<PAGE>
As filed with the Securities and Exchange Commission on September 13, 1999
Registration No. 333-80585
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
AMENDMENT NO. 1
FORM S-3/A
REGISTRATION STATEMENT
Under
The Securities Act of 1933
_____________________
VIDAMED, INC.
(Exact name of Registrant as specified in its charter)
_____________________
Delaware 0000 77-0314454
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification
Number)
46107 Landing Parkway
Fremont, California 94538
(510) 492-4900
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
_____________________
Randy D. Lindholm
President and Chief Executive Officer
VidaMed, Inc.
46107 Landing Parkway
Fremont, California 94538
(510) 492-4900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
_____________________
Copies to:
Carolyn R. Klasco, Esq.
Steven O. Gasser, Esq.
Shartsis, Friese & Ginsburg LLP
One Maritime Plaza, 18th Floor
San Francisco, CA 94111
(415) 421-6500
_____________________
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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. [ ]
CALCULATION OF REGISTRATION FEE
-------------------------------
<TABLE>
<CAPTION>
Proposed Proposed
Title of Each Class of Securities Amount to be Maximum Offering Price Maximum Aggregate Amount of
to be Registered Registered Per Share (1) Offering Price (1) Registration Fee (4)
<S> <C> <C> <C> <C>
Common stock $0.001 par value 6,000,000 shares $2.00 $12,000,000 $3,336.00
Warrants to purchase shares
of common stock (2) 1,500,000 0.00 N/A N/A
Common stock issuable upon
exercise of Warrants (3) 1,500,000 shares $2.00 $ 3,000,000 $ 834.00
===================================================================================================================================
</TABLE>
_____________________
(1) Estimated solely for the purpose of computing the amount of the
registration fee based on the average of the high and low prices of the
common stock as reported on the Nasdaq National Market on September 3, 1999
pursuant to Rule 457(c) promulgated under the Securities Act of 1933.
(2) Pursuant to Rule 457(g) promulgated under the Securities Act of 1933, no
filing fee is required.
(3) Pursuant to Rule 416 promulgated under the Securities Act of 1933, there are
also being registered such indeterminate number of additional shares as may
become issuable pursuant to the anti-dilution provisions of the Warrants.
(4) Registration Fee previously paid on initial filing of this Registration
Statement on June 14, 1999.
_____________________
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.
================================================================================
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale if not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 10, 1999
PROSPECTUS
VIDAMED, INC.
6,000,000 Shares of Common Stock
1,500,000 Warrants to Purchase Common Stock
1,500,000 Shares of Common Stock
Issuable Upon Exercise of Warrants
The shares offered by this prospectus involve a high degree of risk. See
"Risk Factors" beginning on page 2 of this prospectus for information that you
should consider before purchasing these securities.
We may sell the shares and warrants in amounts, at prices and on terms
determined at the time of the sale. We will provide specific terms of these
securities in supplements to this prospectus. The shares and warrants may be
offered separately or together, in separate series, in amounts, at prices
and on terms to be set forth in supplements to this prospectus.
You should read this prospectus and any supplement carefully before you
invest.
Our common shares are traded on the Nasdaq National Market System under the
symbol "VIDA." On September 3, 1999, the average for the high and low price of
our common stock on the Nasdaq was $2.00 per share.
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 determined
if this prospectus is truthful or complete. Any representation to the contrary
is a criminal offense.
The date of this prospectus is September ___, 1999
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Summary
VidaMed designs, develops and markets urological systems that are used for
urinary tract disorders. Our technologically and clinically advanced systems
are cost effective. We primarily treat the enlarged prostrate or Benign
Prostatic Hyperplasia ("BPH"), a noncancerous condition of the prostrate gland
affecting urination. VidaMed's primary product, the patented VidaMed TUNA
System, is a reasonably priced alternative therapy that minimizes surgical
invasion, side effects and complications for this condition. On October 8,
1996, we received 510(k) clearance from the United States Food and Drug
Administration (the "FDA") to sell the TUNA System commercially in the United
States. At the beginning of fiscal 1999, we began restructuring our sales and
marketing model in the United States to shift the emphasis from selling the TUNA
System itself to generating revenues through a fee-per-use program. Under the
prior sales model, we focused on selling the TUNA System generator and related
equipment to hospitals. Under the new model, we place an entire TUNA System
with a hospital at no initial capital charge and charge a fee for each procedure
performed.
Risk Factors
An investment in the securities being offered by this prospectus involves a
high degree of risk. The Company is in a negative cash flow position, and
unless it is able to sell additional equity securities (which will be dilutive)
or debt securities, or otherwise borrow additional funds in the immediate
future, the Company will not be able to fund its current operations through its
fiscal year ending December 31, 1999. You should consider the Company's
financial situation and the following risk factors in addition to the other
information discussed elsewhere in this prospectus and incorporated by reference
into this prospectus before purchasing our securities.
Lack of Operating Funds.
As we began fiscal 1999, we believed that our current cash balances,
projected cash flows from operations, including our newly introduced fee-per-use
program, and cash available under our financing facility would be sufficient to
meet our operating and capital requirements through the end of the fiscal year.
We now believe that the fee-per-use program will take longer to implement than
originally planned. As a result, we will require additional financing to
maintain our current operating and capital requirements through the end of the
fiscal year. Management is pursuing, and believes it can obtain, financing to
fund operations through the end of this fiscal year and into fiscal year 2000.
Additional financing will likely be required to fund operations throughout
fiscal 2000.
We cannot give any assurance that we will be successful in securing any
equity financing, or that such financing, if available, will be on favorable
terms. Any future equity financing would result in dilution to our
stockholders. If we are unable to secure additional equity or debt financing
this year, we would not be able to continue as a going concern, and would be
forced to explore strategic relationships, reduce staff and discontinue clinical
trials, research and development and marketing and sales activities.
Limitations on Additional Debt Financing.
