As Filed: June 14, 2005
SEC File No. 333-112240
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO.1 TO FORM SB-2
ON
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BSD MEDICAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 75-1590407
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2188 West 2200 South
Salt Lake City, Utah 84119
(801) 972-5555
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Hyrum A. Mead, President
BSD Medical Corporation
2188 West 2200 South
Salt Lake City, Utah 84119
(801) 972-5555
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Nolan S. Taylor, Esq.
DORSEY & WHITNEY LLP
170 South Main Street, Suite 900
Salt Lake City, Utah 84101-1655
Telephone: (801) 933-7360
Facsimile: (801) 933-7373
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended, 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 of 1933, as amended, please
check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering.
|_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act of 1933, as amended, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, check the following box. |_|
------------------------------------------------
The amount to be registered consists of 2,047,580 shares of common
stock to be sold by the selling stockholders identified in this registration
statement. Of the 2,047,580 shares of common stock, 1,944,600 are currently
outstanding and beneficially owned by the selling stockholders and 102,980 are
issuable upon the exercise of warrants by the selling stockholders.
This Post-Effective Amendment shall become effective in accordance with
Section 8(c) of the Securities Act of 1933 on such date as the Securities and
Exchange Commission acting pursuant to said Section 8(c) may determine.
================================================================================
The information in this prospectus is not complete and may be changed.
The selling stockholders named herein 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.
2,047,580 Shares
BSD MEDICAL CORPORATION
Common Stock
This prospectus relates to the public offering, which is not being
underwritten, of a total of 2,047,580 shares of the common stock of BSD Medical
Corporation by the selling stockholders described herein. The price at which the
selling stockholders may sell the shares will be determined by the prevailing
market price for the shares or in negotiated transactions. We will not receive
any of the proceeds from the sale of these shares.
Our common stock is listed on the American Stock Exchange under the
symbol "BSM." On June 13, 2005, the last reported sale price for our common
stock on the American Stock Exchange was $2.80 per share.
You should carefully consider the risk factors beginning on page 2 of
this prospectus before purchasing any of the common stock offered by this
prospectus.
----------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2005.
TABLE OF CONTENTS
Page
----
RISK FACTORS.................................................................2
USE OF PROCEEDS..............................................................8
SELLING STOCKHOLDERS.........................................................8
PLAN OF DISTRIBUTION........................................................10
DESCRIPTION OF SECURITIES...................................................11
LIMITATION OF LIABILITY AND INDEMNIFICATION.................................13
LEGAL MATTERS...............................................................14
EXPERTS.....................................................................14
WHERE YOU CAN FIND MORE INFORMATION.........................................14
-----------------
You should rely only on information contained in this prospectus. We
have not authorized any person to make a statement that differs from what is in
this prospectus. If any person does make a statement that differs from what is
in this prospectus, you should not rely on it. This prospectus is not an offer
to sell, nor is it seeking an offer to buy, these securities in any state in
which the offer or sale is not permitted. The information in this prospectus is
complete and accurate as of its date, but the information may change after that
date.
In this prospectus, the terms "BSD" "company," "we," "us," and "our"
refer to BSD Medical Corporation.
PROSPECTUS SUMMARY
The following summary should be read in conjunction with, and is
qualified in its entirety by, the more detailed information and financial
statements appearing elsewhere in this prospectus.
Company Overview
We develop, manufacture, market and service systems that deliver
focused electromagnetic energy for use in a variety of medical therapies and
applications. Focused radio frequency/microwave energy is used to heat diseased
sites in the body to temperatures as required by a number of medical therapies.
Our business objectives are to commercialize our products developed for the
treatment of cancer, and further expand our developments to treat other diseases
and medical conditions.
We pioneered the use of microwave thermal therapy for the treatment of
the symptoms associated with enlarged prostate, and are responsible for much of
the technology that has created a substantial medical industry using that
therapy. Since the inception of our company, our primary research has centered
on the application of focused radio frequency/microwave energy for the treatment
of cancer. Our technology can be used both as a combination therapy with
existing cancer treatments or as a stand-alone cancer therapy. Current and
possible expansion of our cancer treatment sites include cancers of the
prostate, breast, head, neck, bladder, cervix, colon/rectum, esophagus, liver,
brain, bone, stomach and lung.
In addition, although we have not entered these markets, we believe our
technology has application for numerous other medical purposes, including the
treatment of such conditions as psoriasis, arthritis, fibroids, hemorrhoids,
menorrhagia (excessive menstrual bleeding), benign tumors and cysts. We believe
our technology is also applicable in treating special medical problems such as
sleep apnea, and in the treatment of varicose veins and cosmetic skin tightening
without surgery (face lifts). Our objective is to commercialize our developed
products and further expand our developments into new markets.
One of our significant contributions to the advancement of medical
therapy has been our pioneering efforts in developing a new treatment for
conditions associated with enlargement of the prostate that afflicts most men as
they age. As the prostate enlarges it constricts urine flow. The condition is
known medically as benign prostatic hyperplasia or BPH. We developed a
technology that allows men to be treated for BPH through an outpatient procedure
as an alternative to surgery or a lengthy regimen of medication.
We determined early in our planning that we would treat our BPH
development as a spin-off business with the intent of providing an asset that
would fund our other business objectives. As a result, we introduced the
opportunity to investment groups and subsequently on October 31, 1997 entered
into an agreement with investors Oracle Strategic Partners, L. P. and Charles
Manker. Together we established a new company, TherMatrx, Inc. TherMatrx
received capital from these investors to conduct clinical trials, and after
obtaining FDA approval in July 2001, the funding to commercialize the
development. We were compensated for providing manufacturing, regulatory and
engineering support to assure the success of the new company.
On July 15, 2004, TherMatrx, Inc. was sold to American Medical Systems,
Inc., or AMS. Our portion of the initial payment from this sale was nearly $9
million, with additional payments contingent on the quarterly sales of
TherMatrx's DOT systems over six quarters ending with the fourth calendar
quarter of 2005. We have estimated that our portion of the total payout from
this sale will be approximately $30-40 million. If TherMatrx sales exceed our
projections, the maximum payout that we could receive from the sale is
1
approximately $62.5 million. If TherMatrx sales fall below our projections and
the past sales rates, there is no guarantee of payment beyond the initial
payment, which is non-refundable. As of May 17, 2005, we had received a total of
over $15.5 million in payments from the sale of TherMatrx. We anticipate that we
will receive quarterly payments from AMS for the sale of our TherMatrx shares in
the approximate periods of May, August and November of 2005 and February of
2006.
