AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 13, 1996.
REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MEDAMICUS, INC.
(Exact Name of Registrant as Specified in its Charter)
Minnesota 41-1533300
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
15301 Highway 55 West
Plymouth, Minnesota 55447
(612) 559-2613
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
James D. Hartman, President,
Chief Executive Officer and Chief Financial Officer
MEDAMICUS, INC.
15301 Highway 55 West
Plymouth, Minnesota 55447
(612) 559-2613
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copy to:
Mark S. Weitz
Leonard, Street and Deinard
Suite 2300
150 South Fifth Street
Minneapolis, Minnesota 55402
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------- ---------------------- ---------------------- ---------------------- ----------------------
Proposed Proposed
Title of Shares Amount Maximum Maximum Amount of
to be to be Aggregate Price Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee(2)
----------------------- ---------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, 610,000 shares $2.75 $1,677,500 $508
$.01 par value
----------------------- ---------------------- ---------------------- ---------------------- ----------------------
Common Stock, 107,000 shares $3.90 $ 417,300 $127
$.01 par value,
underlying warrants
----------------------- ---------------------- ---------------------- ---------------------- ----------------------
TOTAL 717,000 shares --- $2,094,800 $635
======================= ====================== ====================== ====================== ======================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Pursuant to Rule 457(c) the registration fee is calculated based upon the
average of the bid and asked prices of the Common Stock as reported by
NASDAQ on November 7, 1996.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
Subject to completion, dated November 13, 1996
PROSPECTUS
717,000 SHARES
MEDAMICUS, INC.
COMMON STOCK
This Prospectus relates to up to 717,000 shares of Common Stock, par value
$.01 per share (the "Shares"), of MedAmicus, Inc. (the "Company") that may be
offered for sale for the account of certain shareholders of the Company as
stated herein under the heading "Selling Shareholders." No period of time has
been fixed within which the Shares covered by this Prospectus may be offered or
sold, but the Company has agreed to keep the Registration Statement of which
this Prospectus is a part effective until the later of (i) May 18, 1998 or (ii)
such time as the securities registered hereunder may be sold without restriction
under Rule 144 of the Securities Act of 1933, as amended (the "Act").
All 717,000 Shares offered hereby are being registered for the account of
the Selling Shareholders. The Company will not receive any of the proceeds from
the sale of the Shares. However, of the 717,000 Shares, 107,000 are issuable
upon the exercise of warrants (the "Warrants"). If such Warrants are fully
exercised, the Company will receive an aggregate of $417,300. See "Use of
Proceeds" and "Selling Shareholders."
The Common Stock of the Company is quoted in the NASDAQ SmallCap
Market(R) under the symbol "MEDM." On November 7, 1996, the last sale price of
the Common Stock as reported by NASDAQ was $2.625 per share. See "Price Range of
Common Stock."
INVESTORS SHOULD CONSIDER CAREFULLY THE FACTORS SET FORTH UNDER "RISK
FACTORS" BEGINNING ON PAGE 6.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Selling Shareholders have been informed that sales of the Shares
offered hereunder by them, or by their pledgees, donees, transferees or other
successors in interest, may be made from time to time in the NASDAQ SmallCap
Market, through negotiated transactions or otherwise, at market prices
prevailing at the time of sale or at negotiated prices. See "Plan of
Distribution."
The Company is incurring all of the expenses of registering the Shares.
No person has been authorized to give any information or to make any
representations not contained or incorporated by reference in this Prospectus in
connection with the offer described in this Prospectus and, if given or made,
such information and representations must not be relied upon as having been
authorized by the Company or any of the Selling Shareholders. Neither the
delivery of this Prospectus nor any sale made under this Prospectus shall under
any circumstances create any implication that there has been no change in the
affairs of the Company since the date hereof or since the date of any documents
incorporated herein by reference. This Prospectus does not constitute an offer
to sell or a solicitation of an offer to buy any securities other than the
securities to which it relates, or an offer or solicitation in any state to any
person to whom it is unlawful to make such offer in such state.
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION...................................................... 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE............................ 5
THE COMPANY................................................................ 6
RISK FACTORS............................................................... 6
PRICE RANGE OF COMMON STOCK................................................ 10
DIVIDEND POLICY............................................................ 10
SELLING SHAREHOLDERS....................................................... 11
USE OF PROCEEDS............................................................ 12
PLAN OF DISTRIBUTION....................................................... 12
LEGAL MATTERS.............................................................. 12
EXPERTS.................................................................... 13
INDEMNIFICATION............................................................ 13
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such material can be
inspected and copied at the Public Reference Section of the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
regional offices at 7 World Trade Center, 13th Floor, New York, New York 10048
and 500 West Madison, Suite 1400, Chicago, Illinois 60661. Copies of such
material can also be obtained at prescribed rates by writing to the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, DC
20549. Reports, proxy statements and other information filed electronically by
the Company with the Commission may also be obtained from the Web site that the
Commission maintains at http:\\www.sec.gov. The Company's Common Stock is quoted
on the Nasdaq SmallCap Market. Reports and other information concerning the
Company can be inspected at the offices of the Nasdaq State Market, 1735 K
Street, N.W., Washington, DC 20006.
The Company has filed with the Commission in Washington, DC a registration
statement on Form S-3 (the "Registration Statement") under the Securities Act of
1933 (the "Securities Act") with respect to the securities covered by this
Prospectus. As permitted by the rules and regulations of the Commission, this
Prospectus does not contain all of the information set forth in the Registration
Statement. For further information with respect to the Company and the
securities offered hereby, reference is made to the Registration Statement,
including the exhibits filed or incorporated as a part thereof, copies of which
can be inspected at, or obtained at prescribed rates from, the Public Reference
Section of the Commission at the address set forth above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference into this Prospectus: (1) the Company's Annual Report
on Form 10-KSB for the fiscal year ended December 31, 1995 (File No. 0-19467);
(2) the Company's Quarterly Reports on Form 10-QSB for the fiscal quarters ended
March 31, June 30, and September 30, 1996; (3) all other reports filed by the
Company pursuant to Sections 13, 14 or 15(d) of the Exchange Act since December
31, 1995 and (4) the Company's Registration Statement on Form 8-A filed with the
Commission on August 7, 1991.
All documents filed by the Company pursuant to Sections 13(a), 14 or 15(d)
of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering hereunder shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained herein or in a document, all or any
portion of which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of any such
person, a copy of any or all of the documents referred to above or elsewhere
herein which have been incorporated herein by reference (other than certain
exhibits to such documents). Written requests for such copies should be directed
to James D. Hartman, MedAmicus, Inc., 15301 Highway 55 West, Plymouth, Minnesota
55447. Telephone requests should be directed to Mr. Hartman at (612) 559-2613.
THE COMPANY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY BY, AND SHOULD BE READ
IN CONJUNCTION WITH, THE MORE DETAILED INFORMATION, INCLUDING THE FINANCIAL
STATEMENTS AND NOTES THERETO, INCORPORATED BY REFERENCE IN THIS PROSPECTUS.