In October 1998, we finalized a commitment for $5.5 million in debt
financing with Transamerica Technology Finance, a division of Transamerica
Corporation. The facility is secured by our assets and consists of a revolving
accounts receivable-based credit line of up to $3 million and a $2.5 million
equipment term loan. While Management believes that additional debt financing is
available, it would likely be limited in amount and costly because such
financing would be subordinate to Transamerica. While we may be able to obtain
additional debt financing from Transamerica, we cannot give any assurance that
we will be able to do so, or that such financing, if available, would be on
favorable terms.
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Since we became eligible to borrow under the accounts receivable-based
credit line, we have generally borrowed the full amount available to us. As of
September 1, 1999, we were eligible to borrow and had borrowed $392,410. The
equipment term loan was funded in full as of December 31, 1998, at an interest
rate of 12% per year. Repayment of that loan is amortized over a three-year
period, with monthly payments that began in December 1998.
We Expect Operating Losses to Continue
We expect our operating losses to continue as we continue to expend
substantial funds for the expansion of sales and marketing activities, clinical
trials in support of regulatory and Medicare reimbursement approvals and
research and development. Our future liquidity and capital requirements will
depend on numerous factors, including our success in securing additional
financing, actions relating to regulatory and Medicare reimbursement matters and
the extent to which the TUNA System gains market acceptance.
The Fee-Per-Use Sales Program is New and Untested.
At the beginning of fiscal 1999, we introduced our fee-per-use program in
the United States. Under this program, an entire TUNA System is placed with a
hospital at no initial capital charge and a fee is charged for each procedure
performed. This program replaced our previous sales model which focused on
sales of the TUNA System generator and related equipment to hospitals. Given
the relative short time that the fee-per-use program has been in place, the
success of the program is uncertain.
VidaMed Depends on Physician and Patient Acceptance.
The TUNA Procedure represents a new therapy for the treatment of BHP, and
there can be no assurance that physicians, patients and health care payors will
accept the TUNA System.
Physicians will not recommend the TUNA Procedure unless they conclude,
based on clinical data and other factors, that it is an attractive alternative
to other methods of BPH treatment, including more established methods. In
particular, physicians may elect not to recommend the TUNA Procedure until such
time, if any, as the duration of the relief provided by the procedure has been
established. Broad use of the TUNA System will require the training of numerous
physicians, and the time required to complete such training could result in a
delay or dampening of market acceptance. Even if the clinical efficacy of the
TUNA Procedure is established, physicians may elect not to recommend the
procedure unless acceptable reimbursement from health care payors is available.
See "Risk Factors - VidaMed Depends on Third Party Reimbursement from Health
Care Payors." Health care payor acceptance of the TUNA Procedure will require
evidence of the cost effectiveness of TUNA compared with other BPH therapies,
which will depend in large part on the duration of the relief provided by the
TUNA Procedure. A thorough analysis of multi-year patient follow-up data will
be necessary to assess the durability of the relief provided by TUNA therapy.
Patient acceptance of the procedure will depend in part on physician
recommendations as well as other factors, including the degree of invasiveness
and rate and severity of complications associated with the procedure compared
with other therapies.
VidaMed Depends on Third Party Reimbursement from Health Care Payors.
If physicians, hospitals and other users of our products fail to obtain
sufficient reimbursement from health care payors, including, in particular,
outpatient hospital Medicare reimbursement in the United States, our products
will not be accepted in the marketplace.
Third party reimbursement is generally available for existing therapies
used to treat BPH. In the United States, third-party reimbursement for
the TUNA Procedure depends on decisions by the local
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Medicare Medical Directors to provide coverage for the TUNA Procedure, as well
as by individual health maintenance organizations, private insurers and other
payors. Reimbursement systems in international markets vary significantly by
country. Many international markets have state managed health care systems that
govern reimbursement for new devices and procedures. In most markets, there are
private insurance systems as well as governmentally managed systems.
In the United States, TUNA Procedures are currently being reimbursed by
certain private payors. However, due to the age of the typical BPH patient,
Medicare reimbursement is particularly critical for widespread market
acceptance. Medicare CPT code number 53852, covering the physician fee
component of the TUNA Procedure, was included in the 1998 edition of CPT codes,
which became effective January 1, 1998. If adopted by local Medicare Medical
Directors, this code should enhance the reimbursement process for physicians
performing the TUNA Procedure in an outpatient hospital environment. As of
August 31, 1999, 38 states provide for reimbursement for TUNA Procedures
performed in a hospital setting.
National Medicare reimbursement of TUNA Procedure costs outside of a
hospital setting, for example in an ambulatory service center or an office
setting, at an adequate level will require completion by the Health Care
Financing Administration ("HCFA") of a review of the cost and efficacy of the
TUNA Procedure. Reimbursement in both the office-based and ambulatory service
centers systems is currently delayed while Medicare reviews its Year 2000
compliance issues. As a result of this delay, we can give no assurance that
procedures performed in offices and ambulatory service centers will generate
significant revenue for us in the United States.
Potential Loss of Nasdaq Listing.
The continuing listing requirements for inclusion of our common stock on
the Nasdaq National Market require that we maintain minimum net tangible assets
of $4.0 million. As of June 30, 1999, our net tangible assets decreased to
$2.375 million. Although we are attempting to increase our net tangible assets
through the sale of securities and increased sales of our products, the Nasdaq-
Amex Market Group of the NASD ("Nasdaq-Amex") could initiate de-listing
proceedings. There is no assurance that we will be able to raise sufficient
capital or increase sales to meet the minimum net tangible asset listing
requirements. In addition, there are other minimum listing requirements that
VidaMed must continually satisfy. For example, our common stock cannot close
below $1.00 for 30 consecutive trading days. The failure to satisfy any minimum
listing requirement could result in the initiation of delisting proceedings.
In August 1999, Nasdaq-Amex notified us that we were out of compliance with
the net tangible assets requirement for continued listing on the Nasdaq National
Market and that it was concerned that we would be able to sustain compliance
with the continued listing requirements in general because of issues relating to
our ability to continue as a going concern. See, "Risk Factors - Lack of
Operating Funds." The Company has been asked to submit a plan for achieving
compliance to Nasdaq-Amex. No delisting action will be taken against VidaMed
until we have an adequate opportunity to respond.
