As filed with the Securities and Exchange Commission on May 15, 1996.
File No. 33-____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------------
UROMED CORPORATION
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-3104185
(State or other jurisdiction (I.R.S. Employer
of organization) Identification No.)
64 A Street, Needham, Massachusetts 02194 (617) 433-0033
(Address and telephone number of registrant's principal executive offices)
--------------------------------
JOHN G. SIMON
Chairman of the Board of Directors,
President and Chief Executive Officer
UroMed Corporation
64 A Street
Needham, Massachusetts 02194
(617) 433-0033
(Name, address and telephone number of agent for service)
with copies to:
DONALD-BRUCE ABRAMS, ESQ.
Bingham, Dana & Gould LLP
150 Federal Street
Boston, Massachusetts 02110
(617) 951-8000
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, check the following box. |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration
Per Share* Offering Fee
Price*
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
No Par Value 2,335,026 $9.25 $21,598,991 $7,448.00
- -------------------------------------------------------------------------------------
</TABLE>
*Estimated solely for the purpose of determining the registration fee.
Calculated in accordance with Rule 457(c) based on the average of the high and
low prices reported in the consolidated trading system on May 8, 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 Section 8(a), may
determine.
<PAGE>
Subject to Completion, Dated May 15, 1996
P R O S P E C T U S
UROMED CORPORATION
2,335,026 Shares of
Common Stock, No Par Value
-----------
This Prospectus ("Prospectus") of UroMed Corporation, a Massachusetts
corporation (the "Company"), relates to up to 2,335,026 shares (the "Shares") of
the Company's common stock, no par value per share (the "Common Stock") being
sold by certain stockholders of the Company (the "Selling Stockholders"), for
their respective accounts. See "Selling Stockholders." The Company will not
receive any proceeds from the sale of Shares by the Selling Stockholders. The
Common Stock is traded on The Nasdaq Stock Market under the symbol "URMD." On
May 14, 1996, the last reported sale price of the Common Stock on The Nasdaq
Stock Market was $13.63 per share.
The Company will pay all of the expenses incident to the registration,
offering and sale of the Shares to the public hereunder (other than commissions,
fees and discounts of underwriters, brokers, dealers and agents), estimated to
be $50,948. The Company has agreed to indemnify the Selling Stockholders and any
underwriters against certain liabilities, including liabilities under the
Securities Act of 1933 (the "Securities Act").
Subject to the conditions of a Registration Rights Agreement, dated as of
May 9, 1996, by and among the Company, the ASI Liquidating Trust (the "Trust")
the trustees of the Trust (the "Trustees") and the beneficiaries of the Trust
(The Selling Stockholders) (the "Registration Rights Agreement"), all or a
portion of the Shares may be disposed of by the Selling Stockholders hereunder
from time to time in one or a combination of the following transactions: (a)
transactions (which may involve block transactions) on the National Market
System of the Nasdaq Stock Market, or otherwise, at market prices prevailing at
the time of sale or at prices related to such prevailing market prices; or (b)
privately negotiated transactions at negotiated prices, including underwritten
offerings. Pursuant to the Registration Rights Agreement, the Trust, the
Trustees and the Selling Stockholders have each agreed, subject to certain
conditions, that it will not, and it will cause any permitted transferee of its
rights under the Registration Rights Agreement not to, sell any Shares other
than through any of PaineWebber Incorporated, Vector Securities International,
Inc. or Volpe, Welty & Company (together the "Permitted Brokers"). The Selling
Shareholders may effect such transactions by selling the Shares directly to
purchasers or by selling the shares to or through the Permitted Brokers or, in
certain cases, through other underwriters, brokers or dealers, and the Permitted
Brokers or such other underwriters, brokers or dealers may receive compensation
in the form of discounts, concessions or commissions from the Selling
Shareholders or the purchasers of the Shares for whom the Permitted Brokers or
such other underwriters, brokers or dealers may act as agent, or to whom they
sell as principal, or both (which compensation to a particular underwriter,
broker or dealer might be in excess of customary commissions or be changed from
time to time). The Selling Shareholders and the Permitted Brokers or any other
underwriters, brokers, dealers or agents who participate in a sale of the Shares
may be deemed "underwriters" within the meaning of Section 2(11) of the
Securities Act and the commissions paid or discounts allowed to any of the
Permitted Brokers or any such other underwriters, brokers, dealers or agents in
addition to any profits received on resale of the Shares if any of the Permitted
Brokers or any such any underwriters, brokers, dealers or agents should purchase
any Shares as a principal may be deemed to be underwriting discounts or
commissions under the Securities Act. See "Plan of Distribution."
Certain of the Permitted Brokers or the other underwriters, dealers,
brokers or agents may have other business relationships with the Company and/or
its affiliates in the ordinary course.
-----------
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS AND
CAUTIONARY STATEMENT" ON PAGE 3.
<PAGE>
-----------
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.
-----------
No dealer, salesperson or other person has been authorized to give any
information or to make any representations not contained in this Prospectus or
any Prospectus Supplement, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. Neither this Prospectus nor any Prospectus Supplement constitutes an
offer to sell or a solicitation of an offer to buy any of the securities offered
hereby in any jurisdiction to any person to whom it is unlawful to make such an
offer in such jurisdiction. Neither the delivery of this Prospectus or any
Prospectus Supplement nor any sale made thereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or thereof.
- -------------------------------------------------------------------------------
Underwriting Proceeds to Selling
Price to Public Discounts Stockholders
and Commissions
- -------------------------------------------------------------------------------
Per Share (l) (1)(2) (1)(2)
- -------------------------------------------------------------------------------
Total (1) (1)(2) (1)(2)
- -------------------------------------------------------------------------------
(1) Under the securities laws of certain states, the Shares may be sold in such
states only through registered or licensed brokers or dealers. In addition,
in certain states the Shares may not be sold unless the Shares have been
registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied with.
See "Plan of Distribution" and "Selling Stockholders."
