Table
of Contents
As Filed with the Securities and Exchange
Commission on March 27, 2009
Registration
No. 333-153605
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
ON FORM S-3 TO
FORM S-1
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
PROUROCARE MEDICAL INC.
(Exact name registrant as
specified in its charter)
Nevada
(State of
incorporation)
|
|
3841
(Primary Standard
Industrial
Classification Code Number)
|
|
20-1212923
(IRS Employer
Identification No.)
|
6440 Flying Cloud Drive, Suite 101
Eden
Prairie, Minnesota 55344
(952) 476-9093
(Address and telephone
number of registrants principal executive offices)
Mr. Richard
C. Carlson, Chief Executive Officer
ProUroCare
Medical Inc.
6440 Flying Cloud Drive, Suite 101
Eden
Prairie, Minnesota 55344
Telephone:
(952) 476-9093
(Name, address and telephone
number of agent for service)
Copies to:
Timothy S. Hearn, Esq.
Dorsey &
Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, Minnesota 55402-1498
Telephone: (612) 340-2600
Facsimile: (612) 340-8738
Approximate Date of
Proposed Sale to the Public
:
As soon as practicable after
this Registration Statement has become 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.
o
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.
o
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 number of the earlier effective registration statement for the
same offering.
o
If
this Form is a registration statement pursuant to General Instruction I.D.
or a post-effective amendment thereto that shall become effective upon filing
with the Commission pursuant to Rule 462(e) under the Securities Act,
check the following box.
o
If
this Form is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
Large
accelerated filer
o
|
|
Accelerated
filer
o
|
|
Non-accelerated
filer
o
|
|
Smaller
reporting company
x
|
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 THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
Table of Contents
EXPLANATORY NOTE
This
Post-Effective Amendment No. 1 on Form S-3 to Registration Statement
on Form S-1 contains an updated prospectus relating to the offering and
sale of shares of common stock
, $0.00001 par value (the Common Stock),
issuable upon exercise of warrants that were
issued to public investors in connection with the registrants public offering
of units, each unit consisting of one share of Common Stock and one
redeemable common stock warrant exercisable
for one share of Common Stock, all of which were initially registered by the
registrant on the Registration Statement on Form S-1 (File No. 333-153605)
declared effective by the Securities and Exchange Commission (the Commission)
on January 7, 2009. All filing fees
payable in connection with the registration of the shares issuable upon
exercise of such warrants were previously paid in connection with the filing of
the original registration statement.
Table of Contents
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 is not permitted.
PRELIMINARY
PROSPECTUS
SUBJECT TO COMPLETION, DATED MARCH 27, 2009
PROSPECTUS
ProUroCare Medical Inc.
3,050,000 Shares of Common Stock
This
prospectus relates to 3,050,000 shares of common stock, par value $0.001 per
share (the Common Stock), of ProUroCare Medical Inc., which are issuable upon
the exercise of outstanding redeemable common stock warrants (a Warrant)
issued in our public offering which closed on January 12, 2009.
In
order to obtain the shares of Common Stock, the holders of the Warrants must
pay an exercise price of $1.30 per share, subject to adjustment. The Warrants are subject to redemption by the
Company for $0.01 per Warrant upon 30 days prior written notice, provided that
the last sale price for a share of Common Stock equals or exceeds $1.82,
subject to adjustment, for 10 consecutive trading days. The Warrants will terminate on January 7,
2014.
We
will receive all of the proceeds from the exercise of the Warrants.
Our
Common Stock is quoted on the Over-the-Counter Bulletin Board (the OTCBB)
under the symbol PUMD. On March 23,
2009, the closing bid price of the Common Stock and the last reported trade was
at $0.50 per share.
Investing in our Common Stock involves a high degree of risk. See Risk Factors beginning on page 7.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
The date of this prospectus is March 27, 2009.
Table of Contents
TABL
E OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION
We are subject to informational filing requirements of the Securities
Exchange Act of 1934, as amended, and its rules and regulations. This
means that we file reports and other information with the U.S. Securities and
Exchange Commission. You can inspect and copy this information at the Public
Reference Facility maintained by the SEC at Judiciary Plaza, 450 5
th
Street, N.W., Room 1024, Washington, D.C. 20549. You can
receive additional information about the operation of the SECs Public
Reference Facilities by calling the SEC at 1-800-SEC-0330. The Commission
maintains a Web site that contains the reports and other information that we
file electronically with the Commission. The address of that Web site is
http://www.sec.gov
. Statements contained
in this prospectus as to the intent of any contract or other document referred
to are not necessarily complete, and, in each instance, reference is made to
the copy of the particular contract or other document filed as an exhibit to
this registration statement, each statement being qualified in all respects by
this reference.
