<PAGE> 1
As filed with the Securities and Exchange Commission on April 25, 1995.
Subject to amendment.
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------
NOVAMETRIX MEDICAL SYSTEMS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 06-0977422
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
-----------------------
One Barnes Industrial Park Road
Wallingford, Connecticut 06492
(203) 265-7701
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-----------------------
WILLIAM J. LACOURCIERE
Chairman of the Board
and Chief Executive Officer
One Barnes Industrial Park Road
Wallingford, Connecticut 06492
(203) 265-7701
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
THOMAS M. HAYTHE, ESQ.
Haythe & Curley
237 Park Avenue
New York, New York 10017
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. /X/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed
maximum Proposed
Title of aggregate maximum Amount of
shares to be Amount to be offering price aggregate registration
registered registered per share* offering price* fee
- ---------------------- --------------------- ------------------------ ------------------------ ---------------------
<S> <C> <C> <C> <C>
Common stock 100,000 $4.875 $487,500 $168.11
($.01 par shares
value)
======================================================================================================================
</TABLE>
* Estimated solely for purposes of calculating the registration fee on the basis
of the average high and low prices of the Common Stock on April 20, 1995, as
reported on the Nasdaq National Market System.
---------------
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.
Page 1 of 19 Pages
Exhibit Index Appears at Page 17
<PAGE> 2
P R O S P E C T U S
- - - - - - - - - - -
100,000 Shares
NOVAMETRIX MEDICAL SYSTEMS INC.
Common Stock
($.01 Par Value)
------------------------------------
This Prospectus relates to 100,000 shares of common stock,
$.01 par value (the "Common Stock"), of Novametrix Medical Systems Inc. (the
"Company") which may be sold from time to time by the persons herein named (the
"Selling Stockholders") (i) who have heretofore acquired such shares or (ii) who
will acquire such shares upon the exercise of warrants ("Warrants") heretofore
issued to such persons by the Company. See "Selling Securityholders."
The Selling Stockholders may from time to time sell all or
part of the shares offered hereby in the over-the-counter market at the
prevailing market prices and upon payment of normal brokerage commissions. In
addition, the Selling Stockholders may from time to time sell all or part of the
shares offered hereby in privately negotiated transactions at negotiated prices,
or otherwise. The Company will not receive any of the proceeds from the sale of
the shares offered hereby by the Selling Stockholders.
The Common Stock is traded on the Nasdaq National Market
System ("Nasdaq") under the symbol "NMTX." On April 20, 1995, the closing sale
price of the Common Stock, as reported by Nasdaq, was $4.875 per share.
----------------------
THE SECURITIES OFFERED HEREBY 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 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 __________, 1995.
<PAGE> 3
2
No person is authorized to give any information or to make any
representation other than as contained in this Prospectus in connection with the
offer made hereby, and, if given or made, such information or representation
must not be relied upon as having been authorized by the Company or the Selling
Stockholders. The delivery of this Prospectus at any time does not imply that
the information herein is correct as of any time subsequent to its date. This
Prospectus does not constitute an offer to sell, or a solicitation of an offer
to buy, any securities other than the specific registered securities to which it
relates or an offer or solicitation with respect to those securities in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction.
--------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, and at the Commission's
regional offices at 7 World Trade Center, New York, New York 10048 and
Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois 60661,
and copies of such materials may be obtained from the Public Reference Section
of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which have been filed by the Company
with the Commission pursuant to the Exchange Act are incorporated by reference
in this Prospectus:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended May 1, 1994.
(b) The Company's Quarterly Reports on Form 10-QSB for
the quarters ended July 31, 1994, October 30, 1994
and January 29, 1995.
(c) The description of the Common Stock contained in the
Company's Registration Statement on Form 10 dated
July 24, 1979.
In addition, all documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the Common Stock
shall be deemed to be incorporated herein by reference and to be a part hereof
from the date of filing of such documents.
