As filed with the Securities and Exchange Commission on October 17, 2000
Registration No. 333-46054
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
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FORM S-2
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
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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)
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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.
Heller, Horowitz & Feit, P.C.
292 Madison Avenue
New York, New York 10017
<PAGE>
Approximate date of commencement of proposed sale to three individuals:
As soon as practicable after the effective date
of the 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 the registrant elects to deliver its annual report to security holders,
or a complete and legal facsimile thereof pursuant to Item 11(a)(1) of this
Form, check the following box. [x]
Calculation of Registration Fee
<TABLE>
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share (2) Price (2) Fee
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Common Stock (1) 600,000 $2.375 $1,425,000 $376.20
Total Registration Fee $2.375 $1,425,000 $376.20
</TABLE>
(1) To be delivered by the Company to three individuals as soon as
practicable after the effective date of this Registration
Statement.
(2) Estimated solely for the purpose of calculating the
registration fee. Proposed maximum offering price per share is
estimated based upon the closing price on September 15, 2000.
The Registrant hereby amends the registration statement on such date or
dates as may be necessary to delay the 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>
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TRIMEDYNE, INC.
-----------------------------------
600,000 SHARES OF COMMON STOCK
DATED OCTOBER 17, 2000
(Subject to Completion)
This Prospectus covers the proposed offer and sale by Trimedyne, Inc.
("we", "us", "our" or the "Company") of up to 600,000 shares of its Common
Stock, $0.01 par value (the "Common Stock"), to three individuals.
We intend to deliver these Securities to three individuals as soon as
practicable after the effective date of this this Registration Statement.
We will receive all of the money from the sale of these securities.
Our Common Stock is traded on the NASDAQ National Market System Symbol
- ("TMED"). The closing price of our Common Stock on September 15, 2000 was
$2.375.
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.
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
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 OCTOBER 17, 2000
AVAILABLE 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-2 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,
<PAGE>
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.
TABLE OF CONTENTS
<TABLE>
<S> <C>
Page No.
Prospectus Summary.........................................................................3
The Company................................................................................4
Risk Factors...............................................................................4
Use of Proceeds............................................................................6
Plan of Distribution.......................................................................6
Business of the Company....................................................................6
Description of Securities..................................................................7
Incorporation of Certain Documents by Reference............................................7
Commission's Policy on Indemnification for Securities Act Liabilities......................8
Legal Opinions.............................................................................8
Experts....................................................................................9
</TABLE>
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by more detailed
information and the financial statements appearing elsewhere in this Prospectus
and in the Company's Annual Report on Form 10-KSB for the fiscal year ended
September 30, 1999.
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. Our 90% owned subsidiary, Cardiodyne, Inc.
("Cardiodyne"), is engaged in the development and testing of
a new, automated heart revascularization system to treat
severe angina.
THE OFFERING We are offering up to 600,000 shares of Common Stock to
three individuals.
OFFERING PRICE Exchange of stock and services valued at a total of
approximately $1,012,000.
USE OF PROCEEDS As the Common Stock is to be issued in exchange for the
common stock of a privately held corporation, and for past
services provided to us, the cash proceeds that we will
receive from this offering are expected to be negligible.
NASDAQ SYMBOL TMED
<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. Our 90% owned subsidiary, 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 September 15,2000 was
$2.375.
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 from 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 June 30, 2000 we had an
accumulated deficit of $33,987,000. 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 June
30, 2000, we had $10,467,000 in working capital, of which $4,985,000 was 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, such as
requiring us to cease funding of operations at Cardiodyne or curtail Trimedyne's
operations.
<PAGE>
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 June 30, 2000, our officers, directors, key employees and consultants
had been granted stock options to purchase 1,950,370 shares of Common Stock at
exercise prices between $1.063 and $6.63 per share. If all of these options were
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
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.
<PAGE>
We are dependant 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
As the Common Stock is to be issued in exchange for the common stock of
a privately held corporation, and for past services provided to us, cash
proceeds that we will receive from this offering are expected to be negligible.
Any proceeds received will be applied to our general operating account.
PLAN OF DISTRIBUTION
In August 2000, we entered into an Agreement and Plan of Reorganization
(the "Agreement") with Mobile Surgical Technologies, Inc. ("MST") and its two
shareholders, Stephen A. Anderson and William J. Schubert, Jr., to acquire all
of the stock of MST in exchange for a purchase price consisting of one million
dollars worth of our registered stock. Subject to certain exceptions and
qualifications contained in the Agreement, the number of shares of our Common
Stock to be issued will be determined by dividing one million dollars by the
average closing bid price of our Common Stock on the Nasdaq National Market
System during the five trading days prior to the closing of the transaction. The
closing of this transaction will take place on the effective date of this
registration statement. MST is in the business of providing laser equipment and
certified laser technicians to hospitals and surgery centers on a "per case" or
contract service basis in the Texas/Oklahoma area.