1
Table of Contents
PROSPECTUS SUMMARY
This summary highlights certain information found in
greater detail elsewhere in this prospectus or incorporated by reference
herein. This summary may not contain all of the information that may be
important to you. We urge you to read this entire prospectus carefully,
including the risks of investing in our Common Stock discussed under Risk
Factors and the financial statements and other information that are included
or incorporated by reference in this prospectus, before making an investment
decision. All references in this prospectus to the Company, we, us, our
or our company refer to ProUroCare Medical Inc. and our consolidated subsidiary.
References to ProUroCare Inc. or PUC refer to ProUroCare Inc.,
our wholly owned subsidiary.
Our Company
We are a development stage company engaged in the business of
developing for market innovative products for the detection and characterization
of male urological prostate disease. Our primary focus is the ProUroScan
prostate imaging system (the ProUroScan System).
The ProUroScan System
Our initial product is the ProUroScan System, an imaging system
designed for use as an aid to the physician in visualizing and documenting
tissue abnormalities in the prostate that have been previously detected by a
digital rectal exam (DRE). The ProUroScan System is comprised of an array of
pressure sensors mounted on a probe, a central processing unit, proprietary
software and image construction algorithms, and a color monitor. As an adjunct
to DRE, the ProUroScan System will be used following an abnormal DRE to
generate a real time image and map of the prostate and to store this
information electronically.
We have developed the ProUroScan System under contracts with Artann
Laboratories, Inc. (Artann), a scientific technology company based in
Trenton, New Jersey, that is focused on early-stage technology development. In
a pre-clinical study, the ProUroScan System was used for over two years and on
approximately 168 patients at the Robert Wood Johnson Medical Center in New
Brunswick, New Jersey. In March 2008, an article authored by Artann
scientists and published in the peer-reviewed journal
Urology
reported that in 84% of the cases
in this pre-clinical study, the ProUroScan System was able to reconstruct a
real-time color image and map of the prostate.
Our Market Focus
Prostate cancer is the most common form of cancer and the second
leading cause of cancer death in men. According to the National Cancer
Institute, more than 186,000 men were expected to be diagnosed with prostate
cancer and over 28,000 were expected to die from the disease in 2008.
Currently, there are approximately 42 million men in the U.S. over the age
of 50. For men in this age category, the standard of care to screen for the
presence of prostate cancer is to have a physical exam each year in which two
tests are routinely performed: the DRE and the Prostate Specific Antigen (PSA)
blood test. Although used for many years, the specificity of these tests has
been widely questioned. Data from community based studies suggest that the
positive predictive value of a DRE for prostate cancer is 15% to 30% and varies
relatively little with age. For elevated PSA levels between 4 and 10ng/mL, the
positive predictive value is approximately 20%. For studies in which biopsies
were done when the results of either test were abnormal, 18% to 26% of screened
patients had suspicious results, cancer was actually detected in approximately
4% of screened patients and the positive predictive value of the tests combined
was 15% to 21%. In another study involving 6,630 volunteers, the combination of
DRE and PSA detected 26% more cancers than PSA alone. Although PSA and DRE
provide some positive
2
Table
of Contents
predictive
value, neither of these tests creates a physical or visual record of the
abnormality or its position in the prostate.
If a patient is suspected of having an abnormal tissue formation in the
prostate as a result of a positive DRE or a high PSA value, he is generally
referred to a urologist. A urologist will usually perform his own DRE and may
decide to perform a prostate biopsy to obtain tissue samples for microscopic
analysis. The prostate is biopsied by a needle that is guided by ultrasound
into the prostate through the rectal wall. Since the existence and exact
location of possible cancerous tissue is not known, the urologist will usually
take 10 to 14 samples in a scattered pattern throughout the prostate in an
attempt to find the suspect tissue. Of the approximately 1 million
prostate biopsy procedures done each year in the United States, only
approximately 25 percent actually detect the presence of cancer. The low
predictive ability of the DRE and PSA tests to gauge the presence of cancer
tends to over-inflate the number of referrals for invasive biopsy that are
necessary to confirm that a patient has cancer.