Delisting from the Nasdaq National Market could adversely affect the
liquidity and price of the Company's common stock. Moreover, investors may find
it more difficult to dispose of or obtain accurate quotations for our common
stock if it is delisted because the bid and asked quotations would be reported
on an electronic bulletin board such as the OTC Bulletin Board or a similar
quotation medium.
No Public Market Exists for VidaMed's Warrants.
We do not intend to apply to list the warrants offered by the prospectus on
any exchange. Accordingly, no public market for the warrants will exist prior to
the public offering of the warrants, and there can be no assurance that an
active trading market will develop in any of the warrants afterwards. The
exercise price and terms of the warrants may be determined arbitrarily through
negotiations with purchasers. Factors considered in such negotiations may
include, among others:
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<PAGE>
. The history and prospects of the industry;
. An assessment of our management;
. VidaMed's prospects;
. Our capital structure; and
. Prevailing market conditions.
The exercise price and terms of the warrants may not necessarily bear any
relationship to established valuation criteria, and may not indicate prevailing
prices in a public market for the warrants.
The warrants will not be exercisable unless, at the time of the exercise,
VidaMed has a current prospectus covering the shares of common stock issuable
upon exercise of the warrants, or such shares have been registered, qualified or
are exempt under the securities laws of the state of residence of the exercising
holder of the warrants.
We will use our best efforts to register and qualify under state law or
satisfy exemptions for the offer and sale of all of the shares of common stock
issuable upon exercise of the warrants on or before the exercise date and to
maintain a current prospectus until the expiration of the warrants. However, we
cannot assure that we will be able to do so. If a current prospectus covering
the shares of common stock issuable upon the exercise of the warrants is not
kept effective, the warrants will not be exercisable and will have no value.
Dilution.
If we are successful in raising equity financing, the equity investments of
our current stockholders will be diluted to the extent we issue shares of common
stock, and to the extent new warrants to purchase common stock are exercised. We
are offering a total of 7.5 million shares of common stock by this prospectus,
1.5 million shares of which are issuable on exercise of 1.5 million warrants.
Immediately prior to the registration of the shares included in this prospectus,
VidaMed had issued and outstanding 20,654,503 shares of common stock. In
addition, it has 6,050,000 shares of common stock reserved under its various
stock option plans, and 909,505 shares offered by that certain prospectus dated
February 2, 1998.
VidaMed's Corporate Structure Inhibits Stockholder Control
Certain provisions of our Certificate of Incorporation and Bylaws inhibit
stockholder control of VidaMed by:
. Allowing the Company to issue preferred stock without any vote or
further action by the stockholders;
. Eliminating the right of stockholders to act by written consent without
a meeting; and
. Eliminating cumulative voting in the election of directors.
Because these provisions may make it more difficult for stockholders to
take certain corporate actions, they could have the effect of delaying or
preventing a change in control of VidaMed. Such provisions could limit the price
that certain investors might be willing to pay for future shares of our common
stock.
Other Risk Factors.
There are several other risk factors relevant to VidaMed that we encourage
prospective purchases of our securities to review. They are described in our
annual and quarterly reports, which are incorporated by reference into this
prospectus, and filed with the Securities and Exchange Commission. See, "Where
You Can Find More Information".
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Forward Looking Information
This prospectus and the documents incorporated by reference in this
prospectus contain forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. Such forward-looking statements are based on
VidaMed's current expectations, beliefs, intentions or future strategies. The
statements concern, among other things, the availability of cash resources to
fund continued operations, the success of VidaMed's new marketing strategy, and
market acceptance of our products and the likelihood of additional Medicare
reimbursement approvals for the TUNA Procedure. Actual results could differ
materially from those suggested in the forward-looking statements because of the
risks and uncertainties described under "Risk Factors" in this prospectus and in
the documents incorporated by reference in this prospectus. We do not undertake
to update the forward-looking statements.
Use Of Proceeds
Unless otherwise specified in a supplement to this prospectus, VidaMed
intends to use the net proceeds from the sale of the securities offered by this
prospectus for general corporate purposes. Until VidaMed uses the proceeds in
its business, we will invest the proceeds in short-term investment grade
interest-bearing instruments.
Plan Of Distribution
VidaMed may sell the securities offered by this prospectus to or through
one or more underwriters or dealers, directly to a limited number of purchasers
or to a single purchaser, or through agents.
These securities may be distributed in one or more transactions at a fixed
price or prices, which may be changed, at market prices prevailing at the time
of sale, at prices related to such prevailing market prices or at negotiated
prices.
In connection with the sale of these securities, underwriters may receive
compensation from VidaMed or from purchasers of the securities, for whom they
may act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell these securities to or through dealers and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Any such underwriter or agent will be identified, and any such
compensation received from VidaMed will be described in a supplement to this
prospectus.
Shares sold in accordance with a prospectus supplement and any shares
issuable upon exercise of any of the warrants issued in accordance with a
prospectus supplement are expected to be listed on the Nasdaq National Market.
See, however, "Risk Factors -- Potential Loss of Nasdaq Listing." Unless
otherwise specified in the related prospectus supplement, each series of
warrants will be a new issue with no established trading market. We may elect to
list any series of warrants on an exchange, but are not obligated to do so.
It is possible that one or more underwriters may make a market in a series
of these warrants, but will not be obligated to do so and may discontinue any
market making at any time without notice. Therefore, no assurance can be given
as to the liquidity of the trading market of any the securities offered by this
prospectus.
Under agreements we may enter into, underwriters, dealers and agents who
participate in the distribution of these securities may be entitled to
indemnification by VidaMed against certain liabilities, including liabilities
under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, VidaMed in the ordinary course of business.
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Description Of Securities
Shares
VidaMed's authorized capital stock consists of 60,000,000 shares of common
stock, $.001 par value per share, and 5,000,000 shares of preferred stock, $.001
par value per share. As of September 3, 1999, 20,654,503 shares of common stock
were outstanding, held of record by approximately 264 stockholders. No shares
of the preferred stock were outstanding as of September 3, 1999, although 60,000
shares of the preferred stock have been designated Series A Participating
Preferred Stock. One one-thousandth of a share of Series A Participating
Preferred Stock is issuable upon exercise of each preferred share purchase
right. Each outstanding share of common stock also represents the preferred
share purchase right related to that share of common stock.