The Company hereby undertakes to provide without charge to
each person to whom a copy of this Prospectus is delivered, upon the written or
oral request of any such person, a copy of any of the above documents. Such
requests should be addressed to the Chief Financial Officer, Novametrix Medical
Systems Inc., One Barnes Industrial Park Road, Wallingford, Connecticut 06492
(Telephone: 203-265-7701).
This Prospectus omits certain information contained in the
Registration Statement concerning the Common Stock offered hereby, which is on
file with the Commission pursuant to the rules and regulations of the
Commission. The information so omitted may be obtained from the principal
offices of the Commission in Washington, D.C. upon payment of the fees
prescribed by the Commission, or examined there without charge.
<PAGE> 4
3
THE COMPANY
The Company's executive offices are located at One Barnes
Industrial Park Road, Wallingford, Connecticut 06492 and its telephone number is
(203) 265-7701.
RISK FACTORS
The Common Stock offered hereby is highly speculative. In
addition to the other information discussed in this Prospectus, the risk factors
listed below should be considered carefully in evaluating the Common Stock
offered by this Prospectus.
PRIOR SUBSTANTIAL NET LOSSES. For the last fiscal quarter in the fiscal
year ended April 30, 1989 and each of the fiscal years ended April 29, 1990
("Fiscal 1990") and April 28, 1991 ("Fiscal 1991"), the Company incurred
substantial net losses of $618,276, $15,299,736 and $2,422,931, respectively. In
addition, the Company had substantial working capital deficiencies of $8,529,304
and $7,261,597 and negative cash flows from operations in each of Fiscal 1990
and Fiscal 1991, respectively. The Company's deficiencies in working capital
resulted from net losses from operations in Fiscal 1990 and Fiscal 1991 and
defaults under long-term debt agreements existing at that time. However, the
Company was profitable in the fiscal year ended May 3, 1992 ("Fiscal 1992"), the
fiscal year ended May 2, 1993 ("Fiscal 1993"), the fiscal year ended May 1, 1994
("Fiscal 1994") and for each of the first three quarters of the fiscal year
ending April 30, 1995 ("Fiscal 1995"). The Company also improved its operations
and balance sheet during Fiscal 1993, Fiscal 1994 and the first three quarters
of Fiscal 1995. The Company's ability to operate its business over a sustained
period without additional capital infusions will be dependent, in large part, on
its continued profitability. To remain profitable, the Company must, among other
things, successfully market its existing products and develop new products.
Although the Company is not aware of any conditions that would have a
significant adverse effect on the Company's financial condition in the
foreseeable future, there can be no assurance that the Company will remain
profitable or that sufficient capital will be available to it on commercially
reasonable terms, if at all, to sustain the Company's operations and growth on a
long term basis.
FINANCIAL LEVERAGE. The Company is a party to the Fourth Amended and
Restated Loan and Security Agreement (the "Bank Agreement") with First Fidelity
Bank Connecticut, formerly Union Trust Company, which, at March 15, 1995,
beneficially owned approximately 11.0% of the Common Stock and has been the
primary lender to the Company since March 1978. The Bank Agreement contains
covenants which, among other things, limit the Company's ability to incur
additional debt and impose minimum working capital, net worth and financial
ratio requirements.
The Company is substantially dependent upon cash flow from its
operations to support its growth and to satisfy debt service and other
obligations. There is no assurance that the Company will be able to obtain
additional capital if needed, or that such capital, if available, will be
available on commercially reasonable terms. Any failure to have access to
adequate capital on commercially reasonable terms or to continue to generate
positive cash flow could have a material adverse effect on the Company's
business and financial position.
EFFECT OF HEALTHCARE REFORM. As a result of the continued escalation of
health care costs, the inability of many individuals to obtain health care
insurance and other factors, numerous proposals relating to health care reform
affecting the payment for, availability of and various other aspects of health
care services have been, and additional proposals may be, introduced in the
United States Congress and the legislatures of the states in which the Company
does business. Aspects of certain of these health care proposals, if adopted,
could adversely affect the Company. Other aspects of these proposals, such as
universal health insurance coverage and coverage of certain previously uncovered
services, could also have an impact on the Company's business. The Company
cannot predict what effect, if any, yet to be enacted health care legislation or
proposals will have on the Company if and when enacted.