THE COMPANY
MedAmicus, Inc. ("MedAmicus" or the "Company") is a medical products
company engaged in the following:
* The manufacture and marketing of a percutaneous vessel introducer and
the design and development of related vascular access products.
* The design, development, manufacture and marketing of a pressure
measurement system utilizing a proprietary fiber optic transducer for measuring
and monitoring physiological pressures in the human body, referred to herein as
a transducer.
* The manufacture of medical devices and components for other medical
product companies on a contract basis.
The Company was organized under the laws of the State of Minnesota on
August 24, 1981 under the name "MNM Enterprises, Inc." In March 1988, the
Company changed to its current name. The Company was inactive until October
1985, when operations commenced. The Company's executive offices are located at
15301 Highway 55 West, Plymouth, Minnesota 55447. Its telephone number is (612)
559-2613.
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION IN THIS PROSPECTUS, POTENTIAL
PURCHASERS SHOULD CONSIDER CAREFULLY THE FOLLOWING FACTORS IN EVALUATING THE
COMPANY, ITS BUSINESS AND THE SHARES OF COMMON STOCK OFFERED HEREBY. THIS
PROSPECTUS, INCLUDING THE INFORMATION INCORPORATED BY REFERENCE HEREIN, CONTAINS
FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES
ACT OF 1933 AND SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934. ACTUAL
RESULTS COULD DIFFER SIGNIFICANTLY FROM THOSE PROJECTED IN THE FORWARD-LOOKING
STATEMENTS AS A RESULT, IN PART, OF THE RISK FACTORS SET FORTH BELOW. IN
CONNECTION WITH THE FORWARD-LOOKING STATEMENTS WHICH APPEAR IN THESE
DISCLOSURES, PROSPECTIVE INVESTORS SHOULD BE AWARE OF THE FOLLOWING RISK FACTORS
AND SHOULD REVIEW CAREFULLY THE INFORMATION CONTAINED ELSEWHERE IN THIS
PROSPECTUS AND THE INFORMATION INCORPORATED HEREIN.
CONTINUING LOSSES
The Company commenced operations in October 1985 and has had losses in
each of the years since that date. For the year ended December 31, 1995, the
Company incurred a net loss of $358,854 and, through the first three quarters of
1996, a net loss of $1,026,272. The Company has incurred cumulative net losses
through September 30, 1996 of $5,761,532. The Company anticipates losses could
continue at least until the Company completes ramp up of production and sales
and marketing for the Lumax System for urologic applications. There is no
assurance that the Company will ever be able to conduct its operations
profitably.
NEED FOR ADDITIONAL CAPITAL
The Company is pursuing a direct sales effort utilizing independent sales
representatives for the distribution of its transducer system in the United
States, and to enter into distributor relationships internationally. If sales do
not develop as expected, additional capital would be needed to execute this
strategy or the marketing plan would have to be modified or abandoned. If
required, there is no assurance that the Company will be able to raise any
capital to support its distribution plans. If the Company is able to raise
additional capital in the future, it would likely be through the sale of equity
or debt of the Company to investors in private transactions and it may be on
terms more favorable to new investors than to existing shareholders. There can
be no assurance that the Company would be able to raise such additional capital,
if needed.
LACK OF MARKET FOR THE FIBER OPTIC PRESSURE TRANSDUCER
Management's strategy is to market the fiber optic pressure transducer
system to urologists for prostate and incontinence diagnostic testing and to
gynecologists for incontinence diagnostic testing. There can be no assurance
that urologists will choose to switch from the existing types of commonly used
catheters to the fiber optic catheters designed by the Company. Incontinence
testing is a relatively new and undeveloped market. There is no assurance that
the incontinence testing and treatment market at the gynecology office will
evolve as the Company expects or, if it does evolve, that the Company's product
will be widely used or accepted. In addition, there appears to be a trend that
purchase decisions relating to medical devices are being made by purchasing
groups rather than individual doctors. There can be no assurance that the
Company's sales and marketing efforts will appeal to such purchasing groups or
that the Company's products will be accepted by such groups.
NEED TO ACHIEVE COMPETITIVE MANUFACTURING COST
The Company's expectations as to the market acceptance of the transducer
is dependent on a catheter manufacturing cost which will result in allowing it
to sell the catheter at prices which make it competitive with existing fluid
based pressure measurement systems. There can be no assurance that the Company
can attain or maintain the manufacturing cost targets which form the basis of
the Company's future revenue expectations.
HIGHLY COMPETITIVE MARKETS; RISK OF TECHNOLOGICAL OBSOLESCENCE
The medical technology industry in which the Company is involved is
characterized by rapidly evolving technology and intense competition. The
Company is aware of one other company which markets a fiber optic pressure
measurement device for use in the urological market. There are two other
companies which market fiber optic pressure measurement devices, but for
different applications. In addition, there are several large companies which
manufacture and market external strain gauge transducer catheters, a product
against which the Company's catheter would likely compete. There is no assurance
that these companies or any other companies will not develop technology which is
more effective and/or available at a lower cost than the product offered by the
Company.
GOVERNMENT REGULATION
The medical products the Company is selling and proposing to sell are
subject to regulation by the FDA and by comparable agencies in certain states
and foreign countries. The process of complying with requirements of the FDA and
other agencies can be costly and time consuming. The Company has received
clearance to market its vessel introducer and transducer by the FDA, although
the Company will be required to obtain approval for marketing its transducer in
other applications if it is necessary to change materials which are in contact
with body fluids or to add other measurement parameters. There is no assurance
that any such additional clearance will be obtained. In addition, once obtained,
these clearances are subject to review, and later discovery of previous unknown
problems may result in restrictions on the marketing of a product or withdrawal
of the product from the market. The Company is also subject to certain FDA
regulations governing manufacturing practices, packaging and labeling.
DEPENDENCE ON PATENTS AND PROPRIETARY TECHNOLOGY
The Company's success may depend on its ability to obtain patent
protection for its products and processes, to preserve its trade secrets and to
operate without infringing the proprietary rights of third parties. Patents
covering certain aspects of the Company's vessel introducer and transducer were
issued by the United States Patent and Trademark Office in March and April 1991,
respectively. In addition, the Company has applied for patent protection on
additional aspects of both the vessel introducer and transducer. There can be no
assurance that any future patent protection will be granted, that the scope of
any patent protection will exclude competitors or that any of the Company's
patents will be held valid if subsequently challenged. The validity and breadth
of claims covered in medical technology patents involves complex legal and
factual questions and therefore may be highly uncertain. The Company also relies
upon unpatented trade secrets, and no assurance can be given that others will
not independently develop or otherwise acquire substantially equivalent trade
secrets or otherwise gain access to the Company's proprietary technology.