Warrants
The following summary describes the material terms of the warrants.
Exercise Price and Terms. Each warrant offered by this prospectus will
entitle the registered holder to purchase, for a fixed time period beginning on
the date of issuance, a fixed number of shares of common stock at a fixed price
per share. The price may be adjusted in the circumstances described below. The
registered holder of a warrant will be able to exercise it, in whole or in
part, by surrendering the certificate representing the warrant to the Company or
as the Company otherwise directs. The subscription form on the warrant must be
properly completed and executed, and the exercise price must be paid. The
exercise price will be negotiated at the time of the sale of the warrant and may
not relate to its value. You should not regard the exercise price as an
indication of any future market price of the common stock.
Expiration. The warrants can be exercised by their registered holder at any
time during the three-year period after their issuance, provided the warrant and
the common stock issuable on exercise of the warrant are registered or are
exempt from registration. At the end of that three-year period, the warrants
expire. The warrants may include a provision enabling VidaMed to call the
warrants, compelling a holder to exercise its warrant, in the event that the
price per share of VidaMed's stock exceeds the exercise price of the warrants
for a certain number of days.
Adjustments. The exercise price and the number of shares of common stock that
can be purchased on the exercise of the warrants will be adjusted when certain
events occur, including:
. Stock splits;
. Reverse stock splits; or
. Combinations of the common stock.
To enable warrant holders to acquire securities or property receivable by a
holder of common stock that might have been purchased upon exercise of the
warrant, the exercise price may be adjusted in the following cases:
. Reclassification or exchange of common stock;
. VidaMed's consolidation or merger with or into another corporation (other
than a consolidation or merger in which VidaMed is the surviving
corporation); or
. Sale of all or substantially all of VidaMed's assets.
Transfer, Exchange and Exercise. If a market for the warrants develops, the
holder may sell the warrants instead of exercising them. There can be no
assurance, however, that a market for the warrants will develop or continue and
VidaMed does not intend to apply for the listing of the warrants on any
exchange.
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Warrant Holder Not a Stockholder. The warrants will not confer upon holders any
voting, dividend or other rights as stockholders of VidaMed.
The warrants will not be exercisable unless, at the time of the exercise,
VidaMed has a current prospectus covering the shares of common stock issuable
upon exercise of the warrants, and such shares have been registered, qualified
or are exempt under the securities laws of the state of residence of the
exercising holder of the warrants. Although we will use our best efforts to
have all of the shares of common stock issuable upon exercise of the warrants
registered or qualified on or before the exercise date and to maintain a current
prospectus until the expiration of the warrants, there can be no assurance that
we will be able to do so.
Legal Matters
The validity of the common stock offered under this prospectus will be
passed upon for us by Shartsis, Friese & Ginsburg LLP, One Maritime Plaza, 18th
Floor, San Francisco California 94111.
Experts
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K, as
amended, for the year ended December 31, 1998, as set forth in their report
(which contains an explanatory paragraph describing conditions that raise
substantial doubt about our ability to continue as a going concern as described
in Notes 1 and 13 to the consolidated financial statements), which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedule are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
Where You Can Find More Information
Government Filings
We file proxy statements, reports and other information with the Securities
and Exchange Commission in accordance with the Securities Exchange Act of 1934.
You can inspect and copy this information at regional offices of the Commission
located at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511 and 7 World Trade Center, Suite 1300, New York, New York
10048, and at the Public Reference Office of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549.
You can also obtain copies of the documents we file with the SEC from the
Public Reference Section of the SEC, 450 Fifth Street, N.W., Washington, D.C.
20549, for a fee determined by the SEC. You may obtain information about the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
The SEC also maintains a World Wide Web site on the Internet at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding VidaMed and other companies that file electronically
with the SEC.
Our common stock is traded on the Nasdaq National Market. Our reports and
other information may be inspected at the National Association of Securities
Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
This prospectus is part of a registration statement that we filed with the
SEC under the Securities Act of 1933, as amended. You can receive copies of the
registration statement as discussed above. This prospectus does not contain all
the information included in the registration statement. For further information
regarding VidaMed and its common stock, please refer to the registration
statement and its exhibits. Statements contained in this prospectus as to the
contents of any contract or other document are not necessarily complete
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and, in each instance, reference is made to the copy of such contract or
document filed as an exhibit to the registration statement.
Information Incorporated by Reference
We incorporate by reference the following documents and all future
documents filed by VidaMed in accordance with Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act until this offering is completed:
1. Our registration statements on Form 8-A filed with the Securities and
Exchange Commission on June 17, 1995 and January 31, 1997.
2. Our annual report on Form 10-K, as amended, for the fiscal year ended
December 31, 1998, filed on August 30, 1999;
3. All other reports filed in accordance with Section 13(a) or 15(d) of the
Exchange Act since December 31, 1998, including (a) our quarterly reports on
Form 10-Q, as amended, for the quarters ended March 31, 1999 and June 30, 1999;
and (b) our Proxy Statement on Form DEF 14A filed on April 27, 1999.
You may receive free copies of these filings by writing or calling at:
VidaMed, Inc.
46107 Landing Parkway
Fremont, California 94538
Telephone: (510) 492-4902
Attention: Investor Relations
Any statement incorporated herein shall be deemed to be modified or
superseded for the purposes of this Prospectus and the Registration Statement to
the extent that a statement contained in the Prospectus or in any other
subsequently filed document that is or is deemed to be incorporated by reference
into this Prospectus 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 and the Registration
Statement.
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You should rely only on the information incorporated by reference or
provided in this prospectus or in a prospectus supplement or amendment. We have
not authorized anyone to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. Also, this prospectus does not offer to sell any securities other
than the securities covered by this prospectus. You should not assume that the
information in this prospectus or a prospectus supplement or amendment is
accurate as of any date other than the date on the front of the document.
In this prospectus, unless otherwise indicated, "VidaMed," "we," "us," and
"our" refer to VidaMed, Inc. and its subsidiaries.