<PAGE> 5
4
The Company believes that the current political environment in
which it operates will result in continued legislative and regulatory scrutiny
of health care and may lead to the passage of new legislation. It is not
possible at this time to predict what, if any, legislation or regulations will
be adopted by the United States Congress, various state legislatures, or various
federal and state regulatory agencies, or when such legislation or regulations
will be adopted and implemented. No assurance can be given that any such
legislation or regulations will not have a material adverse impact on the
Company's operations and business.
RAPID TECHNOLOGICAL CHANGES. The electronic medical instrumentation
industry is characterized by rapid technological changes and advances. Although
the Company believes that its products are technologically current, the
development of new technologies or refinements of existing ones could at any
time make the Company's existing products technologically or economically
obsolete. Although the Company is not aware of any pending technological
developments that would be likely to materially and adversely affect its
business or financial position, there can be no assurance that such developments
will not occur at any time.
PATENT INFRINGEMENT AND OTHER PROPRIETARY INFORMATION CONSIDERATIONS.
The electronic medical instrumentation industry is characterized by extensive
patent coverage and the continuing issuance of new patents. The Company holds
patents and has patents pending related to certain of the Company's products.
There can be no assurance, however, that any infringement by the Company of
existing or future patents will not materially and adversely effect the
Company's business and financial position.
In April 1989, an adverse decision (the "Initial BOC
Decision") was entered by the United States District Court for the District of
Connecticut (the "District Court") against the Company in an action commenced by
The BOC Group, Inc. ("BOC") alleging that the Company's manufacture and sale of
pulse oximeters infringed a patent held by BOC. Although the Initial BOC
Decision was ultimately overturned in January 1990 by the United States Court of
Appeals for the Federal Circuit (the "Court of Appeals") and the Company
subsequently prevailed in September 1990 in the District Court and in May 1991
in the Court of Appeals, at the time, the Initial BOC Decision finding patent
infringement by the Company materially and adversely affected the Company's
reputation and market position.
The Company relies on trade secrets and proprietary know-how,
which it will seek to protect, in part, by confidentiality agreements with
certain of its employees, suppliers and customers. However, there can be no
assurance that the Company's confidentiality agreements, when in place, will not
be breached or that the Company would have adequate remedies for any breach.
There can be no assurance that the Company's trade secrets or proprietary
know-how will not otherwise become known or be independently discovered by
competitors.
EXTREMELY COMPETITIVE MARKET. The electronic medical instrumentation
industry is extremely competitive. The Company's competitors vary in size from
entities which are smaller than the Company to divisions or subsidiaries of
multinational corporations. There can be no assurance that the Company will be
able to compete successfully with its competitors, some of which also have
extensive production facilities, well-established marketing and service
organizations, recognized reputations in the electronic medical instrumentation
industry and also have far greater financial resources than the Company has or
will have in the foreseeable future.
In addition, although the Company believes its reputation in
the marketplace is being restored, the Company believes its credibility and
market position were severely damaged by the Initial BOC Decision and the
perception in the marketplace that the Company was in poor financial condition.
REGULATION. Certain of the Company's products are "devices" within the
meaning of a 1976 amendment to the Federal Food, Drug and Cosmetics Act. Under
the amendment, a manufacturer
<PAGE> 6
5
must obtain approval by the United States Food and Drug Administration (the
"FDA") of certain new devices before they can be marketed in the United States.
The approval process requires that the safety and efficacy of such devices be
demonstrated by the manufacturer to the FDA. Under certain circumstances, the
cost of obtaining such pre-marketing approval may be high and the process
lengthy, and no assurance can be given that approval will be obtained. All of
the products currently marketed domestically by the Company requiring
pre-marketing approval from the FDA have been so approved.