We believe there is a market need to be able to visualize and create an
electronic record (map) of the prostate that can show the relative size and
position of abnormal tissue in the prostate gland. We believe that the
ProUroScan System offers a solution that meets these needs and one that will
(assuming we apply for and obtain U.S. Food and Drug Administration (FDA)
approval or clearance for this indication) enable physicians to monitor and
compare images of the prostate over time. With additional development and
further FDA approvals, we believe the ProUroScan System may eventually be used
to guide prostate biopsy and assess the effect of medical treatments on Benign
Prostatic Hypertrophy (BPH).
Our Regulatory Strategy
The ProUroScan System is not currently marketed or sold and is not
cleared for marketing by the FDA. Our initial goal is to obtain a basic mapping
and data maintenance claim for the ProUroScan System from the FDA under a
Premarket Notification application, or 510(k). Under the terms of its contracts
with us, Artann is responsible for submitting the 510(k) application.
Artann commenced a clinical trial with the current version of the
ProUroScan System in the fourth quarter of 2008. In order to meet the
requirements established by the FDA for the 510(k) clinical study, three
centers were identified to participate in the study and to serve as future
training and referral sites for the eventual market rollout of the ProUroScan
System. The sites include the Mayo Clinic in Rochester, Minnesota, the Robert
Wood Johnson Medical Center in New Brunswick, New Jersey and the VA Medical
Center in Minneapolis, Minnesota. Institutional Review Board (IRB) approvals
have been obtained, and ProUroScan Systems have been installed, at all three
sites. Physician training has also been completed at all three sites and formal
clinical studies have commenced at the Robert Wood Johnson Medical Center and
the VA Medical Center. It is expected that clinical studies will commence at
the Mayo Clinic in late March 2009 or early April 2009. We expect this clinical study to be completed
in May 2009 and a 510(k) application to be made to the FDA shortly
thereafter. Once submitted, the FDA will
have 90 days to review and grant clearance, ask questions or turn the 510(k) down.
However, the 510(k) application process may be significantly longer if the
FDA has questions upon its review or makes a request for additional information
from Artann. Once cleared and upon ProUroCares first commercial sale of a
ProUroScan System, Artann will transfer the 510(k) to ProUroCare. No
assurances can be given in regard to the timing of any of these events.
The ProUroScan System will initially be marketed as an adjunctive
tool following an abnormal DRE to create a map of the prostate and an
electronic record of the image. More specifically, the proposed indication for
use that Artann intends to seek for the initial ProUroScan System 510(k) submission,
which we refer to as the basic mapping and data maintenance claim,
3
Table
of Contents
is
for use as an aid to the physician in visualizing and documenting abnormalities
of the prostate detected by a DRE.
Our Commercialization Plan
Our business plan is built on the premise that the map and physical
record created by the ProUroScan System will become a valuable tool in
assisting physicians and patients in understanding the scope of the
abnormalities that are identified with a DRE. Physicians performing the scan
will compensate us on a per scan basis and will need to acquire a ProUroScan
System, which will be provided under a direct purchase, lease or user utilization
agreement.
We anticipate that the ProUroScan System may be covered by Medicare as
a diagnostic test for patients who have clinical signs or symptoms of disease.
At the outset, however, there will not be a unique Current Procedural
Terminology (CPT) reimbursement code for use of the ProUroScan System.
Consequently, obtaining coverage and reimbursement may be challenging during
the initial stages of the product rollout. During this period of time,
physicians will have the option of submitting claims under a miscellaneous
CPT code with proper documentation. We also expect to use a patient pay model
during this period in which the patient would pay for the cost of the scan.
During the first few years of use, we will collect the clinical and economic
data necessary in order to apply for a unique CPT code from the American
Medical Association (AMA).
Our initial commercial rollout will focus on urologists in the United
States. By focusing on urologists, we expect to establish the clinical and
economic value of the scan for patients, and to demonstrate to both private and
government payors that the scan should be covered and adequately reimbursed.
We believe that the cost of establishing our own direct sales force of
sufficient size and capability to effectively rollout the ProUroScan System in
the U.S. would be cost prohibitive and that our product can be more effectively
launched by establishing a distribution relationship with one or more large
urology product companies that have well-established relationships with
physicians. We believe that establishing such a relationship will not only
allow us to quickly and effectively penetrate the urology market, but may also
afford us an opportunity for additional financial support in the form of
licensing fees, equity investment and in kind support from other key
functional departments of the urology product company. We are currently
exploring potential marketing relationships with several urology product
companies interested in marketing products in the prostate disease market.