VIDAMED, INC.
6,000,000 Shares of Common Stock
1,500,000 Warrants to Purchase Common Stock
1,500,000 Shares of Common Stock
Issuable Upon Exercise of Warrants
Table of Contents
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<TABLE>
<S> <C>
SUMMARY 2
RISK FACTORS 2
FORWARD LOOKING INFORMATION 6
USE OF PROCEEDS 6
PLAN OF DISTRIBUTION 6
DESCRIPTION OF SECURITIES 7
LEGAL MATTERS 8
EXPERTS 8
WHERE YOU CAN FIND MORE INFORMATION 8
INFORMATION INCORPORATED BY REFERENCE 9
</TABLE>
__________________________
Prospectus
September , 1999
__________________________
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimates
except the Securities and Exchange Commission registration fee, the NASD filing
fee and the Nasdaq National Market listing fee.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee...................................... $ 4,203
Nasdaq National Market listing fee....................................................... 17,500
Printing and engraving expenses.......................................................... 3,000
Legal fees and expenses.................................................................. 40,000
Accounting fees and expenses............................................................. 25,000
Transfer agent and registrar fees and expenses........................................... 1,500
Miscellaneous............................................................................ 2,500
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Total................................................................................. $93,703
=======
</TABLE>
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article VIII of the Registrant's Certificate of Incorporation provides for
the indemnification of directors to the fullest extent permissible under
Delaware law.
Article VI of the Registrant's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the corporation if
such person acted in good faith and in a manner reasonably believed to be in and
not opposed to the best interest of the corporation, and, regarding any criminal
action or proceeding, if the indemnified party had no reason to believe his
conduct was unlawful.
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Registrant's Bylaws, and intends to enter into indemnification agreements
with any new directors and executive officers in the future.
Item 16. Exhibits
The Exhibit Index is included at page 14.
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Item 17. Undertaking
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and persons controlling the
Registrant in accordance with the foregoing provisions, or otherwise, the
Registrant has been informed 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.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, 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 Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to
be part of this registration statement as of the time it was declared effective.
3. That, for purposes 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
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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.
4. For 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 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.
5. 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.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, VidaMed,
Inc. certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fremont, State of California, on September 10, 1999.
VIDAMED, INC.
By: /s/ Randy D. Lindholm
-------------------------------------
Randy D. Lindholm
President and Chief Executive Officer
In accordance with 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/Randy D. Lindholm President and Chief Executive Officer and Director September 10, 1999
- -------------------------- (Principal Executive Officer)
(Randy D. Lindholm)
/s/ John Howe Vice President of Finance and Chief Financial Officer September 10, 1999
- -------------------------- (Principal Financial Officer and Principal Accounting
(John Howe) Officer)
/s/ David J. Illingworth Chairman of the Board of Director September 10, 1999
- --------------------------
(David J. Illingworth)
/s/ Robert J. Erra* Director September 10, 1999
- --------------------------
(Robert J. Erra)
</TABLE>
* Executed on behalf of the individual indicated in accordance with a power
of attorney.
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<TABLE>
<CAPTION>
Exhibit
Number Description Page
<S> <C> <C>
4.1++ Certificate of Incorporation of Registrant.
4.2++ Restated Bylaws of Registrant.
4.3+++ Form of Common Stock Certificate.
4.4++++ Preferred Shares Rights Agreement dated as of January 27, 1997,
between the Registrant and American Securities Transfer & Trust, Inc.,
including the Certificate of Designations, the Form of Rights
Certificate and the Summary of Rights attached thereto as Exhibits A,
B and C, respectively.
4.5 Form of Common Stock Purchase Warrant.
5.1 Opinion of Shartsis, Friese & Ginsburg LLP. 24
23.1 Consent of Ernst & Young LLP, Independent Auditors. 25
23.2 Consent of Shartsis, Friese & Ginsburg LLP (included in Exhibit 5.1).
24.1+ Power of Attorney.
</TABLE>
______________
+ Included on page II-4 of Registrant's Form S-3 (File No. 333-80585) filed
on June 14, 1999 and incorporated herein by reference.
++ Filed as an exhibit to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995 and incorporated herein by reference.
+++ Filed as an exhibit to the Registrant's Registration Statement on Form S-1
(File No. 33-90746) and incorporated herein by reference.
++++ Filed as an Exhibit to the Registrant's Registration Statement on Form 8-A
filed with the Commission on January 31, 1997 and incorporated herein by
reference.
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Exhibit 4.5
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS AND HAVE BEEN TAKEN FOR INVESTMENT PURPOSES ONLY AND NOT WITH A
VIEW TO OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION THEREOF. EXCEPT UNDER
CERTAIN SPECIFIC LIMITED CIRCUMSTANCES, THE SECURITIES MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION AND QUALIFICATION
WITHOUT AN OPINION OF COUNSEL FOR THE HOLDER REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.
STOCK PURCHASE WARRANT
To Purchase Shares of Common Stock of
VIDAMED, INC.
THIS CERTIFIES that, for value received, [Name] (the "Investor"), is
entitled, upon the terms and subject to the conditions hereinafter set forth, at
any time on or prior to the close of business on the date three (3) years after
the date hereof, but not thereafter, to subscribe for and purchase, from
VIDAMED, INC. a Delaware corporation (the "Company"), [Shares] shares (the
"Warrant Shares") of Common Stock. The purchase price of one share of Common
Stock under this Warrant shall be $[price] per share. The purchase price and the
number of shares for which the Warrant is exercisable shall be subject to
adjustment as provided herein.
1. Transfer of Warrant. Prior to the expiration hereof and subject to
-------------------
compliance with applicable laws, this Warrant and all rights hereunder are
transferable, in whole or in part, at the office or agency of the Company,
referred to in Section 2 hereof, by the holder hereof in person or by duly
authorized attorney, upon surrender of this Warrant together with the Assignment
Form annexed hereto properly endorsed.