In the future, certain other classes of medical devices will
be required to comply with industry-wide performance standards with respect to
safety and efficacy, when these standards are promulgated by the FDA. The FDA
has not yet developed industry-wide performance standards with respect to the
safety and effectiveness of those products manufactured by the Company which
would be subject to such standards. When and if these standards are adopted, the
Company will be required to submit data demonstrating compliance with the
standards (during which period the Company may be permitted to continue to
market products which have previously been approved by the FDA).
There can be no assurance that the Company's products will
comply with the applicable industry-wide performance standards when and if
adopted or that the Company will receive the requisite approval to market any of
its future products. Any failure to receive approvals or non-compliance with
performance standards would have a material adverse effect on the Company's
business and financial position.
Various countries in which the Company markets its products
have regulatory agencies which perform functions comparable to the FDA. To date,
foreign regulations have not adversely affected the Company's business; however,
there can be no assurance that any such regulations will not have a material
adverse affect on the Company's business and financial condition in the future.
LIMITATION ON NET OPERATING LOSS CARRYFORWARDS. As of May 1, 1994, the
Company had net operating loss carryforwards ("NOLs") for federal income tax
reporting purposes of approximately $16,700,000 of which $136,000 expires in
2002, $12,000,000 expires in 2005, $4,200,000 expires in 2006 and $364,000
expires in 2007. Under Section 382 of the Internal Revenue Code of 1986, as
amended, and Treasury Regulations promulgated thereunder, if a loss corporation
such as the Company has an "ownership change" within a designated testing
period, its ability to use its NOLs is subject to certain significant annual
limitations.
DEPENDENCE ON KEY EMPLOYEES. The Company believes that its success will
be highly dependent upon its continued ability to attract and retain skilled
managers and engineering personnel, including its Chairman and Chief Executive
Officer, William J. Lacourciere. There can be no assurance that the Company will
be successful in hiring or retaining requisite managerial and engineering
personnel in the future. The Company has an employment agreement with Mr.
Lacourciere and has obtained a $1,500,000 key person life insurance policy
covering Mr. Lacourciere's life. The Company is the sole beneficiary of such
life insurance policy.
DEPENDENCE ON SUPPLIERS OF COMPONENTS. Substantially all of the
components in the Company's products are manufactured by others and then
assembled by the Company. The Company's assembly operations require a variety of
electronic and mechanical components and supplies as well as specialized
assembly equipment. The Company has not experienced any interruption of
production or supplies of components, supplies or equipment. However, there can
be no assurance that the Company will continue to receive timely service or that
the Company would be able to find readily a substitute manufacturer if one or
more were needed on short notice. Interruption of the Company's sources of
supply or quality problems with supplied components would have a material
adverse effect on the Company's business and financial position.
<PAGE> 7
6
PRODUCT LIABILITY CLAIMS AND INSURANCE COVERAGE. From time to time, the
Company is subject to product liability claims, suits and complaints incidental
to its business. These claims, suits and complaints are covered by insurance
policies maintained by the Company, subject to certain policy limits. In
addition, certain of the Company's original equipment manufacturer ("OEM")
agreements require the Company to maintain minimum levels of product liability
insurance. The Company currently maintains product liability insurance in the
amount of $5,000,000 with a $50,000 per occurrence deductible up to an aggregate
annual deductible of $250,000. The Company is not aware of any pending product
liability claims, suits or complaints the disposition of which, in the opinion
of management, would have a material adverse effect upon the Company's business,
financial position or liquidity. The Company, however, could be materially
adversely affected by successful product liability claims, and there can be no
assurance that the Company will have sufficient resources to satisfy any
liability resulting from claims not covered by existing insurance policies.
POSSIBLE ISSUANCE OF PREFERRED STOCK, ANTI-TAKEOVER PROVISIONS AND
RETENTION OF CONTROL. The Company is authorized to issue up to 1,000,000 shares
of preferred stock, $1.00 par value per share (the "Preferred Stock"). The
Preferred Stock may be issued in one or more series, the terms of which may be
determined at the time of issuance by the Board of Directors, without further
action by stockholders, and may include voting rights (including the right to
vote as a series on particular matters), preferences as to dividends and
liquidation, conversion and redemption rights and sinking fund provisions. There
are currently 50,000 shares of Series A Preferred Stock designated and no shares
of Series A Preferred Stock issued and outstanding, and 120,000 shares of Series
B Preferred Stock designated and 100,000 shares of Series B Preferred Stock
issued and outstanding. The future issuance of any shares of Preferred Stock
could adversely affect the rights of the holders of the Common Stock, and
therefore reduce the value of the Common Stock.