Risk Factors
An investment in our securities involves a high degree of risk. For a
discussion of some of the risks you should consider before purchasing our
securities, you are urged to carefully review and consider the section entitled
Risk Factors beginning on page 6 of this prospectus. These risks relate
to various aspects of our business, including our continued need for funding;
our reliance on third parties to obtain regulatory clearance of the ProUroScan
System and to commercialize the ProUroScan System and future products;
establishing distribution channels for the ProUroScan System; the commercial
viability of the ProUroScan System and its acceptance in the marketplace;
achieving third party coverage and reimbursement for the ProUroScan System;
enforcement of our intellectual property rights; and the other risks set forth
under Risk Factors.
4
Table
of Contents
Corporate Information
PUC
was incorporated in 1999 as a Minnesota corporation. In January 2002, PUC
licensed the rights to certain advanced prostate imaging technology, and became
engaged in the business of developing this technology for assessing
characteristics of the prostate. In 2004, through a reverse merger transaction
with Global Internet Communications (Global), a publicly-held Nevada
corporation, PUC became the wholly-owned and sole operating subsidiary of
Global, which was then renamed ProUroCare Medical Inc.
Our executive offices are located
at 6440 Flying Cloud Drive, Suite 101, Eden Prairie, Minnesota 55344 and our telephone number is
(952) 476-9093. Our Internet site is
www.prourocare.com
.
The information contained in our Internet site is not a part of this
prospectus.
5
Table
of Contents
The Offering
Common Stock:
|
|
|
|
|
|
Common Stock offered under the Warrants
|
|
3,050,000
shares
|
|
|
|
Common Stock outstanding before the offering(1)
|
|
9,350,049 shares
|
|
|
|
Quoting
|
|
Our
Common Stock is currently quoted on the OTCBB under the symbol PUMD.
|
|
|
|
Warrants:
|
|
|
|
|
|
Number of Warrants
|
|
3,050,000
Warrants
|
|
|
|
Quoting
|
|
The
Warrants are currently quoted on the OTCBB under the symbol PUMDW.
|
|
|
|
Exercisability
|
|
Each
Warrant is exercisable for one share of Common Stock.
|
|
|
|
Exercise Price
|
|
$1.30
per share.
|
|
|
|
Exercise Period
|
|
The
Warrants will expire at 5:00 p.m., Minneapolis, Minnesota time, on
January 7, 2014, or earlier upon redemption.
|
|
|
|
Redemption
|
|
We
may redeem the outstanding Warrants at a price of $0.01 per Warrant upon a
minimum 30 days prior written notice and if, and only if, the last sale
price of our common stock equals or exceeds $1.82 per share for a period of
ten consecutive trading days.
If
the foregoing conditions are satisfied and we call the Warrants for
redemption, each Warrant holder will then be entitled to exercise his or her
Warrant prior to the date scheduled for redemption.
|
|
|
|
Proceeds:
|
|
|
|
|
|
Amount
|
|
Assuming
all of the Warrants are exercised, we will receive gross proceeds of
$3,965,000.
|
|
|
|
Use
|
|
Working
capital, operating expenses and other general corporate purposes.
|
(1)
Based on the number of shares outstanding as
of March 23, 2009.
6
Table
of Contents
RISK
FACTORS
An investment in the Common Stock involves a high
degree of risk. You should consider the following factors, in addition to the
other information contained or incorporated by reference in this prospectus, in
evaluating our business and proposed activities before you exercise the
Warrants. The risks and uncertainties below are not the only ones we face. If
any of these risks actually occur, our business could be harmed, the market
price of our Common Stock could decline and you may lose all or part of your
investment. You should also see Special Note Regarding Forward-Looking
Statements immediately following these Risk Factors regarding risks and uncertainties
relating to us and to forward-looking statements.
RISK FACTORS RELATING TO THE OFFERING
We do not meet the criteria to list our securities on
an exchange such as The NASDAQ Stock Market and our Common Stock is illiquid
and may be difficult to sell.
Trading of our Common Stock is conducted on the Over-The-Counter
Bulletin Board (OTCBB). Generally, securities that are quoted on the OTCBB
lack liquidity and analyst coverage. This may result in lower prices for our
Common Stock than might otherwise be obtained if we met the criteria to list
our securities on a larger or more established exchange, such as The NASDAQ
Capital Market and could also result in a larger spread between the bid and
asked prices for our Common Stock.
In addition, there has been only limited trading activity in our Common
Stock. The relatively small trading volume will likely make it difficult for
our shareholders to sell their Common Stock as, and when, they choose. As a
result, investors may not always be able to resell shares of our Common Stock
publicly at the time and prices that they feel are fair or appropriate.