(2) The Company has agreed to prepare and file this Prospectus and the related
Registration Statement and supplements and amendments thereto required by
the Securities Act with the Securities and Exchange Commission, to register
and qualify the Common Stock if required under applicable Blue Sky laws,
and to deliver copies of the Prospectus to the Selling Stockholders. The
expenses incurred in connection with the same, estimated at $50,948, will
be borne by the Company. The Company will not be responsible for any
discounts, concessions, commissions or other compensation due to any broker
or dealer in connection with the sale of any of the shares offered hereby,
which expenses will be borne by the applicable Selling Stockholder.
The date of this Prospectus is May 15, 1996.
2
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and other
information concerning the Company may be inspected and copies may be obtained
(at prescribed rates) at public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the regional offices of the Commission located at Seven World Trade
Center, 13th Floor, New York, New York 10048 and at Northwest Atrium Center, 500
W. Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can also be obtained from the Public Reference Section, Securities and
Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, upon
payment of prescribed rates. The Company's Common Stock is listed on The Nasdaq
Stock Market, and reports, proxy statements and other information concerning the
company can also be inspected the offices of the National Association of
Securities Dealers, Inc. at 1735 K Street, Washington, D.C. 20006.
The Company has filed a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act with the Commission with
respect to the Common Stock being offered pursuant to this Prospectus. As
permitted by the rules and regulations of the Commission, this Prospectus omits
certain of the information contained in the Registration Statement. For further
information with respect to the Company and the Common Stock being offered
pursuant to this Prospectus, reference is hereby made to such Registration
Statement, including the exhibits filed as part thereof. Statements contained in
this Prospectus concerning the provisions of certain documents filed with, or
incorporated by reference in, the Registration Statement are not necessarily
complete, each such statement being qualified in all respects by such reference.
Copies of all or any part of the Registration Statement, including the documents
incorporated by reference therein or exhibits thereto, may be obtained upon
payment of the prescribed rates at the offices of the Commission set forth
above.
Upon request, the Company will provide without charge to each person to
whom a copy of this Prospectus has been delivered a copy of any information that
was incorporated by reference in the Prospectus (other than exhibits to
documents, unless such exhibits are specifically incorporated by reference into
the information incorporated by reference in the Prospectus). The Company will
also provide upon specific request, without charge to each person to whom a copy
of this Prospectus has been delivered, a copy of all documents filed from time
to time by the Company with the Commission pursuant to the Exchange Act.
Requests for such copies should be directed to Karen Galfetti, Investor
Relations Specialist, 64 A Street, Needham, Massachusetts 02194. Telephone
requests may be directed to Ms. Galfetti at (617) 433-0033.
3
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There is incorporated herein by reference the Annual Report on Form 10-K
of the Company for the fiscal year ended December 31, 1995 and the Quarterly
Reports on Form 10-Q of the Company for the fiscal quarters ended March 31,
1995, June 30, 1995, September 30, 1995 and March 31, 1996 filed with the
Commission pursuant to Section 13(a) of the Exchange Act, the Current Reports on
Form 8-K of the Company filed on March 26, and May 15, 1996 with the Commission
pursuant to Section 13(a) of the Exchange Act and the description of the Common
Stock contained in the Company's Registration Statement on Form 8-A filed with
the Commission pursuant to Section 12(g) of the Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Common Stock shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing such documents. Any statement contained herein or in a document,
all or a 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 or portion thereof 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.
RISK FACTORS AND CAUTIONARY STATEMENT
An investment in the Shares being offered herein involves a high degree of
risk. Prospective investors should consider carefully the risk factors contained
in the Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, 1995 which are incorporated herein by reference, in addition to the
other information contained in this Prospectus, including all information
incorporated hereby by reference, before purchasing the Shares offered hereby.
From time to time, the Company issues statements in public filings or press
releases, or officers of the Company may make public oral statements with
respect to the Company, that may be considered forward-looking. In connection
with the "safe harbor" provisions of the Private Securities Reform Act of 1995,
the Company believes that the following important factors which , among others,
could cause the Company's actual results for its 1996 fiscal year and beyond to
differ materially from those expressed in any forward-looking statements made
by, on behalf of, or with respect to, the Company, should be considered by
investors when reviewing such statements:
(bullet) The uncertainty of Federal regulatory approval for the Reliance Insert.
(bullet) The uncertainty that the Reliance Insert and the Miniguard Patch(TM)
will gain market acceptance either among physicians or UI sufferers
in the United States or in Europe.
(bullet) The dependence by the Company on the success of two products, the
Reliance Insert and the Miniguard Patch(TM).
(bullet) The uncertainty that the Company will be able to develop the ability to
produce commercial quantities of its products and produce such
quantities at an acceptable cost.
(bullet) The uncertainty that the Company will be able to develop an effective
sales force and implement a successful marketing plan for the Reliance
Insert and the Miniguard Patch(TM) in the United States.
(bullet) The Company's dependence on others for raw materials, including certain
materials available only from single sources.
(bullet) The effect of competing products and surgical and non-surgical
alternative treatments for incontinence.
(bullet) The uncertainty that the Company will be able to develop an effective
distribution network and implement a successful distribution strategy
for the Reliance Insert and the Miniguard Patch(TM) in Europe and
elsewhere.
4
<PAGE>
(bullet) The uncertain protection afforded the Company by its patents and other
intellectual property relating to the Reliance Insert and the Miniguard
Patch.
(bullet) The uncertainty whether the Company will be able to achieve medical
reimbursement for the Reliance Insert or the Miniguard Patch in the
United States or in all European Markets.
(bullet) The uncertainty whether the Company will be able to manufacture, market
and sell its products at prices that permit it to achieve satisfactory
margins in the production and marketing of its products.
THE COMPANY
The Company is focused on the development, manufacture and marketing of
products for the management of urological and gynecological disorders. The
Company's first two products, the Reliance Insert, a small balloon-tipped,
single-use plug, and the Miniguard(TM) Patch, a small, disposable, prescription
adhesive patch placed against the urethral opening, are intended for the
management of certain types of female urinary incontinence ("UI"). UI is the
loss of bladder control resulting in the involuntary leakage of urine in amounts
considered to be a social or personal problem. According to the U.S. Department
of Health and Human Services, there are approximately 10 million UI sufferers in
the United States, of which the Company estimates that approximately 85% are
women. Of these 8.5 million women, the Company has initially identified a target
market of 1.5 million UI sufferers as potential users of its Reliance Insert. A
broader group of mild to moderate UI sufferers will be targeted for use of the
Miniguard Patch, which has been approved for marketing by the U.S. Food and Drug
Administration. Sales of the Reliance Insert commenced in Germany in September
1995, and pre-commercialization activities have been initiated in certain
additional European countries. Clinical trials of the Reliance Insert are
continuing in the United States.