2. Exercise of Warrant.
-------------------
(a) The purchase rights represented by this Warrant are exercisable by the
registered holder hereof, in whole or in part, at any time before the close of
business on the date three (3) years after the date hereof, by delivery of the
Notice of Exercise form annexed hereto duly executed at the office of the
Company, in Fremont, California (or such other office or agency of the Company
as it may designate by notice in writing to the registered holder hereof at the
address of such holder appearing on the books of the Company), and upon payment
of the purchase price of the shares thereby purchased (by cash or by check or
bank draft payable to the order of the Company); whereupon the holder of this
Warrant shall be entitled to receive a certificate for the number of shares of
Common Stock so purchased. The Company agrees that if at the time of the
surrender of this Warrant and purchase of shares, the holder hereof shall be
entitled to exercise this Warrant, the shares so purchased shall be and be
deemed to be issued to such holder
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as the record owner of such shares as of the close of business on the date on
which this Warrant shall have been exercised as aforesaid. If this Warrant
should be exercised in part only, the Company shall, upon surrender of this
Warrant, execute and deliver a new Warrant evidencing the rights of the holder
hereof to purchase the balance of the Warrant Shares purchasable hereunder.
(b) Certificates for shares purchased hereunder shall be delivered to the
holder hereof promptly after this Warrant shall have been exercised as
aforesaid. The Company covenants that all shares of Common Stock which may be
issued upon the exercise of rights represented by this Warrant will, upon
exercise of the rights represented by this Warrant, be fully paid and
nonassessable and free from all taxes, liens and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
3. No Fractional Shares or Scrip. No fractional shares or scrip
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon the exercise
of this Warrant, an amount equal to such fraction multiplied by the then Fair
Market Value shall be paid in cash to the holder of this Warrant.
4. Charges, Taxes and Expenses. Issuance of certificates for shares of
---------------------------
Common Stock upon the exercise of this Warrant shall be made without charge to
the holder hereof for any issue or transfer tax or other incidental expense in
respect of the issuance of such certificate, all of which taxes and expenses
shall be paid by the Company, and such certificates shall be issued in the name
of the holder of this Warrant or in such name or names as may be directed by the
holder of this Warrant; provided, however, that in the event certificates for
shares of Common Stock are to be issued in a name other than the name of the
holder of this Warrant, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the holder
hereof.
5. No Rights as Shareholders. This Warrant does not entitle the holder
-------------------------
hereof to any voting rights or other rights as a stockholder of the Company
prior to the exercise thereof.
6. Exchange and Registry of Warrant. This Warrant is exchangeable,
--------------------------------
without charge, upon the surrender hereof by the registered holder at the above-
mentioned office or agency of the Company, for a new Warrant of like tenor and
dated as of such exchange.
The Company shall maintain at the above-mentioned office or agency a
registry showing the name and address of the registered holder of this Warrant.
This Warrant may be surrendered for exchange, transfer or exercise, in
accordance with its terms, at such office or agency of the Company, and the
Company shall be entitled to rely in all respects, prior to written notice to
the contrary, upon such registry.
7. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by
-------------------------------------------------
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and
cancellation of this Warrant, if mutilated, the Company will make and deliver a
new Warrant of like tenor and dated as of such cancellation, in lieu of this
Warrant.
8. Saturdays, Sundays, Holidays, etc. If the last or appointed day for
---------------------------------
the taking of any action or the expiration of any right required or granted
herein shall be a Saturday or a
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Sunday or shall be a legal holiday, then such action may be taken or such right
may be exercised on the next succeeding day not a Saturday, Sunday or legal
holiday.
9. Early Termination, Antidilution Adjustments and Registration Statement
----------------------------------------------------------------------
Adjustments.
- -----------
(a) Merger, Sale of Assets, etc. In case of any consolidation of the Company
---------------------------
with, or merger of the Company into, any other corporation (other than a
consolidation or merger in which the Company is the continuing corporation and
in which no change occurs in its outstanding Common Stock), or in case of any
sale or transfer of all or substantially all of the assets of the Company, or in
the case of any statutory exchange of securities with another corporation
(including any exchange effected in connection with a merger of a third
corporation into the Company, except where the Company is the surviving entity
and no change occurs in its outstanding Common Stock), the corporation formed by
such consolidation or the corporation resulting from or surviving such merger or
the corporation which shall have acquired such assets or securities of the
Company, as the case may be, shall execute and deliver to the Holder
simultaneously therewith a new Warrant, satisfactory in form and substance to
the Holder, together with such other documents as the Holder may reasonably
request, entitling the Holder thereof to receive upon exercise of such Warrant
the kind and amount of shares of stock and other securities and property
receivable upon such consolidation, merger, sale, transfer, or exchange of
securities, or upon the dissolution following such sale or other transfer, by a
holder of the number of shares of Common Stock purchasable upon exercise of this
Warrant immediately prior to such consolidation, merger, sale, transfer, or
exchange. Such new Warrant shall contain the same basic other terms and
conditions as this Warrant and shall provide for adjustments which, for events
subsequent to the effective date of such written instrument, shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
9. The above provisions of this paragraph (a) shall similarly apply to
successive consolidations, mergers, exchanges, sales or other transfers covered
hereby. Notwithstanding the foregoing, in the event the consideration to be
paid to holders of Company capital stock in any transaction of the nature
referred to above in this Section 9(a) (a "Transaction") consists of cash or
cash equivalents, then, provided that the Company shall have given the holder
hereof the notice required by Section 10, this Warrant shall, to the extent it
has not been exercised by the effective date of such Transaction, terminate upon
the completion of such Transaction.
(b) Reclassification, etc. If the Company at any time shall, by subdivision,
----------------------
combination or reclassification of securities or otherwise, change any of the
securities to which purchase rights under this Warrant exist into the same or a
different number of securities of any class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such subdivision, combination, reclassification or other
change. If shares of the Company's Common Stock are subdivided or combined into
a greater or smaller number of shares of Common Stock, the purchase price under
this Warrant shall be proportionately reduced in case of subdivision of shares
or proportionately increased in the case of combination of shares, in both cases
by the ratio which the total number of shares of Common Stock to be outstanding
immediately after such event bears to the total number of shares of Common Stock
outstanding immediately prior to such event.
