Table of
Contents
As Filed with the Securities
and Exchange Commission on November 13, 2009
Registration No. 333-
162138
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT
NO. 1
ON FORM S-3
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
PROUROCARE MEDICAL INC.
(Exact
name registrant as specified in its charter)
Nevada
(State of
incorporation)
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3841
(Primary
Standard Industrial
Classification Code Number)
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20-1212923
(IRS Employer
Identification No.)
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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
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Copies to:
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ProUroCare Medical Inc.
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Robert
K. Ranum, Esq.
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6440 Flying Cloud Drive, Suite 101
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Fredrikson &
Byron, P.A.
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Eden Prairie, Minnesota 55344
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200 South 6th
Street, Suite 4000
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Telephone: (952) 476-9093
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Minneapolis,
Minnesota 55402
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Facsimile: (952) 843-7031
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Telephone: (612)
492-7000
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(Name, address and telephone number of agent for service)
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Facsimile: (612) 492-7077
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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
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Accelerated filer
o
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Non-accelerated filer
o
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Smaller reporting
company
x
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Pursuant to Rule 429(a) of
the Securities Act of 1933, as amended, the prospectus included in this
Registration Statement is a combined prospectus and also relates to 2,100,705
shares of common stock registered and remaining unsold under the registrants
Registration Statement on Form S-1 (File No. 333-153605), as amended.
Pursuant to Rule 429(b), this Registration Statement also serves as a
post-effective amendment to Registration Statement No. 333-153605, which
post-effective amendment shall become effective concurrently with the
effectiveness of this Registration Statement. If securities previously
registered under that Registration Statement are offered and sold prior to the
effective date of this Registration Statement, the amount of previously
registered securities so sold will not be included in the prospectus hereunder.
All filing fees payable in
connection with the registration of the shares issuable upon exercise of the
warrants registered on this Registration Statement and Registration Statement No. 333-153605
were previously paid upon the initial filing of such registration statements.
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.
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 on Form S-3
to Registration Statement on Form S-4 contains an updated prospectus
relating to the offering and sale of shares of common stock, $0.00001 par value
(the Common Stock), issuable upon: (i) 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 (the Public
Warrants); and (ii) exercise of warrants that were issued by the
registrant to certain warrant holders, pursuant to an exchange offer whereby
such persons had the opportunity to receive, upon the exercise of their
existing warrants, new three-year warrants (the Replacement Warrants).
Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers an indeterminate number of additional shares
as may hereafter be offered or issued with respect to the shares registered
hereby resulting from stock splits, stock dividends, recapitalizations or
certain other capital adjustments. The publicly offered units, along with the
Public Warrants, the Common Stock underlying the units and the Common Stock
underlying the Public Warrants, 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 (Registration Statement No. 333-153605), as amended by the
post-effective amendment on Form S-3 that was declared effective on April 7,
2009 and as further amended by the prospectus included in the Registration
Statement on Form S-4 (File No. 333-162138) declared effective by the
Commission on October 27, 2009 (Registration Statement No. 333-162138),
which was deemed a post-effective amendment to Registration Statement No. 333-153605.
The Replacement Warrants and the Common Stock underlying the Replacement
Warrants were initially registered by the registrant on Registration Statement No. 333-162138. All filing fees payable in connection with
the registration of the shares of Common Stock issuable upon exercise of the
Public Warrants and the Replacement Warrants, and the indeterminate number of
additional shares that may be issued pursuant to Rule 416 under the
Securities Act of 1933, as amended, were previously paid in connection with the
initial filing of Registration Statement No. 333-153605 and Registration
Statement No. 333-162138.
In addition, the registrant is amending
Registration Statement No. 333-162138 to deregister 4,863,552 Replacement
Warrants offered thereunder but not issued as of expiration of the offer period
and 4,863,552 shares of Common Stock underlying such deregistered Replacement
Warrants. The exchange offer expired at 1:00 p.m., Central time, on November 6,
2009.
A total of
1,244,829 public and private warrants were tendered by warrant holders and
accepted by the registrant pursuant to the exchange offer.
Accordingly,
the registrant issued
1,244,829
Replacement
Warrants.
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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 NOVEMBER 13, 2009
ProUroCare Medical Inc.
3,345,534 Shares of Common Stock
This prospectus relates to 3,345,534 shares
of common stock, par value $0.00001 per share (the Common Stock), of
ProUroCare Medical Inc. (the Company, ProUroCare, or we, our or us).
