Unassociated Document
As
Filed with the Securities and Exchange Commission on August 11,
2010
Registration
No. 333-167969
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 registrant’s principal executive offices)
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Copies
to:
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Mr.
Richard C. Carlson, Chief Executive Officer
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Timothy
S. Hearn, Esq.
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ProUroCare
Medical Inc.
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Jonathan
A. Van Horn, Esq.
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6440
Flying Cloud Drive, Suite 101
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Dorsey
& Whitney LLP
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Eden
Prairie, Minnesota 55344
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50
South 6th Street, Suite 1500
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Telephone: (952)
476-9093
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Minneapolis,
Minnesota 55402-1498
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Facsimile:
(952) 843-7031
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Telephone:
(612) 340-2600
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(Name,
address and telephone number of agent for service)
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Facsimile: (612)
340-2868
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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. ¨
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
number of the earlier effective registration statement for the same
offering. ¨
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. ¨
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. ¨
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 ¨
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Accelerated
filer ¨
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Non-accelerated
filer ¨
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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 1,359,478 shares of common stock registered and remaining unsold
under the registrant’s Registration Statement on Form S-1 (File No. 333-153605),
as amended and 1,152,113 shares of common stock issuable upon exercise of
warrants under the registrant’s Registration Statement No. 333-162138.
Pursuant to Rule 429(b), this Registration Statement also serves as a
post-effective amendment to each of (i) Registration Statement No. 333-153605
and (ii) Registration Statement No. 333-162138, which post-effective amendments
shall become effective concurrently with the effectiveness of this Registration
Statement. If securities previously registered under the aforementioned
Registration Statements 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,
Registration Statement No. 333-153605 and Registration Statement No. 333-162138
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.
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
registrant’s 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”); (ii) exercise of warrants that
were issued by the registrant to certain warrant holders, pursuant to a 2009
exchange offer whereby such persons had the opportunity to receive, upon the
exercise of their existing warrants, new three-year warrants (the “2009
Replacement Warrants”); and (iii) exercise of warrants that were issued by the
registrant to certain warrant holders, pursuant to a 2010 exchange offer whereby
such persons had the opportunity to receive, upon the exercise of their existing
warrants, new three-year warrants (the “2010 Replacement Warrants” and
collectively with the 2009 Replacement 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, 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
and as further amended by the prospectus included in the Registration Statement
on Form S-4 (File No. 333-167969), each of which was deemed a post-effective
amendment to Registration Statement No. 333-153605. The 2009 Replacement
Warrants and the Common Stock underlying the 2009 Replacement Warrants were
initially registered by the registrant on Registration Statement No. 333-162138,
as amended by the post-effective amendment on Form S-3 that was declared
effective by the Commission on November 17, 2009 and as further amended by the
prospectus included in Registration Statement No. 333-167969. The 2010
Replacement Warrants and the Common Stock underlying the 2010 Replacement
Warrants were initially registered by the registrant on Registration Statement
on Form S-4 (File No. 333-167969), declared effective by the Commission on July
23, 2010. 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, Registration Statement No. 333-162138 and Registration
Statement No. 333-167969.
In
addition, the registrant is amending Registration Statement No. 333-167969 to
deregister 4,743,007 2010 Replacement Warrants offered thereunder but not issued
as of expiration of the offer period and 4,743,007 shares of Common Stock
underlying such deregistered 2010 Replacement Warrants. The 2010 exchange offer
expired at 4:00 p.m., Central Time, on August 2, 2010. A total of 1,007,529
public and private warrants were tendered by warrant holders and accepted by the
registrant pursuant to the 2010 exchange offer. Accordingly, the registrant
issued 1,007,529 2010 Replacement Warrants.
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 AUGUST 11, 2010
ProUroCare
Medical Inc.
3,519,120
Shares of Common Stock
This
prospectus relates to 3,519,120 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”), in our
registered exchange offer which expired on November 6, 2009 (the “2009
Replacement Warrants”) and in our registered exchange offer which expired on
August 2, 2010 (the “2010 Replacement Warrants,” and together with the 2009
Replacement Warrants, the “Replacement Warrants” and together with the Public
Warrants and the 2009 Replacement 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 prior to expiration. 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, the 2009 Replacement Warrants
will expire on November 12, 2012 and the 2010 Replacement Warrants will expire
on August 2, 2013.
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
$4,574,856.