Since our inception, we have engineered systems designed to increase
the effectiveness of cancer treatment through the use of focused radio
frequency/microwave energy. From this development our current BSD-500 and
BSD-2000 systems have emerged. We have also developed enhancements to our
BSD-2000 system, including the BSD-2000/3D that is designed to allow three
dimensional steering of deep focused energy and heat to targeted tumors and
tissue and the BSD-2000/3D/MR that includes an interface for magnetic resonance
imaging. These systems are sold with supporting software and may also be sold
with support services.
Our principal sources of revenue include the sale of our BSD-500 and
BSD-2000 series hyperthermia systems. During the six months ended February 28,
2005, total sales of $973,346 consisted of $486,750, or 48.2%, from BSD-2000
systems, $320,280, or 32.9%, from the sale of BSD-500's, $84,107, or 8.6%, for
consulting services to TherMatrx, and $184,316, or 18.9%, for service contracts,
billable labor, and other miscellaneous items. Of the $973,346 in sales for the
six months ended February 28, 2005, $496,060, or 50.96%, were to Medizin-Technik
GmbH. Dr. Gerhard Sennewald, one of our directors and significant stockholders,
is also an executive officer, director and owner] of Medizin-Technik GmbH.
During the fiscal year ended August 31, 2004, total sales of $1,630,649
consisted of $99,502, or 6.1%, from the sale of thermotherapy systems, component
products and contract service to TherMatrx; $ $812,030, or 49.8%, from BSD-2000
systems sales, $471,725, or 28.9%, from BSD-500 sales, $291,441, or 17.9%, for
service contracts, billable labor, and other miscellaneous items. Of the
$1,630,649 in sales for the period ending August 31, 2004, $912,690 or 56% was
sales to Medizin-Technik GmbH.
Our principal executive offices are located at 2188 West 2200 South,
Salt Lake City, Utah 84101, and our telephone number is (801) 972-5555.
Recent Events
On May 2, 2005 we announced that our common stock was approved for
listing on the American Stock Exchange ("AMEX"). On June 9, 2005 our common
stock began trading on AMEX under the symbol "BSM."
The Offering
The selling stockholders identified in this prospectus are selling up
to 2,047,580 shares of our common stock, which they acquired from us in private
placements on November 28, 2003 and December 10, 2003 or will be issued upon the
exercise of warrants issued to a broker-dealer in connection with the private
placements. We will not receive any proceeds from the sale of the shares by the
selling stockholders.
RISK FACTORS
Our future operating results are highly uncertain. Before deciding to
invest in us or to maintain or increase your investment, you should carefully
consider the risks described below, in addition to the other information
contained in this prospectus. If any of these risks actually occur, our
business, financial condition or results of operations could be seriously
harmed. In that event, the market price for our common stock could decline and
you may lose all or part of your investment.
2
We have a history of significant losses and such losses may continue in
the future.
Since our inception in 1978, our expenses have substantially exceeded
our revenue, resulting in continuing losses and an accumulated deficit of
$11,706,282 at February 28, 2005. However, for the six months ended February 28,
2004 and for fiscal 2004, we recorded net profits of $366,865 and $8,412,961,
respectively. Our net profit was primarily due to our sale of our TherMatrx
shares, of which we owned approximately 25% at closing, to AMS. The sale
included all of our TherMatrx shares. We received an initial cash payment, after
the withholding of escrow funds and the payment of other initial obligations, of
approximately $9 million in connection with the closing. We expect to receive
additional payments from AMS during fiscal 2005 and 2006 related to the sale of
TherMatrx shares. However, other than payments from AMS, we may continue to
incur operating losses in the future as we continue to incur costs to develop
our products, protect our intellectual property and expand our sales and
marketing activities. For our hyperthermia business to become profitable we will
need to increase significantly the revenues we receive from sales of our
hyperthermia therapy products to sustain and increase our profitability on a
quarterly or annual basis.
Our hyperthermia therapy products may not achieve market acceptance,
which could limit our future revenue and ability to achieve profitability.
To date, hyperthermia therapy has yet to gain wide acceptance by
cancer-treating physicians. We believe this is due in part to the lingering
impression created by the inability of early hyperthermia therapy technologies
to focus and control heat directed at specific tissue locations and conclusions
drawn in early scientific studies that hyperthermia was only marginally
effective. Additionally, market acceptance depends upon physicians and hospitals
obtaining adequate reimbursement rates from third-party payers to make our
products commercially viable, and we believe that reimbursement rates have not
been adequate to stimulate strong interest in adopting hyperthermia as a new
cancer therapy. If our sales and marketing efforts to promote hyperthermia
therapy acceptance in the medical community fail, or our efforts to improve
third-party reimbursement rates for hyperthermia therapy are not successful,
then our future revenue from sales of our products may be limited, and we may
never sustain profitable operations.
We may not receive any contingent payments or significantly less in
contingent payment than we have projected from the sale of TherMatrx.
In connection with the closing of the sale of our TherMatrx shares to
AMS, we received an initial payment of approximately $9 million and the right to
receive contingent payments based on the future sales of TherMatrx's DOT systems
over the 18-month period ending December 2005. We may not receive any contingent
payments. Any future payments are not guaranteed and are subject to
uncertainties, and we cannot be sure that we will receive any contingent
payments in addition to the initial payment of approximately $9 million, which
is the only amount guaranteed. Some of the factors that could cause us not to
receive contingent payments, or to materially reduce contingent payments paid to
us below our projections include, without limitation, the inability of AMS to
successfully market and sell the DOT system at levels that we have assumed, the
inability of AMS to pay the contingent payment obligation, the acquisition of
AMS by another company that considers the DOT system to be a lower priority in
its marketing efforts, the inability of AMS to obtain products to support the
demand for DOT sales, a reported injury in which a patient claims harm from
treatment by a DOT system, product recalls that could harm the ability to sell
DOT products, failure of physicians to continue to endorse DOT products, or a
reduction in the reimbursement amount paid by Medicare, Medicaid, and private
insurance payors for DOT treatments. As of May 17, 2005, we had received a total
of over $15.5 million in payments from the sale of TherMatrx.