POTENTIAL INFRINGEMENT ISSUES
The Company received correspondence in 1993 alleging that the Company's
patented slitter introducer infringes a patent issued prior to the issuance of
the Company's patent. To the best of the Company's knowledge, the product which
is the subject of the prior patent has never been marketed. The Company has been
aware of this patent since it began marketing its slitter introducer and has
received a legal opinion that it does not infringe such patent. Upon receipt of
this correspondence, the Company engaged a second patent counsel whose review of
the matter supported the Company's position. The Company informed the patent
holder of its position and that it saw no reason to enter into any settlement.
The Company believes its slitter introducer does not infringe and intends to
defend its proprietary position.
The Company has received correspondence from a competitor in the fiber
optic transducer market regarding patents it holds relating to fiber optic
transducers, specifically referencing a patent on a technique to calibrate the
fiber optic system and requesting additional information regarding the Company's
calibration technique and why such technique does not infringe the competitor's
patent. The Company has been aware of this patent and has specifically designed
the calibration system associated with its transducer so as not to infringe the
competitor's patent. In addition, the Company has been issued a United States
patent on its calibration technique. The Company has also received an opinion of
counsel that its calibration system does not infringe such patent.
There can be no assurance that the resolution of these matters will be
decided in the Company's favor, should they proceed beyond their current status.
In addition, the expenses which may be incurred and the disruption of business
which the Company may experience in defending any claim of infringement, could
have a material adverse effect on the Company's sales and profitability
regardless of whether such claims are successful.
DEPENDENCE ON MAJOR CUSTOMERS
The Company is presently dependent on two major customers, Medtronic and
Bard. Medtronic accounted for approximately 72% of the Company's total sales in
1995; Bard accounted for approximately 7%. The loss of either of these customers
would have a material adverse effect on the Company.
DEPENDENCE ON MANAGEMENT AND KEY PERSONNEL
The Company's success has been dependent to date upon the efforts of its
current officers and key employees. The Company's founder, Chief Executive
Officer and President, Richard L. Little, resigned from the Company on February
9, 1995 for health reasons. James D. Hartman, the Company's Executive Vice
President and Chief Financial Officer was elected to the position of President
on the same date and Mr. Little remained on the Company's Board of Directors.
Mr. Little was heavily involved in the development of the Company's products.
The Company believes that its focus in the future will be on the marketing and
sales of its products as well as on further research and development of such
products. Consequently, the Company's future success will be dependent upon its
ability to attract and retain qualified people in all areas. There can be no
assurance that the loss of Mr. Little or any other key personnel will not have a
material adverse impact on the Company's business. There can be no assurance
that qualified personnel can be retained or readily replaced and there is no
assurance the Company can continue to add qualified people as required.
SOURCES OF SUPPLY
The Company currently purchases, and will in the future purchase,
components and raw materials from outside vendors. Although the Company has
identified alternative suppliers for key components and raw materials, at the
present time the Company generally uses one source of supply for each component
and raw material. Each supplier of raw material for the Company's vessel
introducer is subject to the approval of Medtronic and Bard and future customers
may have a right of approval as well. At present, all of the Company's suppliers
have been approved by Medtronic and Bard. Should a key supplier be unwilling or
unable to supply any such component or raw material in a timely manner, or
should approval of a proposed supplier be delayed, withheld or withdrawn, the
Company could experience delays in obtaining alternative suppliers which may
adversely affect the Company's business.
LIMITED PUBLIC MARKET TRADING
As of September 30, 1996, the Company had 4,060,774 shares of common stock
outstanding, of which approximately 70% was available for public trading. It is
estimated that as many as 50% of the shares eligible to trade are held by
customers of Summit Investment Corporation, the underwriter of the Company's
initial public offering. During the first nine months of 1996, the average daily
trading volume approximated 6,000 shares per day. As of September 30, 1996,
there were only three investment banking firms which make a market in the
Company's stock. There can be no assurance that an active market will exist for
the Company's shares, or that its shares could be sold without a significant
negative impact on the publicly quoted price per share.
SHARES ELIGIBLE FOR FUTURE SALES
Currently 541,150 shares of the Company's Common Stock are eligible for
sale pursuant to Rule 144 under the Securities Act, all of which are held by
executive officers and directors of the Company. If sales of any of such shares
were to occur in substantial amounts, such sales could have an adverse impact on
the trading price of the Common Stock. The Company's directors and executive
officers beneficially hold an aggregate of 644,900 shares, which includes
103,750 shares that may be acquired upon the exercise of currently exercisable
options.
PRICE RANGE OF COMMON STOCK
The Company's Common Stock has traded in the NASDAQ SmallCap Market under
the symbol MEDM since its initial public offering in September 1991. The
following table sets forth high and low bid prices as reported by NASDAQ for the
indicated periods. Such quotations reflect inter-dealer prices, without retail
mark-up, markdown, or commission, and may not reflect actual transactions.
1991: HIGH LOW
---- ---
Third Quarter from September 6, 1991. . . . . . . . . $4.125 $3.25
Fourth Quarter . . . . . . . . . . . . . . . . . . . 3.625 3.00
1992:
First Quarter . . . . . . . . . . . . . . . . . . . . 5.00 3.125
Second Quarter. . . . . . . . . . . . . . . . . . . . 4.375 3.50
Third Quarter. . . . . . . . . . . . . . . . . . . . 3.75 3.375
Fourth Quarter. . . . . . . . . . . . . . . . . . . . 4.75 3.00
1993:
First Quarter . . . . . . . . . . . . . . . . . . . . 5.375 4.00
Second Quarter. . . . . . . . . . . . . . . . . . . . 5.375 3.25
Third Quarter. . . . . . . . . . . . . . . . . . . . 5.25 3.25
Fourth Quarter. . . . . . . . . . . . . . . . . . . . 5.375 4.50
1994:
First Quarter . . . . . . . . . . . . . . . . . . . . 4.75 4.25
Second Quarter. . . . . . . . . . . . . . . . . . . . 4.25 3.75
Third Quarter. . . . . . . . . . . . . . . . . . . . 3.875 2.375
Fourth Quarter. . . . . . . . . . . . . . . . . . . . 2.625 1.625
1995:
First Quarter . . . . . . . . . . . . . . . . . . . . 2.750 1.875
Second Quarter. . . . . . . . . . . . . . . . . . . . 3.25 2.25
Third Quarter. . . . . . . . . . . . . . . . . . . . 4.00 3.00
Fourth Quarter. . . . . . . . . . . . . . . . . . . . 3.875 2.875
1996:
First Quarter. . . . . . . . . . . . . . . . . . . . 3.75 3.00
Second Quarter. . . . . . . . . . . . . . . . . . . . 4.25 3.25
Third Quarter. . . . . . . . . . . . . . . . . . . . 3.875 2.75
As of September 30, 1996, the Company had approximately 1,500 record
holders of its common stock.
DIVIDEND POLICY
The Company has not paid cash dividends in the past and does not expect to
do so in the future.
