As filed with the Securities and Exchange Commission on January 12, 2001
Registration No. 333-46054
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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.)
15091 Bake Pkwy.
P.O. Box 57001
Irvine, California 92619-7001
(Address of Principal Executive Offices) (Zip Code)
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SHANE H. TRAVELLER, PRESIDENT AND
CHIEF OPERATING OFFICER
TRIMEDYNE, INC.
15091 Bake Pkwy.
Irvine, California 92618
(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 the public:
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 ]
<TABLE>
Calculation of Registration Fee
<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 (1) Price (1) Fee (2)
-------------------------------------------------------------------------------------------------------------------
Common Stock (3) 1,650,000 $1.438 $2,372,700 $626.39
Total Registration Fee $1.438 $2,372,700 $626.39
</TABLE>
(1) Based upon the closing price on January 4, 2001.
(2) Estimated solely for the purpose of calculating the registration fee,
based upon the closing price on January 4, 2001.
(3) Includes 150,000 shares of Common Stock underlying the 150,000 Warrants
sold to the Underwriter.
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>
-----------------------------------
TRIMEDYNE, INC.
----------------------------------
1,650,000 SHARES OF COMMON STOCK
DATED JANUARY 12, 2001
(Subject to Completion)
This Prospectus covers the proposed offer and sale by Trimedyne, Inc.
("we", "us", "our" or the "Company") of up to 1,500,000 shares of its Common
Stock, $0.01 par value (the "Common Stock"), to the public on a "best efforts"
basis from time to time over a period of six (6) months from the date of this
Prospectus, unless we and the Underwriter agree to extend the offering, at
prices related to the then market price of our Common Stock. This Prospectus
also covers the possible sale of 150,000 shares of our Common Stock to the
public if the Underwriter exercises the Warrants we sold to the Underwriter, as
described below. We will receive all of the net proceeds from the sale of the
above securities.
We have agreed to pay the Underwriter a commission of 7% and
non-refundable expense allowance of one percent 1% of the sales of the Common
Stock to the public, of which $25,000 has been prepaid. We have also sold to the
Underwriter at nominal cost 150,000 Warrants ("Warrants"), each exercisable over
a period of four (4) years commencing one year after the Effective Date of this
Prospectus in an amount equal to ten percent (10%) of the number of shares of
Common Stock sold to the public. To the extent exercisable, each Warrant will be
exercisable to purchase one share of our Common Stock at an exercise price equal
to one hundred twenty percent (120%) of the then sales price of the Common Stock
to the public. We and the Underwriter have also agreed to indemnify each other
in certain circumstances. We estimate the cost of this offering to us will be
approximately $200,000, including the expense allowance to the Underwriter. (See
"PLAN OF DISTRIBUTION.")
Our Common Stock is traded on the NASDAQ National Market System under
the Symbol "TMED". The closing price of our Common Stock on January 4, 2001 was
$1.438 per share.
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 JANUARY 12, 2001
<PAGE>
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,
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
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
Registration of Additional Shares.............................................7
Incorporation of Certain Documents by Reference...............................7
Commission's Policy on Indemnification for Securities Act Liabilities.........8
Legal Opinions................................................................8
Experts.......................................................................9
2
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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, 2000.
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 1,500,000 shares of Common Stock to
the public.
Offering Price The offering price of the Common Stock will be based on the
market price of the Common Stock at the time of sale.
Number Of Shares
Outstanding On
Dec. 15, 2000 12,437,978 shares
Number Of Shares To
Be Outstanding
Following This
Offering* 14,087,978 shares
Use of Proceeds The cash proceeds that we will receive from this offering,
after underwriting discounts and commissions and the
expenses of the offering, will be used for operations and
for general corporate purposes.
Nasdaq Symbol TMED
* Assuming all the Common Stock we are offering is sold.
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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 fiber-optic delivery systems 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 in November 1999 for use in
gastrointestinal surgery. In November 2000, we received clearance from the FDA
to market our Holmium laser and fiber-optic devices in minimally invasive
foraminoplasty procedures, which orthopedic surgeons can employ to treat
herniated and ruptured lumbar (lower back) discs on an outpatient basis. The
Company is also engaged in the development of new laser products for other
surgical applications.
Our factory and corporate office is located at 15091 Bake Pkwy, Irvine
California, 92618, 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 January 4, 2001 was
$1.438 per share.
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
We had a loss of $4,700,000 in the fiscal year ended September 30,
2000. Though we had net income of $2,750,000 in fiscal 1999, our income in 1999
was derived 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 a loss
of $2,538,000 in fiscal 1998. At September 30, 2000 we had an accumulated
deficit of $36,441,000. We anticipate continuing to incur losses until we
generate sufficient revenues to offset the costs associated with manufacturing
and marketing our current products, overhead, and 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
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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 marketing 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 September 30, 2000,
we had $7,356,000 in working capital, of which $3,543,000 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 six months. We have implemented
cutbacks in our operating expenses and have significantly reduced Cardiodyne's
operating expenses. We are seeking additional financing to support Trimedyne's
operations and to continue the development of new products. Sources of such
financing may include the sale of additional equity securities or the sale or
licensing of 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 reduce or curtail
Trimedyne's operations.
There is no assurance that any or all of the shares will be sold
The Underwriter is offering our Common Stock to the public on a "best
efforts" basis, and is not committed to purchase any of the shares. If
substantially less than all of the shares of our Common Stock are sold, the
proceeds may be insufficient to cover our capital needs (See "Plan of
Distribution").
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 September 30, 2000, our officers, directors, key employees and
consultants had been granted stock options to purchase 872,390 shares of Common
Stock at exercise prices between $1.48 and $6.63 per share. If all of these
options were exercised, the underlying stock would represent approximately 7% of
our presently outstanding stock. Almost 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, although we presently have no intention to do so.
