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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 19, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PHYSIOMETRIX, INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 77-0248588
(State of incorporation) (I.R.S. Employer
Identification Number)
5 BILLERICA PARK
NORTH BILLERICA, MA 01862
(978) 670-2422
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
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JOHN WILLIAMS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PHYSIOMETRIX, INC.
5 BILLERICA PARK
NORTH BILLERICA, MA 01862
(978) 670-2422
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
CHRIS MITCHELL, ESQ.
BENJAMIN TEMPLIN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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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. /X/
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 in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /__________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /_______
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock $0.001 par value..................... 40,000 $26.50 $1,060,000 $279.84
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Common stock issuable upon exercise of Warrants... 7,500 $26.50 $ 198,750 $ 52.47
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(1) Estimated solely for the purpose of computing the amount of the
registration fee based on the average of the high and low prices of the
common stock as reported on the Nasdaq National Market on July 18, 2000
pursuant to Rule 457(c) promulgated under the Securities Act of 1933.
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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 SUCH SECTION 8(a),
MAY DETERMINE.
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PROSPECTUS
PHYSIOMETRIX, INC.
40,000 SHARES OF COMMON STOCK
7,500 SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE OF WARRANTS
We have prepared this prospectus to allow the selling stockholders
that we have identified in this prospectus to sell up to 40,000 shares of our
common stock, $.001 par value per share, which we delivered to certain
selling stockholders in consideration for their services as investment
bankers in the Baxter Healthcare distribution agreement. This prospectus also
enables certain selling stockholders to sell up to 7,500 shares of our common
stock issuable upon exercise of warrants issued to the selling stockholders
in consideration for making a loan to Physiometrix in 1996. In this
prospectus, we sometimes refer to the shares of common stock issued in the
private placement and the shares issuable upon exercise of the warrants
collectively as the securities.
We will not receive any of the proceeds from the sale of the
securities by the selling stockholders.
Our common stock is traded on the Nasdaq National Market under the
symbol "PHYX." On July 18, 2000, the last reported sale price of our common
stock on the Nasdaq National Market was $26.50.
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THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS JULY 19, 2000.
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ABOUT PHYSIOMETRIX, INC.
We design, develop, manufacture and market noninvasive, advanced
medical products incorporating proprietary materials, electronics technology and
software for use in neurological monitoring applications during surgical and
diagnostic procedures. We sell our products to hospitals, clinics and
physicians' offices domestically and internationally. Our current principal
product focus is our Patient State Analyzer, or PSA, an innovative system for
monitoring brain activity during anesthesia. In July 2000, we received clearance
from the Food and Drug Administration for our 510(k) application for the PSA.
This clearance permits commercial marketing and sales of the PSA in the United
States. On May 31, 2000, we entered into a strategic marketing and exclusive
distribution agreement with Baxter Healthcare Corporation under which Baxter
will distribute the PSA in the United States.
Our initial products, which were commercially introduced in 1994, are
our e-Net headpiece and disposable HydroDot biosensors, which are based upon our
proprietary HydroGel technology, and its custom electronics. These products are
packaged as the HydroDot NeuroMonitoring System, which was developed and is sold
for brain monitoring applications, such as clinical electroencephalograph, or
EEG, procedures. The system is marketed and sold as a safer, lower cost
alternative to current EEG data collection technology. The system connects and
interfaces to the standard input on all conventional EEG instruments currently
in use worldwide, yet offers reduced patient setup time, more reliable data
readings, and enhanced patient comfort and safety.
PATIENT STATE ANALYZER. The Patient State Analyzer is being developed
by us to provide a simplified, user friendly analysis of patient brain activity
during surgical procedures involving general anesthesia. Currently, such
monitoring is used only in a small percentage of all such procedures, primarily
during high risk interventions such as cardiology and neurology surgeries.
Traditional EEG devices also require a neurologist to interpret their data
output. As a result, anesthesiologists are reluctant to use EEG monitoring
during other surgical procedures, despite the potential benefits offered by
brain monitoring, such as improved patient safety, shorter patient recovery
times, and lower overall costs per procedure. In addition, we are developing the
final component of the Patient State Analyzer, a proprietary software module
which will process EEG data and provide an easy to read signal to
anesthesiologists regarding patient's brain activity.
We believe that monitoring patients' brain activity during surgery with
the Patient State Analyzer will improve patient safety and lower costs per
surgical procedure by better controlling the amount of anesthesia administered
during surgeries. This will reduce the amount of postoperative recovery time
required, and eliminate the requirement of a neurologist or specialized
technologists to interpret EEG results during surgery. We believe that these
benefits create the opportunity for the Patient State Analyzer to become the
standard of care during surgical interventions using general anesthesia.
In May 2000, we entered into a strategic marketing and exclusive
distribution agreement with Baxter Healthcare Corporation. Physiometrix will be
responsible for manufacturing, and Baxter will purchase products from us for
resale. The agreement provides for specified minimum quarterly purchase
commitments by Baxter during the first six calendar quarters of the agreement's
term. If these commitments are not met, Baxter would lose its exclusivity under
the agreement. The agreement is for a five year term; however, after December
31, 2001, either party may terminate the agreement upon specified notice. The
agreement also contemplates a joint steering committee, comprised of three
Physiometrix and three Baxter representatives. This committee will be
responsible for establishment of marketing plans and strategies, sales forecasts
and other matters arising under the agreement. Finally, although the agreement
does not grant
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Baxter rights to territories outside the United States, if Physiometrix desires
to engage international distributors, we must offer Baxter the opportunity to
negotiate for such distribution rights before granting them to a third party.
This prospectus contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933. Actual events or results
may differ materially from those projected in the forward-looking statements as
a result of the factors described herein under "Risk Factors" and in the
documents incorporated herein by reference. Such forward-looking statements
include, but are not limited to, statements concerning (i) business strategy;
(ii) products under development; (iii) other products; (iv) marketing and
distribution; (v) research and development; (vi) manufacturing; (vii)
competition; (viii) government regulation; (ix) third-party reimbursement; (x)
operating and capital requirements and (xi) clinical trials. Accordingly, you
should carefully review the "Risk Factors" section of this prospectus.