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(c) Cash Distributions. Except as set forth herein, no adjustment on account
------------------
of cash dividends on the Company's Common Stock or other securities purchasable
hereunder will be made to the purchase price under this Warrant.
(d) Authorized Shares. The Company covenants that during the period the
-----------------
Warrant is outstanding, it will reserve from its authorized and unissued Common
Stock a sufficient number of shares to provide for the issuance of Common Stock
upon the exercise of any purchase rights under this Warrant. The Company
further covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for shares of the
Company's Common Stock upon the exercise of the purchase rights under this
Warrant. The Company further covenants and agrees (i) that it will not, by
amendment of its Certificate of Incorporation or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other voluntary
act, avoid or seek to avoid the observation or performance of any of the
covenants, stipulations or conditions to be observed or performed hereunder by
the Company, (ii) promptly to take such action as may be required of the Company
to permit the Holder to exercise this Warrant and the Company duly and
effectively to issue shares of its Common Stock or other securities as provided
herein upon the exercise hereof and (iii) promptly to take all action required
or provided herein to protect the rights of the Holder granted hereunder against
dilution.
(e) If the Company declares a dividend on Common Stock, or makes a
distribution to holders of Common Stock, and such dividend or distribution is
payable or made in Common Stock or securities convertible into or exchangeable
for Common Stock, or rights to purchase Common Stock or securities convertible
into or exchangeable for Common Stock, the number of shares of Common Stock for
which this Warrant may be exercised shall be increased, as of the record date
for determining which holders of Common Stock shall be entitled to receive such
dividend or distribution, in proportion to the increase in the number of
outstanding shares (and shares of Common Stock issuable upon conversion of all
such securities convertible into Common Stock) of Common Stock as a result of
such dividend or distribution, and the Exercise Price shall be adjusted so that
the aggregate amount payable for the purchase of all the Warrant Shares issuable
hereunder immediately after the record date for such dividend or distribution
shall equal the aggregate amount so payable immediately before such record date.
(f) If the Company declares a dividend on Common Stock (other than a dividend
covered by subsection (e) above) or distributes to holders of its Common Stock,
other than as part of its dissolution or liquidation or the winding up of its
affairs, any shares of its capital stock, any evidence of indebtedness or any
cash or other of its assets (other than Common Stock or securities convertible
into or exchangeable for Common Stock), the Holder shall receive notice of such
event as set forth in Section 11 below.
(g) If the Company shall, at any time before the expiration of this Warrant,
sell all or substantially all of its assets and distribute the proceeds thereof
to the Company's stockholders, the Holder shall, upon exercise of this Warrant
have the right to receive, in lieu of the shares of Common Stock of the Company
that the Holder otherwise would have been entitled to receive, the same kind and
amount of assets as would have been issued, distributed or paid to the Holder
upon any such distribution with respect to such shares of Common Stock of the
Company had the Holder been the holder of record of such shares of Common Stock
receivable upon exercise
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of this Warrant on the date for determining those entitled to receive any such
distribution. If any such distribution results in any cash distribution in
excess of the Exercise Price provided by this Warrant for the shares of Common
Stock receivable upon exercise of this Warrant, the Holder may, at the Holder's
option, exercise this Warrant without making payment of the Exercise Price and,
in such case, the Company shall, upon distribution to the Holder, consider the
Exercise Price to have been paid in full and, in making settlement to the
Holder, shall obtain receipt of the Exercise Price by deducting an amount equal
to the Exercise Price for the shares of Common Stock receivable upon exercise of
this Warrant from the amount payable to the Holder. Notwithstanding the
foregoing, in the event the consideration to be paid to holders of Company
capital stock in any transaction of the nature referred to above in this Section
9(i) (an "Asset Sale Transaction") consists of cash or cash equivalents and the
consideration payable per share of Common Stock of the Company is less than the
Exercise Price hereunder, then, provided that the Company shall have given the
holder hereof the notice required by Section 10, this Warrant shall, to the
extent it has not been exercised by the effective date of such Transaction,
terminate upon the completion of such Transaction.
(h) The term "Common Stock" shall mean the Common Stock of the Company as the
same exists at September __, 1999 or as such stock may be constituted from time
to time, except that for the purpose of this Section 9, the term "Common Stock"
shall include any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which is
not subject to redemption by the Company.
(i) Whenever the number of Warrant Shares or the Exercise Price shall be
adjusted as required by the provisions of this Section 9, the Company forthwith
shall file in the custody of its secretary or an assistant secretary, at its
principal office, and furnish to each Holder hereof, a certificate prepared by
its Chief Financial Officer, showing the adjusted number of Warrant Shares and
the adjusted Exercise Price and setting forth in reasonable detail the
circumstances requiring the adjustments.
(j) No adjustment in the Exercise Price in accordance with the provisions of
this Section 9 need be made if such adjustment would amount to a change in such
Exercise Price of less than $.01; provided however, that the amount by which any
adjustment is not made by reason of the provisions of this section 9(j) shall
be carried forward and taken into account at the time of any subsequent
adjustment in the Exercise Price.
(k) If an adjustment is made under this Section 9 and the event to which the
adjustment relates does not occur, then any adjustments in accordance with this
Section 9 shall be readjusted to the Exercise Price and the number of Warrant
Shares which would be in effect had the earlier adjustment not been made.
10. Notice of Adjustment. So long as this Warrant shall be outstanding,
--------------------
(a) if the Company shall propose to pay any dividends or make any distribution
upon the Common Stock, or (b) if the Company shall offer generally to the
holders of Common Stock the right to subscribe to or purchase any shares of any
class of Common Stock or securities convertible into Common Stock or any other
similar rights, or (c) if there shall be any proposed capital reorganization of
the Company in which the Company is not the surviving entity, recapitalization
of the capital
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stock of the Company, consolidation or merger of the Company with or into
another corporation, sale, lease or other transfer of all or substantially all
of the property and assets of the Company, or voluntary or involuntary
dissolution, liquidation or winding up of the Company, or (d) if the Company
shall give to its stockholders any notice, report or other communication
respecting any significant or special action or event, then in such event, the
Company shall give to the Holder, at least ten (10) days prior to the relevant
date described below, a notice containing a description of the proposed action
or event and stating the date or expected date on which a record of the
Company's stockholders is to be taken for any of the foregoing purposes, and the
date or expected date on which any such dividend, distribution, subscription,
reclassification, reorganization, consolidation, combination, merger,
conveyance, sale, lease or transfer, dissolution, liquidation or winding up is
to take place and the date or expected date, if any is to be fixed, as of which
the holders of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon such event.