3
Some of the medical institutions to which we have sold in the past have
not been able to pay for their equipment, and some of our sales have therefore
become substantial bad debts, a risk that could continue into the future.
Some of our customers have been developing clinics, and these customers
have been particularly vulnerable to financial difficulties that can cause them
to be unable to pay for equipment that they have purchased. For example, in the
fourth quarter of fiscal 2003 we had a particularly high write off of over
$300,000 resulting from the default of a customer under contract. If we choose
to accept higher risk sales opportunities to clinics in the future, we will be
subject to these customer credit risks that could lower future net sales due to
bad-debt write offs, resulting in losses in future periods and potentially
lowering the value of your stock. While we attempt to provide for foreseeable
doubtful accounts, we cannot assure you that this provision will always be
adequate to cover our credit risks.
Increasing sales of our hyperthermia systems depends on our ability to
successfully expand our sales distribution channels; we have had failures with
the productivity of new channels of distribution in the past. Expanding our
channels of distribution will also significantly increase our sales expenses,
which could negatively impact our financial performance.
We believe that the success of our efforts to increase sales of our
hyperthermia systems in the future depends on our ability to successfully expand
our sales distribution channels. Historically, we have sometimes failed in
establishing successful new sales channels.
We anticipate that the success of our multi-year plan for selling
hyperthermia systems will require expanding our sales and marketing organization
through a combination of direct sales people, distributors and internal and
external marketing expertise. However, as we pursue our marketing plan, there
can be no assurance that we will be successful in securing reliable channels of
distribution to meet our plan through expanded sales. Recruiting and training
new distribution channels can take time and considerable expense. We project
that sales and marketing expenses will increase substantially in the future as
compared to past years. This added expense could have an adverse effect on our
future financial performance that is greater than any potential increases in
sales.
In addition, there can be no assurance that our channels of
distribution that have been successful in the past will be successful in the
future. We have derived most of our revenue from sales in Europe through our
distributor Medizin-Technik, GmbH, which also purchases equipment components and
parts from us. The loss or ineffectiveness of Medizin-Technik as a distributor
and significant customer could result in lower revenue. Our other distribution
relationships are relatively new and unproven. We entered into agreement in
September 2004 with Dalian Orientech, Ltd. to seek regulatory approval for the
sale of the BSD-2000 in the People's Republic of China, and thereafter to act as
our exclusive distributor of the BSD-2000 in that country. Dalien Orietech has
sold two BSD-2000 systems and has an outstanding order with us for a third
BSD-2000 system. We entered into an agreement in October 2004 with Best Medical
International, Inc. to act as our exclusive sales agent for the BSD-500 systems
in the United States.
We are subject to government regulations that can delay our ability to
sell our products and cause us to incur substantial expenses.
Our research and development efforts, pre-clinical tests and clinical
trials, and the manufacturing, marketing, distribution and labeling of our
products are subject to extensive regulation by the FDA and comparable
4
international agencies. The process of obtaining FDA and other required
regulatory approvals is lengthy and expensive and our financial resources are
limited.
We have not yet received pre-market approval for our BSD-2000 systems.
Obtaining these pre-market approvals from the FDA are necessary for us to
commercially market these systems in the United States. We may not be able to
obtain these approvals on a timely basis, if at all, and such failure could harm
our business prospects substantially. Further, even if we are able to obtain the
approvals we seek from the FDA, the approvals granted may include significant
limitations on the indicated uses for which the products may be marketed, which
restrictions could negatively impact our business.
We believe our technology may have application for other medical
purposes. However, FDA or other regulatory approval for the use of our
technology for these applications would be required. We may not be able to get
these approvals, and if we do, obtaining these approvals would require
significant time and expense.
After a product is approved for commercial distribution by the FDA, we
have ongoing responsibilities under the Federal Food, Drug, and Cosmetic Act and
FDA regulations, including regulation of our manufacturing facilities and
processes, labeling and record-keeping, and reporting of adverse experiences and
other information. Failure to comply with these ongoing requirements could
result in the FDA imposing operating restrictions on us, enjoining or
restraining certain violations, or imposing civil or criminal penalties on us.
Sales of our product could be significantly reduced if government,
private health insurers or other third-party payors do not provide sufficient
coverage or reimbursement.
Our success in selling our products will depend in large part on the
extent to which reimbursement for the costs of our products and related
treatments are available from government health agencies, private health
insurers and other third-party payors. Despite the existence of general
reimbursement policies, local medical review policies may differ for public and
private insurance payors, which may cause payment to be refused for some
hyperthermia treatments. Private payors may refuse reimbursement for
hyperthermia treatments.
Medical reimbursement rates are unpredictable and we cannot predict the
extent to which our business may be affected by future legislative and
regulatory developments. Future health care legislation or regulation may limit
our business or impose additional delays and costs on our business and
third-party reimbursement may not be adequate to cover our costs associated with
producing and selling our products.
Cancer therapy is subject to rapid technological change and therapies
that are more effective than ours could render our technology obsolete.
The treatment of cancer is currently subject to extensive research and
development. Many cancer therapies are being researched and our products may be
rendered obsolete by existing therapies and as a result of therapy innovations
by others. If our products are rendered obsolete, our revenue will decline, we
may never achieve profitability from operations, and we may not be able to
continue in business.
We depend on adequate protection of our patent and other intellectual
property rights to stay competitive.
We rely on patents, trade secrets, trademarks, copyrights, know-how,
license agreements and contractual provisions to establish and protect our
5
intellectual property rights. Our success will substantially depend on our
ability to protect our intellectual property rights and maintain rights granted
to us through license agreements. Our intellectual property rights may only
afford us limited protection and may not adequately protect our rights or
remedies to gain or keep any advantages we may have over our competitors, which
could reduce our ability to be competitive and generate sales and profitability.
