting Part I of the Registration Statement or Items 13, 14, 15, or 17 of Part II of the Registration Statement. Accordingly, this amendment consists only of the facing page, this explanatory note, Item 16 of Part II and the signature page to the Registration Statement.

Part II: Information not required in the prospectus

Item 16. Exhibits and financial statement schedules.

(a) The exhibits listed below in the “Index to exhibits” are part of this Registration Statement on Form S-1 and are numbered in accordance with Item 601 of Regulation S-K.

(b) Financial statement schedules.

Schedule II – Valuation and Qualifying Accounts

 

     Balance at
beginning of period		      Charged to cost
and expense		      Deductions     Balance at
end of period		  

Year ended December 31, 2012

           

Allowance for doubtful accounts

      419         717         (821 )      315   

Deferred income tax valuation allowance

      5,156         497         —          5,653   

Year ended December 31, 2013

           

Allowance for doubtful accounts

      315         992         (267 )      1,040   

Deferred income tax valuation allowance

      5,653         6,351         —          12,004   

Year ended December 31, 2014

           

Allowance for doubtful accounts

      1,040         466         (646 )      860   

Deferred income tax valuation allowance

      12,004         20,208         —          32,212   

Three months ended March 31, 2015

           

Allowance for doubtful accounts

      860         277         (190 )      947   

Deferred income tax valuation allowance

      32,212         4,138         —          36,350   

 

II-1

Signatures

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Amendment No. 3 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Alpharetta, State of Georgia, on June 2, 2015.

 

ECPM Holdings, LLC
By:   /s/ Mark G. Gilreath
  Mark G. Gilreath
  President and Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities set forth opposite their names and on the date indicated above.

 

    

Signature

  

Title

  

/s/ Mark G. Gilreath

Mark G. Gilreath

  

President, Chief Executive Officer and Director

(Principal Executive Officer)

  

/s/ David N. Gill

David N. Gill

  

Chief Financial Officer

(Principal Financial Officer and Principal Accounting Officer)

  

*

R. Scott Huennekens

  

Chairman of the Board of Directors

  

*

James R. Balkcom

  

Director

  

*

J. Scott Carter

  

Director

  

*

D. Scott Davis

  

Director

  

*

Dr. Uri Geiger

  

Director

  

*

David L. Kaufman

  

Director

  

*

Rurik G. Vandevenne

  

Director

*By:   

/s/ Mark G. Gilreath

  
   Mark G. Gilreath  
   Attorney-in-fact  

 

II-2

Index to exhibits

 

Exhibit
No.

     
  1.1    Form of Underwriting Agreement
  3.1    Form of Amended and Restated Certificate of Incorporation
  3.2    Form of Amended and Restated Bylaws
  4.1    Form of Stock Certificate for Common Stock
  5.1**    Opinion of King & Spalding LLP regarding legality of securities being offered
10.1   

Second Amended and Restated Limited Liability Company Agreement, dated as of March 4, 2015, by and among ECPM Holdings, LLC and the members party thereto