11. Notice. Any notice to be given or to be served upon any party in
------
connection with the Warrant must be in writing and will be deemed to have been
given and received upon confirmed receipt, if sent by facsimile, or two (2) days
after it has been submitted for delivery by Federal Express or an equivalent
carrier, charges prepaid and addressed to the following addresses with a
confirmation of delivery:
If to the Company, to:
VidaMed, Inc.
46107 Landings Parkway
Fremont, California 94538
Attn.: Chief Financial Officer
Telephone: (510) 492-4900
Facsimile: (510) 492-4999
If to the Holder, to:
[Name/Address]
Any party may, at any time by giving written notice to the other party,
designate any other address in substitution of an address established pursuant
to the foregoing to which such notice will be given.
12. Miscellaneous.
-------------
(a) Issue Date. The provisions of this Warrant shall be construed and shall
----------
be given effect in all respect as if it had been issued and delivered by the
Company on the date hereof. This Warrant shall be binding upon any successors
or assigns of the Company.
(b) Restrictions. The holder hereof acknowledges that the Common Stock
------------
acquired upon the exercise of this Warrant may have restrictions upon its resale
imposed by state and federal securities laws.
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(c) Governing Law. This Agreement shall be governed in all respects by and
-------------
construed in accordance with the laws of the State of Delaware without any
regard to conflicts of laws principles.
(d) Successors and Assigns. Except as otherwise contemplated hereby, this
----------------------
Warrant shall be binding upon and inure to the benefit of any successors and
assigns of the Company.
IN WITNESS WHEREOF, VIDAMED, INC. has caused this Warrant to be executed by
its officers thereunto duly authorized.
Dated:_________, _____
VIDAMED, INC.
By:
--------------------------------
Title:
-----------------------------
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NOTICE OF EXERCISE
------------------
To: VIDAMED, INC.
(1) The undersigned hereby elects to purchase ____________ shares of Common
Stock of VIDAMED, INC. pursuant to the terms of the attached Warrant, and
tenders herewith payment of $__________ in full satisfaction of the purchase
price.
(2) Please issue a certificate of certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
_______________________________________________
(Name)
_______________________________________________
_______________________________________________
(Address)
(3) The undersigned represents that the aforesaid shares of Common Stock
are being acquired for the account of the undersigned for investment and not
with a view to, or for resale in connection with, the distribution thereof and
that the undersigned has no present intention of distributing or reselling such
shares; provided, that such representation shall not be required at such time as
the shares of Common Stock underlying this Warrant are registered under the
Securities Act of 1933.
______________________________ ___________________________________________
(Date) (Signature)
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ASSIGNMENT FORM
---------------
(To assign the foregoing warrant, execute
this form and supply required information.
Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby
are hereby assigned to
______________________________________________________________________________
(Please Print)
whose address is
________________________________________________________________
(Please Print)
______________________________________________________________________________
Dated: _____________________, 19____.
Holder's Signature: _________________________________
Holder's Address: __________________________________
_________________________________________________
Signature Guaranteed: __________________________________________________________
NOTE: The signature to this Assignment Form must correspond with the name as it
appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers of
corporations and those acting in a fiduciary or other representative capacity
should file proper evidence of authority to assign the foregoing Warrant.
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Exhibit 5.1
[letterhead]
September 7, 1999
VidaMed, Inc.
46107 Landing Parkway
Fremont, CA 94538
Re: VidaMed, Inc.
-------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 (Registration
Statement No. 333-80585) to be filed with the Securities and Exchange Commission
(the "Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of a shelf offering of (i) 6,000,000 shares
of the Company's common stock, $.001 par value per share (the "Shares"), (ii)
1,500,000 warrants to purchase common stock of the Company (the "Shelf
Warrants"), and (iii) 1,500,000 shares of the Company's common stock, $.001 par
value per share, issuable upon exercise of the Shelf Warrants (the "Shelf
Warrant Shares") (the Shares, Shelf Warrants and Shelf Warrant Shares are
referred to collectively as the "Securities").
In connection with this opinion, we have assumed that (i) the Registration
Statement, and any amendments thereto (including post-effective amendments, if
any), will have become effective, (ii) with respect to each distribution of the
Securities, a supplement to the prospectus contained in the Registration
Statement will have been prepared and filed with the Securities and Exchange
Commission describing the Securities offered thereby, (iii) the Securities will
be issued and sold in compliance with applicable federal and state securities
laws and in the manner described in the Registration Statement and applicable
prospectus supplement, (iv) the consideration the Company receives for the
securities will equal or exceed, in the case of the Shares, the par value of the
Shares, and, in the case of the Shelf Warrant and Shelf Warrant Shares, the
consideration specified by applicable law, and (v) all corporate action
necessary to authorize the sale of the Securities, including but not limited to
board of director approval, shall have been obtained.
Based on the foregoing, it is our opinion that the Securities, when issued
and sold in the manner referred to in the Registration Statement, will be
legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and any amendment thereto.
Very truly yours,
/s/ Steven O. Gasser
Steven O. Gasser
23
<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 1 to the Registration Statement (Form S-3) and related Prospectus of
VidaMed, Inc. for the registration of 7,500,000 shares of its common stock and
1,500,000 warrants to purchase shares of common stock and to the incorporation
by reference therein of our report dated January 15, 1999 (except for Note 1,
under the caption "Liquidity", and Note 13, as to which the date is August 25,
1999), with respect to the consolidated financial statements and schedule of
VidaMed, Inc. included in its Annual Report (Form 10-K), as amended, for the
year ended December 31, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
September 7, 1999
24