In the past, we have participated in substantial litigation regarding
our patent and other intellectual property rights in the medical device
industry. We have previously filed lawsuits for patent infringement against
three of our competitors and subsequently settled all three of those lawsuits.
Additional litigation against other parties may be necessary in the future to
enforce our intellectual property rights, to protect our patents and trade
secrets, and to determine the validity and scope of our proprietary rights. This
litigation may require more financial resources than are available to us. We
cannot guarantee that we will be able to successfully protect our rights in
litigation. Failure to successfully protect our rights in litigation could
reduce our ability to be competitive and generate sales and profitability.
A product liability settlement could exceed our ability to pay.
The manufacturing and marketing of medical devices involves an inherent
risk of product liability. Because our products are intended to be used in
hospitals on patients who may be physiologically unstable and severely ill, we
are exposed to potential product liability claims. We presently carry product
liability insurance with coverage limits of $1 million. Our product liability
insurance does not cover intended injury, injury or damage resulting from the
intoxication of any person, payment of workers' compensation benefits, injury of
our own employee, injury or damage due to war, damage to property that we own,
damage to our work, loss of use of property, patent infringements, pollution
claims, interest payments, depreciation of property, or injury or damage
resulting from asbestos inhalation. We are responsible to pay the first $10,000
resulting from any claim up to a maximum of $50,000 in one year. We cannot
assure you that our product liability insurance will provide adequate coverage
against potential claims that might be made against us. If we were to be subject
to a claim in excess of our coverage or to a claim not covered by our insurance
and the claim succeeded, we would be required to pay the claim from our limited
resources, which would reduce our limited capital resources and liquidity and
reduce capital we could otherwise use to obtain approvals for and market our
products. In addition, liability or alleged liability could harm our business by
diverting the attention and resources of our management and by damaging our
reputation.
Our directors and executive officers own a sufficient number of shares
of our capital stock to control our company, which could discourage or prevent a
takeover, even if an acquisition would be beneficial to our stockholders.
Our directors and executive officers own approximately 46% of our
outstanding voting power. Accordingly, these stockholders, individually and as a
group, may be able to influence the outcome of stockholder votes involving the
election of directors, the adoption or amendment of provisions in our
certificate of incorporation and bylaws and the approval of certain mergers or
other similar transactions, such as a sale of substantially all of our assets.
Such control by existing stockholders could have the effect of delaying,
deferring or preventing a change in control of our company.
We are dependent upon key personnel, some of whom would be difficult to
replace.
Our success will be largely dependent upon the efforts of Paul F.
Turner, our Chairman and Senior Vice President, Hyrum A. Mead, our President,
and Dixie T. Sells, our Vice President of Regulatory Affairs and other key
employees. We do not maintain key-person insurance on any of these employees.
6
Our future success also will depend in large part upon our ability to identify,
attract and retain other highly qualified managerial, technical and sales and
marketing personnel. Competition for these individuals is intense. The loss of
the services of any of our key personnel, the inability to identify, attract or
retain qualified personnel in the future or delays in hiring qualified personnel
could make it more difficult for us to manage our business and meet key
objectives such as the sale of our products and the introduction of new
products.
Sales of a substantial number of shares of our common stock in the
public market, including the shares offered under this prospectus, could lower
our stock price and impair our ability to raise funds in new stock offerings.
Future sales of a substantial number of shares of our common stock in
the public market, including the shares offered under this prospectus, or the
perception that such sales could occur, could adversely affect the prevailing
market price of our common stock and could make it more difficult for us to
raise additional capital through the sale of equity securities. This prospectus
relates to the sale or distribution of up to 2,047,580 shares of common stock by
the selling stockholders. The shares subject to this prospectus represent
approximately 10% of our issued and outstanding common stock as of June 13,
2005. We filed this registration statement pursuant to an agreement with the
holders of the common stock and warrants purchased in our November and December
2003 private placements. We are required under this agreement to use our
reasonable best efforts to cause this registration statement to remain effective
until the earlier of (1) the sale of all the shares of our common stock covered
by this registration statement; or (2) such time as the selling stockholders
named in this registration statement become eligible to resell the shares of our
common stock pursuant to Rule 144(k) under the Securities Act.
The market for our stock is limited and our stock price may be
volatile.
The market for our common stock has been limited due to low trading
volume and the small number of brokerage firms acting as market makers. Because
of the limitations of our market and volatility of the market price of our
stock, investors may face difficulties in selling shares at attractive prices
when they want to. The average daily trading volume for our stock has varied
significantly from week to week and from month to month, and the trading volume
often varies widely from day to day. The following factors could impact the
market for our stock and cause further volatility in our stock price:
o announcements of new technological innovations;
o FDA and other regulatory developments;
o changes in third-party reimbursements;
o developments concerning proprietary rights;
o third parties receiving FDA approval for competing products; and
o market conditions generally for medical and technology stocks.
Anti-takeover provisions in our certificate of incorporation may have a
possible negative effect on our stock price.
Certain provisions of our certificate of incorporation and bylaws may
make it more difficult for a third party to acquire, or discourage a third party
from attempting to acquire, control of us. We have in place several
anti-takeover measures that could discourage or prevent a takeover, even if an
acquisition would be beneficial to our stockholders. The increased difficulties
faced by a third party who wishes to acquire us could adversely affect our stock
price.
7
We may incur significant expenses as a result of being listed on AMEX,
which may negatively impact our financial performance.
We may incur significant legal, accounting and other expenses as a
result of being listed on AMEX. The Sarbanes-Oxley Act of 2002, as well as
related rules implemented by the SEC and AMEX, have required changes in
corporate governance practices of public companies. We expect that compliance
with these laws, rules and regulations, including compliance with Section 404 of
the Sarbanes-Oxley Act of 2002 as discussed in the following risk factor, may
substantially increase our expenses, including our legal and accounting costs,
and make some activities more time-consuming and costly. As a result, there may
be a substantial increase in legal, accounting and certain other expenses in the
future, which would negatively impact our financial performance and could have a
material adverse effect on our results of operations and financial condition.
Our internal controls over financial reporting may not be considered
effective, which could result in a loss of investor confidence in our financial
reports and in turn have an adverse effect on our stock price.