Our
Common Stock is quoted on the Over-the-Counter Bulletin Board (the “OTCBB”)
under the symbol “PUMD.” On August 6, 2010, the closing bid price of the
Common Stock was $1.36and the last reported trade was at $1.42 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 ,
2010.
TABLE
OF CONTENTS
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Page
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Where
You Can Find More Information
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i
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Prospectus
Summary
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1
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Risk
Factors
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4
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Use
of Proceeds
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7
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Special
Note Regarding Forward-Looking Statements
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7
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Determination
of Offering Price
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7
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Dilution
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8
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Plan
of Distribution
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8
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Legal
Matters
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8
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Experts
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8
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Incorporation
of Certain Information By Reference
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8
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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 SEC’s 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.
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 an image and document
abnormalities 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 document abnormalities 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
ProUroScan’s 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 system’s specially designed rectal probe,
physicians can quickly and cost-effectively visualize the prostate gland and
document specific areas of concern. The real-time image can be saved as a
permanent electronic record.
Our
imaging technology is based on work originally performed 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 additional prostate and other
urologic technologies.
The
ProUroScan System is not currently marketed or sold and has not yet been cleared
for marketing by the FDA. Our goal is to have ProUroScan System regulated by the
FDA as a Class II device. A Class II classification is designed for low
risk devices in which sufficient information exists to establish general and
specific controls that provide reasonable assurance of safety and effectiveness.
In a 510(k) application, applicants must demonstrate that the proposed device is
substantially equivalent to an existing approved product, or “predicate
device”. Products that employ new or novel technologies, and for which
through the 510(k) review process is found to have no comparable predicate
device, may be cleared for marketing under Section 513(f) of the Food, Drug and
Cosmetic Act (“FDCA”). This path, referred to as a “de novo” application,
is intended to allow low risk new technological devices to be cleared for
marketing when an appropriate predicate device does not exist.
In
November 2009, a 510(k) application for market clearance was filed with the FDA
that incorporated a basic imaging and documentation claim. From that
submission, the FDA determined that the ProUroScan System is not substantially
equivalent (NSE) to a device currently being marketed. As required by
Section 513(f)(2) of the FDCA, a submission was made on May 21, 2010 to request
510(k) clearance under the de novo process. This request asked the FDA to
define mechanical imaging systems as devices that are intended to produce an
elasticity image of the prostate as an aid in documenting abnormalities of the
prostate that are initially identified by digital rectal examination and to be
used by physicians as a documentation tool.
Once FDA
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 to be determined
medical products company that has an established worldwide presence in the
urology market.
We have
identified a market need to be able to create an image and document
abnormalities of the prostate. 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 System’s existing technology provides a platform on which
to develop multiple future generation systems. In the future, following our
initial FDA regulatory clearance, we intend to work with Artann to develop and
introduce enhanced versions and additional indications for this
technology. 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 prostate biopsies and assess changes in prostate size following drug
treatment for benign prostate hyperplasia (“BPH”). 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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1,359,478
shares
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Common
Stock offered under the 2009 Replacement Warrants
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1,152,113
shares
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Common
Stock offered under the 2010 Replacement Warrants
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1,007,529
shares
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Common
Stock outstanding before the offering(1)
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14,252,331
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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1,359,478
Public Warrants, 1,152,113 2009 Replacement Warrants and 1,007,529 2010
Replacement Warrants
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Quoting
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The
Public Warrants and the 2009 Replacement Warrants are currently quoted on
the Pink Sheets under the symbols PUMDW and PUMWW, respectively. We expect
the 2010 Replacement Warrants to be quoted on the Pink Sheets under a
ticker symbol to be determined. The quoting of the 2010 Replacement
Warrants on the Pink Sheets is dependent upon cooperation of market makers
for the 2010 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 2009 Replacement Warrants
will expire at 5:00 p.m., Minneapolis, Minnesota time, on November 12,
2012, or earlier upon redemption. The 2010 Replacement Warrants will
expire at 5:00 p.m., Minneapolis, Minnesota time, on August 2,
2013.
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Redemption
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We
may elect to redeem the Public Warrants at any time prior to
expiration.
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
$4,574,856.
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Use
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To fund manufacturing
and scale-up activities, expand our intellectual property rights, form a
scientific advisory panel and conduct clinical studies, reduce amounts
outstanding on certain liabilities, 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 August 9, 2010.
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.
