<PAGE>
As filed with the Securities and Exchange Commission on May 4, 2000
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
TRIMEDYNE, INC.
---------------
(Exact name of registrant as specified in its charter)
Nevada 36-3094439
----------------------------- -------------------
(State or Other Jurisdiction (IRS Employer
Incorporation or Organization) Identification No.)
2801 Barranca Road
P.O. Box 57001
Irvine, California 92619-7001
- ---------------------------------------- -------------------
(Address of Principal Executive Offices) (Zip Code)
__________________________________________
MARVIN P. LOEB, CHAIRMAN
TRIMEDYNE, INC.
2801 Barranca Road
Irvine, California 92619-7001
(Name and Address of Agent for Service)
(949)559-5300
(Telephone Number, Including Area Code, of Agent of Service)
Copies to:
RICHARD F. HOROWITZ, ESQ.
IRVING ROTHSTEIN, ESQ.
Heller, Horowitz & Feit, P.C.
292 Madison Avenue
New York, New York 10017
<PAGE>
Approximate date of commencement of proposed sale to public:
As soon as practicable after the effective date
of the 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 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. [_]
<TABLE>
<CAPTION>
Calculation of Registration Fee
- ------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share (3) Price (3) Fee
- ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (1) 657,819 $3.03 $1,993,191.57 $ 526.21
Common Stock (2) 328,910 $4.88 $1,605,080.80 $ 423.75
- ------------------------------------------------------------------------------
$3,598,272.37 $ 949.96
</TABLE>
Total Registration Fee
(1) To be offered by selling security holders, at their discretion, from
time to time beginning on the effective date of this Registration
Statement, at prevailing market prices at the time of sale.
(2) Represents shares of Common Stock underlying the Common Stock Purchase
Warrants.
(3) Estimated solely for the purpose of calculating the registration fee.
Proposed maximum offering price per share is estimated based upon the
closing price on April 26,2000.
The registrant hereby amends the 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.
ii
<PAGE>
Cross Reference Sheet Showing Location in Prospectus of
Information Required Therein by Item 1 through 13 of Form S-3
Registration Statement Prospectus Caption
Item and Heading of Location
---------------------- ------------------
1. Forepart of the Registration
Statement and Outside Front
Cover Page of Prospectus............ Outside Front Cover
2. Inside Front and Outside Back
Cover Pages and Prospectus.......... Inside Front Cover Page
3. Summary Information,
Prospectus Summary
and Ratio of Earnings to Outside Front Cover,
Fixed Charges....................... Risk Factors
4. Use of Proceeds..................... Use of Proceeds
5. Determination of Offering Price..... Not Applicable
6. Dilution............................ Not Applicable
7. Selling Security Holders ........... Selling Security Holders
8. Plan of Distribution................ Cover Page,
Plan of Distribution
9. Description of the Securities to
be Registered....................... Not Applicable
10. Interest of Named Experts and
Counsel............................. Not Applicable
11. Material Changes.................... Material Changes
12. Incorporation of Certain
Information by Reference............ Incorporation of Certain
Documents by Reference
13. Disclosure of Commission Position
on Indemnification for Securities
Act Liabilities..................... Disclosure of Commission
Position on Indemnification for
Securities Act Liabilities
iii
<PAGE>
TABLE OF CONTENTS
Page No.
THE COMPANY.......................................................... 3
RISK FACTORS......................................................... 3
USE OF PROCEEDS...................................................... 5
PLAN OF DISTRIBUTION................................................. 5
SELLING SECURITY HOLDERS............................................. 5
MATERIAL CHANGES..................................................... 6
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...................... 7
COMMISSION'S POLICY ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES.......................................................... 7
LEGAL OPINIONS....................................................... 8
EXPERTS.............................................................. 8
<PAGE>
SUBJECT TO COMPLETION
DATED MAY 3, 2000
-----------------------------------
TRIMEDYNE, INC.