Pursuant to Section 404 of the Sarbanes-Oxley Act of 2002, beginning
with our Annual Report on Form 10-KSB for the year ending August 31, 2006, we
will be required to furnish a report by our management on our internal controls
over financial reporting. Such report will contain, among other matters, an
assessment of the effectiveness of our internal controls over financial
reporting as of the end of the year, including a statement as to whether or not
our internal controls over financial reporting are effective. This assessment
must include disclosure of any material weaknesses in our internal controls over
financial reporting identified by management. The report will also contain a
statement that our independent registered public accounting firm has issued an
attestation report on management's assessment of internal controls. If we are
unable to assert that our internal controls are effective as of December 31,
2006 (or if our independent registered public accounting firm is unable to
attest that our management's report is fairly stated or they are unable to
express an opinion on our management's evaluation or on the effectiveness of our
internal controls), investors could lose confidence in the accuracy and
completeness of our financial reports, which in turn could cause our stock price
to decline.
USE OF PROCEEDS
The shares of common stock offered by this prospectus will be sold by
the selling stockholders, and the selling stockholders will receive all of the
proceeds from sales of such shares. We will not receive any proceeds from the
sale of the shares offered by this prospectus.
SELLING STOCKHOLDERS
The following table sets forth the number of shares of our common stock
beneficially owned by the selling stockholders as of June 13, 2005, based on the
selling stockholders' representations regarding their ownership. The percentages
shown in the table are based on 20,309,504 shares of common stock outstanding on
that date. We cannot estimate the number of shares that will be held by the
selling stockholders after completion of this offering because the selling
stockholders may sell all or some of the shares and because there currently are
8
no agreements, arrangements or understandings with respect to the sale of any of
the shares. The term "selling stockholder" or "selling stockholders" includes
the stockholders listed below and their transferees, assignees, pledgees, donees
or other successors. Each selling stockholder reserves the right to accept or
reject, in whole or in part, any proposed sale of shares. Each selling
stockholder also may offer and sell less than the number of shares indicated. No
selling stockholder is making any representation that any shares covered by this
prospectus will or will not be offered for sale. Except as indicated in this
section, we are not aware of any material relationship between us and a selling
stockholder within the past three years other than as a result of a selling
stockholder's beneficial ownership of our common stock.
Unless otherwise indicated in the table below, the shares being offered
in this prospectus were issued to seven accredited investors pursuant to that
certain Securities Purchase Agreement dated as of November 28, 2003, and as
amended on December 10, 2003 (the "Purchase Agreement"), between us and these
investors. In accordance with the terms and conditions of the Purchase
Agreement, we issued an aggregate of 1,944,600 shares of common stock. We also
issued a three-year, immediately exercisable warrant to purchase up to 102,980
shares of common stock at an exercise price of $1.80 per share (the "Warrant")
to a broker-dealer in connection with the Purchase Agreement. The shares to be
issued upon exercise of the Warrant are also being offered in this prospectus.
Percentage of
Number of Shares Shares of
Number of Shares Shares of Common of Common Stock Common Stock
of Common Stock Stock Being Beneficially Beneficially
Beneficially Owned Offered in the Owned After the Owned After
Selling Stockholder Before the Offering Offering Offering the Offering
-------------------------------------------------------------------------------------------------------------------
JMG Capital Partners, L.P (1) 445,600 397,500 -- *
JMG Triton Offshore Fund, Ltd (2) 445,600 397,500 -- *
J. Steven Emerson IRA R/O II (3) 971,000 910,000 217,787 1.09%
Emerson Partners, Ltd. (4) 135,000 135,000 -- *
High Tide, LLC (5) 45,500 45,500 -- *
Kenneth R. Malkes 13,600 13,600 -- *
The Runnels Family Trust (6) 105,500 105,500 -- *
T.R. Winston & Company, LLC (7) 42,980 42,980 -- *
--------------------------
* Represents beneficial ownership of less than 1.0% of the outstanding
shares of common stock.
(1) JMG Capital Partners, L.P. ("JMG Partners") is a California limited
partnership. Its general partner is JMG Capital Management, LLC (the
"Manager"), a Delaware limited liability company and an investment
adviser registered with the Securities and Exchange Commission. The
Manager has voting and dispositive power over JMG Partners'
investments, including these shares. The equity interests of the
Manager are owned by JMG Capital Management, Inc., ("JMG Capital") a
Delaware corporation, and Asset Alliance Holding Corp., a Delaware
corporation. Jonathan M. Glaser is the Executive Officer and Director
of JMG Capital and has sole investment discretion over JMG Partners'
portfolio holdings.
(2) JMG Triton Offshore Fund, Ltd. (the "Fund") is an international
business company under the laws of the British Virgin Islands. The
Fund's investment manager is Pacific Assets Management LLC, a Delaware
limited liability company (the "Manager"). The Manager is an investment
adviser registered with the Securities and Exchange Commission and has
voting and dispositive power over the Fund's investments, including
these shares. The equity interests of the Manager are owned by Pacific
Capital Management, Inc., a Delaware corporation ("Pacific") and Asset
Alliance Holding Corp., a Delaware corporation. The equity interests of
Pacific are owned by Messrs. Roger Richter, Jonathan M. Glaser and
Daniel A. David. Messrs. Glaser and Richter have sole investment
discretion over the Fund's portfolio holdings.
(3) J. Stevens Emerson, the sole beneficiary of J. Steven Emerson IRA R/O
II, has voting and investment control over these shares.
(4) J. Stevens Emerson, a manager of Emerson Partners, Ltd., has voting and
investment control over these shares.
(5) G. Tyler Runnels, manager of High Tide, LLC ("High Tide"), has voting
and investment control over these shares. High Tide, an affiliate of
T.R. Winston & Company, LLC, has represented to us that the shares held
by it were purchased in the ordinary course of business, and that at
the time of issuance it did not have any agreements or understandings,
directly or indirectly, with any person to distribute the shares.