There
is no assurance that our 2010 Replacement Warrants will be quoted on the Pink
Sheets or the OTCBB, and they may be illiquid and difficult to
sell.
There is
no assurance that our 2010 Replacement Warrants will be quoted on the Pink
Sheets or the OTCBB. If the 2010 Replacement Warrants are not quoted on
the Pink Sheets or the OTCBB, it will likely be difficult for our warrantholders
to sell their 2010 Replacement Warrants.
In
addition, generally, securities that are quoted on the Pink Sheets lack
liquidity and analyst coverage. This may result in lower prices for the 2010
Replacement Warrants than might otherwise be obtained if we met the criteria to
list them 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 such warrants.
In
addition, there has been only limited trading activity in the 2009 Replacement
Warrants. It is likely that there will be relatively small trading volume in the
2010 Replacement Warrants, if they are quoted, and this will likely make it
difficult for our stockholders to sell their 2010 Replacement Warrants as, and
when, they choose. As a result, investors may not always be able to resell such
warrants 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 each
respective 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.
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
fund manufacturing and scale-up activities, expand our intellectual property
rights, form a scientific advisory panel and conduct clinical studies, reduce
amounts outstanding on certain liabilities, 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 June 30, 2010, 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 at any time prior to
expiration. 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 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 August 9, 2010, we had
outstanding options and warrants to purchase 8,874,966 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, 2009 and our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, 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 Company’s 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 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 $4,574,856. We intend to use the proceeds, if any, from
the exercise of the Warrants to fund manufacturing and scale-up activities,
expand our intellectual property rights, form a scientific advisory panel and
conduct clinical studies, reduce amounts outstanding on certain liabilities, 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
1,359,478 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 1,152,113 2009 Replacement
Warrants and the 1,007,529 2010 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 each respective 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 June
30, 2010, our net tangible book value was a deficiency of $3,727,875, or
approximately $(0.29) per share of Common Stock. After giving effect to
the sale of 3,519,120 shares of Common Stock offered by this prospectus, our pro
forma net tangible book value at June 30, 2010 would have been $766,981, or
$0.05 per share, representing an immediate increase in net tangible book value
of $0.34 per share to the existing stockholders and an immediate dilution of
$1.25 per share, or 96% to purchasers in this offering.
The
following table illustrates the dilution to the purchasers in this offering on a
per-share basis as if the offering had occurred on June 30, 2010:
Offering
price of the shares of Common Stock
|
|
|
|
|
$ |
1.30 |
|
Net
tangible book value before this offering
|
|
$ |
(0.29 |
) |
|
|
|
|
Increase
attributable to purchasers in this offering
|
|
$ |
0.34 |
|
|
|
|
|
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
Dorsey & Whitney, LLP, Minneapolis, Minnesota.
EXPERTS
The
consolidated financial statements of ProUroCare Medical Inc. as of December 31,
2009 and 2008, and for the years ended December 31, 2009 and 2008, and for the
period from August 17, 1999 (date of inception) to December 31, 2009, included
in the Company’s Annual Report on Form 10-K for the year ended December 31, 2009
filed with the Commission on March 31, 2010, 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, 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,
2009;
|
|
·
|
Our
Quarterly Report on Form 10-Q for the quarter ended March 31,
2010;
|
|
·
|
Our
Current Reports on Form 8-K or Form 8-K/A filed March 5, 2010, March
31, 2010, May 24, 2010, June 7, 2010, June 17, 2010, June 25, 2010,
July 2, 2010 and August 10,
2010;
|
|
·
|
Our
Definitive Proxy Statement on Form 14A filed with the SEC on July 2,
2010;
|
|
·
|
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 Company’s Common Stock and Warrants contained in any
registration statement filed by the Company under the Exchange Act,
including any amendment or report filed by the Company under the Exchange
Act for the purpose of updating such description;
and
|
|
·
|
All
documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this prospectus and prior
to the termination of this offering of
securities.
|
Potential
investors may obtain a copy of any of the agreements summarized herein (subject
to certain restrictions because of the confidential nature of the subject
matter) or any of our SEC filings without charge by written or oral request
directed to Richard B. Thon, Chief Financial Officer, ProUroCare Medical Inc.,
6440 Flying Cloud Drive, Suite 101, Eden Prairie, Minnesota 55344, 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.
