-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SUaf/Gh6z6yjTvOmgGHRdgUaqssidUTPdn9uRrYzWB6y9eHzR7+szZ2DqSOM+yqe eWwy7w/HpRTk4L9kD4AijQ== 0000950130-96-003660.txt : 19960926 0000950130-96-003660.hdr.sgml : 19960926 ACCESSION NUMBER: 0000950130-96-003660 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19960925 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NITINOL MEDICAL TECHNOLOGIES INC CENTRAL INDEX KEY: 0001017259 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 954090463 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-06463 FILM NUMBER: 96634098 BUSINESS ADDRESS: STREET 1: 263 SUMMER STREET CITY: BOSTON STATE: MA ZIP: 02210 BUSINESS PHONE: 6177370930 MAIL ADDRESS: STREET 1: 263 SUMMER STREET CITY: BOSTON STATE: MA ZIP: 02210 S-1/A 1 AMENDMENT #4 TO THE FORM S-1 As filed with the Securities and Exchange Commission on September 25, 1996 Registration No. 333-06463 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- AMENDMENT NO. 4 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- NITINOL MEDICAL TECHNOLOGIES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 3841 95-4090463 (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) INDUSTRIAL CLASSIFICATION IDENTIFICATION NO.) CODE NUMBER) 263 SUMMER STREET BOSTON, MASSACHUSETTS 02210 (617) 737-0930 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) THOMAS M. TULLY PRESIDENT AND CHIEF EXECUTIVE OFFICER 263 SUMMER STREET BOSTON, MASSACHUSETTS 02210 (617) 737-0930 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ---------------- Copies to: STEPHEN H. KAY, ESQ. SQUADRON, TIMOTHY G. MASSAD, ESQ. CRAVATH, ELLENOFF, PLESENT & SHEINFELD, LLP 551 SWAINE & MOORE 825 EIGHTH AVENUE NEW FIFTH AVENUE NEW YORK, NEW YORK 10176 YORK, NEW YORK 10019 (212) 474-1000 (212) 661-6500 ---------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this Registration Statement. 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, check the following box. [_] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_] ---------------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT HAS DULY CAUSED THIS AMENDMENT NO. 4 TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF BOSTON, COMMONWEALTH OF MASSACHUSETTS, ON SEPTEMBER 25, 1996. NITINOL MEDICAL TECHNOLOGIES, INC. /s/ THOMAS M. TULLY By: _________________________________ Thomas M. Tully Chief Executive Officer, President and Director IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES STATED. SIGNATURES TITLE DATE /s/ Thomas M. Tully Chief Executive - ------------------------------------- Officer, President September 25, THOMAS M. TULLY and Director 1996 (Principal Executive Officer) /s/ Theodore I. Pincus Executive Vice - ------------------------------------- President and Chief September 25, THEODORE I. PINCUS Financial Officer 1996 (Principal Financial and Accounting Officer) * Scientific Director - ------------------------------------- and Director September 25, MORRIS SIMON, M.D. 1996 * Chairman of the - ------------------------------------- Board and Director September 25, C. LEONARD GORDON 1996 * Director - ------------------------------------- September 25, MICHAEL C. BROOKS 1996 * Director - ------------------------------------- September 25, ROBERT G. BROWN 1996 II-7 SIGNATURES TITLE DATE * Director - ------------------------------------- September 25, R. JOHN FLETCHER 1996 * Director - ------------------------------------- September 25, JEFFREY R. JAY, M.D. 1996 /s/ Thomas M. Tully *By: ________________________________ AS ATTORNEY-IN-FACT II-8 EXHIBIT INDEX