In the event of certain defined takeover events (e.g.,
acquisitions of 20% or more of beneficial ownership of the outstanding Common
Stock, tender offers and mergers), pursuant to and subject to the provisions of
a certain preferred stock purchase rights plan adopted by the Company on March
10, 1989 and amended on October 31, 1990 and August 29, 1991 (the "Rights
Plan"), the holder of each share of Common Stock outstanding on March 23, 1989
is entitled to purchase from the Company one one-hundredth share of Series A
Preferred Stock, at an initial price of $25.00 per one one-hundredth of such
share, subject to adjustment. Upon the issuance of shares of Series A Preferred
Stock, holders of shares of Series A Preferred Stock will be entitled to a
cumulative quarterly dividend of the greater of $1.00 per share or 100 times the
per share dividend declared on Common Stock and will have a liquidation
preference equal to the greater of $100.00 per share or 100 times the aggregate
amount per share distribution to the holders of Common Stock. In addition, each
share will have 100 votes and will vote together with the Common Stock.
In addition to the above-described Rights Plan, the Company's
Certificate of Incorporation contains provisions affecting certain stockholder
voting and other requirements. Generally, the provisions require (i) that
certain business combinations involving the Company and any beneficial owner of
20% or more of the outstanding voting securities of the Company be approved by
the holders of at least 80% of the Company's voting securities, unless certain
conditions, including a minimum price requirement, are satisfied, or unless the
Board of Directors has waived such conditions or has approved, prior to the time
such person became a 20% beneficial owner, the acquisition of such 20%
beneficial ownership position or the proposed business combination, (ii) that
any action taken by the Company's stockholders be taken at an annual or special
meeting held upon prior notice and pursuant to a vote (in addition, the
Company's By-laws contain a provision the effect of which is to prohibit the
stockholders of the Company from calling a special meeting without the approval
of the Board of Directors, thereby preventing stockholders, without such
approval, from initiating action other than at the Annual Meeting of
Stockholders) and (iii) the vote of not less than 80% of the Company's
outstanding voting securities to repeal, alter, amend or rescind the Company's
By-laws, any of the provisions
<PAGE> 8
7
described above and the provision with respect to the division of the Board of
Directors into classes described below.
The Certificate of Incorporation of the Company also provides
for a staggered board such that the Board of Directors is divided into three
classes (that is, Class A, Class B and Class C directors). The term of office of
the Class C directors of the Company will expire at the 1995 Annual Meeting of
Stockholders, the term of office of the Class A directors of the Company will
expire at the 1996 Annual Meeting of Stockholders and the term of office of the
Class B directors will expire at the 1997 Annual Meeting of Stockholders. At
each such annual election of directors (and at each annual election thereafter),
directors will be chosen for a three-year term.
The overall effect of the above-described measures may be to
discourage or render more difficult the accomplishment of mergers or other
takeover or change in control attempts. To the extent that these measures have
this effect, removal of the Company's incumbent Board of Directors and
management may be rendered more difficult. Further, these measures may have an
adverse impact on the ability of stockholders of the Company to participate in a
tender or exchange offer for the Common Stock and in so doing diminish the
market value of the Common Stock. The Company is not aware of any proposed
takeover attempt or any proposed attempt to acquire a large block of Common
Stock.
RISK ASSOCIATED WITH FOREIGN SALES. Sales to foreign customers
constitute a significant portion of the Company's total net sales. Sales of
products and services in foreign countries constituted 39% of the Company's net
sales for the first three quarters of Fiscal 1995 and 35%, 30%, and 21% of the
Company's net sales for Fiscal 1994, Fiscal 1993 and Fiscal 1992, respectively.