SELLING SHAREHOLDERS
The 717,000 shares of common stock offered hereby consist of the
following: (1) 610,000 shares issued by the Company in a private placement in
May 1996 and (2) 107,000 shares issuable by the Company upon exercise of
warrants granted to affiliates of Summit Investment Corporation in connection
with such private placement (the "Warrant Shares"). The following table sets
forth certain information as of October 30, 1996. Unless otherwise indicated,
the Selling Shareholders each possess sole voting and investment power with
respect to the shares shown.
<TABLE>
<CAPTION>
- ------------------------------------ ----------------------------- ---------------- ================================
NO. OF COMMON STOCK BENEFICIALLY
NAME COMMON STOCK BENEFICIALLY SHARES THAT MAY OWNED AFTER OFFERING IF ALL
OWNED PRIOR TO OFFERING BE OFFERED SHARES THAT MAY BE OFFERED
NO. OF SHARES PERCENT HEREUNDER HEREUNDER ARE SOLD
NO. OF SHARES PERCENT
- ------------------------------------ ----------------------------- ---------------- ================================
<S> <C> <C> <C> <C>
PRIVATE PLACEMENT SHARES
Industricorp & Co., Inc. 50,000 1.2% 50,000 - -
Pyramid Partners, LP 100,000 2.4% 100,000 - -
Perkins Foundation 7,500 * 7,500 - -
Richard W. Perkins, Trustee UA dtd 27,500 * 27,000 - -
6/14/78 FBO Richard W. Perkins
Pamela L. Brown, Trustee UA dtd 5,000 * 5,000 - -
9/16/88 FBO Pamela L. Brown
David R. Weir 10,000 * 10,000 - -
Okabena Partnership K 235,000 5.8% 235,000 - -
Herrick Family Partners 65,000 1.6% 65,000 - -
Pilar R. Tiampo 25,000 * 25,000 - -
James J. and Kristy F. Tiampo 25,000 * 25,000 - -
Principal Financial Securities, 35,000 * 35,000 - -
Inc. Custodian for Michael L.
Bochert IRA
Rob D. Furst, Jr. 25,000 * 25,000 - -
WARRANT SHARES
Summit Investment Corporation (1) 60,000 1.5% 60,000 - -
G. James Spinner (2) 10,000 * 10,000 - -
Robert H. Paymar (2) 10,000 * 10,000 - -
Thomas J. Gagner (2) 12,000 * 12,000 - -
Thomas P. Niemiec (2) 3,000 * 3,000 - -
David J. Rode (2) 12,000 * 12,000 - -
==================================== ========== ============== ================ =============== ================
</TABLE>
- ------------------
*Less than 1%
(1) Summit Investment Corporation was the underwriter of the Company's
initial public offering in September 1991 and the placement agent for
the Company's private placements of securities in January 1994 and May
1996.
(2) Affiliate or associate of Summit Investment Corporation.
See note (1).
The registration rights granted to the Selling Shareholders generally
provide that the Company and the Selling Shareholders indemnify each other
against certain liabilities, including liabilities arising under the Securities
Act. The Company and the Selling Shareholders have been advised that, in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy and is, therefore, unenforceable.
USE OF PROCEEDS
The 717,000 Shares are being offered for the account of Selling
Shareholders. The Company will not receive any proceeds from the sale of these
Shares of Common Stock. However, upon exercise of the 107,000 Warrant Shares, if
all are exercised, the Company will receive proceeds of $417,300 which it
intends to apply to working capital.
PLAN OF DISTRIBUTION
The Selling Stockholders have advised the Company that sales of the Shares
may be effected from time to time in transactions (which may include block
transactions) in the over-the-counter market, including the Nasdaq SmallCap
Market, in negotiated transactions, or a combination of such methods of sale, at
fixed prices which may be changed, at market prices prevailing at the time of
sale, or at negotiated prices. The Selling Shareholders may effect such
transactions by selling their Shares directly to purchasers or to or through
broker-dealers which may act as agents or principals. Such broker-dealers may
receive compensation in the form of discounts, concessions, or commissions from
the Selling Shareholder and/or the purchasers of such securities for whom such
broker-dealers may act as agents or to whom they sell as principal, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions). The Selling Shareholders and any broker-dealers that act
in connection with the sale of the Common Stock might be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act of 1933
(the "1933 Act"). Each of the Selling Shareholders are obligated to comply with
certain rules promulgated by the Securities and Exchange Commission designed to
prevent manipulative and deceptive practices, including Rules 10b-6 and 10b-7
promulgated under the Securities Exchange Act of 1934. The Selling Shareholders
may agree to indemnify any agent, dealer or broker-dealer that participates in
transactions involving sales of their securities against certain liabilities,
including liabilities arising under the Act.
All costs, expenses and fees in connection with the registration of the
Common Stock offered by the Selling Shareholders will be borne by the Company.
Brokerage commissions, if any, attributable to sale of the Common Stock offered
by the Selling Shareholders will be borne by the Selling Shareholders.
The Company has agreed to keep this Registration Statement effective until
the later of (i) May 18, 1998 or (ii) such time as the securities registered
hereunder may be sold without restriction under Rule 144 under the Act. See
"Selling Shareholders."
LEGAL MATTERS
Certain matters with respect to the legality of the issuance and sale of
the shares offered hereby will be passed upon for the Company by Leonard, Street
and Deinard, Professional Association, Minneapolis, Minnesota.
EXPERTS
The financial statements of MedAmicus, Inc. as of December 31, 1995 and
for the year ended December 31, 1995, incorporated by reference in the Company's
Annual Report on Form 10-KSB for the year ended December 31, 1995, have been
incorporated by reference herein in reliance upon the report of McGladrey &
Pullen, LLP, independent certified public accountants, as set forth in their
report included therein and incorporated by reference herein, and upon the
authority of such firm as experts in audit and accounting. The financial
statements of MedAmicus, Inc. as of December 31, 1994 and for each of the years
in the two-year period ended December 31, 1994, have been incorporated by
reference herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, as set forth in their report included
therein and incorporated by reference herein, and upon the authority of said
firm as experts in auditing and accounting.
To the extent that McGladrey & Pullen, LLP examines and reports on
financial statements of MedAmicus, Inc. issued at future dates, and consents to
the use of their reports thereon, such financial statements will also be
incorporated by reference herein in reliance upon their reports and said
authority.
INDEMNIFICATION
Unless prohibited in a corporation's articles or bylaws, Minnesota
Statutes ss. 302A.521 requires indemnification of officers, directors, employees
and agents, under certain circumstances, against judgments, penalties, fines,
settlements and reasonable expenses (including attorney's fees and
disbursements) incurred by such person in connection with a threatened or
pending proceeding with respect to the acts or omissions of such person in his
official capacity. The general effect of Minnesota Statutes ss. 302A.521 is to
reimburse (or pay on behalf of) directors and officers of the Registrant any
personal liability that may be imposed for certain acts performed in their
capacity as directors and officers of the Registrant, except where such persons
have not acted in good faith.