The shares of Common Stock are issuable upon the exercise of outstanding
redeemable common stock warrants issued in our public offering which closed on January 12,
2009 (the Public Warrants) and in our registered exchange offer which expired
on November 6, 2009 (the Replacement Warrants, and together with the
Public Warrants, the Warrants).
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.
We may elect to redeem the Public Warrants at
any time the last sale price for a share of Common Stock equals or exceeds
$1.82 for 10 consecutive trading days. We may elect to redeem the Replacement
Warrants at any time after the last sales price for a share of Common Stock
equals or exceeds $4.00 for 10 consecutive trading days. Upon any election to
redeem Warrants, we must provide 30 days prior written notice of our decision
to redeem the Warrants, at $0.01 per Warrant, during which time holders may
choose to exercise the Warrants according to their terms rather than submitting
them for redemption.
The Public Warrants will
expire on January 7, 2014 and the Replacement Warrants will expire on November 12,
2012.
We will receive all of the proceeds from the
exercise of the Warrants. Assuming all of the Warrants are exercised, we will
receive gross proceeds of $4,349,194.
Our Common Stock is quoted on the
Over-the-Counter Bulletin Board (the OTCBB) under the symbol PUMD. On November 6, 2009, the closing bid
price of the Common Stock and the last reported trade was at $1.35 per share.
Investing in our Common
Stock involves a high degree of risk.
See Risk Factors beginning on page 4.
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 ,
2009.
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TABLE
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
(the Commission or the SEC). You can
inspect and copy this information at the Public Reference Facility maintained
by the SEC at 100 F Street, N.E., 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.
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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 Business
We have developed and intend to market an
innovative prostate imaging system known as the ProUroScan system. The ProUroScan system incorporates our new
proprietary elasticity imaging technology to create a map and an electronic
record of the prostate.
The ProUroScan system is an imaging system
designed for use as an aid to the physician in visualizing and documenting
abnormalities in the prostate that have been previously detected by a digital
rectal exam (DRE). 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. The final composite image is
saved as a permanent electronic record and can be conveniently retrieved to
view previous test results.
Our approach to imaging is based on the fact
that most abnormalities in otherwise homogenous organ tissue are less elastic
than normal tissue. The ProUroScans
unique technology uses measurements of relative tissue elasticity as detected
by mechanical sensors and interpreted by mathematical algorithms to create
images, rather than using ultrasound or other alternative technologies. Using the systems specially designed rectal
probe, physicians can quickly and cost-effectively visualize the prostate gland
and document specific areas of concern.
The real-time map can be saved as a permanent electronic record.
Our imaging technology is based on work
originally performed in the late 1990s by Artann Laboratories Inc. (Artann),
a scientific technology company based in Trenton, New Jersey, that is focused
on early-stage technology development. In 2002, we licensed the rights to this
technology and since then have worked with Artann on its development. In September 2006,
Artann was awarded a $3 million Small Business Innovation Research Phase II
Competitive Renewal grant from the National Institute of Health and the
National Cancer Institute to help advance the development and application for
clearance of the ProUroScan system by the U.S. Food and Drug Administration (FDA). In July 2008, the Company entered into
new license and development and commercialization agreements with Artann
relating to their existing technology and know-how and all future technology
developed by Artann in our field of use. After we obtain FDA clearance, it is
our intent to expand our working relationship with Artann to include their
participation in the development and licensing of future mechanical imaging
technology.
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 from the FDA under a
510(k) application for the current generation system. Once FDA 510(k) clearance
is obtained on our current generation ProUroScan system, we intend to have the
systems manufactured by one or more FDA-regulated contract manufacturers and
market the system in cooperation with a medical device company that has an
established worldwide presence in the urology market.
We recently completed a multi-site clinical
study of the ProUroScan imaging system designed to provide documentation to the
FDA of the systems effectiveness in visualizing and documenting abnormalities
of the prostate detected by DRE. We
expect to complete and submit to the FDA a 510(k) application for
clearance to market this technology in the U.S within the next few weeks.
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We believe there is a market need to be able
to visualize and create an electronic record or map that can show the position
of abnormalities in the prostate gland. We believe the ProUroScan System will
offer a solution that meets these needs and that will enable physicians to
monitor and compare images of the prostate over time (assuming we apply for and
obtain FDA approval or clearance for this indication).