The Company intends to continue to improve and expand its sales efforts in
countries worldwide and expects international sales to continue to constitute a
significant portion of the Company's total net sales. Sales in foreign countries
of electronic medical devices are subject to a number of risks, including
regulatory requirements, foreign currency fluctuations, the imposition of
tariffs and import and export controls, changes in government policies
(including United States policy toward these countries), and other factors which
could have a material adverse effect on the Company's business and financial
position.
POSSIBLE VOLATILITY OF STOCK PRICE. The market price of the Common
Stock may be highly volatile. Factors such as quarter-to-quarter variations in
the Company's net sales, gross margins and earnings or adverse developments
affecting the Company's competitors or the electronic medical instrumentation
industry or healthcare industry in general could cause the market price of the
Common Stock to fluctuate significantly. In addition, in recent years the stock
markets have experienced significant price and volume volatility which has
affected the market prices of the stock of many companies but which has often
been unrelated to the operating performance of these companies. Such volatility
may adversely affect the market price of the Common Stock.
IMPROBABILITY OF DIVIDENDS. The Company has never paid a cash dividend
on the Common Stock and does not expect to pay any dividends on the Common Stock
in the foreseeable future.
<PAGE> 9
8
SELLING SECURITYHOLDERS
The following table sets forth certain information as of March
15, 1995 (and as adjusted to reflect the sale of all of the shares of Common
Stock offered hereby by the Selling Stockholders) with respect to the beneficial
ownership of the Common Stock by the Selling Stockholders. All of such shares of
Common Stock are owned with sole voting and investment power.
<TABLE>
<CAPTION>
Beneficial Ownership Beneficial Ownership
Prior to Offering(1) After Offering(1)(2)
---------------------------------------- ----------------------------------
Number of
Percentage of Shares of Percentage of
Title of Number of Shares of Class Common Stock Number of Shares of Class
Name Class Shares Outstanding(1) to be Sold Shares Outstanding(1)
- -------------------- -------------- ----------------- ------------------ ---------------- -------------- -----------------
<S> <C> <C> <C> <C> <C> <C>
Mesi, Inc. Common Stock 50,000(3) * 50,000 0 *
Joseph Orr Common Stock 20,000(4) * 20,000 0 *
Dwayne Westenskow Common Stock 10,000(5) * 10,000 0 *
Scott Kofoed Common Stock 20,000(6) * 20,000 0 *
</TABLE>
- ------------------
* Less than one percent.
(1) Includes any shares that the named person is entitled to receive within
60 days, through the exercise of any option, warrant, conversion right
or similar arrangement.
(2) Assumes the sale of all shares of Common Stock offered hereby.
(3) Includes 23,179 shares of Common Stock issuable upon the exercise of
currently exercisable warrants held by Mesi, Inc., a Massachusetts
corporation, which warrants will expire on March 8, 2004.
(4) Consists of 20,000 shares of Common Stock issuable upon the exercise of
currently exercisable warrants held by Joseph Orr, which warrants will
expire on June 20, 2004.
(5) Consists of 10,000 shares of Common Stock issuable upon the exercise of
currently exercisable warrants held by Dwayne Westenskow, which
warrants will expire on June 20, 2004.
(6) Consists of 20,000 shares of Common Stock issuable upon the exercise of
currently exercisable warrants held by Scott Kofoed, which warrants
will expire on June 20, 2004.
The Company purchased certain technology and other assets from
Mesi, Inc. pursuant to an Agreement of Purchase and Sale (the "Purchase
Agreement") dated as of March 9, 1993. Pursuant to the Purchase Agreement, the
Company also agreed to register the shares of Common Stock offered hereby.
The Company acquired an exclusive license of certain
technology from Korr Medical Technologies Inc., the stockholders of which are
Joseph Orr, Dwayne Westenskow and Scott Kofoed, pursuant to a License, Technical
Assistance, Cooperation and Noncompetition Agreement (the "License Agreement")
dated as of December 10, 1993 and amended as of June 21, 1994. Pursuant to the
License Agreement, the Company also agreed to register the shares of Common
Stock offered hereby.