The table below summarizes the products currently offered by us, the
products we are developing, the markets served by these products and their
present development and/or commercialization status:
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PRODUCT DESCRIPTION DEVELOPMENT/COMMERCIALIZATION
STATUS
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PATIENT STATE ANALYZER Intraoperative EEG monitoring system Commercial sales to commence in the
third quarter of 2000; 510(k) clearance
application approved by FDA
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HYDRODOT NEUROMONITORING SYSTEM
e-Net EEG headpiece Commercial sales
Small e-Net EEG headpiece for children Commercial sales
OR e-Net EEG headpiece for operating room Commercial sales
Applications
HydroDot biosensors Disposable biosensors for use with Commercial sales
e-Nets
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HYDROSPOT BIOSENSORS Disposable biosensors attached to Commercial sales
lead wires
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RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED BELOW BEFORE MAKING
AN INVESTMENT DECISION. IF ANY OF THE FOLLOWING RISKS ACTUALLY OCCUR, OUR
BUSINESS, FINANCIAL CONDITION AND OPERATING RESULTS COULD BE SERIOUSLY HARMED.
AS A RESULT, THE TRADING PRICE OF OUR COMMON STOCK COULD DECLINE, AND YOU COULD
LOSE ALL OR PART OF THE VALUE OF YOUR INVESTMENT.
WE ARE DEPENDENT UPON THE PATIENT STATE ANALYZER SYSTEM, AND IF WE ARE
UNABLE TO INTRODUCE AND SUCCESSFULLY COMMERCIALIZE THIS PRODUCT, OUR BUSINESS
WILL BE SERIOUSLY HARMED
Our business is completely dependent upon the Patient State Analyzer,
or PSA, system. We will need to build market acceptance for the system. Because
we will depend upon our PSA system for substantially all of our future revenue
and we have no other significant products, if we are unable to commence
commercial sales of or achieve widespread market acceptance for the PSA system,
we will not be able to sustain or grow our business. In this event, our business
and operating results would be seriously harmed and our stock price would likely
decline.
WE HAVE RECENTLY ENTERED INTO AN EXCLUSIVE STRATEGIC MARKETING AND
DISTRIBUTION AGREEMENT WITH BAXTER HEALTHCARE CORPORATION FOR MARKETING AND SALE
OF THE PSA SYSTEM, AND WILL BE DEPENDENT UPON THE EFFORTS OF BAXTER FOR
COMMERCIAL INTRODUCTION OF THE SYSTEM AND ONGOING DISTRIBUTION AND SALES
EFFORTS.
In May 2000, we entered into an exclusive strategic marketing and
distribution agreement with Baxter, under which we have granted Baxter exclusive
distribution rights in the United States for the PSA system. Accordingly, we
will be dependent upon Baxter for commercial sales of the PSA. We cannot assure
you that Baxter's marketing, sales and distribution efforts will be successful
or that Baxter will retain sufficient interest in the PSA system to continue to
devote the necessary resources to the sales and distribution effort. Although
either party can terminate the agreement upon specified notice after December
31, 2001, if we were to terminate the agreement due to dissatisfaction with
Baxter's performance, or if Baxter were to terminate the agreement, we would, in
all likelihood, not have the sales and marketing capabilities that we would need
to support commercialization of the PSA system. We would either need to develop
these capabilities ourselves or enter into arrangements with other parties.
Accordingly, if the Baxter distribution relationship is not successful, our
ability to support commercial sales of the PSA system would be seriously
compromised. In this event, our business and operating results would be
seriously harmed and our stock price would likely decline.
WE WILL NOT BE ABLE TO ACHIEVE REVENUE GROWTH OR PROFITABILITY IF
HOSPITALS AND ANESTHESIA SERVICE PROVIDERS DO NOT BUY AND USE THE PSA SYSTEM IN
SUFFICIENT QUANTITIES
If we are able to obtain regulatory clearance for, and commercially
introduce, the PSA system, our revenue growth and prospects will depend on
customer acceptance and usage of the PSA system. Customers may determine that
the cost of the PSA system exceeds cost savings in drugs, personnel and
post-anesthesia care recovery resulting from use of the PSA system. In addition,
hospitals and anesthesia providers may not accept the PSA system as an accurate
means of assessing a patient's level of consciousness during surgery if patients
regain consciousness during surgery while being monitored with the PSA system or
if they do not consider the PSA system to be a clinically reliable measuring
system for other reasons. If extensive or frequent malfunctions occur, these
providers may also conclude that the PSA system is unreliable. If hospitals
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and anesthesia providers do not accept the PSA system as cost-effective,
accurate or reliable, they will not buy and use the PSA system in sufficient
quantities to enable us to be profitable. In this event, our business, operating
results and long-term prospects would be seriously harmed. Our stock price would
also likely decline.
WE EXPECT TO CONTINUE TO INCUR LOSSES IN THE FUTURE, AND WE CANNOT
ASSURE YOU THAT WE WILL EVER BECOME PROFITABLE
We have incurred net losses in each year since inception. We expect to
increase significantly our research and development, sales and marketing and
general and administrative expenses in future periods. We will spend these
amounts before we receive any incremental revenue from these efforts. Therefore,
our losses will be greater than the losses we would incur if we developed our
business more slowly. In addition, we may find that these efforts are more
expensive than we currently anticipate, which would further increase our losses.
Failure to become and remain profitable may depress the market price of our
common stock and our ability to raise capital and continue our operations.