PART
II—INFORMATION 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
|
|
$
|
533
|
|
Legal
fees and expenses
|
|
60,000
|
|
Accounting
fees and expenses
|
|
7,000
|
|
Printing
and engraving expenses
|
|
6,000
|
|
Transfer
Agent Fees
|
|
4,000
|
|
Miscellaneous
|
|
2,467
|
|
Total
|
|
$
|
80,000
|
|
Item
15. Indemnification of Directors and Officers
Subsection
1 of Section 78.7502 of the Nevada Revised Statutes (the “NRS”), empowers a
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except an action by or
in the right of the corporation, by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys’ fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with the action, suit or proceeding if that 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. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent, does
not, of itself, create a presumption that the person did not act 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, or that, with respect to any criminal
action or proceeding, he or she had reasonable cause to believe that his or her
conduct was unlawful.
Subsection
2 of Section 78.7502 of the NRS empowers a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses, including amounts paid in settlement and attorneys’ fees
actually and reasonably incurred by such person in connection with the defense
or settlement of the action or suit if he or she 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. Indemnification may not be made for any claim,
issue or matter as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
to the corporation or for amounts paid in settlement to the corporation, unless
and only to the extent that the court in which the action or suit was brought or
other court of competent jurisdiction determines upon application that in view
of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as 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 referred to in
subsections 1 and 2 of Section 78.7502, 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.
Section
78.751 of the NRS further provides that the indemnification provided for by
Section 78.7502 shall not be deemed exclusive or exclude any other rights to
which the indemnified party may be entitled and that the scope of
indemnification shall continue as to directors, officers, employees or agents
who have ceased to hold such positions, and to their heirs, executors and
administrators. Section 78.752 of the NRS empowers a corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person or incurred by him or her in any such capacity or
arising out of his or her status as such whether or not the corporation would
have the power to indemnify such person against such liabilities under Section
78.7502.
Pursuant
to the Registrant’s 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 its
directors and officers to the fullest extent permitted by law. In certain
cases, the Registrant may also advance expenses incurred by any director or
officer in defending any proceeding brought against him because of his position
as such.
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)
|
4
|
.2
|
|
Form of
Warrant Agreement between ProUroCare Medical Inc. and Interwest Transfer
(incorporated by reference to Exhibit 4.27 to the Registration
Statement on Form S-1 (Registration No. 333-153605) filed with
the Securities and Exchange Commission on December 18,
2008)
|
4
|
.3
|
|
Specimen
Warrant (incorporated by reference to Exhibit 4.28 to the
Registration Statement on Form S-1 (Registration No. 333-153605)
filed with the Securities and Exchange Commission on December 18,
2008)
|
4
|
.4
|
|
Form
of First Amendment to Warrant Agreement between ProUroCare Medical Inc.
and Interwest Transfer Company, Inc. (incorporated by reference to Exhibit
4.3 to Registration Statement on Form S-3 filed September 25,
2009)
|
4
|
.5
|
|
Specimen
2009 Replacement Warrant (incorporated by reference to Exhibit 4.4 to
Registration Statement on Form S-3 filed September 25,
2009)
|
4
|
.6
|
|
Form
of Second Amendment to Warrant Agreement between ProUroCare Medical Inc.
and Interwest Transfer Company, Inc. (incorporated by reference to
Exhibit 4.24 to the Registration Statement on Form S-4
(Registration No. 333-167969) filed with the Securities and Exchange
Commission on July 2, 2010)
|
4
|
.7
|
|
Specimen
2010 Replacement Warrant (incorporated by reference to Exhibit 4.25
to the Registration Statement on Form S-4 (Registration
No. 333-167969) filed with the Securities and Exchange Commission on
July 2, 2010)
|
5
|
.1
|
|
Legal
Opinion of Dorsey & Whitney LLP (incorporated by reference to
Exhibit 5.1 to the Registration Statement on Form S-4
(Registration No. 333-167969) filed with the Securities and Exchange
Commission on July 2, 2010)
|
23
|
.1
|
|
Consent
of Baker Tilly Virchow Krause, LLP (filed herewith)
|
23
|
.2
|
|
Consent
of Dorsey & Whitney LLP (included in Exhibit 5.1)
|
24
|
.1
|
|
Power
of Attorney (previously filed)
|
Item
17. Undertakings
The
undersigned Registrant hereunder undertakes:
a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(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 this 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 percent 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 this registration statement or any material change to
such information in this registration statement;
Provided, however,
That:
(A)
Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the
registration statement is on Form S–8, 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; and
(B)
Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) 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.