As permitted by the Minnesota Business Corporation Act, the Articles of
Incorporation of the Company eliminate the liability of the directors of the
Company for monetary damages arising from any breach of fiduciary duties as a
member of the Company's Board of Directors (except as expressly prohibited by
Minnesota Statutes, Section 302A.251, Subd. 4).
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 provisions described above, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities is asserted by such director, officer
or controlling person in connection with the registration of the Shares, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
PART II
INFORMATION NOT REQUIRED
IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The table below sets forth the estimated expenses (except the SEC
registration fee, which is an actual expense) in connection with the offer and
sale of the shares of Common Stock of the registrant covered by this
Registration Statement.
SEC registration fee. . . . . . . . . . . . . . . . . $ 635.00
Legal fees and expenses . . . . . . . . . . . . . . . 6,000.00
Accounting fees and expenses. . . . . . . . . . . . . 4,000.00
Miscellaneous expenses. . . . . . . . . . . . . . . . 150.00
Total . . . . . . . . . . . . . . . . . . . . . . $10,785.00
All of the above are estimated except for the SEC registration fee. All
expenses are being paid by the Company.
Item 15. Indemnification of Directors and Officers.
Unless prohibited in a corporation's articles or bylaws, Minnesota
Statutes ss. 302A.521 requires indemnification of officers, directors, employees
and agents, under certain circumstances, against judgments, penalties, fines,
settlements and reasonable expenses (including attorney's fees and
disbursements) incurred by such person in connection with a threatened or
pending proceeding with respect to the acts or omissions of such person in his
official capacity. The general effect of Minnesota Statutes ss. 302A.521 is to
reimburse (or pay on behalf of) directors and officers of the Registrant any
personal liability that may be imposed for certain acts performed in their
capacity as directors and officers of the Registrant, except where such persons
have not acted in good faith.
As permitted by the Minnesota Business Corporation Act, the Articles of
Incorporation of the Company eliminate the liability of the directors of the
Company for monetary damages arising from any breach of fiduciary duties as a
member of the Company's Board of Directors (except as expressly prohibited by
Minnesota Statutes, Section 302A.251, Subd. 4).
Item 16. Exhibits.
1 Form of Warrant.
4 Specimen, Stock Certificate (incorporated by reference to Exhibit 4.1
to the registrant's Registration Statement on Form S-18 (number
33-42112C)).
5 Opinion and Consent of Leonard, Street and Deinard.
24.1 Consent of Leonard, Street and Deinard (included in Exhibit 5).
24.2 Consent of KPMG Peat Marwick LLP
24.3 Consent of McGladrey & Pullen, LLP
25 Power of Attorney (included on signature page)
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offer or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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 post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the purposes 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 Exchange Act of 1934) that is incorporated by reference in
the 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.
(c) 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 provisions described under Item
15 above, 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
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 Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Minneapolis, State of Minnesota, on October 30,
1996.
MEDAMICUS, INC.
By /s/ James D. Hartman
James D. Hartman
President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints James D. Hartman his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Richard L. Little Director October 30, 1996
- -----------------------------
Richard L. Little
/s/ James D. Hartman Director, President, Chief October 30, 1996
- -------------------------- Executive Officer and Chief
James D. Hartman Financial Officer (Principal
Executive, Financial and
Accounting Officer)
/s/ Richard W. Kramp Director October 30, 1996
- --------------------------
Richard W. Kramp
/s/ Ted K. Schwarzrock Director October 30, 1996
- ----------------------------
Ted K. Schwarzrock
/s/ Richard F. Sauter Director October 30, 1996
- -------------------------------
Richard F. Sauter
</TABLE>
No. A-1
Exhibit 1
FORM OF
WARRANT
TO PURCHASE
SHARES OF COMMON STOCK
OF
MEDAMICUS, INC.
MedAmicus, Inc., a Minnesota corporation (the "Company") hereby agrees
that, for value received, Summit Investment Corporation, or assigns, is
entitled, subject to the terms set forth herein, to purchase from the Company at
any time or from time to time after the date hereof and before 5:00 p.m.,
Minneapolis, Minnesota time, on January 21, 1999, ________ shares of Common
Stock of the Company, subject to adjustment in the number of such shares as set
forth herein, at a price per share of $3.90.
1. Definitions. The following terms when used in this
Warrant will have the following meanings:
"Act" shall mean the United States Securities Act of 1933.
"Common Stock" is the authorized $0.01 par value common shares of the
Company.
"Holder" is the registered holder of this Warrant.
"Holders" are all of the registered holders of the Warrants.
"Offering Circular" shall mean an offering circular filed pursuant to
Regulation A promulgated under the Securities Act of 1933.
"Registration Statement" shall mean a registration statement filed
under the Securities Act of 1933.
"SEC" shall mean the Securities and Exchange Commission.
"Warrant" shall mean the warrant evidenced by this document.
"Warrants" shall mean all warrants to purchase an aggregate of 107,000
shares of Common Stock issued as of May 13, 1996, of which this Warrant is a
part, and designated by a number preceded by the letter "A".
2. Exercise of Warrant. Subject to restrictions which may be set forth
herein, the purchase rights exercisable under this Warrant may be exercised, in
whole or in part, as follows:
(a) by the Holder surrendering this Warrant to the Company at
its principal office, accompanied by a duly executed Exercise Form
attached hereto and payment, in cash or by certified or bank check
payable to the order of the Company, of the purchase price payable in
respect of the Common Stock being purchased.
(b) by the Holder surrendering this Warrant to the Company at
its principal office accompanied by a Cashless Exercise Form attached
hereto (a "Cashless Exercise"). In the event of a Cashless Exercise,
the Holder may exchange this Warrant for that number of shares of
Common Stock determined by multiplying the number of shares of Common
Stock exercisable under the portion of the Warrant being exchanged for
Common Stock (including the number of shares being acquired in such
exchange) by a fraction, the numerator of which shall be the amount by
which the then current market price per share of Common Stock exceeds
the Exercise Price, and the denominator of which shall be the market
price. For purposes of any computation under this Section 2(b), the
then current market price per share of Common Stock at any date shall
be deemed to be the last sale price of the Common Stock on the business
day prior to the date of the Cashless Exercise or, in case no such
reported sales take place on such day, the average of the last reported
bid and asked prices of the Common Stock on such day, in either case on
the principal national securities exchange on which the Common Stock is
admitted to trading or listed, or if not listed or admitted to trading
on any such exchange, the representative closing bid price of the
Common Stock as reported by NASDAQ, or other similar organization if
NASDAQ is no longer reporting such information, or if not so available,
the fair market price of the Common Stock as determined by the Board of
Directors.