Because our stock is deemed a penny stock, you may
have difficulty selling shares of our Common Stock.
Our Common Stock is a penny stock and is therefore subject to the
requirements of Rule 15g-9 under the Securities Exchange Act of 1934, as
amended. Under this rule, broker-dealers who sell penny stocks must provide
purchasers of these stocks with a standardized risk-disclosure document
prepared by the Securities and Exchange Commission (SEC). The penny stock rules severely
limit the liquidity of securities in the secondary market, and many brokers
choose not to participate in penny stock transactions. As a result, there is
generally less trading in penny stocks and you may not always be able to resell
shares of our Common Stock publicly at the time and prices that you feel are
fair or appropriate. Under applicable regulations, our Common Stock will
generally remain a penny stock until and for such time as its per-share price
is $5.00 or more (as determined in accordance with SEC regulations), or until
we meet certain net asset or revenue thresholds. These thresholds include the
possession of net tangible assets (that is, total assets less intangible assets
and liabilities) in excess of $5,000,000, and the recognition of average
revenues equal to at least $6,000,000 for each of the last three years. We do
not anticipate meeting any of the thresholds in the foreseeable future.
The Warrant exercise price has been arbitrarily
determined.
The Warrant exercise price has been arbitrarily determined by
negotiation between the Company and the Underwriter. The Warrant exercise price
bear no relationship to the Companys assets, book value, lack of earnings, net
worth or other recognized criteria of value, including quoted stock prices.
7
Table of Contents
Because we will have broad discretion over the use of
the net proceeds from the exercise of the Warrants, you may not agree with how
we use them and the proceeds may not be invested successfully.
We will have broad discretion on the use of the proceeds for the
exercise of the Warrants. While we currently anticipate that we will use the
net proceeds for working capital, operating expenses and other general
corporate purposes, our management may allocate the net proceeds among these
purposes as it deems necessary. In addition, market or other factors may
require our management to allocate portions of the net proceeds for other
purposes. Accordingly, you will be relying on the judgment of our management
with regard to the use of the net proceeds from exercise of the Warrants, and
you will not have the opportunity, as part of your investment decision, to
assess whether the proceeds are being used appropriately. It is possible that
the proceeds will be invested in a way that does not yield a favorable, or any,
return for the Company.
If you purchase the Common Stock in this offering, you
will experience immediate dilution.
If you purchase the Common Stock in this offering, you will experience
immediate dilution, which would have been $1.21 per share as of February 28,
2009, because the price that you pay for our Common Stock will be greater than
the net tangible book value per share of our shares of Common Stock.
There must be a current prospectus and state
registration in order for you to exercise the Warrants.
Investors will be able to exercise the Warrants only if a current
prospectus relating to the Common Stock underlying the Warrants is then in
effect and only if such securities are qualified for sale or exempt from
qualification under the applicable securities laws of the states in which the
various holders of Warrants reside. Although the Company will use its best
efforts to (i) maintain the effectiveness of a current prospectus covering
the Common Stock underlying the Warrants and (ii) maintain the
registration of such Common Stock under the securities laws of the states in
which the Company initially qualified the units for sale in its public offering
that closed on January 12, 2009, there can be no assurance that the
Company will be able to do so. The Company will be unable to issue Common Stock
to those persons desiring to exercise their Warrants if a current prospectus
covering the Common Stock issuable upon the exercise of the Warrants is not
kept effective or if such Common Stock not qualified nor exempt from
qualification in the states in which the holders of the Warrants reside.
The Warrants are subject to redemption by the Company.
The Warrants are subject to redemption by the Company for $0.01 per
Warrant upon 30 days prior written notice, provided that the last sales
price of the Shares equals or exceeds $1.82, for 10 consecutive trading days.
In addition, a current prospectus covering the Shares issuable upon exercise of
the Warrants must then be effective under the Securities Act. If the Warrants
are redeemed, Warrant holders will lose their right to exercise the Warrants
except during such 30 day redemption period. Redemption of the Warrants
could force the holders to exercise the Warrants at a time when it may be
disadvantageous for the holders to do so or to sell the Warrants at the then
market price or accept the redemption price, which likely would be
substantially less than the market value of the Warrants at the time of
redemption.
8
Table of Contents
If you purchase or hold the Warrants, you will not be
entitled to any rights as a shareholder on the Common Stock underlying the
Warrants, but you will be subject to all changes made with respect to our Common
Stock.