WE HAVE A LIMITED OPERATING HISTORY THAT YOU MAY USE TO ASSESS OUR
PROSPECTS, AND WE HAVE NO OPERATING EXPERIENCE OR HISTORY RELATED TO THE PSA
SYSTEM, OUR CURRENT PRINCIPAL PRODUCT UNDER DEVELOPMENT
We have a limited history of operations. Since our inception in January
1990, we have been primarily engaged in research and development of
neurophysiological monitoring products. To date, we have sold only a small
number of units of our HydroDot NeuroMonitoring System and these sales have
generated only limited revenues. Furthermore, these products are not central to
our core business, which relates to the development and commercialization of the
PSA system. We have had no revenues from commercial sales of the PSA system.
Accordingly, our historical results of operations may be of limited utility in
evaluating our future prospects. In addition, we do not have experience in
manufacturing, marketing or selling our products in quantities necessary for
achieving profitability. Whether we can successfully manage the transition to a
larger scale commercial enterprise will depend upon the successful development
of our manufacturing capability, the success of our strategic marketing and
distribution alliance with Baxter, the development of the remainder of our
marketing and distribution network, obtaining U.S. FDA and foreign regulatory
approvals for the PSA system and other potential products and strengthening our
its financial and management systems, procedures and controls. Accordingly, due
to the significant change in our business associated with the PSA, our
historical financial information is of limited utility in evaluating our future
prospects, and we cannot assure that we will be able to achieve or sustain
revenue growth or profitability.
WE FACE INTENSE COMPETITION AND MAY NOT BE ABLE TO COMPETE EFFECTIVELY,
WHICH COULD HARM THE MARKET FOR OUR PRODUCTS AND OUR OPERATING RESULTS
We expect to face substantial competition from larger medical device
companies that have greater financial, technical, marketing and other resources
than we do. As our resources in these areas are extremely limited, any current
or potential competitor of ours is likely to have greater resources in these
areas. In particular, Aspect Medical markets an anesthesia monitoring system
that competes with the PSA. Aspect has received FDA clearance for this system
and is marketing it in the U.S. We may not be able to compete effectively with
Aspect or other potential competitors. Other companies may develop
anesthesia-monitoring systems that perform better than the PSA system and/or
sell for less. Competition in the sale of anesthesia-monitoring systems could
result in the inability of the PSA to achieve market acceptance, price
reductions,
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fewer orders, reduced gross margins and inability to establish or erosion of
market share. Any of these events would harm our business and operating results
and cause our stock price to decline.
WE MAY NOT BE ABLE TO KEEP UP WITH NEW PRODUCTS OR ALTERNATIVE
TECHNIQUES DEVELOPED BY COMPETITORS, WHICH COULD IMPAIR OUR FUTURE GROWTH AND
OUR ABILITY TO COMPETE
The medical industry in which we market our products is characterized
by rapid product development and technological advances. Our current or planned
products are at risk of obsolescence from:
new monitoring products, based on new or improved technologies,
new products or technologies used on patients or in the operating room
during surgery in lieu of monitoring devices,
electrical or mechanical interference from new or existing products or
technologies,
alternative techniques for evaluating the effects of anesthesia,
significant changes in the methods of delivering anesthesia, and
the development of new anesthetic agents.
We may not be able to improve our products or develop new products or
technologies quickly enough to maintain a competitive position in our markets
and continue to grow our business.
IF WE DO NOT SUCCESSFULLY DEVELOP AND INTRODUCE NEW OR ENHANCED
PRODUCTS ,WE COULD LOSE REVENUE OPPORTUNITIES AND CUSTOMERS
As the market for anesthesia monitoring equipment matures, we need to
develop and introduce new products for anesthesia monitoring or other
applications. We face at least the following risks:
we may not successfully adapt the PSA system to function properly in
the intensive care unit, for procedural sedation, when used with
anesthetics we have not tested or with patient populations we have
not studied, such as infants and young children, and
our technology is complex, and we may not be able to develop it further
for applications outside anesthesia monitoring.
If we do not successfully adapt the PSA system for new products and
applications both within and outside the field of anesthesia monitoring, then we
could lose revenue opportunities and customers.
WE HAVE EXPERIENCED SIGNIFICANT OPERATING LOSSES TO DATE, AND OUR
FUTURE OPERATING RESULTS COULD FLUCTUATE SIGNIFICANTLY
We have experienced significant operating losses since inception and,
as of December 31, 1999 had an accumulated deficit of approximately $29.4
million. The development and commercialization of the PSA system and other new
products, if any, will require substantial development, clinical, regulatory and
other expenditures. We expect our operating losses to continue for at least the
next couple of years as we continue to expend substantial resources to expand
marketing and sales activities, scale up manufacturing capabilities, continue
research and development and support regulatory and reimbursement approvals.
Results of operations may fluctuate significantly from quarter to quarter and
will depend upon numerous factors, including actions relating to regulatory and
reimbursement matters, including particularly whether the PSA system is able to
garner market acceptance. In addition, competition, availability of third party
reimbursement and other factors may affect our future results of operations.
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WE MUST COMPLY WITH FDA REGULATIONS RELATING TO MEDICAL DEVICES AND MAY
BE REQUIRED TO SEEK ADDITIONAL FUTURE REGULATORY APPROVALS
Although we have obtained FDA 510(k) clearance for the PSA, we may be
required to submit additional 510(k) clearance applications or pre-market
approval applications for new products or for modified or enhanced versions of
existing products. If we fail to obtain timely clearance or approval for our
products, we will not be able to market and sell our products, which will limit
our ability to generate revenue. In particular if we elect to enhance or modify
the PSA system, we may also be required to obtain additional clearances from the
FDA before we can market enhanced or modified versions of this product.