The address of the principal executive office of the Company is 64 A
Street, Needham, Massachusetts 02194. The telephone number of the Company is
(617) 433-0033.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares by
the Selling Stockholders.
SELLING STOCKHOLDERS
On May 9, 1996, the ASI Liquidating Trust (the "Trust") acquired 1,868,021
shares of the Common Stock from the Company in a transaction exempt from the
registration requirement of the Securities Act, in connection with an Asset
Purchase Agreement, dated as of May 9, 1996, pursuant to which the Company
purchased all of the assets of the Trust in exchange for $7,000,000 in cash, the
1,868,021 shares of the Common Stock and a commitment on the part of the Company
to issue 467,005 additional shares of the Common Stock to the Trust, subject to
adjustment under certain circumstances, on the effective date of the
registration statement of which this prospectus is a part. Such additional
shares of the Common Stock are currently anticipated by the Company to be issued
in a transaction or transactions exempt from the registration requirement of the
Securities Act.
The Company understands from the Trust that the 1,868,021 shares of the
Common Stock issued to the Trust in the transaction described above and any
additional shares of the Common Stock issued pursuant to such transaction were,
or will be, acquired by the Selling Stockholders (who, the Company understands
from the Trust, are all beneficiaries of the Trust) from the Trust. Pursuant to
the Registration Rights Agreement, dated as of May 9, 1996, among the Company,
the Trust, the trustees of the Trust and the Selling Stockholders, the Company
agreed to file with the Commission the Registration Statement, of which this
Prospectus is a part, with respect to the resale of the Shares. The Company has
committed to keep the Registration Statement effective until the earlier of (i)
the second anniversary of the latest date on which shares of the Common Stock
covered by such Registration Statement are issued by the Company to the Trust,
(ii) such time as all the Common Stock covered by such Registration Statement
have been sold, or (iii) such time that all shares of the Common Stock for which
the Company has an obligation to register pursuant to the terms of the
Registration Rights Agreement may be sold without limitation under the
Securities Act. However, the Company may in its discretion agree to extend the
effectiveness of the Registration Statement beyond such date. The Company has
agreed to indemnify the Selling Shareholders and their officers, directors and
controlling persons against certain liabilities, including certain liabilities
under the Securities Act.
5
<PAGE>
As of May 14, 1996, except as noted below, none of the Selling
Shareholders held of record more than 1% of the Company's outstanding Common
Stock. None of the Selling Stockholders has had any position, office or other
material relationship within the past three years with the Company or its
affiliates.
As of May 10, 1996, there were 25,989,033 shares of the Common Stock
issued and outstanding.
The following table sets forth certain information regarding the
beneficial ownership of the Common Stock as of May 15, 1996 and as adjusted to
reflect the sale of all of the Common Stock offered hereby by each of the
Selling Stockholders.
<TABLE>
<CAPTION>
Name of Selling Shares Beneficially Owned Shares to be Beneficially
Stockholder Prior to Offering (1) Shares Offered (2) Owned After Offering
- ---------------- ------------------------- ------------------ -------------------------
<S> <C> <C> <C>
Crosspoint Venture Partners II,
a California Limited Partnership 394,464 394,464 0
H & Q Life Science Ventures 175,500 175,000 0
Hamquist 3,532 3,532 0
H & Q Investors 1,171 1,171 0
H & Q Ventures International 33,533 33,533 0
H & Q Ventures IV 33,533 33,533 0
Hambrecht & Quist Group 21,229 21,229 0
H & Q TV Management N.V. 18 18 0
Hambrecht & Quist Venture
Partners 1,502 1,502 0
H&Q London Ventures 18,192 18,192 0
Hansa A.G. 17,576 17,576 0
Southern California Ventures II,
a California Limited Partnership 242,938 242,938 0
Robert Elliott 54,554 54,554 0
Bruce E. Fettel Separate Property
Trust Est. February 18, 1982 21,612 21,612 0
Walter S. Baer Revocable Trust
Dated August 19, 1987 5,800 5,800 0
Miriam Baer 2,962 2,962 0
Alan Baer 2,298 2,298 0
6
<PAGE>
Nick E. Yocca Profit Sharing
Trust 3,491 3,491 0
Louis Knobbe 1,745 1,745 0
Brentwood Associates IV, L.P. 249,551 249,551 0
Evergreen IV, L.P. 96,215 96,215 0
Medicus Venture Partners 1990 162,061 162,061 0
Medicus Venture Partners 1992 9,505 9,505 0
Medicus Venture Partners 1992 21,018 21,018 0
Robert F. Rosenbluth 173,461 173,461 0
Jay Lenker 41,162 41,162 0
Thomas J. Berryman 14,481 14,481 0
Brian Cox 4,420 4,420 0
Rodney Brenneman 2,580 2,580 0
Nick E. Yocca 1,221 1,221 0
James Swope 1,100 1,100 0
Kim Maya 132 132 0
John Schaffer 39 39 0
Sandra K. Fiori 1,281 1,281 0
Steve Trom 1,631 1,631 0
Sue Lyons 737 737 0
Michael Jackson 582 582 0
G. Robert Greene 13,981 13,981 0
Dana Luitjens 737 737 0
R. Perez-Marrero 233 233 0
Norma E. Bonis 349 349 0
William Moseley 1,747 1,747 0
Lynette Marksberry 737 737 0
Michael Brown 1,637 1,637 0
7
<PAGE>
Barry Calvarese 8,374 8,374 0
Rick Carlson 7,767 7,767 0
Barbara Campagna 6296 629 0
Michael Shine 1,053 1,053 0
Pat Maley 6,470 6,470 0
William Amaden 7,456 7,456 0
ASI Liquidating Trust 467,005 467,005 0
--------- --------- --
Total: 2,335,026 2,335,026 0
========= ========= ==
</TABLE>
(1) The Company believes, based on information provided by the Trust and
the Selling Stockholders, that each Selling Stockholder has sole voting and
investment power with respect to the shares beneficially owned.