We believe the ProUroScan Systems existing
technology provides a platform on which to develop multiple future generation
systems. In the future, following our initial FDA 510(k) clearance, we
intend to work with Artann to develop and introduce enhanced versions and
additional indications. For example, we
plan to study and develop an enhanced version of the system that may be able to
monitor changes in prostate tissue over time, guide biopsy of the prostate
gland and assess changes in prostate size following drug treatment for benign
prostatic hypertrophy. Future generation
systems will require us to obtain regulatory approval or clearance for use of the
ProUroScan system for additional related indications and file additional
submissions with the FDA if we are to obtain expanded labeling claims.
Corporate Information
ProUroCare Inc. (PUC) was incorporated in
1999 as a Minnesota corporation. In January 2002,
PUC licensed the rights to certain advanced prostate mechanical 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 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. Our
telephone number is (952) 476-9093, and our Internet site is
www.prourocare.com. The information contained in our Internet site is not a
part of this prospectus.
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 4 of this prospectus.
Investing in our Common Stock also involves risks related 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
or incorporated in this prospectus by reference.
The Offering
Common
Stock:
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Common
Stock offered under the Public Warrants
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2,100,705 shares
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Common
Stock offered under the Replacement Warrants
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1,244,829 shares
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Common
Stock outstanding before the offering(1)
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11,192,079 shares
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Quoting
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Our Common Stock is
currently quoted on the OTCBB under the symbol PUMD.
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Warrants:
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Number
of Warrants
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2,100,705 Public
Warrants and 1,244,829 Replacement Warrants
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Quoting
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The
Public Warrants are currently quoted on the OTCBB under the symbols PUMDW. We
expect the Replacement Warrants to be listed on the OTCBB under a ticker
symbol to be determined. The listing of the Replacement Warrants on the OTCBB
is dependent upon cooperation of market makers for the Replacement Warrants.
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Exercisability
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Each Warrant is
exercisable for one share of Common Stock.
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Exercise
Price
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$1.30 per share.
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Exercise
Period
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The Public Warrants
will expire at 5:00 p.m., Minneapolis, Minnesota time, on
January 7, 2014, or earlier upon redemption. The Replacement Warrants
will expire at 5:00 p.m., Minneapolis, Minnesota time, on
November 12, 2012, or earlier upon redemption.
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Redemption
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We
may elect to redeem the Public Warrants at any time the last sale price for a
share of Common Stock equals or exceeds $1.82 for 10 consecutive trading
days.
We
may elect to redeem the Replacement Warrants at any time after the last sales
price for a share of Common Stock equals or exceeds $4.00 for 10 consecutive
trading days.
Upon
any election to redeem Warrants, we must provide 30 days prior written
notice of our decision to redeem the Warrants, at $0.01 per Warrant, during
which time holders may choose to exercise the Warrants according to their
terms rather than submitting them for redemption.
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Proceeds:
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Amount
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Assuming all of the
Warrants are exercised, we will receive gross proceeds of $4,349,194.
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Use
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To
accelerate certain technology enhancements and design improvements to our
ProUroScan product and to expand the number of ProUroScan system placements,
as well as for working capital, operating expenses and other general
corporate purposes.
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(1) Based on the number of shares
outstanding as of November 12, 2009.
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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.
Our common stock is traded 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 stockholders 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 exercise price of the
Public Warrants and Replacement Warrants has been arbitrarily determined.
The
exercise price of the Public Warrants was determined by negotiation between us
and our underwriter at the time of our 2009 public offering of units, and the
exercise price of the Replacement Warrants was established by our Board of
Directors based on its estimation of those warrant terms that would encourage
participation in the registered exchange offer.
The exercise prices of the Public Warrants and Replacement Warrants were
arbitrarily determined and bear no relationship to our assets, book value, lack
of earnings, net worth or other recognized criteria of value, including quoted
stock prices.
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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 to accelerate certain technology enhancements
and design improvements to our ProUroScan product and to expand the number of
ProUroScan system placements, as well as 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 $1.25
per share as of September 30, 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 Public
Warrants and Replacement 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) obtain
exemptions from the registration requirements of the securities laws of the
states in which the holders of the Warrants reside, 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 Public 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. The
Replacement 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 our common stock equals or exceeds $4.00 for 10 consecutive trading days. 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.
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
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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.
Our outstanding options
and warrants may have an adverse effect on the market price of our common stock
and increase the difficulty of effecting a future business combination.
At November 12, 2009, we had outstanding
options and warrants to purchase 8,686,033 shares of common stock, including
the Warrants. The potential for the issuance of substantial numbers of
additional shares of Common Stock upon exercise of these warrants and options
could make us a less attractive acquisition target in the eyes of a prospective
business partner. Such securities, when exercised, will increase the number of
issued and outstanding shares of our Common Stock and reduce the value of the
shares issued. Additionally, the sale, or even the possibility of sale, of the
shares underlying the warrants and options could have an adverse effect on the
market price for our securities or on our ability to obtain future financing.