The FDA also requires us to adhere to current Good Manufacturing
Practices regulations, which include production design controls, testing,
quality control, storage and documentation procedures. The FDA may at any time
inspect our facilities to determine whether adequate compliance has been
achieved. Compliance with current Good Manufacturing Practices regulations for
medical devices is difficult and costly. In addition, we may not continue to be
compliant as a result of future changes in, or interpretations of, regulations
by the FDA or other regulatory agencies. If we do not achieve continued
compliance, the FDA may withdraw marketing clearance, seize products, prevent
commercial sales of products, impose civil or criminal sanctions or require
product recall. When any change or modification is made to a device or its
intended use, the manufacturer may be required to reassess compliance with
current Good Manufacturing Practices regulations, which may cause interruptions
or delays in the marketing and sale of our products.
Sales of our products outside the United States are subject to foreign
regulatory requirements that vary from country to country. The time required to
obtain approvals from foreign countries may be longer or shorter than that
required for FDA approval, and requirements for foreign licensing may differ
from FDA requirements. The Federal, state and foreign laws and regulations
regarding the manufacture and sale of our products are subject to future
changes, as are administrative interpretations of regulatory agencies. If we
fail to comply with applicable federal, state or foreign laws or regulations, we
could be subject to enforcement actions, including product seizures, recalls,
withdrawal of clearances or approvals and civil and criminal penalties.
WE MAY NEED ADDITIONAL FUNDS, AND SUCH FUNDS MAY NOT BE AVAILABLE ON
COMMERCIALLY REASONABLE TERMS WHEN WE NEED THEM
We plan to continue to expend substantial funds for obtaining
regulatory approvals, expansion of sales and marketing activities and research
and development. We may be required to expend greater than anticipated funds if
unforeseen difficulties arise in the course of obtaining necessary regulatory
approvals or in other aspects of our business. In particular, our funding needs
will increase significantly if we cannot obtain satisfactory third party
arrangements for marketing, sale and distribution of the PSA system. Although we
believe that our existing cash reserves, including the proceeds from the sale of
the securities being registered for resale, will be sufficient to meet our
operating and capital requirements during the next 12 months, we may require
additional financing within this time frame. Our future liquidity and capital
requirements will depend upon numerous factors, including actions relating to
regulatory matters, and the extent to which the PSA system gains market
acceptance. Any additional financing, if required, may not be available on
satisfactory terms or at all. Future equity financings may result in dilution to
the holders of our common stock. Future debt financings may require us to pledge
assets and to comply with financial and operational covenants.
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OUR RELIANCE ON SOLE AND LIMITED SOURCE SUPPLIERS COULD HARM OUR
ABILITY TO MEET CUSTOMER REQUIREMENTS IN A TIMELY MANNER OR WITHIN BUDGET
Some of the components that are necessary for the assembly of our PSA
system are currently provided to us by separate sole suppliers or a limited
group of suppliers. We purchase components through purchase orders rather than
long-term supply agreements and generally do not maintain large volumes of
inventory. We have experienced shortages and delays in obtaining some of the
components of our PSA systems in the past, and we may experience similar delays
or shortages in the future. The disruption or termination of the supply of
components could cause a significant increase in the costs of these components,
which could affect our profitability. A disruption or termination in the supply
of components could also result in our inability to meet demand for our
products, which could lead to customer dissatisfaction and damage our
reputation. Furthermore, if we are required to change the manufacturer of a key
component of the PSA system, we may be required to verify that the new
manufacturer maintains facilities and procedures that comply with quality
standards and with all applicable regulations and guidelines. The delays
associated with the verification of a new manufacturer could delay our ability
to manufacture PSA systems in a timely manner or within budget.
OUR BUSINESS DEPENDS ON OUR INTELLECTUAL PROPERTY RIGHTS, AND MEASURES
WE TAKE TO PROTECT THOSE RIGHTS MAY NOT BE SUFFICIENT
Our ability to compete effectively will depend in part on its ability
to develop and maintain proprietary aspects of its technology. We cannot assure
you that our issued patents or any patents that may be issued as a result of our
U.S. or international patent applications will offer any degree of protection.
We cannot assure you that any patents that may be issued to us or any of our
patent applications will not be challenged, invalidated or circumvented in the
future. In addition, we cannot assure you that competitors, many of which have
substantial resources and have made substantial investments in competing
technologies, will not seek to apply for and obtain patents that will prevent,
limit or interfere with the our ability to make, use or sell its products either
in the U.S. or in international markets.
In addition to patents, we rely on trade secrets and proprietary know
how, which we seek to protect, in part, through appropriate confidentiality and
proprietary information agreements. These agreements generally provide that all
confidential information developed or made known to the individual by us during
the course of the individual's relationship with us, is to be kept confidential
and not disclosed to third parties, except in specific circumstances. The
agreements generally provide that all inventions conceived by the individual in
the course of rendering services to us are our exclusive property. However, some
of our agreements with consultants, who typically are employed on a full time
basis by academic institutions or hospitals, do not contain assignment of
invention provisions. We cannot assure you that proprietary information or
confidentiality agreements with employees, consultants and others will not be
breached, that we would have adequate remedies for any breach, or that our trade
secrets will not otherwise become known to or independently developed by
competitors.
WE COULD BECOME INVOLVED IN LITIGATION RELATING INTELLECTUAL PROPERTY
RIGHTS, AND ANY SUCH LITIGATION, EVEN IF RESOLVED FAVORABLY TO US, WILL RESULT
IN SIGNIFICANT COST AND DIVERSION OF MANAGEMENT'S TIME AND EFFORT
The medical device industry has been characterized by extensive
litigation regarding patents and other intellectual property rights, and
companies in the medical device industry have employed intellectual property
litigation to gain a competitive advantage. We cannot assure you that we will
not in the future
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become subject to patent infringement claims and litigation or interference
proceedings declared by the U.S. Patent and Trademark Office to determine the
priority of inventions. The defense and prosecution of intellectual property
suits, USPTO interference proceedings and related legal and administrative
proceedings are both costly and time consuming. Litigation may be necessary to
enforce patents issued to us, to protect trade secrets or know how owned by us
or to determine the enforceability, scope and validity of the proprietary rights
of others.