If you purchase or hold the Warrants, other than the right to
adjustments in the exercise price of the Warrants upon certain events, you will
not be entitled to any rights as a shareholder (including, without limitation,
voting rights and rights to receive any dividends or other distributions on our
Common Stock) on the Common Stock underlying the Warrants, but such shares will
be subject to all changes affecting the Common Stock. You will only be entitled
to rights as a shareholder on the Common Stock underlying the Warrants if and
when we deliver shares of Common Stock to you upon the exercise of your
Warrants. For example, in the event that an amendment is proposed to our
articles of incorporation or bylaws requiring shareholder approval and the
record date for determining shareholders of record entitled to vote on the
amendment occurs prior to the exercise of your Warrants, you will not be
entitled to vote the shares of Common Stock underlying your Warrant on the
amendment, although the Common Stock you receive upon exercise of your
Warrants, will nevertheless be subject to any changes in the powers,
preferences or special rights of our Common Stock or other classes of capital
stock.
RISK FACTORS ASSOCIATED WITH OUR BUSINESS, OPERATIONS
AND SECURITIES
A
discussion of the risk factors associated with our business, operations and
securities is included in our Annual Report on Form 10-K for the year
ended December 31, 2008 filed with the Commission on March 26, 2009,
which is incorporated herein by reference. You should carefully consider the
risk factors discussed in the Annual Report on Form 10-K, together with
all of the other information included in this prospectus, and periodically
review the Companys risk factors as they may change from time to time, before
you decide whether to exercise your Warrants.
USE OF
PROCEEDS
We
will not receive any amounts pursuant to this offering unless the Warrants are
exercised. Assuming the exercise of all the Warrants, we will
receive gross proceeds of $3,965,000. We intend to use the proceeds,
if any, from the exercise of the Warrants for working capital, operating
expenses and other general corporate purposes.
There is no assurance that the holders of the Warrants will elect to
exercise any or all of the Warrants.
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
Certain
statements contained or incorporated by reference in this prospectus that are
forward-looking in nature are based on the current beliefs of our management as
well as assumptions made by and information currently available to management,
including statements related to the markets for our products, general trends in
our operations or financial results, plans, expectations, estimates and
beliefs. In addition, when used in this prospectus, the words may, could, should,
anticipate, believe, estimate, expect, intend, plan, predict and
similar expressions and their variants, as they relate to us or our management,
may identify forward-looking statements. These statements reflect our judgment
as of the date of such statement with respect to future events, the outcome of
which is subject to risks, which may have a significant impact on our business,
operating results or financial condition. You are cautioned that these forward-looking
statements are inherently uncertain. Should one or more of these risks or
uncertainties materialize, or should underlying assumptions prove incorrect,
actual results or
9
Table
of Contents
outcomes
may vary materially from those described herein. Except as required by law, we
undertake no obligation to update forward-looking statements. The risks
identified in the Risk Factors incorporated by reference in this prospectus,
among others, may impact forward-looking statements contained in this
prospectus.
DETERMINATION
OF OFFERING PRICE
The
purchase price of the shares of Common Stock offered hereby is determined by
reference to the exercise price of the Warrants. The exercise price of the
3,050,000 Warrants is $1.30 per share. The exercise price of the
Warrants was determined by us and our underwriter at the commencement of the
public offering in which the Warrants were issued.
DILUTION
The
difference between the purchase price per share of the Common Stock issuable
under the Warrants, and the pro forma net tangible book value per share of our
Common Stock after this offering constitutes the dilution to purchasers in this
offering. Net tangible book value per
share is determined by dividing our tangible book value, which is our tangible
assets less total liabilities, by the number of outstanding share of our Common
Stock. The information below assumes all
of the Warrants are exercised.
At
February 28, 2009, our net tangible book value was a deficiency of
$2,813,603, or approximately $(0.31) per share of Common Stock. After giving effect to the sale of 3,050,000
shares of Common Stock offered by this prospectus, our pro forma net tangible
book value at February 28, 2009 would have been $1,151,397, or $0.09 per
share, representing an immediate increase in net tangible book value of $0.40
per share to the existing stockholders and an immediate dilution of $1.21 per
share, or 93% to purchasers in this offering.