-----------------------------------
This Prospectus covers the proposed offer and sale of up to (i) 657,819 shares
of Common Stock, $0.01 par value (the "Common Stock"), of Trimedyne, Inc. ("we",
"us", "our" or the "Company") held by security holders who acquired them
directly from us; and (ii) 328,910 shares of Common Stock underlying Common
Stock Purchase Warrants issued by us (the "Underlying Shares" and collectively
with the Common Stock, the "Securities"). The common stock will be sold by
certain stockholders identified under the section entitled "Selling
Securityholders".
The sellers of the Securities are collectively referred to as the "Selling
Securityholders" and are identified under the section entitled "Selling
Securityholders."
Each of the Selling Securityholders intends to sell these Securities from time
to time for their own account in the open market at the prevailing prices, or in
individually negotiated transactions at such prices as may be agreed upon. Each
of the Selling Securityholders will bear all expenses with respect to the
offering of the Securities by them except the costs associated with registering
the Securities under the Act and preparing and printing this Prospectus.
The Selling Securityholders will receive all of the money from the sale of
these securities.
Our Common Stock is traded on NASDAQ National Market System Symbol - ("TMED").
The closing price of our Common Stock on April 26, 2000 was $3.03.
The Securities offered hereby involve a high degree of risk. Please read the
"Risk Factors" beginning on Page 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
With respect to the proposed sale of the Securities by the Selling
Securityholders (if any of such holders are an "affiliate" of the Company), we
are taking steps either to register the Securities or permit such sales (or
resales) pursuant to exemption from registration under the laws only of the
States of New York, New Jersey and Washington. However, if purchasers of the
Securities are not residents of those states, we will not be able to permit them
to effect transfers of the Securities sold by the Selling Securityholders,
unless the purchaser resides in a state which permits such transactions as
exempt from registration. Under such circumstances, the only alternatives
available to the Selling Securityholders may be to sell to a resident of those
states or to sell to an entity, such as a state registered broker - dealer,
which may be exempt under applicable state laws. Potential purchasers of the
Securities should consult with their broker and/or attorney to determine what
actions should be taken to comply with the laws of their state of residence with
respect to any such Securities to be purchased by them. To the extent any state
laws require, transactions may only be conducted through state registered
broker-dealers.
We will furnish to each person to whom this Prospectus is delivered, upon
written request, a copy of any of the documents referred to in this prospectus.
Requests should be addressed to: Mr. Shane Traveller c/o Trimedyne, Inc. 2801
Barranca Road, Irvine, California 92606. Mr. Traveller's telephone number is
(949)559-5300.
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS. ANY INFORMATION OR REPRESENTATION NOT HEREIN CONTAINED, IF GIVEN OR
<PAGE>
MADE, MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY US. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER OR SOLICITATION IN RESPECT OF THE SECURITIES IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. DELIVERY OF
THIS PROSPECTUS SHALL NOT, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN OUR BUSINESS SINCE THE DATE OF THIS PROSPECTUS.
THE DATE OF THIS PROSPECTUS IS MAY 3, 2000
ADDITIONAL INFORMATION
We have filed with the headquarters office of the Securities and Exchange
Commission located at 450 Fifth Street, N.W., Washington, D.C. 20549, a
Registration Statement on Form S-3 under the Securities Act of 1933 with respect
to these securities. This Prospectus filed as part of such Registration
Statement does not contain all the information set forth in, or annexed as
exhibits to, the Registration Statement. For further information about these
securities and the Company, reference is made to the Registration Statement and
the exhibits thereto. The Registration Statement and exhibits may be inspected
at the Headquarters Office of the Securities and Exchange Commission located at
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and at certain of the
Commission's regional offices at the following addresses: 7 World Trade Center,
13th Floor, New York, New York 10048; and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material may be obtained from the
Public Reference Section of the SEC, at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. at prescribed rates. The Commission also maintains a Web Site
that contains reports, proxy and information statements and other information
regarding registrants such as the Company, that file electronically with the
Commission. This material can be found at http://www.sec.gov.