9
(6) The shares being offered in this prospectus include 60,000 shares
issuable upon exercise of warrants. These warrants were issued to The
Runnels Family Trust ("Runnels Trust") at the direction of T.R. Winston
& Company, LLC ("TR Winston") in connection with placement services
relating to the Purchase Agreement provided by TR Winston, and we
agreed to register for resale the shares issuable upon exercise of the
warrants. With respect to the remaining 45,500 shares, the Runnels
Trust has represented to us that shares were purchased in the ordinary
course of business, and that at the time of issuance it did not have
any agreements or understandings, directly or indirectly, with any
person to distribute the shares. G. Tyler Runnels, trustee of the
Runnels Trust, has voting and investment control over these shares.
(7) The shares being offered in this prospectus include 42,980 shares
issuable upon exercise of warrants. These warrants were issued to T.R.
Winston & Company, LLC ("TR Winston") in connection with placement
services relating to the Purchase Agreement, and we agreed to register
for resale the shares issuable upon exercise of the warrants. G. Tyler
Runnels, Chairman, and John W. Galuchie, Jr., President of TR Winston,
have voting and investment control over these shares. TR Winston is a
registered broker-dealer and all of the securities issued to it were
issued as compensation for placement services.
We have agreed to prepare and file any amendments and supplements to
the registration statement relating to these shares as may be necessary to keep
the registration statement effective until such time as all of the shares
covered by this prospectus have been sold or until all of such shares may be
sold without registration or restriction pursuant to Rule 144(k) under the
Securities Act.
This prospectus also covers any additional shares of our common stock
which become issuable in connection with the shares being registered by reason
of any stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration which results in an
increase in the number of our outstanding shares of common stock.
PLAN OF DISTRIBUTION
We have registered the 2,047,580 shares of our common stock offered in
this prospectus on behalf of the selling stockholders. We will pay all expenses
of this registration, other than fees and expenses, if any, of counsel or other
advisors to the selling stockholders. The selling stockholders are responsible
for paying any commissions, discounts, or other brokerage fees incurred in
connection with their sale of any of the shares.
The shares of common stock may be sold in one or more transactions at
fixed prices, at prevailing market prices at the time of sale, at prices related
to the prevailing market prices, at varying prices determined at the time of
sale, or at negotiated prices. These sales may be effected at various times in
one or more of the following transactions, or in other kinds of transactions:
o in the over-the-counter market;
o in private transactions and transactions otherwise than on
exchanges or systems or in the over-the-counter market;
o in connection with short sales of the shares;
o by pledge to secure debt and other obligations;
o through the writing of options, whether the options are listed on
an options exchange or otherwise;
o in connection with the writing of non-traded and exchange-traded
call options, in hedge transactions and in settlement of other
transactions in standardized or over-the-counter options; or
o through a combination of any of the above transactions.
The selling stockholder and its successors, including its transferees,
10
pledgees or donees or their successors, may sell the common stock directly to
purchasers or through underwriters, broker-dealers or agents, who may receive
compensation in the form of discounts, concessions or commissions from the
selling stockholder or the purchasers. These discounts, concessions or
commissions as to any particular underwriter, broker-dealer or agent may be in
excess of those customary in the types of transactions involved.
We have agreed to indemnify the selling stockholders, and each
director, officer or controlling person of each selling stockholder within the
meaning of Section 15 of the Securities Act of 1933 against all losses, claims,
damages, liabilities and expenses, (or action in respect thereof) including any
of the foregoing incurred in settlement of any litigation, commenced or
threatened, arising out of or based on (i) any untrue statement or alleged
untrue statement of a material fact contained in, or information incorporated by
reference into, any registration statement or prospectus (or any amendment or
supplement thereto) or any preliminary prospectus prepared in connection with
the registration contemplated by the Purchase Agreement, (ii) any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, (iii) any failure by
us to fulfill and perform any agreement, covenant or undertaking pursuant to the
Purchase Agreement, or (iv) any failure or breach of our representations and
warranties as set forth in the Purchase Agreement.
The selling stockholders also may resell all or a portion of the shares
in open market transactions in reliance on Rule 144 under the Securities Act of
1933, if they meet the criteria and conform to the requirements of that rule.
The selling stockholders and any broker-dealers or agents that
participate with the selling stockholders in the sale of shares may be
"underwriters" within the meaning of the Securities Act of 1933. Any commissions
received by broker-dealers or agents on the sales and any profit on the resale
of shares purchased by broker-dealers or agents may be deemed to be underwriting
commissions or discounts under the Securities Act of 1933.
Under the rules of the SEC, any person engaged in the distribution of
our common stock may not simultaneously buy, bid for or attempt to induce any
other person to buy or bid for our common stock in the open market for a period
of two business days prior to the beginning of the distribution. The rules and
regulations under the Securities Exchange Act of 1934 may also limit the timing
of purchases and sales of shares of our common stock by the selling
stockholders. We have notified the selling stockholders they should not begin
any distribution of common stock unless they have stopped purchasing and bidding
for common stock in the open market as provided in applicable securities
regulations, including Regulation M promulgated under the Securities Exchange
Act of 1934.
We have informed the selling stockholders that the anti-manipulation
provisions of Regulation M may apply to the sales of their shares. We have
advised the selling stockholders of the requirement for delivery of this
prospectus in connection with any sale of the common stock.
DESCRIPTION OF SECURITIES
General
We are authorized to issue 40,000,000 shares of common stock, $0.001
par value, and 10,000,000 shares of undesignated preferred stock, $0.001 par
value per share.
The following description of our capital stock is a summary. It is not
complete and is subject to and qualified in its entirety by our Amended and
Restated Certificate of Incorporation and Bylaws, a copy of each of which has
been incorporated as an exhibit to the registration statement of which this
prospectus forms a part.
11
Our Amended and Restated Certificate of Incorporation and Bylaws
contain certain provisions that are intended to enhance the likelihood of
continuity and stability in the composition of the board of directors, which may
have the effect of delaying, deferring or preventing a future takeover or change
in control of BSD unless such takeover or change in control is approved by our
board of directors.
Common Stock
As of June 13, 2005, there were 20,309,504 shares of our common stock
outstanding, which were held of record by 570 stockholders.