(2) See "Plan of Distribution."
Certain of the Permitted Brokers or the other underwriters, dealers,
brokers or agents may have other business relationships with the Company and/or
its affiliates in the ordinary course.
Under the securities laws of certain states, the Shares may be sold in
such states only through registered or licensed brokers or dealers. In addition,
in certain states the Shares may not be sold unless the Shares have been
registered or qualified for sale in such state or an exemption for registration
or qualification is available and is complied with.
8
<PAGE>
The Company will pay all of the expenses incident to the registration,
offering and sale of the Shares to the public hereunder other than commissions,
fees and discounts of underwriters, brokers, dealers and agents. The Company has
agreed to indemnify the Selling Stockholders and any underwriters against
certain liabilities, including liabilities under the Securities Act. The Company
will not receive any of the proceeds from the sale of any of the Shares by the
Selling Stockholders. See "Plan of Distribution."
PLAN OF DISTRIBUTION
Subject to the conditions of the Registration Rights Agreement, all or a
portion of the Shares may be disposed of by the Selling Stockholders hereunder
from time to time in one or a combination of the following transactions (a)
transactions (which may involve crosses or block transactions) on the National
Market System of the Nasdaq Stock Market or otherwise, at market prices
prevailing at the time of sale, or at prices related to such prevailing market
prices; or (b) privately negotiated transactions at regulated prices, including
underwritten offerings. Pursuant to the Registration Rights Agreement, the
Trust, the Trustees and the Selling Stockholders have each agreed, subject to
certain conditions, that it will not, and it will cause any permitted transferee
of its rights under the Registration Rights Agreement not to, sell any Shares
other than through any of PaineWebber Incorporated, Vector Securities
International, Inc. or Volpe, Welty & Company (together the "Permitted
Brokers"). The Selling Shareholders may effect such transactions by selling the
Shares directly to purchasers or by selling the shares to or through the
Permitted Brokers or, in certain cases, through other underwriters, brokers or
dealers and the Permitted Brokers or such other underwriters, brokers or dealers
may receive compensation in the form of discounts, concessions or commissions
from the Selling Shareholders or the purchasers of the Shares for whom the
Permitted Brokers or such other underwriters, brokers or dealers may act as
agent, or to whom they sell as principal, or both (which compensation to a
particular underwriter, broker or dealer might be in excess of customary
commissions or be changed from time to time). The Selling Shareholders and the
Permitted Brokers or any other underwriters, brokers, dealers or agents who
participate in a sale of the Shares may be deemed "underwriters" within the
meaning of Section 2(11) of the Securities Act and the commissions paid or
discounts allowed to any of the Permitted Brokers or any such other
underwriters, brokers, dealers or agents in addition to any profits received on
resale of the Shares if any of the Permitted Brokers or any such any
underwriters, brokers, dealers or agents should purchase any Shares as a
principal may be deemed to be underwriting discounts or commissions under the
Securities Act.
Certain of the Permitted Brokers or the other underwriters, dealers,
brokers or agents may have other business relationships with the Company and/or
its affiliates in the ordinary course.
Under the securities laws of certain states, the Shares may be sold in
such states only through registered or licensed brokers or dealers. In addition,
in certain states the Shares may not be sold unless the Shares have been
registered or qualified for sale in such state or an exemption for registration
or qualification is available and is complied with.
The Company will pay all of the expenses incident to the registration,
offering and sale of the Shares to the public hereunder other than commissions,
fees and discounts of underwriters, brokers, dealers and agents. The Company has
agreed to indemnify the Selling Stockholders and any underwriters against
certain liabilities, including liabilities under the Securities Act. The Company
will not receive any of the proceeds from the sale of any of the Shares by the
Selling Stockholders.
If all or a portion of the Shares are offered through an underwritten
offering, the terms of such underwritten offering, including the initial public
offering price, the names of the underwriters and the compensation, if any, of
such underwriters, will be set forth in an accompanying Prospectus Supplement.
Under applicable rules and regulations of the Exchange Act, any person
engaged in a distribution of the Shares may not simultaneously engage in market
making activities with respect to the Common Stock for a period of
9
<PAGE>
nine business days prior to the later of the commencement of offers or sales of
the Shares to be distributed and the time such person becomes a participant in
the distribution unless such person is a qualifying registered market maker on
the National Market System of The Nasdaq Stock Market, and such market-making
activities are conducted in accordance with Rule 10b-6A under the Exchange Act.
Pursuant to Rule 10b-6A, a qualified registered market maker is permitted to
engage in passive market making transactions during the two business days prior
to the commencement of offers or sales of the Shares which comply with
applicable volume and price limits and are identified as such. In general, a
passive market maker may display its bid at a price not in excess of the highest
independent bid for the security. If all independent bids are lowered below the
passive market maker's bid, however, such bid must then be lowered when certain
purchase limits are exceeded. Passive market making may stabilize the market
price of the Common Stock at a level above that which might otherwise prevail
and, if commenced, may be discontinued at any time. In addition to and without
limiting the generality of the foregoing, the Selling Shareholders and any other
person participating in such distribution will be subject to other applicable
provisions of the Exchange Act and rules and regulations thereunder, including
without limitation Rules 10b-6 and 10b-7, which provisions may further limit the
timing of purchases and sales of shares of Common Stock by the Selling
Shareholders and any other such person. All of the foregoing may limit the
marketability of the Shares and the ability of any underwriter, broker, dealer
or agent to engage in market making activities.
CERTAIN LEGAL MATTERS
The validity of the offered Common Stock will be passed upon for the
Company by Bingham, Dana & Gould LLP, 150 Federal Street, Boston, Massachusetts.
EXPERTS
The financial statements of the Company as of December 31, 1995 and 1994
and for each of the three years in the period ended December 31, 1995,
incorporated by reference in this Prospectus, have been incorporated herein in
reliance on the report of Price Waterhouse, LLP, independent accountants, given
on the authority of that firm as experts in accounting and auditing.