2
<PAGE>
THE COMPANY
Trimedyne, Inc. (the "Company", "we", "our" or "us") is engaged in the
development, manufacturing and marketing of Holmium "cold" pulsed Lasers, Nd:YAG
"thermal" continuous wave Lasers and proprietary, disposable and reusable fiber-
optic laser delivery devices for use in orthopedics, urology, ear, nose and
throat ("ENT") surgery, gynecology, gastrointestinal surgery, general surgery
and other medical specialties. A 90% owned subsidiary of the Company,
Cardiodyne, Inc. ("Cardiodyne"), is engaged in the development and testing of a
new, automated heart revascularization system using our 80 watt Holmium laser to
treat severe angina (chest pain due to blockages in one or more of the coronary
arteries).
Our principal efforts from our inception in 1980 until 1991 were devoted to
the manufacturing and marketing of cardiovascular lasers and related disposables
for vaporizing plaque (fatty deposits) in blood vessels. As a result of
significant declines in sales of our cardiovascular laser products, in 1991 we
shifted our focus to laser and proprietary delivery system technologies for use
in selected "less invasive" surgical applications in orthopedics, urology,
gynecology, general surgery and ENT surgery. Our Nd:YAG lasers have been
cleared for sale by the U.S. Food and Drug Administration ("FDA") in a variety
of medical specialties, particularly for the coagulation of tissue. Our Holmium
lasers have been cleared for sale by the FDA for use in the aforementioned
specialties, particularly for the vaporization of tissues, as well as being
cleared for sale by the FDA for use in gastrointestinal surgery in November
1999. The Company is also engaged in the development of new laser products for
other surgical applications.
Our corporate office is located at 2801 Barranca Road, Irvine California,
92606, at which its telephone number is (949)559-5300.
Our Common Stock is traded on Nasdaq National Market System under the symbol
"TMED". The closing price of our Common Stock on April 26, 2000 was $3.03.
RISK FACTORS
An investment in the common stock offered in this Prospectus involves a high
degree of risk. You should carefully consider the following risks and
uncertainties. The risks and uncertainties described below may not be the only
ones we face. If any of the following risks actually occur, our business,
financial condition or results of operations could be materially adversely
affected. In this event, the trading price of our common stock could decline
and you may lose all or part of your investment.
We have incurred substantial losses and anticipate continuing losses
Though we had net income of $2,750,000 in fiscal 1999, our income in 1999 was
derived in part to our having received $6.5 million in settlement of our lawsuit
with C.R. Bard, Inc. ("Bard"), in December 1998. Excluding the settlement from
Bard, we would have had a loss of $3,750,000 in fiscal 1999. We sustained losses
of $2,538,000 in fiscal 1998. At December 31, 1999 we had an accumulated
deficit of $32,224,000. We anticipate continuing to incur losses until, at the
earliest, we generate sufficient revenues to offset the costs associated with
the development of new products. There can be no assurance that we will ever
operate profitably. You should be aware of the risks, problems, delays,
expenses, and difficulties encountered by companies developing new medical
technologies, especially in view of the significant competition that we have and
will continue to encounter.
We may need substantial additional financing
The development, testing, approval, and commercialization of medical devices
require a substantial amount of funds. We currently use our cash reserves to
meet our financial obligations and to fund operations. As of December 31, 1999,
we had $9,860,000 in working capital, of which $4,891,000 is cash and
equivalents and marketable securities. We believe existing working capital is
sufficient to meet our operating needs and the operating needs of our 90% owned
subsidiary, Cardiodyne, Inc. for the next twelve months. We have implemented
cutbacks in Cardiodyne's operating expenses and also have implemented cost
reductions at Trimedyne. We are seeking additional financing to continue
development of Cardiodyne's products and to support Trimedyne's operations.
Sources of such financing may include the sale of equity securities or the sale
or licensing of other patent rights. The issuance of additional shares of common
stock may dilute your holdings. Any inability to obtain additional financing
will have a material adverse effect on us,
3
<PAGE>
such as requiring us to cease funding of operations at Cardiodyne or curtail
Trimedyne's operations.
