As filed with the Securities and Exchange Commission on January 11, 2001
Registration No. 33-______
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------
FORM S-3
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)
------------------------------------------
SHANE H. TRAVELLER, PRESIDENT AND
CHIEF OPERATING OFFICER
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. |___|
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
-------------------------------------------------------------------------------------------------------------------
Common Stock (1) 506,000 $1.094 $553,564 $146.14
Total Registration Fee $1.094 $553,564 $146.14
</TABLE>
(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) Estimated solely for the purpose of calculating the registration
fee. Proposed maximum offering price per share is estimated based
upon the closing price on December 29, 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>
SUBJECT TO COMPLETION
DATED JANUARY 5, 2001
-----------------------------------
TRIMEDYNE, INC.
-----------------------------------
This Prospectus covers the proposed sale of up to 506,000 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. 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 may be deemed to be an
"underwriter" of the Securities being offered, as that term is defined under the
Securities Act of 1933, as amended (the "Act"). 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 December 29, 2000 was $1.094.
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
MADE, MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY US. THIS PROSPECTUS
<PAGE>
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 JANUARY 5, 2001
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.
<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 December 18 ,2000 was
$1.281.
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 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 $5,015,000 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, 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 16% 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.
4
<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
We will not receive any of the net proceeds from Common Stock sold by
the selling stockholders.
PLAN OF DISTRIBUTION
It is anticipated that the Selling Securityholders will 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 506,000 Shares of Common Stock is being offered
pursuant to this Prospectus by the following Selling Securityholders. This
Prospectus covers the resale of up to 506,000 shares of our Common Stock. A
total of 500,000 shares of Common Stock were issued to Messrs. Schubert and
Anderson on November 30, 2000 in exchange for equity in a privately held company
valued at approximately $1 million. 6,000 shares of Common Stock were issued to
Dr. David Casper in November 2000 in exchange for services rendered by him
during the period 1990-1999. None of the Common Stock offered under this
Prospectus is held by officers or directors of Trimedyne, or by any 1% holders
of our Common Stock, except as indicated below. 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.
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Shares Owned Percent of Shares Shares Owned
Names (Position) Before Offering Ownership Offered After Offering
------------------------------------------------------------------------------------------------------
William J. Schubert, Jr. 255,000 2.0 255,000 -
(Chief Executive Officer, Vice Chairman)
Stephen A. Anderson 245,000 2.0 245,000 -
Dr. David G. Casper. 6,000 * 6,000 -
</TABLE>
* Amount represents less than 1% of the total outstanding Common Stock.
5
<PAGE>
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:
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 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 August 7, 2000, we announced that we entered into a joint
marketing agreement with Surgical Innovations and Services, Inc.,
a wholly-owned subsidiary of Surgical Laser Technologies, Inc.
(Nasdaq - "SLTI"), a contract service provider of lasers and other
surgical services throughout the southeastern United States.
(i) On October 4, 2000, our subsidiary, Cardiodyne Inc., received
favorable results from testing its angiogenic "cocktail" in pigs.
(j) On November 27, 2000, we received clearance from the FDA to market
our Holmium laser and associated delivery devices for use in
foraminoplasty procedures.
(k) On November 28, 2000, we introduced to market a new line of low
cost arthroscopy devices.
(l) On November 30, 2000, we acquired all of the outstanding stock of
Mobile Surgical Technolgies, Inc., a Dallas, Texas-based contract
service provider of laser and other surgical services, in exchange
for 500,000 shares of our unregistered common stock.
(m) On December 4, 2000, we appointed William J. Schubert as our Chief
Executive Officer and Vice Chairman of our Board of Directors.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by us with the Commission are
incorporated herein by reference:
6
<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 Report on Form 10-QSB for the quarter ended December
31, 1999, filed pursuant to Section 13 of the Exchange Act.
(c) Quarterly Report on Form 10-QSB for the quarter ended March
31, 2000, filed pursuant to Section 13 of the Exchange Act.
(d) Quarterly Report on Form 10-QSB for the quarter ended June
30, 2000, filed pursuant to Section 13 of the Exchange Act.
(e) 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.
(f) 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.
8
<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 BE REFERENCE 6
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SHARES ACT LIABILITIES 7
LEGAL OPINIONS 7
EXPERTS 8
9
<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............ $146.14
Accountants' Fees and Expenses.................... 1,000
Legal Fees and Expenses........................... 1,000
Blue Sky Fees and Expenses........................ 1,500
Miscellaneous..................................... 500
--------
TOTAL $4,146.14
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 Opinion of Counsel
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.
(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
<PAGE>
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.
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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 20 day of
December 2000.
TRIMEDYNE, INC.
By:/s/
--------------------------------------
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 December 20, 2000
-----------------------
Marvin P. Loeb
/s/William J. Schubert, Jr. Vice-Chairman and December 20, 2000
----------------------- Chief Executive Officer
William J. Schubert, Jr.
/s/Shane H. Traveller President, Chief December 20, 2000
----------------------- Operating Officer,
Shane H. Traveller Chief Financial Officer,
and Director
/s/Donald Baker Director December 20, 2000
-----------------------
Donald Baker
/s/Bruce N. Barron Director December 20, 2000
-----------------------
Bruce N. Barron
/s/Richard F. Horowitz Director December 20, 2000
-----------------------
Richard F. Horowitz
3