10.2    Investor Rights Agreement, dated as of January 4, 2013, by and among ECPM Holdings, LLC and the investors party thereto
10.3    Registration Agreement, dated as of January 4, 2013, by and among ECPM Holdings, LLC, Avraham Levy, and the investors party thereto
10.4    First Amendment to Registration Agreement, dated as of October 30, 2014, by and among ECPM Holdings, LLC and the parties thereto
10.5    Second Amendment to Registration Agreement, dated as of March 4, 2015, by and among ECPM Holdings, LLC and the parties thereto
10.6    Voting Agreement, dated as of January 4, 2013, by and among ECPM Holdings, LLC, Council Capital II, LP, Envest III, LLC, River Cities Capital Fund IV, L.P., and the investors party thereto
10.7    Loan and Security Agreement, dated as of September 9, 2013, by and among ECPM Holdings, LLC, the other parties thereto that are designated as borrowers and Silicon Valley Bank
10.8    First Loan Modification and Waiver Agreement, dated as of March 25, 2014, to the Loan and Security Agreement, by and among ECPM Holdings, LLC, the other parties thereto that are designated as borrowers and Silicon Valley Bank
10.9    Second Loan Modification and Waiver Agreement, dated as of July 24, 2014, to the Loan and Security Agreement, by and among ECPM Holdings, LLC, the other parties thereto that are designated as borrowers and Silicon Valley Bank
10.10    Third Loan Modification and Waiver Agreement, dated as of December 31, 2014, to the Loan and Security Agreement, by and among ECPM Holdings, LLC, the other parties thereto that are designated as borrowers and Silicon Valley Bank
10.11    Growth Capital Loan and Security Agreement, dated as of February 18, 2014, by and among ECPM Holdings, LLC, the other parties thereto that are designated as borrowers and TriplePoint Capital LLC, as lender
10.12    Commitment Letter, dated as of May 21, 2015, by and among EndoChoice Holdings, LLC, the other parties thereto that are designated as borrowers, MidCap Financial Trust and Silicon Valley Bank
10.13†    Endochoice, Inc. 2007 Stock Incentive Plan as assumed by ECPM Holdings, LLC and amended and restated effective January 4, 2013
10.14†    Form of Stock Option Award Agreement for Endochoice, Inc. 2007 Stock Incentive Plan (Employees)
10.15†    Form of Stock Option Award Agreement for Endochoice, Inc. 2007 Stock Incentive Plan (Non-Employee Directors)
10.16†    ECPM Holdings, LLC 2013 Incentive Unit Plan
10.17†    First Amendment to the ECPM Holdings, LLC 2013 Incentive Unit Plan

Exhibit
No.

     
10.18†    Second Amendment to the ECPM Holdings, LLC 2013 Incentive Unit Plan
10.19†    Form of Incentive Unit Award Agreement for ECPM Holdings, LLC 2013 Incentive Unit Plan
10.20†    Form of Section 3(i) Incentive Unit Award Agreement for ECPM Holdings, LLC 2013 Incentive Unit Plan (for employees in Israel)
10.21†    Form of 102 Capital Gains Track Incentive Unit Award Agreement for ECPM Holdings, LLC 2013 Incentive Unit Plan (for employees in Israel)
10.22†    Form of EndoChoice Holdings, Inc. 2015 Omnibus Equity Incentive Plan
10.23†    Form of Incentive Stock Option Agreement for EndoChoice Holdings, Inc. 2015 Omnibus Equity Incentive Plan
10.24†    Form of Restricted Stock Award Agreement for EndoChoice Holdings, Inc. 2015 Omnibus Equity Incentive Plan
10.25†    Form of EndoChoice Holdings, Inc. Employee Stock Purchase Plan
10.26†    Third Amended and Restated Employment Agreement, dated as of May 1, 2015, by and between ECPM Holdings, LLC and Mark G. Gilreath
10.27†    Amended and Restated Employment Agreement, dated as of May 1, 2015, by and between ECPM Holdings, LLC and David N. Gill
10.28†    Employment Agreement, dated as of February 18, 2013, by and between ECPM Holdings, LLC and Kevin V. Rubey
10.29†    Form of EndoChoice Holdings, Inc. Officer Severance Benefit Plan
10.30†    Form of Indemnification Agreement for ECPM Holdings, LLC
10.31†    Form of Indemnification Agreement for EndoChoice Holdings, Inc.
10.32†    Form of Employment Covenants Agreement for EndoChoice, Inc.
16.1    Letter to the Securities and Exchange Commission from Windham Brannon
21.1    List of subsidiaries of ECPM Holdings, LLC
23.1**    Consent of King & Spalding LLP (included as part of Exhibit 5.1)
23.2    Report and Consent of KPMG LLP, Independent Registered Public Accounting Firm
24.1    Powers of Attorney

 

** Filed herewith.
† Indicates management agreement.

EndoChoice Holdings, Inc. Reports

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