We may not be able to adjust to rapid technological changes
We are engaged in an intensely competitive industry. In recent years, the
medical laser industry has been characterized by rapid technological change.
There is no assurance that our present products may not face technological
obsolescence, or that we will be able to develop, acquire licenses for, or
obtain regulatory approvals to market new products and keep pace with
technological advances.
We may acquire other entities
We may engage in acquisitions of other companies and businesses and may use
our cash reserves or our Common Stock to pay for these companies. If we use our
Common Stock for acquisitions, this may result in a dilution of the percentage
of the equity you own. In addition, acquisitions may involve speculative and
risky undertakings. Under Nevada law, acquisitions do not require shareholder
approval, except when accomplished by merger or consolidation.
There are outstanding options that may dilute your ownership
As of March 31, 2000, our officers, directors, key employees and consultants
had been granted stock options to purchase 1,584,570 shares of Common Stock at
an average exercise price of $1.063 to $6.63 per share. If these options are
exercised, the underlying stock would represent approximately 11% of the
Company"s outstanding stock. Virtually all of these options and warrants have
exercise prices below the current market price of the Common Stock. We may also
grant options in the future at prices below the current market price of our
stock.
Our stock price is volatile
The market prices for securities of medical device companies, including our
stock, have been volatile. It is likely that the price of our Common Stock will
fluctuate in the future. Many factors can impact the market price of our stock,
such as announcements of technological innovations or new commercial products,
announcements of pre-clinical testing and clinical trial results, governmental
regulation, patent or proprietary rights developments, changes in earnings
estimates and recommendations by securities analysts, and market conditions in
general. The market price of our stock could also be adversely affected by
future exercises of outstanding warrants and options.
We do not anticipate paying any dividends
We have not paid any dividends in the past and do not anticipate paying any
dividends in the foreseeable future. This may depress the price of our stock,
as non-dividend paying stock may not appeal to certain investors.
We may issue preferred stock that could effect the rights of holders of our
Common Stock
We are authorized to issue 1,000,000 shares of Preferred Stock. Our Board of
Directors has broad powers to fix the rights and terms of any Preferred Stock
without requiring shareholder approval. The issuance of any Preferred Stock
could have an adverse effect on the rights of holders of our Common Stock.
We are subject to extensive government regulation
Our business is subject to extensive regulation by the FDA and comparable
regulatory authorities of foreign countries. Compliance with regulatory
requirements and obtaining approvals to test or market new medical devices is
expensive and time consuming. We cannot be assured that we will be able to meet
all regulatory requirements or obtain and maintain approvals to test and market
new products. Failing to adhere to necessary government requirements will have
a negative impact on our ability to sell our products.
We carry limited liability insurance
4
<PAGE>
We carry an aggregate of $6,000,000 of general liability insurance. There is
no assurance that we can maintain such insurance in force at an acceptable cost
or that the amount of such insurance will be sufficient to protect our assets in
the event of claims by users of our products or other parties.
We are dependent upon maintaining valid patents and licenses
There is no assurance our patents will be upheld if challenged in courts or
that we will be able to obtain additional valid patents. We also cannot assure
that our products do not infringe patents owned by others, licenses to which may
not be available to us. Our inability to do any of the foregoing will have an
adverse impact on our ability to successfully remain in business.
USE OF PROCEEDS
We will not receive any of the net proceeds from Common Stock sold by the
selling stockholders. However, we will receive the exercise price of the
Warrants if and when they are exercised. If all of the Warrants are exercised,
we will receive $1,605,081. We cannot assure you that any of the Warrants will
be exercised or that we will receive any funds from their exercise. Any funds
that we do receive will be added to working capital and used for general
corporate purposes.