EXHIBIT PAGE NO. DESCRIPTION OF EXHIBIT NUMBER ------- ---------------------- ------ 1 -- Form of Underwriting Agreement. (1) 3.1 -- Amended and Restated Certificate of Incorporation. (1) 3.1.1 -- Certificate of Amendment of the Amended and Restated Certificate of Incorporation. 3.2 -- Amended and Restated By-laws. (1) 4.1 -- Form of Common Stock Certificate. (1) 5.1 -- Revised Opinion of Squadron, Ellenoff, Plesent & Sheinfeld, LLP. 10.1 -- Stock Purchase Agreement by and among the Company, Whitney Equity Partners, L.P., Boston Scientific Corporation, David J. Morrison, Corporate Decisions, Inc., dated as of February 16, 1996. (1) 10.2 -- Registration Rights Agreement by and among the Company, Whitney Equity Partners, L.P., Boston Scientific Corporation, David J. Morrison, Corporate Decisions, Inc., dated as of February 16, 1996. (1) 10.3 -- Agreement and Plan of Merger by and among the Company, NMT Heart, Inc., InnerVentions, Inc. and Fletcher Spaght, Inc., dated as of January 25, 1996. (1) 10.4 -- Stock Purchase Warrant by and between the Company and Fletcher Spaght, Inc., dated February 14, 1996. (1) 10.5 -- Pledge Agreement by and between the Company and Fletcher Spaght, Inc., dated February 14, 1996. (1) 10.6 -- Registration Rights Agreement by and between the Company and Fletcher Spaght, Inc., dated as of February 14, 1996. (1) 10.7 -- Distribution Agreement by and between the Company and the Bard Radiology division of C.R. Bard, Inc., dated May 19, 1992, as amended on February 1, 1993 and October 1, 1995. (1) (2) 10.8 -- International Distribution Agreement by and between the Company and Bard International, Inc., dated as of November 30, 1995. (1) (2) 10.9 -- License and Development Agreement by and between the Company and Boston Scientific Corporation, dated as of November 22, 1994. (1) (2) 10.10 -- Manufacturing Agreement by and between the Company and Lake Region Manufacturing Company, Inc., dated February 15, 1996. (1) (2) 10.11 -- Technology Purchase Agreement by and between the Company and Morris Simon, M.D., dated as of April 14, 1987. (1) (2) 10.12 -- Asset and Technology Donation and Transfer Agreement by and between C.R. Bard, Inc. and Children's Medical Center Corporation dated as of May 12, 1995. (1) 10.13 -- Stock Transfer Agreement by and between Children's Medical Center Corporation and InnerVentions, Inc., dated as of June 19, 1995. (1) 10.14 -- License Agreement by and between Children's Medical Center Corporation and InnerVentions, Inc., dated June 19, 1995. (1) (2) 10.15 -- Sublicense Agreement by and between Children's Medical Center Corporation and InnerVentions, Inc., dated June 19, 1995. (1) 10.16 -- Assignment Agreement by and between the Company and The Beth Israel Hospital Association, dated June 30, 1994. (1) 10.17 -- License Agreement by and between the Company and Lloyd A. Marks, dated as of April 15, 1996. (1) (2)
EXHIBIT PAGE NO. DESCRIPTION OF EXHIBIT NUMBER ------- ---------------------- ------ 10.18 -- Share Purchase Warrant by and between the Company and Lloyd A. Marks, dated April 15, 1996. (1) 10.19 -- Registration Rights Agreement by and between the Company and Lloyd A. Marks, dated as of April 15, 1996. (1) 10.20 -- Employment Agreement by and between the Company and Thomas M. Tully, dated February 13, 1996. (1) 10.21 -- Registration Rights Agreement by and between the Company and Thomas M. Tully, dated as of February 13, 1996. (1) 10.22 -- Employment Agreement by and between the Company and David Chazanovitz, dated February 13, 1996, as amended as of June 15, 1996. (1) 10.22.1 -- Amendment to Employment Agreement by and between the Company and David Chazanovitz, dated July 9, 1996. (1) 10.23 -- Employment Agreement by and between the Company and Jason Harry, dated as of July 1, 1994. (1)(2) 10.24 -- Employment Agreement by and between the Company and Stephen J. Kleshinski, dated July 22, 1993, as supplemented by agreement dated as of June 1, 1994. (1)(2) 10.25 -- Employment Agreement by and between the Company and Theodore I. Pincus, dated as of May 17, 1996. (1) 10.26 -- Form of Registration Rights Agreement between the Company and certain of its existing stockholders, dated as of February 14, 1996. (1) 10.27 -- Agreement of Lease by and between the Company and the Trustees of Wormwood Realty, dated as of May 8, 1996. (1) 10.28 -- Company 1994 Stock Option Plan. (1) 10.29 -- Company 1996 Stock Option Plan. (1) 10.30 -- Company 1996 Stock Option Plan for Non-Employee Directors. (1) 10.31 -- Registration Rights Agreement between the Company and Junewicz & Co., Inc. dated as of February 16, 1996. (1) 10.32 -- Registration Rights Agreement between the Company and Furman Selz, LLC, dated as of February 16, 1996. (1) 11.1 -- Statement re: Company's Earnings Per Share. (1) 23.1 -- Consent of Arthur Andersen LLP. (1) 23.2 -- Consent of Squadron, Ellenoff, Plesent & Sheinfeld, LLP (contained in the opinion filed as Exhibit 5.1). 23.3 -- Consent of Sixbey, Friedman, Leedom & Ferguson. (1) 24.1 -- Power of Attorney (included on the signature page to the Registration Statement which has been previously filed). (1) 27.1 -- Financial Data Schedule. (1)
- -------- (1) Previously filed. (2) Confidential treatment requested. EX-3.1.1 2 CERTIFICATE OF AMENDMENT EXHIBIT 3.1.1 CERTIFICATE OF AMENDMENT OF THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF NITINOL MEDICAL TECHNOLOGIES, INC. Nitinol Medical Technologies, Inc., a Delaware corporation (the "Corporation") does hereby certify that, in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware, the following amendment to the Amended and Restated Certificate of Incorporation of the Corporation was duly adopted and approved by all of the directors of the Corporation by duly executed unanimous written consent dated as of September 6, 1996, and by the holders of a majority of each class of stock of the Corporation entitled to vote thereon by a majority written consent dated as of September 6, 1996: (a) The definition of "Qualified Public Offering" set forth ------------------------- in article FIFTH Section C of the Amended and Restated Certificate of Incorporation of the Corporation shall be amended to read as follows: "Qualified Public Offering" means an Initial Public ------------------------- Offering by the Corporation with Gross Cash Proceeds to the Corporation in excess of $22,000,000. NITINOL MEDICAL TECHNOLOGIES, INC. By: /s/ Thomas M. Tully ------------------------------ Thomas M. Tully President and Chief Executive officer EX-5.1 3 OPINION OF SQUADRON ELLENOFF EXHIBIT 5.1 [Squadron, Ellenoff, Plesent & Sheinfeld, LLP Letterhead] September 24, 1996 Nitinol Medical Technologies, Inc. 263 Summer Street Boston, Massachusetts 02210 Re: Registration Statement on Form S-1 (Registration No. 333-06463) --------------------------------------------------------------- Ladies and Gentlemen: You have requested our opinion, as counsel for Nitinol Medical Technologies, Inc., a Delaware corporation (the "Company"), in connection with the registration statement on Form S-1 (No. 333-06463), as amended (the "Registration Statement"), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"). The Registration Statement relates to the offering by the Company of 3,000,000 shares of common stock, par value $.001 per share, of the Company (the "Common Stock"), and up to 450,000 shares of Common Stock to be issued solely to cover over-allotments (collectively, the "Shares"). We have examined such records and documents and made such examinations of law as we have deemed relevant in connection with this opinion. Based upon such examinations, it is our opinion that when there has been compliance with the Act and the applicable state securities laws, the Shares to be sold by the Company, when issued, delivered, and paid for in the manner described in the form of Underwriting Agreement filed as Exhibit 1 to the Registration Statement, will be validly issued, and the Shares, when so issued, delivered and paid for will also be fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption "Legal Matters" in the Registration Statement. In so doing, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. Very truly yours, /s/ Squadron, Ellenoff, Plesent & Sheinfeld, LLP -----END PRIVACY-ENHANCED MESSAGE-----