(c) If less than all of the Common Stock purchasable under
this Warrant is purchased, the Company will, upon such exercise,
execute and deliver to the Holder a new warrant (dated the date
thereof) evidencing the number of shares of the Common Stock not so
purchased. As soon as practicable after the exercise of this Warrant
and payment of the purchase price, the Company will cause to be issued
in the name of and delivered to the Holder, or as such Holder may
direct, a certificate or certificates representing the shares
purchased. The Company may require that such certificate or
certificates contain on the face thereof a legend substantially as
follows:
"The transfer of the shares represented by this
certificate is restricted pursuant to the terms of a
Warrant to Purchase Shares of Common Stock dated
___________________, 1996, issued by MedAmicus, Inc.
a copy of which is available for inspection at the
offices of MedAmicus, Inc. Transfer may not be made
except in accordance with the terms of the Warrant.
In addition, no sale, offer to sell or transfer of
the shares represented by this certificate shall be
made unless a Registration Statement under the
Securities Act of 1933, as amended, with respect to
such shares is then in effect or an exemption from
the registration requirements of such Act is then in
fact applicable to such shares."
This Warrant must be exercised with respect to at least 500 shares of the Common
Stock purchasable hereunder, unless a lessor number of shares of Common Stock
then remain exercisable, in which case it must be exercised with respect to such
lessor number.
3. Transferability; Negotiability. This Warrant may only be sold,
assigned, hypothecated or otherwise transferred subject to the terms of this
Section 3 and Section 5 hereof. This Warrant is issued upon the following terms,
to which each taker or owner hereof consents and agrees:
(a) Subject to the subparagraph (b) below, any person in
possession of this Warrant properly endorsed, is authorized to
represent himself as absolute owner hereof and is granted power to
transfer absolute title hereto by endorsement and delivery hereof to a
Holder in due course. Each prior taker or owner waives and renounces
all of his equities or rights in this Warrant in favor of every such
Holder in due course, and every such Holder in due course shall acquire
absolute title hereto and to all rights represented hereby.
(b) Until this Warrant is transferred on the books of the
Company, the Company may treat the Holder of this Warrant as absolute
owner hereof for all purposes without being affected by any notice to
the contrary.
4. Adjustment of Purchase Price; Reorganization.
(a) In case the Company shall at any time hereafter subdivide
or combine its outstanding shares of Common Stock, or declare a
dividend payable in Common Stock, the exercise price in effect
immediately prior to the subdivision, combination or record date for
such dividend payable in Common Stock shall forthwith be
proportionately increased, in the case of combination, or
proportionately decreased, in the case of subdivision or declaration of
a dividend payable in Common Stock, and each share of Common Stock
purchasable upon exercise of the Warrant shall be changed to the number
determined by dividing the then current exercise price by the exercise
price as adjusted after such subdivision, combination or dividend
payable in Common Stock.
(b) No fractional shares of Common Stock are to be issued upon
the exercise of the Warrant, but the Company shall pay a cash
adjustment in respect of any fraction of a share which would otherwise
be issuable in an amount equal to the same fraction of the market price
per share of Common Stock on the day of exercise as determined in good
faith by the Company.
(c) In case of any capital reorganization or any
reclassification of the shares of Common Stock of the Company, or in
the case of any consolidation with or merger of the Company into or
with another corporation, or the sale of all or substantially all of
its assets to another corporation effected in such a manner that the
holders of Common Stock shall be entitled to receive stock, securities
or assets with respect to or in exchange for Common Stock, then, as a
part of such reorganization, reclassification, consolidation, merger or
sale, as the case may be, lawful provision shall be made so that the
Holder shall have the right thereafter to receive, upon the exercise
hereof, the kind and amount of shares of stock or other securities or
property which the Holder would have been entitled to receive if,
immediately prior to such reorganization, reclassification,
consolidation or merger, the Holder had held the number of shares of
Common Stock which were then purchasable upon the exercise of the
Warrant had the Warrant been exercised. In any such case, appropriate
adjustment (as determined in good faith by the Board of Directors of
the Company) shall be made in the application of the provisions set
forth herein with respect to the rights and interest thereafter of the
Holder, to the end that the provisions set forth herein (including
provisions with respect to adjustments of the exercise price) shall
thereafter be applicable, as nearly as reasonably may be, in relation
to any shares of stock or other property thereafter deliverable upon
the exercise of the Warrant.
(d) When any adjustment is required to be made in the exercise
price, initial or adjusted, the Company shall forthwith determine the
new exercise price; and
(i) Prepare and retain on file a statement describing
in reasonable detail the method used in arriving at the new
exercise price; and
(ii) Cause a copy of such statement to be mailed to
the Holder as of a date within ten (10) days after the date
when the circumstances giving rise to the adjustment occurred.
5. Investment Intent. The issuance of the shares of Common Stock
issuable upon exercise of the Warrant has not been registered under the Act or
any applicable state law. The Warrant is issued to the Holder on the condition
that the Warrant and any Common Stock purchased upon exercise of the Warrant
(excepting Common Stock for which a Notification under Regulation A or a
Registration Statement has been filed and declared effective and for which such
exercise may be effected pursuant to registration or an exemption from
registration under any applicable state law) are or will be purchased for
investment purposes and not with an intent to distribute the same. Prior to
making any disposition of the Warrant or of any Common Stock purchased upon
exercise of the Warrant, the Holder will give written notice to the Company
describing briefly the manner of any such proposed disposition. The Holder will
not make any such disposition, until and unless (i) the Company has notified him
that, in the opinion of its counsel, registration under the Act and any
applicable state law is not required with respect to such disposition, or (ii) a
Notification under Regulation A or a Registration Statement covering the
proposed distribution has been filed by the Company and has become effective and
applicable state laws relating to registration are complied with. Upon receipt
of written notice from the Holder with respect to such proposed distribution,
the Company will use its best efforts, in consultation with the Holder's
counsel, to ascertain as soon as possible whether or not registration is
required, and will advise the Holder promptly with respect thereto.
6. Registration Upon Request.
(a) Upon written request of the Holder as provided hereunder
given prior to January 21, 1999, the Company will, on a one time basis
after (six months), promptly proceed to file a Registration Statement
or, at the Holder's election, an Offering Circular pursuant to
Regulation A under the Securities Act of 1933, covering the offering
and sale of the Common Stock purchased or purchasable by the Holder
under the terms of this Warrant, at the Holder's option, (i) by the
Company to the Holder, and/or (ii) by the Holder in a public
distribution as described in the request. At the earliest possible date
following such request the Company will diligently proceed to use its
best efforts to (x) have such Registration Statement or Offering
Circular become effective with the SEC, and (y) have such Common Stock,
or the offer and sale thereof, registered or qualified in such states
as may be reasonably requested by the Holder. The Company will provide
Holder's counsel with reasonable opportunities to review and comment
on, and otherwise participate in, the preparation of such Registration
Statement or Offering Circular.