PLAN OF DISTRIBUTION
It is anticipated that the Selling Securityholders will exercise the Warrants
and/or offer the Securities for sale at the prices prevailing in the Nasdaq
National Market (or other principal market, if any, on which the Securities may
then be traded) on the date of sale. The holders also may sell the Securities
privately, either directly to the purchaser or through a broker or brokers. We
are not aware of any arrangements or agreements with any brokers or dealers to
act as underwriters of the Securities as of the date hereof. All costs,
expenses and fees incurred in connection with the registration of the
Securities, including but not limited to all registration and filing fees,
printing expenses and fees (if any) and disbursements of our counsel and
accountants, are being borne by us, but all selling and other expenses incurred
by the Selling Securityholders will be borne by them.
SELLING SECURITYHOLDERS
An aggregate of up to 986,729 Shares of Common Stock is being offered pursuant
to this Prospectus by the following Selling Securityholders. This Prospectus
covers the resale of up to 657,819 shares of our Common Stock and the offer and
resale of up to an additional 328,910 shares underlying an equal number of
Warrants. The Common Stock and the Warrants were issued to the Securityholders
in exchange for approximately $2.1 million in cash. None of the Common Stock
offered under this Prospectus is held by officers or directors of Trimedyne or,
except as indicated below, by any 1% holders of our Common Stock. The table
below sets forth with respect to such Selling Securityholders, (i) the total
amount and percentage of shares of Common Stock beneficially owned by such
holder prior to the offering, (ii) the amount which may be offered for sale for
the account of such holder, in his discretion from time to time pursuant to this
Prospectus, and (iii) the amount of the outstanding Common Stock which would be
beneficially owned by such holder after sale of all of the securities offered by
the Selling Securityholders pursuant to this Prospectus, if they are offered and
sold, and assuming that other of our shares held by such parties are not sold.
5
<PAGE>
<TABLE>
<CAPTION>
Shares Owned Percent of Shares Shares Owned
Names Before Offering Ownership Offered After Offering
- ----- --------------- ------------ ------- --------------
<S> <C> <C> <C> <C>
Liberty View Funds, LLP 447,290 (1) 3.6 447,290 -
Liberty View Fund, LLC 49,698 (2) * 49,698 -
Quattro Fund Ltd. 316,265 (3) 2.5 316,265 -
Tomas R. Ulie 150,000 (4) 1.2 150,000 -
Liberty View Capital Mgmt., Inc 23,476 (5) * 23,476 -
- -----------------------------------------------------------------------------------------
</TABLE>
Includes Common Stock underlying warrants to purchase 149,097 shares at $4.88
per share.
Includes Common Stock underlying warrants to purchase 16,566 shares at $4.88 per
share.
Includes Common Stock underlying warrants to purchase 105,422 shares at $4.88
per share.
Includes Common Stock underlying warrants to purchase 50,000 shares at $4.88 per
share.
Includes Common Stock underlying warrants to purchase 7,825 shares at $4.88 per
share.
* Amount represents less than 1% of the total outstanding Common Stock.
MATERIAL CHANGES
We experienced the following material changes to our operations subsequent to
filing our Annual Report on Form 10-KSB which were not previously mentioned in a
Form 10-QSB filing:
(a) On November 3, 1999 we received FDA clearance to market our Holmium
lasers for use in gastrointestinal surgery, including the excision and
coagulation of colorectal cancer and other tumors, coagulation of ulcers,
removal of hemorrhoids, fragmentation of gall bladder and bile duct
stones, appendectomy and lysis of adhesions.
(b) On December 13, 1999 we were granted US patent No. 5,989,242 covering
devices for releasing platinum coils in aneurisms in blood vessels in the
brain.
(c) On December 16, 1999, we were granted US patent No. 5,984,915, which
covers a wide range of wavelengths for subcutaneous or "under the skin"
use of our cosmetic laser for a variety of uses, including permanent hair
removal by applying the laser energy to hair follicles below the surface
of the skin.
(d) On January 14, 2000, we appointed Frieda Heh as Vice President of
Marketing.
(e) On March 2, 2000, we were allowed 41 claims of a US patent application
covering our new cosmetic laser.
(f) On March 12, 2000 we appointed Shane H. Traveller to the position of
President and Chief Operating Officer, and elected Mr. Traveller to our
board of directors.