The following table illustrates the dilution to the purchasers in this
offering on a per-share basis as if the offering had occurred on February 28,
2009:
Offering price of the shares of Common
Stock
|
|
|
|
$
|
1.30
|
|
Net tangible book value before this
offering
|
|
$
|
(0.31
|
)
|
|
|
Increase attributable to purchasers in this
offering
|
|
$
|
0.40
|
|
|
|
Pro forma net tangible book value after
this offering
|
|
|
|
$
|
0.09
|
|
Dilution to purchasers in this offering
|
|
|
|
$
|
1.21
|
|
PLAN OF DISTRIBUTION
Pursuant
to the terms of the Warrants, shares of our Common Stock will be issued to
those Warrant holders who surrender the certificates representing the Warrants
and provide payment of the exercise price through their brokers to our warrant
agent, Interwest Transfer Company Inc., 1981 Murray Holladay Road, Suite 100,
Salt Lake City, Utah
84117. We do not know if or when the Warrants will be
exercised. We also do not know whether any of the shares of Common
Stock acquired upon exercise will be sold.
10
Table of Contents
LEGAL MATTERS
The validity of the securities offered in this prospectus were passed
upon for us by Dorsey & Whitney LLP, Minneapolis, Minnesota.
EXPERTS
The consolidated financial statements of ProUroCare Medical Inc.
as of December 31, 2008 and 2007, and for the years ended December 31,
2008 and 2007, and for the period from August 17, 1999 (date of inception)
to December 31, 2008, included in the Companys Annual Report on Form 10-K
for the year ended December 31, 2008 filed with the Commission on March 26,
2009, which includes an explanatory paragraph relating to the ability of
ProUroCare Medical Inc. to continue as a going concern, have been audited
by Virchow, Krause & Company, LLP, an independent registered
public accounting firm, as set forth in their report incorporated by reference
herein. Such financial statements are
incorporated by reference herein in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We
incorporate by reference the filed documents listed below, except as
superseded, supplemented or modified by this prospectus, and any future filings
we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 (the Exchange Act):
·
our Annual Report on Form 10-K for the fiscal period ended December 31,
2008;
·
our Current Report on Form 8-K dated March 25, 2009;
·
the description of the Companys Common Stock and Warrants contained in
any registration statement filed by the Company under the Exchange Act,
including any amendment or report filed by the Company under the Exchange Act
for the purpose of updating such description; and
·
all documents filed by us with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus
and prior to the termination of this offering of securities.
Potential
investors may obtain a copy of any of the agreements summarized herein (subject
to certain restrictions because of the confidential nature of the subject
matter) or any of our SEC filings without charge by written or oral request
directed to Richard B. Thon, Chief Financial Officer, ProUroCare Medical Inc.,
6440 Flying Cloud Drive, Suite 101, Eden Prairie, Minnesota, 55344.
You
should rely only on the information incorporated by reference or provided in
this prospectus or any prospectus supplement. We have not authorized anyone
else to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front of those documents.
11
Table of Contents
PART IIINFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution
The registrant estimates that expenses payable by the registrant in
connection with the offering described in this registration statement will be
as follows:
SEC registration fee
|
|
$
|
0
|
|
Blue Sky fees
|
|
0
|
|
Legal fees and expenses
|
|
10,000
|
|
Accounting fees and expenses
|
|
5,000
|
|
Printing and engraving expenses
|
|
0
|
|
Miscellaneous
|
|
1,000
|
|
Total
|
|
$
|
16,000
|
|
Item 15.
Indemnification of Directors and Officers
Nevada law permits a company to indemnify its directors and officers,
except for any act of dishonesty. The Company has provided in its bylaws for
the indemnification of officers and directors to the fullest extent possible
under Nevada law against expenses (including attorneys fees), judgments,
fines, settlements, and other amounts actually and reasonably incurred in
connection with any proceeding, arising by reason of the fact that such person
is or was an agent of ours. In addition, the Company has the power, to the
maximum extent and in the manner permitted by Nevada Revised Statutes, to
indemnify each of our employees and agents (other than directors and officers)
against expenses (including attorneys fees), judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with any
proceeding arising by reason of the fact that such person is or was an agent of
ProUroCare Medical Inc.
Item 16.