10
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the issuance and distribution of
the securities being registered, other than underwriting compensation,
are:
SEC Registration Fee.................. $ 7,448
Transfer Agent and Registrar Fees and Expenses 11,000
Legal Fees and Expenses............... 5,000
Blue Sky Fees and Expenses............ 5,000
Accounting Fees and Expenses.......... 5,000
Nasdaq Stock Market Fee............... 17,500
Miscellaneous......................... *
-------
Total................................. 50,948
=======
------------
* Estimates
Item 15. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts General Laws provides a
statutory framework covering indemnification of directors, officers and
employees against liabilities and expenses arising out of legal
proceedings brought against them by reason of their status or service as
directors or officers. In addition, Article XXVIII of the Registrant's
Amended and Restated By-Laws provides for indemnification of directors,
officers and employees of the Registrant. Section 67 and the Registrant's
Amended and Restated By-Laws generally provide that a director, officer or
employee of the Registrant shall be indemnified by the Registrant for all
expenses and liabilities of legal proceedings brought against him/her by
reason of his/her status or service as a director, officer or employee
unless the director, officer or employee is adjudged not to have acted in
good faith in the reasonable belief that his/her action was in the best
interest of the Company or to the extent that such matter relates to
service with respect to an employee benefit plan, in the best interests of
the participants or beneficiaries of such plan. The Registrant's Articles
of Organization also incorporate certain provisions permitted under the
Massachusetts General Laws relating to the liability of directors. The
provisions eliminate a director's liability for monetary damages for a
breach of fiduciary duty, including gross negligence, except in
circumstances involving certain wrongful acts, such as the breach of a
director's duty of loyalty or acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law or
authorization of distributions in violation of the Articles of
Organization or of loans to officers or directors of the Registrant or any
transaction from which the director derived improper personal benefit.
These provisions do not eliminate a director's duty of care. Moreover, the
provisions do not apply to claims against a director for violations of
certain laws, including federal securities laws.
Item 16. Exhibits.
(4.1) Specimen Certificate for Shares of the Registrant's Common Stock,
no par value, incorporated by reference to Exhibit 4.1 to Amendment
No. 2 to the Company's Registration Statement on Form S-1 (Reg.
No. 33-74282).
(4.2) Amended and Restated By-Laws of the Registrant, incorporated by
reference to Exhibit 3.2 to the Company's Registration Statement on
Form S-1 (Reg. No. 33-74282).
II-1
<PAGE>
(4.3) Restated Articles of Organization of the Registrant, incorporated
by reference to Exhibit 3.3 to the Company's Annual Report on Form
10-K for the Company's 1994 fiscal year, filed with the Securities
and Exchange Commission on March 31, 1995.
(4.4) Registration Rights Agreement, dated as of May 9, 1996, among the
Registrant and certain of its securityholders.
(5) Opinion of Bingham, Dana & Gould LLP.
(23.1) Consent of Bingham, Dana & Gould LLP (included in Exhibit 5).
(23.2) Consent of Price Waterhouse LLP.
(24) Power of Attorney (included on signature page).
Item 17. Undertakings.
(A) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d)
of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of
the Exchange Act) that is incorporated by reference in the
registration statement 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.
(B) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to security holders that
is incorporated by reference in the prospectus and furnished pursuant
to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X
is not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
(C) Insofar as indemnification for liabilities arising under the
Securities Act 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
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.
(D) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to
II-2
<PAGE>
Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
(E) 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.
(a) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Needham and the Commonwealth of Massachusetts as of
May 14, 1996.
UROMED CORPORATION
By: /s/ John G. Simon
-------------------------------------
John G. Simon
Chairman of the Board, Chief Executive
Officer and President
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints John G. Simon
and Paul J. Murphy and each of them severally, acting alone and without the
other, his/her true and lawful attorney-in-fact with the authority to execute in
the name of each such person, and to file with the Securities and Exchange
Commission, together with any exhibits thereto and other documents therewith,
any and all amendments (including without limitation post-effective amendments)
to this registration statement necessary or advisable to enable the Registrant
to comply with the Securities Act of 1933, as amended, and any rules,
regulations and requirements of the Securities and Exchange Commission in
respect thereof, which amendments may make such other changes in the
registration statement as the aforesaid attorney-in-fact executing the same
deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed below as of May 14, 1996 by
the following persons on behalf of the Registrant and in the capacities
indicated.
/s/ John G. Simon Chairman of the Board, Chief Executive
- --------------------------- Officer and President (principal
John G. Simon officer)
/s/ Paul J. Murphy Chief Financial Officer and Treasurer
- --------------------------- (principal financial and accounting officer)
Paul J. Murphy
/s/ Elizabeth B. Connell Director
- ---------------------------
Elizabeth B. Connell
/s/ David P. Fialkow Director
- ---------------------------
David P. Fialkow
/s/ Steven J. Gilbert Director
- ---------------------------
Steven J. Gilbert
/s/ Richard A. Snadberg Director
- ---------------------------
Richard A. Sandberg
/s/ Thomas E. Tierney Director
- ---------------------------
Thomas E. Tierney
II-4
<PAGE>
EXHIBIT INDEX
Exhibit Description
------- -----------
(4.4) Registration Rights Agreement
(5) Opinion of Bingham, Dana & Gould LLP
(23.1) Consent of Bingham Dana & Gould LLP (included as exhibit 5)
(23.2) Consent of Price Waterhouse LLP.
(24) Power of Attorney (included on signature page).
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of May 9, 1996, by and among
UroMed Corporation, a Massachusetts corporation (the "Company"), the ASI
Liquidating Trust (sometimes known as the Advanced Surgical Intervention Inc.
Liquidating Trust - June 20, 1994), a trust organized under the laws of
California (the "Trust"), Robert R. Rosenbluth and Donald B. Milder as trustees
of the Trust (the "Trustees"), and those beneficiaries of the Trust listed on
Annex A hereto (the "Beneficiaries").
This Agreement is made pursuant to an Asset Purchase Agreement, dated as
of the date hereof, among the Company, the Trust, the Trustees and the
Beneficiaries (the "Purchase Agreement").