(g) On March 23, 2000, we were allowed 36 additional claims of a US patent
application covering methods of use of our new cosmetic laser.
(h) On April 11, 2000, we received approximately $2.1 million in a private
placement of our Common Stock and Warrants to five institutional and
private investors. This Prospectus covers the resale of that Common
6
<PAGE>
Stock and the offer and resale of the Common Stock underlying those
Warrants.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by us with the Commission are incorporated
herein by reference:
Annual Report on Form 10-KSB for the fiscal year ended September 30, 1999,
filed pursuant to Section 13 of the Exchange Act.
Quarterly Report on Form 10-QSB for the quarter ended December 31, 1999,
filed pursuant to Section 13 of the Exchange Act.
The description of the common stock contained in the our Registration
Statement on Form 8-A filed July 16, 1982 pursuant to Section 12 of
the Exchange Act.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of
a post-effective amendment hereto which indicates that all securities
offered have been sold or deregisters all securities all securities
then remaining unsold.
In addition, all documents subsequently filed by us pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment hereto which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be a part hereof from the date of the filing of each such report or document.
We will furnish to each person to whom this Prospectus is delivered, upon
written or oral request, a copy of any or all of the documents referred to by
reference. Requests should be addressed to: Shane H. Traveller, President,
Trimedyne, Inc., 2801 Barranca Road, Irvine, California 92606 (Telephone: (949)
559-5300.
The public may read and copy any materials we file with the Securities and
Exchange Commission at the SEC's Public Reference Room located at 450 Fifth
Street, NW, Room 1024, Washington, D.C. 20549. The public may obtain
information on the operation of the Public Reference Room by calling 1-(800)-
SEC-0330. The Commission maintains a World Wide Web site on the Internet at
http://www.sec.gov that contains reports, proxy and information statements and
- ------------------
other information regarding us and other registrants that file electronically
with the Commission.
COMMISSION'S POLICY ON INDEMNIFICATION FOR
SECURITIES ACT LIABILITIES
Article 12 of our Certificate of Incorporation directs us to provide in our
bylaws for provisions relating to the indemnification of our directors and
officers to the full extent permitted by law. Section 78.751 of the Nevada
Revised Statutes, as amended, authorizes us to indemnify any director or officer
under certain prescribed circumstances and subject to certain limitations
against certain costs and expenses, including attorneys" fees actually and
reasonably incurred in connection with any action, suit, or proceeding, whether
civil, criminal, administrative or investigative, to which the director is a
party by reason of being our director or a director of our subsidiary if it is
determined that the director acted in accordance with the applicable standard of
conduct set forth in those statutory provisions.
We may also purchase and maintain insurance for the benefit of any director or
officer that may cover claims for which we could not otherwise indemnify such
person.
Insofar as indemnification for liabilities arising under the Act may be
permitted to our directors, officers, and controlling persons pursuant to the
foregoing provisions, or otherwise, we have been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
7
<PAGE>
LEGAL OPINIONS
Legal matters in connection with the securities being offered hereby have been
passed upon for us by Heller, Horowitz & Feit, P.C. 292 Madison Avenue, New
York, New York 10017. Heller, Horowitz & Feit, P.C. is our general securities
and corporate counsel and represented us in our initial public offering and in
numerous matters since then. Mr. Richard F. Horowitz, a member of such firm, is
also a member of the our Board of Directors.
EXPERTS
The audited financial statements incorporated by reference in this Prospectus
and elsewhere in the Registration Statement have been audited by McKennon,
Wilson & Morgan, LLP, independent public accountants, as indicated in their
report dated November 15, 1999 and are included herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
report.
8
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
--------------------------------------
Item 14. Other Expenses of Issuance and Distribution
-------------------------------------------
The following statement sets forth the estimated expenses in connection with
the offering described in the Registration Statement.