(b) Notwithstanding anything to the contrary herein, and
except where the Company in its sole discretion otherwise permits, no
request under this Section 6 shall be effective unless made in writing
by any one or more of the Holders of the Warrants (and/or shares of
Common Stock issued upon exercise of such Warrants) covering more than
55,000 shares of the Common Stock (subject to adjustment as provided in
Section 4 hereof). Upon effectiveness of a Registration Statement or
Offering Circular which covers the offer and sale of the shares of
Common Stock purchased or purchasable upon the exercise of this Warrant
in accordance with a valid request by Holders of the Warrants under
this Section 6, the rights under this Warrant of any and all Holders to
make such request or election shall terminate. The Company will mail to
the record Holder, at the last known post office address, written
notice of any exercise of the rights granted under this Section 6, by
certified mail, and each Holder shall have thirty (30) days from the
date of deposit of such notice in the U.S. Mail to notify the Company
in writing whether such Holder wishes to join in such exercise. Each
purchaser or transferee of a portion of this Warrant is responsible to
determine whether his rights under this Section 6 have been terminated
by such an exercise. Any Warrants issued upon transfers subsequent to
such an exercise shall have all of the provisions under this Section 6
deleted.
7. Inclusion in Registration Statement. If prior to January 21, 1999,
the Company shall propose to file a Registration Statement (other than on Forms
S-4 or S-8, or any other similarly inappropriate form) under the Act covering a
public offering of the Company's Common Stock, it will notify the Holder at
least thirty (30) days prior to such filing and will include in the Registration
Statement and in any application to register or qualify Common Stock under state
securities laws (to the extent permitted by applicable regulation), the Common
Stock purchased or purchasable by the Holder upon the exercise of the Warrant,
at the Holder's option, (i) by the Company to the Holder, and/or (ii) by the
Holder in a public distribution, to the extent requested by the Holder, but, in
any event, with respect to not less than twenty percent (20%) of the shares of
Common Stock purchasable by the Holder upon exercise of the Warrant.
Notwithstanding the foregoing, the Company need not include the Common Stock so
purchased or purchasable in any such Registration Statement if the principal
underwriter with respect to such proposed public offering determines in writing,
and has a reasonable basis for determining, that such inclusion would be
inadvisable or detrimental to the success of that offering. The Company will
provide Holder's counsel with reasonable opportunities to review and comment on,
and otherwise participate in, the preparation of the Registration Statement. If
the Registration Statement filed pursuant to such thirty (30) day notice has not
become effective within six months following the date such notice is given to
the Holder, the Company must again notify such Holder in the manner provided
above. The obligations of the Company to include the shares purchased or
purchasable under the Warrant in a Registration Statement pursuant to this
Section 7, shall terminate if on the last day on which this Warrant may be
exercised, the Company would not have been obligated to provide the Holder with
thirty (30) days notice as provided in this Section 7.
8. Registration - General Provisions.
(a) In the event Common Stock owned by the Holder is included
in a Registration Statement as provided in Section 6 or Section 7, the
Company will furnish the Holder with a reasonable number of copies of
any prospectus included in such filings and will amend or supplement
the same as required during the period of required use thereof,
provided that the Company need not maintain the effectiveness of any
Registration Statement filed by the Company, more than nine (9) months
following the effective date thereof.
(b) In the case of the filing of any Registration Statement,
and to the extent permissible under the Act and controlling precedent
thereunder, the obligations of the Company under Section 6 and Section
7 shall be subject to (i) the Holder entering into cross
indemnification agreements with the Company and, if requested and
applicable, the underwriter(s) named in such Registration Statement, in
customary scope covering the accuracy and completeness of the
information furnished by each and (ii) the Holder agreeing to cooperate
with the Company in the preparation and filing of any such Registration
Statement.
(c) The Company shall pay all Registration Expenses (as
defined below) in connection with the inclusion of Common Stock in any
Registration Statement or Offering circular, or application to register
or qualify Common Stock under state securities laws, filed by the
Company under Section 6 or 7, other than as set forth herein. For
purposes of this Agreement, the term "Registration Expenses" means the
filing fees payable to the SEC, any state agency and the National
Association of Securities Dealers, Inc.; the fees and expenses of the
Company's legal counsel and independent certified public accountants in
connection with the preparation and filing of the Registration
Statement or Offering Circular (and all amendments and supplements
thereto) with the SEC (provided that fees and expenses relating to the
Company's independent public accountants shall be limited to the fees
and expenses relating to (i) audited financial statements which are
dated as of the end of the Company's fiscal year, (ii) unaudited
financial statements which are dated as of the end of any fiscal
quarter of the Company, and (iii) audited or unaudited financial
statements otherwise prepared or required to be prepared by the Company
for its own business or regulatory compliance purposes); and all
expenses relating to the printing of the Registration Statement,
Offering Circular, prospectuses and various agreements executed in
connection with the Registration Statement or Offering Circular. The
Holder will pay the fees and expenses of any legal counsel Holder may
engage, as well as Holder's proportionate share of (i) any commissions
or expense allowances which may be payable to any underwriter, and (ii)
any filing fees payable with respect to the registration or
qualification of the Holder's Common Stock with any state
administrative agency as requested by the Holder pursuant to Section 6
or 7.
9. Notices. The Company shall mail to the registered Holder of the
Warrant, at his last post office address appearing on the books of the Company,
not less than fifteen (15) days prior to the date on which (i) a record will be
taken for the purpose of determining the holders of Common Stock entitled to
dividends (other than cash dividends) or subscription rights, or (ii) a record
will be taken (or in lieu thereof, the transfer books will be closed) for the
purpose of determining the holders of Common Stock entitled to notice of and to
vote at a meeting of shareholders at which any capital reorganization,
reclassification of shares of Common Stock, consolidation, merger, dissolution,
liquidation, winding up or sale of substantially all of the Company's assets
shall be considered and acted upon. Notwithstanding such notice requirements,
until exercise and payment therefor, any Holder shall not be deemed a
shareholder of the Company with respect to shares of Common Stock underlying
this Warrant.
10. Reservation of Common Stock. A number of shares of Common Stock
sufficient to provide for the exercise of the Warrant upon the basis herein set
forth shall at all times be reserved for the exercise thereof.
11. Miscellaneous. Whenever reference is made herein to the issue or
sale of shares of Common Stock, the term "Common Stock" shall include any stock
of any class of the Company other than preferred stock with a fixed limit on
dividends and a fixed amount payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company. The Company
will not, by amendment of its Articles of Incorporation or through
reorganization, consolidation, merger, dissolution or sale of assets, or by any
other voluntary act of deed, avoid or seek to avoid the observance or
performance of any of the covenants, stipulations or conditions to be observed
or performed hereunder by the Company, but will, at all times in good faith,
assist, insofar as it is able, in the carrying out of all provisions hereof and
in the taking of all other action which may be necessary in order to protect the
rights of the Holder against dilution.
Upon written request of the Holder, the Company will promptly provide
such Holder with a then current written list of the names and addresses of all
Holders of Warrants originally issued under the terms of, and concurrent with,
this Warrant.