In order to induce the Trust and the Trustees to enter into the Purchase
Agreement and to consummate the transactions contemplated thereby, the Company
has agreed to provide the registration rights set forth in this Agreement.
The parties hereto agree as follows:
1. Definitions.
"Beneficiaries" has the meaning specified in the preamble.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Common Stock, no par value, of the Company.
"Company" has the meaning specified in the preamble.
"Person" means an individual, partnership, corporation, association,
trust, joint venture, unincorporated organization, or any government,
governmental department or agency or political subdivision thereof.
"Purchase Agreement" has the meaning specified in the preamble.
"Registrable Securities" means (i) any shares of Common Stock issued or
issuable to the Trust or the Trustees under the Purchase Agreement (including
any shares of Common Stock which may be issued to the Beneficiaries in a
distribution made by the Trust), and (ii) any securities issued or issuable with
respect to the securities referred to in clause (i) above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular
<PAGE>
2
Registrable Securities, such securities will cease to be Registrable Securities
when they have been distributed to the public through a broker, dealer or market
purchaser in compliance with Rule 144 under the Securities Act (or any similar
rule then in force) or sold pursuant to an effective registration statement
under the Securities Act.
"Registration Expenses" has the meaning specified in Section 4.
"Registration Statement" has the meaning specified in Section 2(a).
"SEC Material" has the meaning set forth in Section 6(c).
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Shareholder List" has the meaning specified in Section 2(a).
"Shares" has the meaning specified in Section 6(a).
"Trustees" has the meaning set forth in the preamble.
2. Registration on Form S-3. No later than the later of (i) five (5)
business days after the date hereof, or (ii) two (2) business days after the
delivery by the Seller and the Trustees to the Company of a list (the
"Shareholder List") of those persons who shall be named as selling shareholders
of the shares of Common Stock issued at the Closing (as defined in the Purchase
Agreement), the Company will prepare and file with the Commission a registration
statement on Form S-3 (the "Registration Statement") covering such shares of
Common Stock. The Shareholder List shall contain, for each person named thereon,
the number of shares to be offered for such person's account and the number of
shares of Common Stock held or beneficially owned by such person (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, and
including the shares of Common Stock registered for such person's account under
such Registration Statement) on the date such list is delivered. The Company
shall name the persons on the Shareholder List as selling shareholders in the
Registration Statement. In no case shall the Company be required to register
under the Registration Statement a number of shares of Common Stock in excess of
the product of the Firm Base Share Number (as defined in the Purchase Agreement)
multiplied by 1.20. Subject to the provisions of Section 7(b), the Registration
Statement will permit delayed or continuous offerings pursuant to Rule 415 under
the Securities Act until the expiration of the period set forth in Section
3(ii).
<PAGE>
3
3. Registration Procedures.
The Company agrees to use its reasonable best efforts to effect the
registration of the Registrable Securities in accordance with the intended
method of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(i) use its reasonable best efforts to cause the Registration
Statement, once filed in accordance with Section 2, to become effective;
(ii) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective until the earlier of (i) the second anniversary of the
latest date of which shares of the Common Stock covered by such
Registration Statement are issued by the Company, (ii) such time as all of
the Common Stock covered by the Registration Statement have been sold, or
(iii) such time that all Registrable Securities may be sold without
limitation under the Securities Act, and to comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by the Registration Statement during such effective period in
accordance with the intended methods of disposition by the sellers thereof
set forth in the Registration Statement;
(iii) prepare and file with the Commission up to a maximum of five
(5) amendments or supplements, the appropriate form of such to be
determined in the sole discretion of the Company, to amend the list of
Selling Stockholders contained in the prospectus used in connection with
the Registration Statement in the event that the Trustees and the Trust
deliver to the Company an amendment to the Shareholder List (setting forth
all of the information required to be contained in the original of the
Shareholder List) in connection with a permitted transfer by the Trust or
any Beneficiaries of any shares of Common Stock registered under the
Registration Statement, other than by means of such Registration
Statement;
(iv) furnish to the Beneficiaries such number of copies of the
Registration Statement, each amendment and supplement thereto, the
prospectus included in the Registration Statement (including each
preliminary prospectus) and such other publicly-available documents as the
Beneficiaries may reasonably request in order to facilitate the
disposition of the Registrable Securities covered by the Registration
Statement;
(v) notify the Beneficiaries, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event (without being required to disclose the nature of
such event) as a result of which the prospectus included in the
Registration Statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not misleading
and, at the request of the Trustees, the Company will promptly prepare
(and, when completed, give notice to each seller of Registrable
Securities) a
<PAGE>
4
supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a material fact or
omit to state any fact necessary to make the statements therein not
misleading; provided that upon such notification by the Company, the
Trust, each Trustee and each Beneficiary agrees that it will not, and each
Beneficiary agrees that it shall cause any transferees of any Registrable
Securities distributed to such Beneficiary not to, offer or sell any
Registrable Securities until the Company has notified the Seller
Representative that it has prepared a supplement or amendment to such
prospectus and delivered copies of such supplement or amendment to the
Seller Representative;
(vi) cause all the Registrable Securities to be listed on each
securities exchange on which securities of the same class issued by the
Company are then listed;
(vii) provide a transfer agent and registrar for all of the
Registrable Securities not later than the effective date of the
Registration Statement; and
(viii) in the event of the issuance of any stop order suspending the
effectiveness of the Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any Registrable Securities included in the Registration
Statement for sale in any jurisdiction, the Company will use its
reasonable best efforts promptly to obtain the withdrawal of such order.
4. Registration Expenses.
All expenses incident to the Company's performance of or compliance with
this Agreement, including without limitation all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws, any fees
payable in connection with listing shares of Common Stock on the Nasdaq Stock
Market, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants and other Persons retained by the Company, the Company's internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance for
the Company and its board of directors and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed (all such expenses being herein
called "Registration Expenses"), will be borne by the Company. Notwithstanding
the foregoing, in the event of any underwritten offering including the
Registrable Securities, the Registration Expenses shall not include any
underwriting compensation or discount or any filing fees required to be paid to
the National Association of Securities Dealers, Inc. (other than any fees
payable in connection with listing shares of Common Stock on the Nasdaq Stock
Market).