Securities and Exchange Commission Fee............ $ 949.96
NASDAQ Additional Listing Fee..................... 9,867.29
Accountants' Fees and Expenses.................... 1,000
Legal Fees and Expenses........................... 5,000
Blue Sky Fees and Expenses........................ 1,500
Miscellaneous..................................... 500
----------
TOTAL $18,817.25
Item 15. Indemnification of Directors and Officers.
------------------------------------------
Section 78.751 of the Nevada Revised Statutes, as amended, authorizes us to
indemnify any of our directors or officers under certain prescribed
circumstances and subject to certain limitations against certain costs and
expenses, including attorneys' fees actually and reasonably incurred in
connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which the director is a party by reason of
being one of our directors or officers if it is determined that the director
acted in accordance with the applicable standard of conduct set forth in those
statutory provisions. Article 12 of our Certificate of Incorporation contains
provisions relating to the indemnification of our directors and officers to the
full extent permitted by Nevada law.
We may also purchase and maintain insurance for the benefit of any director or
officer that may cover claims for which we could not indemnify such person.
Item 16. Exhibits
---------
The following exhibits are filed herewith:
5.1 Opinion of Counsel
23.2 Consent of McKennon, Wilson & Morgan, LLP
Item 17. Undertakings.
------------
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 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, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a posteffective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II-1
<PAGE>
(4) The undersigned registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities 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 being offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on the 4th day of May
2000.
TRIMEDYNE, INC.
By: /s/ MARVIN P. LOEB
----------------------------------------
Marvin P. Loeb
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ MARVIN P. LOEB
_____________________________________ Chairman and Chief May 2, 2000
Marvin P. Loeb Executive Officer
/s/ SHANE H. TRAVELLER
_____________________________________ President, Chief May 2, 2000
Shane H. Traveller Operating Officer,
Chief Financial Officer,
and Director
/s/ DONALD BAKER
_____________________________________ Director May 2, 2000
Donald Baker
/s/ BRUCE N. BARRON
_____________________________________ Director May 2, 2000
Bruce N. Barron
/s/ RICHARD F. HOROWITZ
_____________________________________ Director May 2, 2000
Richard F. Horowitz
</TABLE>
II-3
<PAGE>
Exhibit 5.1
[HELLER, HOROWITZ & FEIT, P.C., LETTERHEAD]
Trimedyne, Inc. May 3, 2000
2801 Barranca Road
Irvine, CA 92619
Gentlemen:
As counsel for your Company, we have examined your certificate of
incorporation, by-laws, and such other corporate records, documents and
proceedings and such questions of laws we have deemed relevant for the purpose
of this opinion.
We have also, as such counsel, examined the Registration Statement (the
"Registration Statement") of your Company on Form S-3, covering the registration
under the Securities Act of 1933, as amended, of up to 986,729 Shares of Common
Stock, $0.01 par value, of the Company ("Common Stock").
Our review has also included the exhibits and form of prospectus for the
issuance of such securities (the "Prospectus") filed with the Registration
Statement.
On the basis of such examination, we are of the opinion that:
The Company is a corporation duly authorized and validly existing and in
good standing under the laws of the State of Nevada, with corporate power
to conduct its business as described in the Registration Statement.
The Company has an authorized capitalization of 15,000,000 shares of Common
Stock and 1,000,000 shares of Preferred Stock.
The Common Stock has been duly and validly authorized and, upon the
issuance thereof, will be duly and validly issued as fully paid and non-
assessable shares of Common Stock.
We hereby consent to the use of our name in the Registration Statement and
Prospectus and we also consent to the filing of this opinion as an exhibit
thereto.
Very truly yours,
/s/ HELLER, HOROWITZ & FEIT, P.C.
___________________________________
HELLER, HOROWITZ & FEIT, P.C.
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
November 15, 1999 appearing on page F-2 of the Trimedyne, Inc. Annual Report on
Form 10-K for the year ended September 30, 1999. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ MCKENNON, WILSON & MORGAN, LLP
_______________________________
MCKENNON, WILSON & MORGAN, LLP.
Irvine, California
May 3, 2000