<PAGE> 10
9
LEGAL OPINION
The validity of the securities being offered hereby is being
passed upon for the Company by Haythe & Curley, 237 Park Avenue, New York, New
York 10017. Thomas M. Haythe, a partner in the law firm of Haythe & Curley, is
General Counsel and a director of the Company. As of March 15, 1995, Mr. Haythe
held currently exercisable warrants to purchase 59,695 shares of Common Stock
and 53,845 shares of Common Stock. In addition, other partners in Haythe &
Curley hold currently exercisable warrants to purchase an aggregate of 116,383
shares of Common Stock and an aggregate of 140,888 shares of Common Stock.
EXPERTS
The consolidated financial statements and financial statement
schedules of Novametrix Medical Systems Inc. appearing in Novametrix Medical
Systems Inc.'s Annual Report (Form 10-K) for the year ended May 1, 1994, have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements and financial statement schedules are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
<PAGE> 11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in
connection with the distribution of the securities being registered hereunder.
All of such expenses will be borne by the Company.
<TABLE>
<S> <C>
S.E.C. registration fee.............................. $ 168.11*
Legal fees and expenses.............................. 2,500.00
Accounting fees...................................... 5,000.00
Miscellaneous........................................ 500.00
----------
Total.......................... $ 8,168.11
</TABLE>
- --------------
* Actual fee.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware Law ("Delaware Law") permits a corporation to indemnify its officers
and directors against liability in derivative and non-derivative actions if the
officer or director acted in good faith and in a manner he reasonably believed
to be in the best interests of the corporation and, in a criminal proceeding, if
he had no reasonable cause to believe that his conduct was unlawful. In
addition, Section 145 provides that an officer or director may be indemnified
against liability for action taken while serving another entity at the request
of the corporation so long as his actions were not opposed to the best interests
of the corporation.
Article Seventh of the Company's Certificate of Incorporation
provides that the Company shall indemnify and hold harmless any director or
officer of the Company from and against any and all expenses and liabilities
that may be imposed upon or incurred by him in connection with, or as a result
of, any proceeding in which he may become involved, as a party or otherwise, by
reason of the fact that he is or was such a director or officer of the Company,
whether or not he continues to be such at the time such expenses and liabilities
shall have been imposed or incurred, under certain prescribed circumstances and
subject to the laws of the State of Delaware.
The Company's Certificate of Incorporation contains a
provision which eliminates the personal liability of a director of the Company
to the Company or to any of its stockholders for monetary damages for a breach
of his fiduciary duty as a director, except in the case where the director
breached his duty of loyalty, failed to act in good faith, engaged in
intentional misconduct or knowingly violated a law, authorized the payment of a
dividend or approved a stock repurchase in violation of Delaware corporate law,
or obtained an improper personal benefit.
II-1
<PAGE> 12
Item 16. Exhibits.
The Exhibits required to be filed as part of this Registration
Statement are listed in the attached Index to Exhibits.
Item 17. Undertakings.
The undersigned small business issuer hereby undertakes that
it will:
(1) File, during any period in which it offers or sells securities,
a post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information in
the Registration Statement; and
(iii) Include any additional or changed material information
on the plan of istribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new Registration Statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
The undersigned small business issuer hereby undertakes that:
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the small business issuer pursuant to the foregoing provisions, or otherwise,
the small business issuer 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 small business issuer 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 small business issuer
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
The undersigned small business issuer hereby undertakes that:
(1) For determining any liability under the Securities Act, treat
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 small business issuer under Rule 424(b)(1) or (4) or
497(h) under the Securities Act as part of this Registration Statement as of the
time the Commission declared it effective.
(2) For determining any liability under the Securities Act, treat
each post-effective amendment that contains a form of prospectus as a new
Registration Statement for the securities offered in the Registration Statement,
and the offering of the securities at that time as the initial bona fide
offering of those securities.