The representations, warranties and agreements herein contained shall
survive the exercise of this Warrant. References to the "Holder" includes the
immediate Holder of shares of Common Stock purchased on the exercise of this
Warrant.
All shares of Common Stock or other securities issued upon the exercise
of the Warrant shall be validly issued, fully paid and nonassessable.
IN WITNESS WHEREOF, this Warrant has been duly executed by MedAmicus,
Inc. as of the ______ day of ________________, 1996.
MEDAMICUS, INC.
By ______________________________
Its President
EXERCISE FORM
(To Be Signed Only Upon Exercise Of Warrant Pursuant To Section 2(a))
TO MEDAMICUS, INC.:
The undersigned Holder hereby irrevocably elects to exercise the
purchase right represented by the accompanying Warrant No. ______ for, and to
purchase thereunder, *___________________ shares of the Common Stock and
herewith makes payment of $________________ therefor.
Please issue a certificate for such Common Stock in the name of:
Name __________________________________________________________________
Address _______________________________________________________________
Social Security No. ___________________________________________________
Signature _____________________________________________________________
(Signature must correspond in all respects with the
name of the Holder appearing on the face of this
Warrant or with the name of the assignee appearing in
the Assignment accompanying this Exercise Form.)
In the presence of:
- ----------------------------------------
Capitalized terms contained in this Exercise Form shall have the same
meanings as set forth in the Warrant.
* Insert here all or such portion of the number of shares called for on the
face of the within Warrant with respect to which the holder desires to
exercise the purchase right represented thereby, without adjustment for
any other or additional stock, other securities, property or cash which
may be deliverable on such exercise.
Dated: _______________________, 199__.
CASHLESS EXERCISE FORM
(To Be Signed Only Upon Exercise Of Warrant Pursuant To Section 2(b))
TO MEDAMICUS, INC.:
The undersigned Holder hereby irrevocably elects to exchange Warrants
exercisable for *____________ shares ("Warrant Shares") of Common Stock
purchasable upon the exercise of the accompanying Warrant No. ______ for
*___________________ shares of the Common Stock pursuant to the Cashless
Exercise provisions of the accompanying Warrant, as provided for in Section 2(b)
of such Warrant, and for such purpose hereby sell, assign and transfer unto the
Company the accompanying Warrant No. _____ with respect to *____________ Warrant
Shares, together with all rights, title and interest therein, and does appoint
______________________ attorney to transfer and/or cancel said Warrant on the
books of the Company, with full power of substitution in the premises.
Please issue a certificate for such Common Stock in the name of:
Name __________________________________________________________________
Address _______________________________________________________________
Social Security No. ___________________________________________________
Signature _____________________________________________________________
(Signature must correspond in all respects with the
name of the Holder appearing on the face of this
Warrant or with the name of the assignee appearing in
the Assignment accompanying this Exercise Form.)
In the presence of:
- ----------------------------------------
Capitalized terms contained in this Cashless Exercise Form shall have
the same meanings as set forth in the Warrant.
* Insert here all or such portion of the relevant number of Warrant Shares
which are being delivered for cancellation (including both the Warrant
Shares being cancelled in payment and the Warrant Shares being cancelled
as the result of the issuance of the underlying shares), without
adjustment for any other or additional stock, other securities, property
or cash which may be deliverable on such exercise.
Dated: _______________________, 199__.
ASSIGNMENT FORM
(TO BE SIGNED ONLY UPON TRANSFER OF THE WARRANT)
For value received, the undersigned hereby sells, assigns and transfers
unto _________________________ the right represented by the within warrant to
purchase _______________ of the shares of common stock of MedAmicus, Inc. to
which the within warrant relates, and appoints ______________________________
attorney to transfer said right on the books of MedAmicus, Inc. with full power
of substitution in the premises.
Dated: _______________________ ______________________________
(Signature must conform in all respects to
the name of holder as specified on the face
of the warrant)
______________________________
(Address)
______________________________
(City - State - Zip)
In the presence of:
- ------------------------------
November 8, 1996
(612) 335-1517
MedAmicus, Inc.
15301 Highway 55 West
Plymouth, MN 55447
RE: MEDAMICUS, INC. REGISTRATION STATEMENT ON FORM S-3
Gentlemen:
We have acted as counsel to MedAmicus, Inc., a Minnesota corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
of a Registration Statement on Form S-3 (the "Registration Statement") relating
to the registration of 610,000 shares of common stock par value $.01 per share
(the "Shares"), of the Company and 107,000 shares issuable upon exercise of
outstanding Warrants (the "Warrant Shares").
As such counsel, we have examined copies of the Articles of
Incorporation and Bylaws of the Company, each as amended to date, minutes of
various meetings of the Board of Directors of the Company and the original or
copies of all such records of the Company and all such agreements, certificates
of public officials, certificates of officers and representatives of the Company
and others, and such other documents, papers, statutes and authorities as we
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, we have assumed the genuineness of signatures, the
authenticity of all documents submitted to us as originals and the conformity
with originals of all documents submitted to us as copies thereof. As to various
questions of fact material to such opinion, we have relied upon statements and
certificates of officers and representatives of the Company and others. Based
upon the foregoing, we are of the opinion that the Shares are, and will be when
sold in accordance with the Registration Statement, legally issued, fully paid
and nonassessable and that the Warrant Shares, when issued in accordance with
the respective warrants and payment therefor, will be legally issued, fully paid
and nonassessable.
We hereby consent to the reference to our firm under the caption "Legal
Matters" in the Prospectus which constitutes a part of the Registration
Statement. We further consent to your filing a copy of this opinion as an
exhibit to said Registration Statement.
Very truly yours,
LEONARD, STREET AND DEINARD
By
Mark S. Weitz
EXHIBIT 24.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
MedAmicus, Inc.:
We consent to incorporation by reference in the Registration Statement on Form
S-3 of MedAmicus, Inc. of our report dated February 17, 1995, relating to the
balance sheet of MedAmicus, Inc. as of December 31, 1994, and the related
statements of operations, stockholders' equity, and cash flows for each of the
years in the two year period then ended, which report appears in the December
31, 1995 annual report on Form 10-KSB of MedAmicus, Inc. and to the reference to
our firm under the heading "Experts" therein.
KPMG Peat Marwick LLP
Minneapolis, Minnesota
November 12, 1996
Exhibit 24.3
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors and Shareholders
MedAmicus, Inc.
Minneapolis, Minnesota
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report, dated February 1, 1996, except for Note 12
as to which the date is March 8, 1996, which report was incorporated by
reference in the Company's Annual Report on form 10-KSB for the year ended
December 31, 1995, relating to the financial statements of MedAmicus, Inc., and
to the reference to our Firm under the caption "Experts" in the Prospectus.
McGLADREY & PULLEN, LLP
Minneapolis, Minnesota
November 12, 1996