Holders of common stock are entitled to one vote per share on all
matters to be voted upon by the stockholders. Holders of common stock do not
have cumulative voting rights, and, therefore, holders of a majority of the
shares voting for the election of directors can elect all of the directors. In
such event, the holders of the remaining shares will not be able to elect any
directors. Subject to preferences that may be applicable to any then-outstanding
preferred stock, holders of common stock are entitled to receive such dividends
as may be declared from time to time by our board of directors out of funds
legally available therefore. We have never declared or paid cash dividends on
our capital stock. We expect to retain future earnings, if any, for use in the
operation and expansion of its business, and do not anticipate paying any cash
dividends in the foreseeable future.
In the event of our liquidation, dissolution or winding up, holders of
common stock are entitled to share ratably in all assets legally available for
distribution after payment of all debts and other liabilities and subject to the
prior rights of the holders of any preferred stock then outstanding. Holders of
common stock have no preemptive or other subscription or conversion rights, and
there are no redemption or sinking fund provisions applicable to the common
stock.
Preferred Stock
As of June 13, 2005, there were no shares of preferred stock
outstanding. Our Amended and Restated Certificate of Incorporation authorizes
10,000,000 shares of undesignated preferred stock. Our board of directors will
have the authority, without any further vote or action by our stockholders, to
issue from time to time the preferred stock in one or more series and to fix the
price, rights, preferences, privileges and restrictions thereof, including
dividend rights, dividend rates, conversion rights, voting rights, terms of
redemption, redemption prices, liquidation preferences and the number of shares
constituting a series or the designation of such series. The issuance of
preferred stock, while providing desirable flexibility in connection with
possible acquisitions and other corporate purposes, could decrease the amount of
earnings and assets available for distribution to holders of common stock or
adversely affect the rights and powers, including voting rights, of the holders
of common stock, and may have the effect of delaying, deferring or preventing a
change in control without further action by the stockholders. We have no current
plans to issue any shares of preferred stock.
Warrants and Options
As of June 13, 2005, warrants to purchase an aggregate of 102,980
shares of our common stock at a exercise price per share of $1.80 were issued
and outstanding, and options to purchase an aggregate 2,149,600 shares of our
common stock at a weighted average exercise price per share of $1.03 were issued
and outstanding.
12
Anti-takeover Effects of Provisions of Our Amended and Restated Certificate of
Incorporation and Bylaws and Delaware Law
Certain provisions of our Amended and Restated Certificate of
Incorporation and Bylaws could make the following more difficult:
o acquisition of us by means of a tender offer;
o acquisition of us by means of a proxy contest or otherwise; and
o the removal of our incumbent officers and directors.
These provisions, summarized below, are expected to discourage coercive
takeover practices and inadequate takeover bids. These provisions are also
designed to encourage persons seeking to acquire control of us to first
negotiate with our board of directors. We believe that the benefits of increased
protection resulting from our potential ability to negotiate with the proponent
of an unfriendly or unsolicited proposal to acquire or restructure us outweigh
the disadvantages of discouraging such proposals because we believe that the
negotiation of such proposals could result in an improvement of their terms.
Stockholder Meetings. Our Amended and Restated Certificate of
Incorporation provides that only the board of directors, the Chairman of the
Board, the Chief Executive Officer or our President may call special meetings of
stockholders. The provision may not be amended without the affirmative vote of
holders of at least 66 2/3% of our outstanding voting stock.
Elimination of Stockholder Action By Written Consent. Our charter
documents eliminate the right of stockholders to act by written consent without
a meeting.
Elimination of Cumulative Voting. Our charter documents do not provide
for cumulative voting in the election of directors.
Undesignated Preferred Stock. The ability to authorize undesignated
preferred stock makes it possible for the board of directors to issue preferred
stock with voting or other rights or preferences that could impede the success
of any attempt to change control of us. These and other provisions may have the
effect of deferring hostile takeovers or delaying changes in control or
management of us.
The provisions of Delaware law and our Amended and Restated Certificate
of Incorporation and Bylaws could have the effect of discouraging others from
attempting unsolicited takeovers and, as a consequence, they may also inhibit
temporary fluctuations in the market price of our common stock that often result
from actual or rumored unsolicited takeover attempts. Such provisions may also
have the effect of preventing changes in our management. It is possible that
these provisions could make it more difficult to accomplish transactions, which
stockholders may otherwise deem to be in their best interests.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents, and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article 8 of our Amended and Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law.
13
Section 8 of our Bylaws provides for the indemnification of officers,
directors and third parties acting on behalf of us if such person acted in good
faith and in a manner reasonably believed to be in, and not opposed to, our best
interest, and, with respect to any criminal action or proceeding, the
indemnified party had no reason to believe his or her conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that,
in the opinion of the Securities and Exchange Commission, such indemnification
is against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable.
LEGAL MATTERS
The validity under the Delaware General Corporation Law of the common
stock to be sold by the selling stockholders has been passed on for us by Dorsey
& Whitney LLP, Salt Lake City, Utah.
EXPERTS
Tanner LC, an independent registered public accounting firm, has
audited our financial statements and schedule included in this prospectus for
the year ended August 31, 2004, as set forth in its reports which are
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedule are incorporated by reference
in reliance on Tanner LC's reports, given on its authority as an expert in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any document we file with the SEC at the SEC's Public Reference Room at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Room. Our SEC
filings are also available to the public at the SEC's web site at
http://www.sec.gov. In addition, we maintain an Internet website at
www.bsdmc.com. We do not intend that our website be a part of this prospectus.
We incorporate information into this prospectus by reference, which
means that we disclose important information to you by referring you to another
document filed separately with the SEC. The information incorporated by
reference is deemed to be part of this prospectus, except for any such
information superseded by information contained in later-filed documents or
directly in this prospectus. This prospectus incorporates by reference the
documents set forth below that we have previously filed with the SEC. These
documents contain important information about us and our financial condition:
(1) Annual Report on Form 10-KSB for the year ended August 31, 2004,
filed November 29, 2004;
(2) Definitive Proxy Statement on Schedule 14A filed December 23,
2004;
(3) Quarterly report on Form 10-QSB for the quarter ended November 30,
2004;
(4) Quarterly report on Form 10-QSB for the quarter ended February 28,
2005; and
(5) The description of our common stock contained in the registration
statement on Form 8-A, SEC File Number 333-112240, filed June 8,
2005.