<PAGE>
5
5. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages and liabilities caused by any untrue
or alleged untrue statement of material fact contained in the Registration
Statement, prospectus or preliminary prospectus or any amendment thereof
or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are (i) caused by or
contained in any information furnished in writing to the Company by such
holder or the any Beneficiary expressly for use therein including, without
limitation, the Shareholder List, (ii) caused by such holder's failure to
deliver a copy of the Registration Statement or prospectus or any
amendments or supplements thereto after the Company has furnished such
holder or the Beneficiary from whom such holder received a distribution of
Registrable Securities with a sufficient number of copies of the same,
(iii) caused by such holder's sale of Registrable Securities in violation
of the proviso to Section 3(v) hereof, or (iv) caused by the inaccuracy of
any of the representations or warranties made by the Trust or the
Beneficiaries, or any other information contained, in the Asset Purchase
Agreement or any document delivered by the Trust or any Beneficiary in
connection with the consummation of the transactions contemplated thereby.
(b) In connection with the Registration Statement, each holder of
Registrable Securities will furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the
extent permitted by law, the Trust and any Beneficiary from which such
holder received any Registrable Securities will indemnify the Company, its
directors and officers and each Person who controls the Company (within
the meaning of the Securities Act) against any losses, claims, damages and
liabilities resulting from any untrue or alleged untrue statement of
material fact contained in the Registration Statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or omission is contained in
any information or affidavit so furnished in writing by such holder or any
Beneficiary; provided that the obligation to indemnify will be individual
to the Beneficiary from which such holder received any Registrable
Securities and will be limited to the net amount of any proceeds received
by such holder or Beneficiary from the sale of Registrable Securities
pursuant to the Registration Statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a
<PAGE>
6
conflict of interest between such indemnified and indemnifying parties
may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim. If such defense is assumed, the
indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld or delayed). An indemnifying
party who is not entitled to, or elects not to, assume the defense of a
claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect
to such claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
Person of such indemnified party and will survive the transfer of the
Registrable Securities.
6. Securities Act Matters.
Each Beneficiary hereby severally represents and warrants to, and agrees
with, the Company as follows:
(a) In the event that such Beneficiary receives a distribution of
shares of Common Stock from the Trust, such Beneficiary shall acquire such
shares of Common Stock (the "Shares"), for the Beneficiary's own account
for investment and not with a view to the distribution thereof. The
Beneficiary acknowledges and agrees that unless and until the Shares are
registered under the Securities Act, the Beneficiary will not sell or
otherwise dispose of all or any portion of the Shares, otherwise than
pursuant to registration under the Securities Act or under Rule 144
promulgated thereunder or other similar rule or exemption if then
available, without first obtaining (i) a written opinion of counsel
satisfactory to counsel for the Company and addressed to the Company to
the effect that the contemplated sale or other disposition of Shares will
not be in violation of the Securities Act, or (ii) a "no-action" or
interpretive letter from the staff of the Commission (the "Staff"), to the
effect that such Staff will take no action in respect of the contemplated
sale or other disposition (a copy of which shall be furnished to the
Company prior to any transfer of the Shares in question). In conformity
herewith, the Beneficiary agrees that the certificate(s) for all Shares
which may be issued to the Beneficiary from the Trust shall bear the
following legend:
"These securities have not been registered under the
Securities Act of 1933 and may not be sold or otherwise disposed of,
in whole or in part, other than pursuant to registration under said
Act or in conformity with the limitations of Rule 144 or other
similar rule or exemption as then in effect, without first obtaining
(i) a written opinion of counsel
<PAGE>
7
satisfactory to the Company's counsel to the effect that the
contemplated sale or other disposition will not be in violation of
said Act or (ii) a 'no-action' or interpretive letter from the
Staff of the Securities and Exchange Commission to the effect that
such Staff will take no action in respect of the contemplated sale
or other disposition."
The Beneficiary acknowledges that the Beneficiary was informed by
the Company that unless and until such Shares are registered for sale by
such Beneficiary under the Securities Act, they must be held, and the
economic risk of the investment must be borne, unless an exemption from
such registration is available.
(b) Such Beneficiary acknowledges that neither the sale of shares of
Common Stock to the Trust by the Company, nor any distribution of the
Shares to such Beneficiary, nor any offering literature used in connection
therewith has been or will be reviewed by the Commission or by the
securities administrator of any state.
(c) Such Beneficiary has received copies of the Company's Annual
Report on Form 10-K for its fiscal year ended December 31, 1995, the
Company's 1995 Annual Report distributed to the Shareholders of the
Company, and the Current Report on Form 8-K of the Company dated March 28,
1996 (collectively, the "SEC Material"), and has carefully reviewed the
SEC Material in its entirety. The Company has made available to the
Beneficiary the opportunity to ask questions of, and receive answers from,
the Company or persons acting on its behalf concerning the terms and
conditions of the transactions contemplated by the Asset Purchase
Agreement and the business and financial condition of the Company.
(d) Such Beneficiary (i) is either an "accredited investor" as
defined in Rule 501 promulgated under the Securities Act, or (ii) has such
knowledge and experience in financial and business matters so that such
Beneficiary is capable of evaluating the merits and risks of an investment
in the Common Stock.
7. Restrictions on Sale of Common Stock.
(a) The Trust, each Trustee, each Beneficiary agrees that it shall
not, and it shall cause any permitted transferees of Registrable
Securities not to, sell any shares of Registrable Securities under any
Registration Statement filed pursuant to this Agreement other than through
any of PaineWebber Incorporated, Vector Securities International, Inc. or
Volpe, Welty & Company, provided that such brokers do not demand for such
transactions more than their respective usual and customary broker's
commissions.
(b) The Company may suspend the use of any prospectus contained in
any Registration Statement for periods not to exceed seven business days
in any three month period or four periods not to exceed an aggregate of 28
business days in any 12 month period in the event that the Company
determines, in the exercise
<PAGE>
8
of its reasonable discretion, that sales of Registrable Securities
thereunder could constitute violations of the Securities Act.