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
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stock, such as announcements of technological innovations or new commercial
products, FDA clearances or approvals, the results of pre-clinical testing and
clinical trials, the issuance or acquisition of patents or proprietary rights,
changes in sales or earnings, 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 a 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 the 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 of the FDA and other governmental
authorities or obtain and maintain approvals to test and market our present or
new products. Failing to meet 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. If court awards exceeding the amount of such insurance were made, our
assets could be depleted.
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
The cash proceeds that we will receive from this offering, after
underwriting discounts and commissions and expenses of the offering, will be
applied to our general operating account and used for operations, increasing our
marketing and sales efforts, and ongoing product development.
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PLAN OF DISTRIBUTION
The Underwriter is not committed to purchase any of the shares of
Common Stock we are offering. As a result, there is no assurance that any or all
of the shares will be sold. The 1,500,000 shares of Common Stock will be offered
on a "best efforts" basis by _________________ (the "Underwriter") from time to
time over a period of six (6) months from the date of this Prospectus, unless we
and the Underwriter mutually agree to extend the offering, at such times and in
such amounts as we and the Underwriter may mutually determine, at the market
price of our Common Stock at the time of sale, with a seven percent (7%)
commission to the Underwriter. However, no commission will be paid to the
Underwriter on sales of our Common Stock to officers, directors or employees of
the Company and their affiliates.
We have sold the Underwriter, for a nominal consideration, 150,000
Warrants exercisable to purchase shares of our Common Stock in an amount equal
to ten percent of the number of shares of Common Stock sold to the public. To
the extent exercisable, each Warrant will be exercisable over a period of four
(4) years, commencing one (1) year from the date of this Prospectus, to purchase
one (1) share of our Common Stock at a price equal to 120% of the market price
of our Common Stock at the time of sale. In addition, we have agreed to pay the
Underwriter a non-refundable expense allowance of one percent (1%) of the sales
of our Common Stock to the public, of which $25,000 has been prepaid.
BUSINESS OF THE COMPANY
This Prospectus is accompanied by our Annual report on Form 10-KSB for
the fiscal year ended September 30, 2000, which document fully sets forth our
business and financial and other information concerning us as of that date.
Subsequent Events
We experienced the following material changes to our operations
subsequent to the end of our fiscal year, which are described in more detail in
our Annual Report on Form 10-KSB for the fiscal year ended September 30, 2000:
(a) On October 4, 2000, we announced our subsidiary, Cardiodyne Inc.,
received favorable results from testing its angiogenic "cocktail" in
and animal (pig) study at the Texas Heart Institute in Houston.
(b) On November 27, 2000, we announced clearance from the FDA to market
our Holmium laser and associated fiber-optic delivery devices for use
in minimally invasive foraminoplasty procedures, which orthopedic
surgeons may use to treat lower back and leg pain due to a herniated
or ruptured lumbar spinal disk.
(c) On November 28, 2000, we announced we are commencing to market a new
line of low cost arthroscopy devices.
(d) On November 30, 2000, we announced the acquisition of Mobile Surgical
Technologies, Inc. ("MST"), a Dallas, Texas-based contract service
provider of laser and other surgical services, in exchange for 500,000
shares of our unregistered Common Stock.
(e) On December 4, 2000, we announced the election of William J. Schubert,
founder and President of MST, as our Vice Chairman and Chief Executive
Officer.
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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 $0.01.
Common Stock
The shares of our Common Stock presently outstanding are, and the
shares of Common Stock to be outstanding after this 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 actions 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 Preferred Stock that may then be outstanding. 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 then be outstanding.
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 cannot be amended,
altered or repealed except by the vote of not less than two-thirds of our issued
and outstanding Common Stock and Preferred Stock which may then be entitled to
vote.
Registration of Additional Shares
Included in the Registration Statement of which this Prospectus is a
part are the 150,000 shares of Common Stock underlying the 150,000 five year
Warrants we have sold to the Underwriter.
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:
(a) Annual Report on Form 10-KSB for the fiscal year ended September
30, 2000, filed pursuant to Section 13 of the Exchange Act.
(b) 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.
(c) 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, which shall be deemed to be a part hereof from the date of the filing of
each such report or document.
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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 and
Chief Operating Officer, Trimedyne, Inc., 19501 Bake Pkwy., Irvine, California
92618 (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 contains provisions
relating to the indemnification of our directors and officers to the fullest
extent permitted by Nevada 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.
Legal matters in connection with this offering have been passed upon
for the Underwriter by _________________ of _________________.
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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............ $ 626.39
Accountants' Fees and Expenses.................... -----
Legal Fees and Expenses........................... -----
Blue Sky Fees and Expenses........................ -----
Underwriter's Expense Allowance................... -----
Miscellaneous..................................... _____
---
TOTAL $_____
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
fullest 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 were filed with this Registration Statement:
5 Opinion of Counsel
23(a) Consent of McKennon, Wilson & Morgan, LLP
Form of "Best Efforts" Underwriting Agreement
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,
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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
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-2 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 12th day of
January, 2001.
TRIMEDYNE, INC.
By:/s/
William J. Schubert
Vice-Chairman and Chief Executive Officer
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/ Chairman January 12, 2001
--------------------
Marvin P. Loeb
/s/ Vice-Chairman and January 12, 2001
--------------------- Chief Executive Officer
William J. Schubert, Jr.
/s/ President, Chief January 12, 2001
--------------------- Operating Officer,
Shane H. Traveller Chief Financial Officer,
and Director
/s/ Director January 12, 2001
----------------------
Donald Baker
/s/ Director January 12, 2001
----------------------
Bruce N. Barron
/s/ Director January 12, 2001
----------------------
Richard F. Horowitz
II-3