14
We also incorporate all documents we subsequently file with the SEC
pursuant to Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934, as amended, after the date of this prospectus and prior to the termination
of this offering (except for information furnished under Items 2.02 or 7.01 of
our current reports on Form 8-K). The information in these documents will update
and supersede the information in this prospectus.
We will provide at no cost to each person to whom this prospectus is
delivered, including any beneficial owner, upon written or oral request, a copy
of any or all of the information that has been incorporated by reference in this
prospectus but not delivered with this prospectus. Investors should direct
requests to Dennis Bradley, BSD Medical Corporation, 2188 West 2200 South, Salt
Lake City, Utah 84119, telephone: (801) 972-5555.
15
================================================================================
BSD MEDICAL CORPORATION
2,047,580
SHARES OF COMMON STOCK
-------------------------
PROSPECTUS
-------------------------
, 2005
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various costs and expenses to be
paid by us with respect to the sale and distribution of the securities being
registered. All of the amounts shown are estimates except for the SEC
registration fee.
Legal Fees and Expenses........................................ $ 5,000
-------
Accounting Fees and Expenses................................... $ 5,000
-------
Printing and Other Expenses.................................... $ 500
-------
Total..................................................... $10,500
-------
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear all commissions
and discounts, if any, attributable to the sales of the shares.
ITEM 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents, and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article 8 of our Amended and Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law.
Section 8 of our Bylaws provides for the indemnification of officers,
directors and third parties acting on behalf of us if such person acted in good
faith and in a manner reasonably believed to be in, and not opposed to, our best
interest, and, with respect to any criminal action or proceeding, the
indemnified party had no reason to believe his or her conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised that,
in the opinion of the Securities and Exchange Commission, such indemnification
is against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable.
ITEM 16. Exhibits
Exhibit
Number Description
-------- -----------
4.1 Specimen Common Stock Certificate. Incorporated by reference to
Exhibit 4 of the BSD Medical Corporation Registration Statement on
Form S-1, filed October 16, 1986.
4.2 Securities Purchase Agreement dated December 10, 2003 among BSD
Medical Corporation and the purchasers identified therein.
Incorporated by reference to Exhibit 4.2 of the BSD Medical
Corporation Form 10-K, filed December 1, 2003.
II-1
Exhibit
Number Description
-------- -----------
4.2 Amendment No. 1 to Securities Purchase Agreement dated December
10, 2003 among BSD Medical Corporation and the purchasers
identified therein. Incorporated by reference to Exhibit 99.1 of
the BSD Medical Corporation Form 8-K, filed December 22, 2003.
4.3 Warrant to Purchase 42,980 Shares of Common Stock dated December
10, 2003 issued by BSD Medical Corporation to T.R. Winston &
Company, LLC. Incorporated by reference to Exhibit 99.2 of the BSD
Medical Corporation Form 8-K, filed December 22, 2003.
4.4 Warrant to Purchase 60,000 Shares of Common Stock dated December
10, 2003 issued by BSD Medical Corporation to The Runnel Family
Trust Dated 1/11/2000. Incorporated by reference to Exhibit 99.3
of the BSD Medical Corporation Form 8-K, filed December 22, 2003.
5.1 Opinion of Dorsey & Whitney LLP (previously filed).
23.1 Consent of Independent Registered Public Accounting Firm, Tanner
LC.
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1)
(previously filed).
24.1 Power of Attorney (previously filed).
ITEM 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales of securities are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. 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 a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of the securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered that remain unsold at the termination of the
offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnifications 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, if any, 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.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Salt Lake City, Utah, on the June 14, 2005.
BSD MEDICAL CORPORATION
By: /s/ HYRUM A. MEAD
---------------------
Hyrum A. Mead
President
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated. Pursuant to the requirements of the
Securities Act, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ PAUL F. TURNER* Chairman of the Board, Senior June 14, 2005
--------------------- Vice President and Chief
Paul F. Turner Technology Officer
/s/ HYRUM A MEAD* President (principal executive June 14, 2005
--------------------- officer) and Director
Hyrum A. Mead
/s/ DENNIS BRADLEY* Controller (principal financial June 14, 2005
--------------------- and accounting officer)
Dennis Bradley
/s/ GERHARD W. SENNEWALD* Director June 14, 2005
-------------------------
Gerhard W. Sennewald
/s/ MICHAEL NOBEL* Director June 14, 2005
---------------------
Michael Nobel
/s/ J. GORDON SHORT* Director June 14, 2005
---------------------
J. Gordon Short
*By: /s/HYRUM A MEAD June 14, 2005
---------------
Hyrum A. Mead
Attorney in Fact
INDEX OF EXHIBITS
Exhibit
Number Description
------- -----------
4.1 Specimen Common Stock Certificate. Incorporated by reference to
Exhibit 4 of the BSD Medical Corporation Registration Statement on
Form S-1, filed October 16, 1986.
4.2 Securities Purchase Agreement dated December 10, 2003 among BSD
Medical Corporation and the purchasers identified therein.
Incorporated by reference to Exhibit 4.2 of the BSD Medical
Corporation Form 10-K, filed December 1, 2003.
4.2 Amendment No. 1 to Securities Purchase Agreement dated December
10, 2003 among BSD Medical Corporation and the purchasers
identified therein. Incorporated by reference to Exhibit 99.1 of
the BSD Medical Corporation Form 8-K, filed December 22, 2003.
4.3 Warrant to Purchase 42,980 Shares of Common Stock dated December
10, 2003 issued by BSD Medical Corporation to T.R. Winston &
Company, LLC. Incorporated by reference to Exhibit 99.2 of the BSD
Medical Corporation Form 8-K, filed December 22, 2003.
4.4 Warrant to Purchase 60,000 Shares of Common Stock dated December
10, 2003 issued by BSD Medical Corporation to The Runnel Family
Trust Dated 1/11/2000. Incorporated by reference to Exhibit 99.3
of the BSD Medical Corporation Form 8-K, filed December 22, 2003.
5.1 Opinion of Dorsey & Whitney LLP (previously filed).
23.1 Consent of Independent Registered Public Accounting Firm, Tanner
LC.
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1)
(previously filed).
24.1 Power of Attorney (previously filed).