Any litigation or interference proceedings will result in substantial
expense to us and significant diversion of effort by our technical and
management personnel. An adverse determination in litigation or interference
proceedings to which we may become a party could subject us to significant
liabilities to third parties or require us to seek licenses from third parties.
Costs associated with licensing or similar arrangements that may be involved in
statement of intellectual property disputes, including patent disputes, may be
substantial and could include ongoing royalties. Furthermore, there can be no
assurance that necessary licenses would be available to us on satisfactory terms
if at all. Adverse determinations in a judicial or administrative proceeding or
failure to obtain necessary licenses could prevent us from manufacturing,
marketing and selling our products, which would seriously harm our business and
operating results and would likely cause our stock price to decline.
OUR BUSINESS ENTAILS THE RISK OF PRODUCT LIABILITY CLAIMS, AND THESE
CLAIMS COULD HARM OUR FINANCIAL CONDITION AND OUR ABILITY TO MAINTAIN INSURANCE
COVERAGES
The manufacture and sale of our products expose us to product liability
claims and product recalls, including those which may arise from misuse or
malfunction of, or design flaws in, our products or use of our products with
components or systems not manufactured or sold by us. Product liability claims
or product recalls, regardless of their ultimate outcome, could require us to
spend significant time and money in litigation or to pay significant damages. We
currently maintain insurance; however, it might not cover the costs of any
product liability claims made against us. Furthermore, we may not be able to
obtain insurance in the future at satisfactory rates or in adequate amounts.
IF WE DO NOT ATTRACT AND RETAIN SKILLED PERSONNEL, WE WILL NOT BE ABLE
TO EXPAND OUR BUSINESS.
Our products are based on complex technology. Accordingly, we require
skilled personnel to develop, manufacture, sell and support our products. In
addition, as we move toward commercialization of our products, we will require
additional personnel skilled in the sales and marketing of medical device
products. Our future success will depend largely on our ability to continue to
hire, train, retain and motivate additional skilled personnel, particularly
sales representatives and clinical specialists who are responsible for customer
education and training and post-installation customer support. We continue to
experience difficulty in recruiting and retaining skilled personnel because the
pool of experienced persons is small and we compete for personnel with other
companies, many of which have greater resources than we do. Consequently, if we
are not able to attract and retain skilled personnel, we will not be able to
expand our business.
FAILURE OF USERS OF THE PSA SYSTEM TO OBTAIN ADEQUATE REIMBURSEMENT
FROM THIRD PARTY PAYORS COULD LIMIT MARKET OF THE SYSTEM, WHICH COULD PREVENT US
FROM GROWING OUR BUSINESS
Anesthesia providers are generally not reimbursed separately for
patient monitoring activities, including any such activities that would involve
use of the PSA system. Accordingly, potential users of the PSA system would have
to justify its use based on the clinical and cost benefits they believe use of
the system provides. For hospitals and outpatient surgical centers, when
reimbursement is based on charges or costs,
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<PAGE>
patient monitoring with the PSA system may reduce reimbursements for surgical
procedures, because charges or costs may decline as a result of monitoring with
the PSA system. Failure by hospitals and other users of the PSA system to obtain
adequate reimbursement from third-party payors, or any reduction in the
reimbursement by third-party payors to hospitals and other users as a result of
using the PSA system could limit market acceptance of the PSA system, which
could prevent us from growing our revenues and our business.
OUR STOCK PRICE MAY FLUCTUATE, WHICH MAY CAUSE YOUR INVESTMENT IN OUR
STOCK TO SUFFER A DECLINE IN VALUE
The market price of our common stock has fluctuated significantly in
the past and may fluctuate significantly in the future in response to factors
which are beyond our control. In addition, the stock market in general has
recently experienced extreme price and volume fluctuations. In addition, the
market prices of securities of technology and medical device companies have been
extremely volatile, and have experienced fluctuations that often have been
unrelated or disproportionate to the operating performance of these companies.
These broad market fluctuations could result in extreme fluctuations in the
price of our common stock, which could cause a decline in the value of your
shares.
WE MAY INCUR SIGNIFICANT COSTS FROM SECURITIES CLASS LITIGATION DUE TO
OUR STOCK PRICE VOLATILITY
Our stock price may fluctuate for many reasons, including timing of
regulatory actions relating to the PSA system, variations in our quarterly
operating results and changes in market valuations of medical device companies.
Recently, when the market price of a stock has been volatile as our stock price
may be, holders of that stock have occasionally instituted securities class
action litigation against the company that issued the stock. If any of our
stockholders were to bring a lawsuit of this type against us, even if the
lawsuit is without merit, we could incur substantial costs defending the
lawsuit. The lawsuit could also divert the time and attention of our management.
ANTITAKEOVER PROVISIONS IN OUR CHARTER DOCUMENTS AND UNDER DELAWARE LAW
COULD PREVENT OR DELAY TRANSACTIONS THAT STOCKHOLDERS MAY FAVOR
Provisions of our restated certificate of incorporation and amended and
restated by-laws may discourage, delay or prevent a merger or acquisition that
stockholders may consider favorable, including transactions in which you might
otherwise receive a premium for your shares. These provisions include:
authorizing the issuance of "blank check" preferred stock without any
need for action by stockholders,
requiring supermajority stockholder voting to effect certain amendments
to our restated certificate of incorporation and amended and
restated by-laws,
eliminating the ability of stockholders to call special meetings of
stockholders,
prohibiting stockholder action by written consent, and
establishing advance notice requirements for nominations for election
to the board of directors or for proposing matters that can be
acted on by stockholders at stockholder meetings.
-9-
<PAGE>
USE OF PROCEEDS
We will not receive any proceeds from the sale of the securities by the
selling stockholders.