The price of our Common
Stock may fluctuate significantly, which may make it difficult for stockholders
to resell Common Stock when they want or at a price they find attractive.
We expect that the market price of our common
stock will fluctuate. Our common stock price can fluctuate as a result of a
variety of factors, many of which are beyond our control. These factors
include:
·
actual or anticipated
variations in our quarterly operating results;
·
changes in interest rates
and other general economic conditions;
·
significant acquisitions or
business combinations, strategic partnerships, joint ventures or capital
commitments by or involving us or our competitors;
·
operating and stock price
performance of other companies that investors deem comparable to us;
·
news reports relating to
trends, concerns, litigation, regulatory changes and other issues in our
industry;
·
geopolitical conditions such
as acts or threats of terrorism or military conflicts; and
·
relatively low trading
volume.
We have never paid
dividends and do not expect to pay dividends in the foreseeable future.
We have never paid dividends on
our capital stock and do not anticipate paying any dividends for the
foreseeable future. Future debt covenants may prohibit payment of dividends.
Risk
Factors Associated with our Business, Operations and Securities
In
addition to the risk factors identified above, please refer to our filings with
the SEC, including our Annual Report on Form 10-K for the fiscal year
ended December 31, 2008 and our Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2009 and June 30, 2009, each of which
are incorporated herein by reference, for a discussion of the risks associated
with our business, operations and securities.
You should carefully consider the risk factors discussed in such
reports, 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.
Moreover, additional risks and uncertainties not presently known to us, or that
we currently
6
Table of
Contents
deem
immaterial also may impair our business operations. If any of the matters identified as potential
risks materialize, our business could be harmed. In that event, the trading price of our
common stock could decline to prices below that paid pursuant to an exercise of
the Warrants.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained or incorporated
by reference in this prospectus are forward-looking in nature and are based on
the current beliefs of our management as well as assumptions made by and
information currently available to management.
Forward-looking statements contained or incorporated by reference in
this prospectus include, but are not limited to, statements related to the
following: the market for our ProUroScan product; our intentions relating to
third-party relationships and development, manufacturing and enhancement of the
ProUroScan product; general trends in our operations or financial results; and
general plans, expectations, estimates and beliefs. In addition, 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
and business, 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
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.
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 $4,349,194.
We intend to use the proceeds, if any, from the exercise of the Warrants
to accelerate certain technology enhancements and design improvements to our ProUroScan
product and to expand the number of ProUroScan system placements, as well as
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.
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
2,100,705 Public Warrants is $1.30 per share, which was determined by us and
our underwriter at the commencement of the public offering in which the Public
Warrants were issued. The exercise price of the 1,244,829 Replacement Warrants
is $1.30 per share, which was established by our Board of Directors based on
its estimation of those warrant terms that would encourage participation in the
registered exchange offer. The exercise
prices for the Warrants were arbitrarily determined and do not have any
relationship to our assets, projected future earnings, book value or any other
objective financial statement criteria of value.
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 September 30, 2009, our net tangible
book value was a deficiency of $3,696,415, or approximately $(0.37) per share
of Common Stock. After giving effect to
the sale of 3,345,534 shares of Common Stock offered by this prospectus, our
pro forma net tangible book value at September 30, 2009 would have been
$652,779, or $0.05 per share, representing an immediate increase in net
tangible book value of $0.42 per share to the existing stockholders and an
immediate dilution of $1.25 per share, or 96% to purchasers in this offering.
7
Table of Contents
The following table illustrates the dilution
to the purchasers in this offering on a per-share basis as if the offering had
occurred on September 30, 2009:
Offering
price of the shares of Common Stock
|
|
|
|
$
|
1.30
|
|
Net
tangible book value before this offering
|
|
$
|
(0.37
|
)
|
|
|
Increase
attributable to purchasers in this offering
|
|
$
|
0.42
|
|
|
|
Pro
forma net tangible book value after this offering
|
|
|
|
$
|
0.05
|
|
Dilution
to purchasers in this offering
|
|
|
|
$
|
1.25
|
|
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.