II-2
<PAGE> 13
POWER OF ATTORNEY
The Registrant and each person whose signature appears below
hereby appoint William J. Lacourciere and Joseph A. Vincent as attorneys-in-fact
with full power of substitution, severally, to execute in their respective names
and on behalf of the Registrant and each such person, individually and in each
capacity stated below, one or more amendments (including post-effective
amendments) to this Registration Statement as the attorney-in-fact acting in the
premises deems appropriate and to file any such amendment to this Registration
Statement with the Securities and Exchange Commission.
------------
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 Town of Wallingford, State of Connecticut on the 24th
day of April, 1995.
NOVAMETRIX MEDICAL SYSTEMS INC.
By /s/ William J. Lacourciere
-------------------------------
William J. Lacourciere
Chairman of the Board,
President, Chief Executive
Officer and Director
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William J. Lacourciere Chairman of the April 24, 1995
- ------------------------------------ Board, President, Chief
William J. Lacourciere Executive Officer and
Director
/s/ Joseph A. Vincent Vice President-Finance, April 24, 1995
- ------------------------------------ Principal Financial
Joseph A. Vincent and Accounting
Officer and Director
</TABLE>
II-3
<PAGE> 14
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Thomas M. Haythe Director April 24, 1995
- ------------------------------------
Thomas M. Haythe
/s/ Michael J. Needham Director April 24, 1995
- ------------------------------------
Michael J. Needham
/s/ Photios T. Paulson Director April 24, 1995
- ------------------------------------
Photios T. Paulson
Director
- ------------------------------------
Steven J. Shulman
</TABLE>
II-4
<PAGE> 15
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Novametrix Medical
Systems Inc. for the registration of 100,000 shares of its common stock and to
the incorporation by reference therein of our report dated July 8, 1994, with
respect to the consolidated financial statements and schedules of Novametrix
Medical Systems Inc. included in its Annual Report (Form 10-K) for the year
ended May 1, 1994, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
April 20, 1995
II-5
<PAGE> 16
CONSENT OF COUNSEL
The consent of Haythe & Curley is contained in their opinion
filed as Exhibit 5 to this Registration Statement.
II-6
<PAGE> 17
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Number Description of Exhibit Page
- ------ ---------------------- ----
<S> <C> <C>
5 - Opinion of Haythe & Curley 18
23(i) - Consent of Ernst & Young LLP (see "Consent of
Independent Auditors" in the Registration
Statement). --
23(ii) - Consent of Haythe & Curley (contained in Exhibit
5) --
24 - Power of Attorney (see "Power of Attorney" --
contained in the Registration Statement).
</TABLE>
E-1
<PAGE> 1
Exhibit 5
Haythe & Curley
237 Park Avenue
New York, New York 10017
April 25, 1995
Novametrix Medical Systems Inc.
One Barnes Industrial Park Road
Wallingford, Connecticut 06492
Dear Sir or Madam:
We have acted as counsel for Novametrix Medical Systems Inc.,
a Delaware corporation (the "Company"), in connection with the registration
statement on Form S-3 (the "Registration Statement") being filed by the Company
under the Securities Act of 1933, as amended, with respect to up to 100,000
shares (the "Shares") of the Company's common stock, $.01 par value, which may
be sold from time to time by persons (i) who have heretofore acquired such
Shares (the "Issued Shares") or (ii) who will acquire such Shares (the "Warrant
Shares") upon the exercise of warrants ("Warrants") heretofore issued to such
persons by the Company.
In connection with the Registration Statement, we have
examined such records and documents and such questions of law as we have deemed
appropriate for purposes of this opinion. On the basis of such examination, we
advise you that in our opinion:
(1) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware;
(2) the Issued Shares are duly authorized, validly
issued, fully paid and non-assessable; and
(3) the Warrant Shares are duly authorized and reserved
for issuance and, when issued upon exercise of the Warrants, will be
validly issued, fully paid and non-assessable.
<PAGE> 2
2
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to us under the caption
"Legal Opinion" in the prospectus contained in the Registration Statement.
Very truly yours,
HAYTHE & CURLEY