SELLING STOCKHOLDERS
We are registering all 40,000 shares of our common stock and all 7,500
shares of common stock issuable upon exercise of warrants covered by this
prospectus on behalf of the selling stockholders named in the table below. We
have registered the shares to permit the selling stockholders and their
pledgees, donees, transferees or other successors-in-interest that receive their
shares from selling stockholders as a gift, partnership distribution or another
non-sale related transfer after the date of this prospectus to resell the shares
when they deem appropriate. We refer to all of these possible sellers as selling
stockholders in this prospectus.
The table below sets forth the following information with respect to
each selling stockholder as of July 19, 2000: (i) name of the selling
stockholder and (ii) the number of shares of common stock the selling
stockholder is offering. Except as set forth in the table below, none of the
selling stockholders has had a material relationship with us within the last
three years other than as a result of the ownership of the shares or other
securities of Physiometrix. We do not know how long the selling stockholders
will hold the shares before selling them and we currently have no agreements,
arrangements or understandings with any of the selling stockholders regarding
the sale of any of the shares. The shares offered by this prospectus may be
offered from time to time by the selling stockholders named below.
<TABLE>
<CAPTION>
MATERIAL NUMBER OF SHARES NUMBER OF SHARES ISSUABLE
NAME OF SELLING STOCKHOLDER RELATIONSHIP OFFERED ON EXERCISE OF WARRANTS
--------------------------- ------------ ------- -----------------------
<S> <C> <C> <C>
Dominick & Dominick LLC.......................... Investment banker 40,000 0
for Physiometrix
in Baxter Healthcare
distribution
agreement
Boston Financial & Equity Corp................... Lender 0 7,500
</TABLE>
-10-
<PAGE>
PLAN OF DISTRIBUTION
The selling stockholders may sell the common stock from time to time.
The selling stockholders will act independently of us in making decisions
regarding the timing, manner and size of each sale. The selling stockholders may
make these sales on one or more exchanges, in the Nasdaq National Market or
otherwise, at prices and terms that are then-prevailing or at prices related to
the then-current market price, or in privately negotiated transactions. The
selling stockholders may use one or more of the following methods to sell the
common stock:
a block trade in which the selling stockholder's broker or dealer will
attempt to sell the shares as agent, but may position and resell
all or a portion of the block as a principal to facilitate the
transaction;
a broker or dealer may purchase the common stock as a principal and
then resell the common stock for its own account pursuant to this
prospectus;
an exchange distribution in accordance with the rules of the applicable
exchange; and
ordinary brokerage transactions and transactions in which the broker
solicits purchasers.
To the extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution. If the plan of
distribution involves an arrangement with a broker-dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, the supplement will disclose:
the name of each selling stockholder and of the participating
broker-dealer(s);
the number of shares involved;
the price at which the shares were sold;
the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable;
that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this
prospectus; and
other facts material to the transaction.
In effecting sales, broker-dealers engaged by the selling stockholders
may arrange for other broker-dealers to participate in the resales.
The selling stockholders may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
these transactions, broker-dealers may engage in short sales of the shares in
the course of hedging the positions they assume with selling stockholders. The
selling stockholders may also sell shares short and redeliver the shares to
close out such short positions. The selling stockholders may enter into options
or other transactions with broker-dealers which require the delivery to the
broker-dealer of the shares. The broker-dealer may then resell or otherwise
transfer such shares pursuant to this prospectus. The selling stockholders also
may loan or pledge the shares to a broker-dealer.
-11-
<PAGE>
The broker-dealer may sell the shares so loaned, or upon default, the
broker-dealer may sell the pledged shares pursuant to this prospectus.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling stockholders. Broker-dealers
or agents may also receive compensation from the purchasers of the shares for
whom they act as agents or to whom they sell as principal, or both. Compensation
as to a particular broker-dealer might be in excess of customary commissions and
will be in amounts to be negotiated in connection with the sale. Broker-dealers
or agents and any other participating broker-dealers or the selling stockholders
may be deemed to be "underwriters" within the meaning of section 2(11) of the
Securities Act of 1933 in connection with sales of the shares. Accordingly, any
such commission, discount or concession received by them and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
discounts or concessions under the Securities Act. Because selling stockholders
may be deemed "underwriters" within the meaning of section 2(11) of the
Securities Act, the selling stockholders will be subject to the prospectus
delivery requirements of the Securities Act.
Any shares covered by this prospectus which qualify for sale pursuant
to Rule 144 under the Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the shares may not simultaneously engage
in market making activities with respect to our common stock for a period of two
business days prior to the commencement of such distribution. In addition, each
selling stockholder will be subject to applicable provisions of the Exchange Act
and the associated rules and regulations under the Exchange Act, including
Regulation M, which provisions may limit the timing of purchases and sales of
shares of our common stock by the selling stockholders. We will make copies of
this prospectus available to the selling stockholders and have informed them of
the need to deliver copies of this prospectus to purchasers at or prior to the
time of any sale of the shares.
We will bear all costs, expense and fees in connection with the
registration of the shares. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sale of the shares. The selling
stockholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act. We have agreed to
indemnify the selling stockholders against certain liabilities in connection
with their offering of the shares, including liabilities arising under the
Securities Act.
-12-
<PAGE>
DESCRIPTION OF CAPITAL STOCK
GENERAL
Our amended and restated certificate of incorporation authorizes the
issuance of 50,000,000 shares of common stock, $0.001 par value, and authorizes
the issuance of 10,000,000 shares of undesignated preferred stock, $0.001 par
value. From time to time, our board of directors may establish the rights and
preferences of the preferred stock.
COMMON STOCK
Each holder of common stock is entitled to one vote for each share held on
all matters to be voted upon by the stockholders and there are no cumulative
voting rights. Subject to preferences that may be applicable to any outstanding
preferred stock, holders of common stock are entitled to receive ratably the
dividends, if any, that are declared from time to time by the board of directors
out of funds legally available for that purpose. See "Dividend Policy." In the
event of a liquidation, dissolution or winding up of Physiometrix, the holders
of common stock are entitled to share in our assets remaining after the payment
of liabilities and the satisfaction of any liquidation preference granted to the
holders of any outstanding shares of preferred stock. Holders of common stock
have no preemptive or conversion rights or other subscription rights. There are
no redemption or sinking fund provisions applicable to the common stock. All
outstanding shares of common stock are fully paid and nonassessable. The rights,
preferences and privileges of the holders of common stock are subject to, and
may be adversely affected by, the rights of the holders of shares of any series
of preferred stock that we may designate in the future.