8. Miscellaneous.
(a) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement
and to exercise all other rights granted by law. The parties hereto agree
and acknowledge that money damages may not be an adequate remedy for any
breach of the provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent
jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
(b) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the holders of a majority of the
Registrable Securities (if, and only to the extent that, the rights and
obligations of such parties hereto are adversely affected).
(c) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and permitted assigns of the
parties hereto whether so expressed or not.
(d) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
(e) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures
of more than one party, but all such counterparts taken together will
constitute one and the same Agreement.
(f) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part
of this Agreement.
(g) GOVERNING LAW. THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES
HERETO WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAW, AND NOT THE LAW OF CONFLICTS, OF THE COMMONWEALTH OF MASSACHUSETTS.
<PAGE>
9
(h) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY RIGHTS THAT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED UPON, OR ARISING OUT OF, THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS OR ACTIONS OF ANY OF THEM RELATING HERETO OR
THERETO.
(i) Attorney's Fees. Reasonable attorney's fees and costs shall
be awarded to the prevailing party by the court in connection with any
action taken to enforce rights under this Agreement.
(j) Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given (i) if mailed
by certified or registered mail, postage prepaid, return receipt
requested, when received, (ii) if by telex or facsimile transmission, when
sent answer back or electronic confirmation of receipt is received, and
(iii) if by overnight courier, when receipted for, in each case when
addressed to the applicable party hereto as follows or at such other
address as any party may designate by written notice to the other, in
accordance herewith:
If to the Company:
UroMed Corporation
64 A Street
Needham, MA 02194
Attention: President and Chief Executive Officer
with a copy to:
Donald-Bruce Abrams, Esq.
Bingham, Dana & Gould LLP
150 Federal Street
Boston, MA 02110
If to the Trust or to the Trustees:
Robert F. Rosenbluth, Ph.D.
c/o ASI Liquidating Trust
P.O. Box 3134
Dana Point, CA 92629
<PAGE>
10
and
Donald B. Milder
Crosspoint Venture Partners
18552 McArthur Blvd., Suite 400
Irvine, CA 92715
with copies to:
Stradling, Yocca, Carlson & Rauth
660 Newport Center Drive, Suite 1600
P.O. Box 7680
Newport Beach, CA 92660-6441
Attention: Lawrence B. Cohn, Esq.
If to any Beneficiary, to such Beneficiary's respective address set forth
on the signature pages hereto with a copy to Mr. Cohn at the addresses
noted above,
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first above written.
UROMED CORPORATION
By: /s/ Robert Lovett
-------------------------------------
Vice President, Corporate Development
THE ASI LIQUIDATING TRUST
By: /s/ Robert Rosenbluth
-------------------------------------
Trustee
By: /s/ Donald Milder
-------------------------------------
Trustee
TRUSTEES
/s/ Robert Rosenbluth
-------------------------------------
Trustee
/s/ Donald Milder
-------------------------------------
Trustee
[Beneficiary Signature Pages Follow.]
May 15, 1996
UroMed Corporation
64 A Street
Needham, Massachusetts 02194
Re: Registration Statement on Form S-3
Under the Securities Act of 1933, as Amended
Ladies and Gentlemen:
We have acted as counsel to UroMed Corporation, a Massachusetts
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of 2,335,026 shares of common
stock, no par value of the Company (the "Common Stock"), pursuant to a
Registration Statement on Form S-3, filed by the Company with the Securities and
Exchange Commission (the "Commission") on May 15, 1996, including (i) 1,868,021
shares (the "First Shares") of Common Stock issued on May 9, 1996, pursuant to
the terms of an Asset Purchase Agreement, dated as of May 9, 1996 (the "Asset
Purchase Agreement"), between the Company, on the one hand, Robert F. Rosenbluth
and Donald B. Milder solely as trustees, the ASI Liquidating Trust, and the
Indemnifying Beneficiaries named on Schedule A thereto, on the other hand, and
(ii) 467,005 additional shares of Common Stock issuable after the date hereof
pursuant to the terms of the Asset Purchase Agreement (the "Additional Shares").
As such counsel, we have reviewed the corporate proceedings taken by the
Company with respect to the authorization of the issuance of the Shares. We have
also examined and relied upon originals or copies, certified or otherwise
authenticated to our satisfaction, of such corporate records, documents,
agreements and other instruments, and certificates of officers of the Company as
to certain factual matters, and have made such investigation of law, and have
discussed with officers and representatives of the Company such questions of
fact, as we have deemed necessary or appropriate to enable us to express the
opinions rendered hereby.
We have assumed the genuineness of all signatures, the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form,
and the legal competence of each individual executing a document.
BOS-BUS:271562.1
<PAGE>
UroMed Corporation
May 15, 1996
Page 2
We have also assumed that (i) the First Shares were issued and delivered
in accordance with the terms of the Asset Purchase Agreement, and (ii) that the
Additional Shares, when issued and delivered, will be issued and delivered in
accordance with the terms of the Asset Purchase Agreement.
This opinion is limited solely to the laws of the Commonwealth of
Massachusetts as applied by courts located in Massachusetts.
Based upon the foregoing, we are of the opinion that (i) the First Shares
are validly issued, fully paid, and non-assessable, and (ii) the Additional
Shares, when issued and delivered in accordance with the provisions of the Asset
Purchase Agreement, will be validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Certain Legal Matters" in the Prospectus included in the Registration
Statement.
Very truly yours,
/s/ Bingham, Dana & Gould LLP
BINGHAM, DANA & GOULD LLP
BOS-BUS:271562.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 8, 1996, which appears on page 28 of the 1995 Annual Report to
Stockholders of UroMed Corporation, which is incorporated by reference to UroMed
Corporation's Annual Report on Form 10-K for the year ended December 31, 1995.
We also consent to the incorporation by reference of our report on the Financial
Statement Schedule, which appears on page 32 of such Annual Report on Form 10-K.
We also consent to the references to us under the heading "Experts" in such
prospectus.
Price Waterhouse LLP
/s/ Price Waterhouse LLP
Boston, Massachusetts
May 15, 1996