(C) Provided further, however ,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration
statement is for an offering of asset-backed securities on Form S–1 or Form S–3,
and the information required to be included in a post-effective amendment is
provided pursuant to Item 1100(c) of Regulation AB.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) If
the registrant is a foreign private issuer, to file a post-effective amendment
to the registration statement to include any financial statements required by
“Item 8.A. of Form 20–F” at the start of any delayed offering or throughout a
continuous offering. Financial statements and information otherwise required by
Section 10(a)(3) of the Act need not be furnished, provided that the registrant
includes in the prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information in the prospectus is at least as
current as the date of those financial statements. Notwithstanding the
foregoing, with respect to registration statements on Form F–3, a post-effective
amendment need not be filed to include financial statements and information
required by Section 10(a)(3) of the Act if such financial statements and
information are contained in periodic 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 Form
F–3.
(5) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If
the registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona
fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date;
or
(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness.
Provided, however, that
no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such first use, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement
or made in any such document immediately prior to such date of first
use.
(6) That,
for the purpose of determining liability of the Registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned Registrant undertakes that in a primary offering of securities of
the undersigned Registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) 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;
(iii) 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
(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(b) 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.
(c) 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.
(d) 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.
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 August 11, 2010.
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PROUROCARE
MEDICAL INC.
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By:
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/s/ Richard C. Carlson
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Richard
C. Carlson
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Chief
Executive Officer and Acting
Chairman
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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 August 11,
2010.
Name
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Title
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/s/ Richard C. Carlson
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Chairman
and Chief Executive Officer (Principal Executive
Officer)
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Richard
C. Carlson
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/s/ Richard B. Thon
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Chief
Financial Officer (Principal Financial and Accounting
Officer)
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Richard
B. Thon
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*
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Director
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K.
W. Michael Chambers
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*
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Director
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James
L. Davis
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*
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Director
and Secretary
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David
Koenig
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*
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Director
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Robert
Rudelius
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*
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Director
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Scott
Smith
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*By
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/s/ RICHARD C. CARLSON
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Richard
C. Carlson
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Attorney-in-Fact
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Exhibit
Index
Exhibit
No.
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|
Description
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4
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.1
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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)
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4
|
.2
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|
Form of
Warrant Agreement between ProUroCare Medical Inc. and Interwest Transfer
(incorporated by reference to Exhibit 4.27 to the Registration
Statement on Form S-1 (Registration No. 333-153605) filed with
the Securities and Exchange Commission on December 18,
2008)
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4
|
.3
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|
Specimen
Warrant (incorporated by reference to Exhibit 4.28 to the
Registration Statement on Form S-1 (Registration No. 333-153605)
filed with the Securities and Exchange Commission on December 18,
2008)
|
4
|
.4
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|
Form
of First Amendment to Warrant Agreement between ProUroCare Medical Inc.
and Interwest Transfer Company, Inc. (incorporated by reference to Exhibit
4.3 to Registration Statement on Form S-3 filed September 25,
2009)
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4
|
.5
|
|
Specimen
2009 Replacement Warrant (incorporated by reference to Exhibit 4.4 to
Registration Statement on Form S-3 filed September 25,
2009)
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4
|
.6
|
|
Form
of Second Amendment to Warrant Agreement between ProUroCare Medical Inc.
and Interwest Transfer Company, Inc. (incorporated by reference to
Exhibit 4.24 to the Registration Statement on Form S-4
(Registration No. 333-167969) filed with the Securities and Exchange
Commission on July 2, 2010)
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4
|
.7
|
|
Specimen
2010 Replacement Warrant (incorporated by reference to Exhibit 4.25
to the Registration Statement on Form S-4 (Registration
No. 333-167969) filed with the Securities and Exchange Commission on
July 2, 2010)
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5
|
.1
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|
Legal
Opinion of Dorsey & Whitney LLP (incorporated by reference to
Exhibit 5.1 to the Registration Statement on Form S-4
(Registration No. 333-167969) filed with the Securities and Exchange
Commission on July 2, 2010)
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23
|
.1
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Consent
of Baker Tilly Virchow Krause, LLP (filed herewith)
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23
|
.2
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Consent
of Dorsey & Whitney LLP (included in Exhibit 5.1)
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24
|
.1
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Power
of Attorney (previously filed)
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