PREFERRED STOCK
The board of directors has the authority, without action by the
stockholders, to designate and issue preferred stock in one or more series and
to designate the rights, preferences and privileges of each series, which may be
greater than the rights of the common stock. It is not possible to state the
actual effect of the issuance of any shares of preferred stock upon the rights
of holders of the common stock until the board of directors determines the
specific rights of the holders of this preferred stock. However, the effects
might include, among other things:
- restricting dividends on the common stock;
- diluting the voting power of the common stock;
- impairing the liquidation rights of the common stock; or
- delaying or preventing a change in control of Physiometrix without
further action by the stockholders.
At December 31, 1999, no shares of preferred stock were outstanding, and we
have no present plans to issue any shares of preferred stock.
WARRANTS
In March 1996, we issued warrants to purchase an aggregate of 7,500 shares
of our common stock. The shares issuable upon exercise of these warrants may be
offered for resale with this prospectus. These
-13-
<PAGE>
warrants have an exercise price of $5 per share and expire, if not previously
exercised, on March 22, 2001. The warrants may be exercised by paying the
exercise price in cash or, alternatively, on a cashless, net exercise basis.
In February 2000, we issued warrants to purchase an aggregate of 624,102
shares of our common stock. The shares issuable upon exercise of these warrants
may be offered for resale. These warrants have an exercise price of $14.04 per
share and expire, if not previously exercised, on February 29, 2001. The
warrants may be exercised by paying the exercise price in cash or,
alternatively, on a cashless, net exercise basis. In addition, Physiometrix may
call the warrants for redemption, at a redemption price of $0.001 per share
subject to each warrant, if the closing price of Physiometrix common stock
equals or exceeds $28.08 per share for a period of five consecutive trading days
ending on the trading day that Physiometrix gives notice of redemption.
ANTITAKEOVER EFFECTS OF PROVISIONS OF DELAWARE LAW AND OUR CHARTER AND BYLAWS
Provisions of Delaware law and our certificate of incorporation and bylaws
could make the following more difficult:
- the acquisition of Physiometrix by means of a tender offer;
- the acquisition of Physiometrix by means of a proxy contest or
otherwise; or
- the removal of our incumbent officers and directors.
These provisions, summarized below, are expected to discourage certain types
of coercive takeover practices and inadequate takeover bids. These provisions
are also designed to encourage persons seeking to acquire control of
Physiometrix to negotiate first with our board. We believe that the benefits of
increased protection of its potential ability to negotiate with the proponent of
an unfriendly or unsolicited proposal to acquire or restructure Physiometrix
outweigh the disadvantages of discouraging these proposals because negotiation
of any proposals of this type could result in an improvement of their terms.
STOCKHOLDER MEETINGS. Under our bylaws, only the board of directors, the
chairman of the board or the president may call special meetings of
stockholders.
REQUIREMENTS FOR ADVANCE NOTIFICATION OF STOCKHOLDER NOMINATIONS AND
PROPOSALS. Our bylaws establish advance notice procedures for stockholder
proposals and for the nomination of candidates for election as directors, other
than nominations made by or at the direction of the board of directors or a
committee of the board.
DELAWARE ANTITAKEOVER LAW. Physiometrix is subject to Section 203 of the
Delaware General Corporation Law, an antitakeover law. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in a business
combination with an interested stockholder for a period of three years following
the date the person became an interested stockholder, unless the business
combination or the transaction in which the person became an interested
stockholder is approved in the manner specified in Section 203. Generally, a
business combination includes a merger, asset or stock sale, or other
transaction resulting in a financial benefit to the interested stockholder.
Generally, an interested stockholder is a person who, together with affiliates
and associates, owns or within three years prior to the determination of
interested stockholder status did own 15% or more of a corporation's voting
stock. The existence of this provision may have an
-14-
<PAGE>
antitakeover effect by discouraging takeover attempts not approved in advance by
the board of directors, that might result in a premium over the market price for
the shares of common stock held by stockholders.
ELIMINATION OF STOCKHOLDER ACTION BY WRITTEN CONSENT. Our certificate of
incorporation eliminates the right of stockholders to act by written consent
without a meeting.
NO CUMULATIVE VOTING. Our certificate of incorporation and bylaws do not
provide for cumulative voting in the election of directors.
UNDESIGNATED PREFERRED STOCK. The authorization of undesignated preferred
stock makes it possible for the board of directors to issue preferred stock with
voting or other rights or preferences that could impede the success of any
attempt to change control of Physiometrix. These and other provisions may have
the effect of deferring hostile takeovers or delaying changes in control or
management of Physiometrix.
AMENDMENT OF CHARTER PROVISIONS. The amendment of any of the above
provisions would require approval by holders of at least 66 2/3% of the
outstanding common stock.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is American Stock
Transfer and Trust. The telephone number for our transfer agent and registrar is
(718) 921-8200.
-15-
<PAGE>
LEGAL MATTERS
The validity of the common stock offered hereby has been passed upon
for us by Wilson Sonsini Goodrich & Rosati, Palo Alto, California.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our financial
statements included in our Annual Report on Form 10-K for the year ended
December 31, 1999, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at
1-800-732-0330 for further information on the public reference rooms.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to these documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below (and any amendments thereto) and any
future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until the selling stockholders sell all of their
common stock:
Annual report on Form 10-K for the fiscal year ended December 31, 1999;
and
Report on Form 10-Q for the fiscal quarter ended March 31, 2000.