Exhibits
Exhibit
No.
|
|
Description
|
4
|
.1
|
|
Form of
Common Stock Certificate (filed herewith)
|
4
|
.2
|
|
Form of
Warrant Agreement between ProUroCare Medical Inc. and Interwest Transfer
(incorporated by reference to Exhibit 4.27 to the Registration Statement
on Form S-1 (Registration No. 333-153605) filed with the Securities
and Exchange Commission on December 18, 2008)
|
4
|
.3
|
|
Specimen
Warrant (incorporated by reference to Exhibit 4.28 to the Registration
Statement on Form S-1 (Registration No. 333-153605) filed with the
Securities and Exchange Commission on December 18, 2008)
|
5
|
.1
|
|
Opinion
of Dorsey & Whitney, LLP (incorporated by reference to
Exhibit 5.1 to the Registration Statement on Form S-1 (Registration
No. 333-153605) filed with the Securities and Exchange Commission on
December 18, 2008)
|
23
|
.1
|
|
Consent
of Virchow, Krause & Company, LLP
|
23
|
.2
|
|
Consent
of Dorsey & Whitney, LLP (included in Exhibit 5.1).
|
24
|
|
|
Power
of Attorney (included on signature page hereto)
|
12
Table of Contents
Item 17.
Undertakings
The undersigned Registrant hereunder 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 prospectus required by Section 10(a)(3) of the Securities
Act,
(b)
To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement,
(c)
To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
Provided however, That:
Paragraphs (1)(a), (1)(b) and (1)(c) of
this section do not apply if the registration statement is on Form S-3 or Form F-3
and the information required to be included in a post-effective amendment by
those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any
liability under the Securities Act, 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.
(4)
That, for the purpose of determining
liability of the registrant under the Securities Act of 1933 to any purchaser
in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant will be a
seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
13
Table
of Contents
(a)
Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(b)
Any
free writing prospectus relating to the offering prepared by or on behalf of
the undersigned registrant or used or referred to by the undersigned
registrant;
(c)
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
(d)
Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(5)
The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrants 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 plans 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.
(6)
Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(7)
The undersigned registrant hereby undertakes
that:
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 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.
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.
14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant hereby 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 Post-Effective Amendment No. 1 on Form S-3 to Registration
Statement on Form S-1 to be signed on its behalf by the undersigned,
thereunto duly authorized in the city of Minneapolis and the state of Minnesota
on March 26, 2009.
|
PROUROCARE MEDICAL INC.
|
|
|
|
|
|
By:
|
/s/ RICHARD C. CARLSON
|
|
|
Richard C. Carlson
|
|
|
Chief
Executive Officer and Acting
Chairman
|
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 on Form S-3 to Registration Statement
on Form S-1 has been signed by the following persons in the capacities
indicated on March 26, 2009.
Name
|
|
Title
|
|
|
|
/s/ RICHARD C. CARLSON
|
|
Chairman
and Chief Executive Officer (Principal Executive Officer)
|
Richard C. Carlson
|
|
|
|
|
|
/s/ RICHARD B. THON
|
|
Chief
Financial Officer (Principal Financial and Accounting Officer)
|
Richard B. Thon
|
|
|
|
|
|
*
|
|
Director
and Secretary
|
David Koenig
|
|
|
|
|
|
*
|
|
Director
|
Robert Rudelius
|
|
|
|
|
|
*
|
|
Director
|
Scott Smith
|
|
|
|
|
|
|
|
|
*By
|
/s/ RICHARD C. CARLSON
|
|
|
|
Richard C. Carlson
|
|
|
|
Attorney-in-Fact
|
|
|
15
Exhibit Index
Exhibit
No.
|
|
Description
|
4
|
.1
|
|
Form of
Common Stock Certificate (filed herewith)
|
4
|
.2
|
|
Form of
Warrant Agreement between ProUroCare Medical Inc. and Interwest Transfer
(incorporated by reference to Exhibit 4.27 to the Registration Statement
on Form S-1 (Registration No. 333-153605) filed with the Securities
and Exchange Commission on December 18, 2008)
|
4
|
.3
|
|
Specimen
Warrant (incorporated by reference to Exhibit 4.28 to the Registration
Statement on Form S-1 (Registration No. 333-153605) filed with the
Securities and Exchange Commission on December 18, 2008)
|
5
|
.1
|
|
Opinion
of Dorsey & Whitney, LLP (incorporated by reference to Exhibit 5.1
to the Registration Statement on Form S-1 (Registration No. 333-153605)
filed with the Securities and Exchange Commission on December 18, 2008)
|
23
|
.1
|
|
Consent
of Virchow, Krause & Company, LLP
|
23
|
.2
|
|
Consent
of Dorsey & Whitney, LLP (included in Exhibit 5.1).
|
24
|
|
|
Power
of Attorney (included on signature page hereto)
|
16
ProUroCare Medical (CE) (USOTC:PUMD)
Historical Stock Chart
From Jun 2024 to Jul 2024
ProUroCare Medical (CE) (USOTC:PUMD)
Historical Stock Chart
From Jul 2023 to Jul 2024