LEGAL MATTERS
The validity of the securities offered in
this prospectus were passed upon for us by Fredrikson & Byron, P.A.,
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 Baker Tilly Virchow Krause, LLP (formerly
known as 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 Quarterly Reports on Form 10-Q for the quarters ended March 31,
2009 and June 30, 2009;
·
Our Current Reports on Form 8-K filed March
25, 2009, May 28, 2009, June 22, 2009, August 5, 2009, August 11,
2009, August 17, 2009, September 22, 2009 and September 28,
2009;
·
Our Definitive Proxy Statement on Form 14A
filed with the SEC on July 8, 2009;
·
The description of our Common Stock set forth
in the registration statement on Form 8-A that we filed with the SEC on February 3,
2006 (File No. 000-51774);
·
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
8
Table of Contents
·
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, telephone (952) 476-9093.
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.
9
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
|
|
$
|
443
|
|
Blue
Sky fees
|
|
1,810
|
|
Legal
fees and expenses
|
|
150,000
|
|
Accounting
fees and expenses
|
|
6,000
|
|
Printing
and engraving expenses
|
|
8,000
|
|
Miscellaneous
|
|
5,747
|
|
Total
|
|
$
|
172,000
|
|
Item 15. Indemnification of Directors and Officers
Chapter 78 of the Nevada Revised Statutes
(the NRS) give a corporation broad powers to indemnify and insure its
directors and officers against liabilities they may incur in their capacities
as such. A corporation is permitted to indemnify a director or officer so long
as the person acted in good faith and in a manner that he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. With respect to actions or suits by or
in the right of the corporation, Nevada law does not permit indemnification where
the officer or director has been adjudged to be liable to the corporation,
unless the court determines that the person is fairly and reasonably entitled
to indemnity for expenses the court deems proper. Section 78.7502 of the
NRS further provides that to the extent a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding, or in defense of any claim, issue or matter
therein, a corporation shall indemnify him or her against expenses, including
attorneys fees, actually and reasonably incurred by such person in connection
with the defense.
Section 78.751 of the NRS provides that
any discretionary indemnification under Section 78.7502, unless ordered by
a court or advanced, may be made by a corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances. The determination
must be made: (a) by the stockholders; (b) by the board of directors
by majority vote of a quorum consisting of directors who were not parties to
the action, suit or proceeding; (c) if a majority vote of a quorum
consisting of directors who were not parties to the action, suit or proceeding
so orders, by independent legal counsel in a written opinion; or (d) if a
quorum consisting of directors who were not parties to the action, suit or
proceeding cannot be obtained, by independent legal counsel in a written
opinion.
Pursuant to the Registrants Amended and
Restated Articles of Incorporation, the personal liability of its directors to
the Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director is eliminated to the fullest extent permitted by law. In addition, the Registrant will indemnify to
its directors and officers to the fullest extent permitted by law, and will
advance expenses incurred by any director or officer in defending any
proceeding brought against him because of his position as such.
II-1
Table of Contents
Item
16. Exhibits
Exhibit
No.
|
|
Description
|
4.1
|
|
Form of Common Stock Certificate (incorporated
by reference to Exhibit 4.1 to the Post-Effective Amendment on
Form S-3 to the Registration Statement on Form S-1(Registration
No. 333-153605) filed with the Securities and Exchange Commission on
March 27, 2009)
|
5.1
|
|
Legal Opinion of Fredrikson & Byron, P.A.
(previously filed)
|
23.1
|
|
Consent of Baker Tilly Virchow Krause, LLP (filed
herewith)
|
23.2
|
|
Consent of Fredrikson & Byron, P.A.
(included in Exhibit 5.1)
|
24.1
|
|
Power of Attorney (previously filed)
|
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
II-2
Table of Contents
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:
(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.
II-3
Table of Contents
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-4 to be signed on its behalf by the undersigned,
thereunto duly authorized in the city of Eden Prairie and the state of
Minnesota on November 13, 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-4 has been signed by the following
persons in the capacities indicated on November 13, 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
|
|
|
II-4
Table of Contents
Exhibit Index
Exhibit
No.
|
|
Description
|
4.1
|
|
Form of Common
Stock Certificate (incorporated by reference to Exhibit 4.1 to the
Post-Effective Amendment on Form S-3 to the Registration Statement on Form S-1(Registration
No. 333-153605) filed with the Securities and Exchange Commission on March 27,
2009)
|
5.1
|
|
Legal Opinion of
Fredrikson & Byron, P.A. (previously filed)
|
23.1
|
|
Consent of Baker Tilly
Virchow Krause, LLP (filed herewith)
|
23.2
|
|
Consent of Fredrikson &
Byron, P.A. (included in Exhibit 5.1)
|
24.1
|
|
Power of Attorney
(previously filed)
|
II-5
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