To obtain a copy of these filings at no cost, you may write or
telephone us at the following address:
Corporate Secretary
Physiometrix, Inc.
5 Billerica Park
North Billerica, MA 01862
(978) 670-2422
-16-
<PAGE>
================================================================================
YOU SHOULD RELY ON THE INFORMATION CONTAINED IN THIS DOCUMENT OR TO WHICH
WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH
INFORMATION THAT IS DIFFERENT. THIS DOCUMENT MAY ONLY BE USED HERE IT IS LEGAL
TO SELL THESE SECURITIES. THE INFORMATION IN THIS DOCUMENT MAY ONLY BE ACCURATE
ON THE DATE OF THIS DOCUMENT. THIS DOCUMENT MAY BE USED ONLY WHERE IT IS LEGAL
TO SELL THESE SECURITIES. THE INFORMATION IN THIS DOCUMENT MAY ONLY BE ACCURATE
ON THE DATE OF THIS DOCUMENT.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
RISK FACTORS.......................................3
USE OF PROCEEDS...................................10
SELLING STOCKHOLDERS..............................10
PLAN OF DISTRIBUTION..............................11
LEGAL MATTERS.....................................16
EXPERTS...........................................16
WHERE YOU CAN FIND MORE INFORMATION...............16
</TABLE>
40,000 SHARES OF COMMON STOCK
7,500 SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE OF WARRANTS
PHYSIOMETRIX, INC.
COMMON STOCK
------------------
PROSPECTUS
------------------
July 19, 2000
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than the
underwriting commission, payable by the Registrant in connection with the sale
of common stock being registered. All amounts are estimates except the SEC
Registration Fee and the Nasdaq National Market Fee.
SEC Registration Fee.................................... $ 332
Legal Fees and Expenses................................. $10,000
Accounting Fees and Expenses............................ $10,000
Miscellaneous Expenses.................................. $10,000
Total................................. $30,332
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify its directors, officers, employees and other agents in
terms sufficiently broad to permit indemnification (including reimbursement for
expenses) under certain circumstances for liabilities arising under the
Securities Act. The Registrant's Certificate of Incorporation and bylaws contain
provisions covering indemnification of corporate directors, officers and other
agents against certain liabilities and expenses incurred as a result of
proceedings involving such persons in their capacities as directors, officers,
employees or agents, including proceedings under the Securities Act or the
Securities Exchange Act of 1934, as amended.
The Registrant's Certificate of Incorporation provides for the
indemnification of directors to the fullest extent permissible under Delaware
law.
The Registrant's Bylaws provide for the indemnification of officers,
directors and third parties acting on behalf of the corporation if such person
acted in good faith and in a manner reasonably believed to be in and not opposed
to the best interest of the corporation, and, with respect to any criminal
action or proceeding, the indemnified party had no reason to believe his conduct
was unlawful.
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Registrant's Bylaws, and intends to enter into indemnification agreements
with any new directors and executive officers in the future.
At present, there is no pending litigation or proceeding involving a
director, officer, employee or other agent of the Registrant in which
indemnification is being sought, nor is the Registrant aware of any threatened
litigation that may result in a claim for indemnification by any director,
officer, employee or other agent of the Registrant.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
-------------------- -------------------------------------------------------------------------
<S> <C>
3.1+ Amended and Restated Certificate of Incorporation of Registrant
3.2+ Amended and Restated Bylaws of the Registrant
4.1+ Form of common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Ernst & Young LLP, Independent Auditors (see page II-__)
24.1 Power of Attorney (see page II-3)
</TABLE>
----------------------
+ Incorporated by reference to our Registration Statement on Form S-1 filed
with the Securities and Exchange Commission on March 9, 1996.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes that:
(a) Insofar as indemnification for liabilities arising under the
Securities Act, may be permitted to directors, officers and controlling
persons of the Registrant, 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 of controlling person
of the Registrant in the successful defense of any action, suit
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 counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction in
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.
(c) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part
of a 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 Act shall be deemed to be part of
the registration statement as of the time it was declared effective.
(d) For the purpose 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.
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 to
include any material information with respect to the plan of
II-2
<PAGE>
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
2. That, for the purpose of determining any liability under the
Securities Act 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.
3. That, for purposes 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.
4. 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 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.
5. 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of North Billerica, State of
Massachusetts, on the 19th day of July, 2000.
PHYSIOMETRIX, INC.
By: /S/ JOHN WILLIAMS
-----------------------------------------
John Williams
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John Williams and Daniel Muehl and each
of them, his attorneys-in-fact, each with the power of substitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to sign any registration statement for the same offering covered by this
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, and to file the same, with all exhibits thereto in all
document sin connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every Act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that such attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, any lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Act, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
----------------------------------------- ----------------------------------------------- ------------------
<S> <C> <C>
/S/ JOHN WILLIAMS President, Chief Executive Officer and Director July 19, 2000
------------------------------------- (Principal Executive Officer)
John Williams
/S/ DANIEL MUEHL Chief Financial Officer, (Principal Financial July 19, 2000
------------------------------------- Officer and Principal Accounting Officer)
Daniel Muehl
/S/ THOMAS BARUCH Director July 19, 2000
-------------------------------------
Thomas Baruch
/S/ JAMES SAALFIELD Director July 19, 2000
-------------------------------------
James Saalfield
/S/ CHRISTOPHER D. MITCHELL Director July 19, 2000
-------------------------------------
Christopher D. Mitchell
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------------------------ ---------------------------------------------------------------------
<S> <C>
3.1+ Amended and Restated Certificate of Incorporation of Registrant
3.2+ Amended and Restated Bylaws of the Registrant
4.1+ Form of common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Ernst & Young LLP, Independent Auditors (see page II-__)
24.1 Power of Attorney (see page II-3)
------------------------
</TABLE>
+ Incorporated by reference to our Registration Statement on Form S-1 filed
with the Securities and Exchange Commission on March 9, 1996.