During the period of 1990 to 1999, G. David Casper, M.D. rendered
service to us in the form of training courses, clinical trials, and research,
for which we have agreed to issue him 6,000 share of our registered Common
Stock.
The purpose of this registration statement is to register our issuance
of the shares of Common Stock to Messrs. Anderson and Schubert and Dr. Casper.
Neither Mr. Anderson nor Dr. Casper is an officer or director of our company.
Since June 15, 2000, Mr. Schubert has been Vice President Sales and Marketing of
our company. Neither Mr. Anderson, Mr. Schubert nor Dr. Casper currently owns
more than 1% of our Common Stock.
BUSINESS OF THE COMPANY
This Prospectus is accompanied by our Annual report on Form 10-KSB for
the fiscal year ended September 30, 1999, and our quarterly report on Form
10-QSB for the quarter ended June 30, 2000, which documents fully set forth our
business and financial and other information concerning us as of those dates.
Subsequent Events
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.
<PAGE>
(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 March 2, 2000, we were allowed 41 claims of a US patent
application covering our new cosmetic laser.
(e) 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.
(f) On March 23, 2000, we were allowed 36 additional claims of a US
patent application covering methods of use of our new cosmetic
laser.
(g) 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.
(h) On June 15, 2000, we appointed William J. Schubert, Jr. as Vice
President Sales and Marketing.
DESCRIPTION OF SECURITIES
Our authorized capital stock consists of 30,000,000 shares of Common
Stock, par value $.01, and 1,000,000 shares of Preferred Stock, par value $.01.
Common Stock
The shares of Common Stock currently outstanding are, and the shares of
Common Stock to be outstanding after the offering will be, fully paid and
non-assessable. Each holder of Common Stock is entitled to one vote for each
share owned of record on all matters voted upon by stockholders, and a majority
vote is required for all action to be taken by stockholders. In the event we
liquidate, dissolve or wind-up our operations, the holders of the Common Stock
are entitled to share equally and ratably in our assets, if any, remaining after
the payment of all our debts and liabilities and the liquidation preference of
any outstanding Preferred Stock. The Common Stock has no preemptive rights, no
cumulative voting rights, and no redemption, sinking fund, or conversion
provisions. Since the holders of Common Stock do not have cumulative voting
rights, holders of more than 50% of the outstanding shares can elect all of our
Directors and holders of the remaining shares by themselves cannot elect any
Directors.
Holders of Common Stock are entitled to receive dividends if and when
declared by the Board of Directors out of funds legally available for such
purpose, subject to the dividend and liquidation rights of any Preferred Stock
that may be issued.
Our Articles of Incorporation provides for a staggered Board of
Directors, pursuant to which the Board is divided into three classes (as nearly
equal in number as possible) with the term of one class expiring each year. The
Articles also provide that the staggered Board provisions can only be amended,
altered or repealed by the vote of not less than two-thirds of our issued and
outstanding capital stock entitled to vote.
Transfer Agent
Our transfer agent and registrar for the Common Stock is American Stock
Transfer & Trust Co., 40 Wall Street, New York, New York.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by us with the Commission are
incorporated herein by reference:
<PAGE>
(a) Annual Report on Form 10-KSB for the fiscal year ended
September 30, 1999, filed pursuant to Section 13 of the
Exchange Act.
(b) Quarterly Reports on Form 10-QSB for the quarters ended
December 31, 1999, March 31, 2000 and June 30, 2000, filed
pursuant to Section 13 of the Exchange Act.
(c) 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.
(d) 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.
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 that firm, is also a member of our Board of Directors.
<PAGE>
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.
<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............ $376.20
Accountants' Fees and Expenses.................... 1,000
Legal Fees and Expenses........................... 3,000
Blue Sky Fees and Expenses........................ 1,000
Miscellaneous..................................... 500
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TOTAL $5,876.20
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
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The following exhibits were filed with the original filing of this
Registration Statement:
5 Opinion of Counsel
10 Agreement and Plan of Reorganization dated as of August 17,
2000 among the Company, Mobile Surgical Technologies, Inc.,
and its two stockholders.
23(a) 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.
<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.
<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-2 and has duly caused this
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Irvine, State of
California, on the 17th day of October, 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.
Signature Title Date
---------- ----------- ---------
/s/Marvin P. Loeb Chairman and Chief October 17, 2000
Marvin P. Loeb Executive Officer
/s/Shane H. Traveller President, Chief October 17, 2000
Shane H. Traveller Operating Officer,
Chief Financial Officer,
and Director
/s/Donald Baker Director October 17, 2000
Donald Baker
/s/Bruce N. Barron Director October 17, 2000
Bruce N. Barron
/s/Richard F. Horowitz Director October 17, 2000
Richard F. Horowitz
