AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 1996
REGISTRATION NO. 333-09103
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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IMAGE GUIDED TECHNOLOGIES, INC.
(Name of small business issuer in its charter)
COLORADO 3829 84-1139082
(State or jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification
Number)
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5710-B FLATIRON PARKWAY
BOULDER, COLORADO 80301
(303) 447-0248
(Address, including zip code, and telephone number, including area code, of
business and principal executive offices)
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PAUL L. RAY, CHIEF EXECUTIVE OFFICER
IMAGE GUIDED TECHNOLOGIES, INC.
5710-B FLATIRON PARKWAY
BOULDER, COLORADO 80301
(303) 447-0248
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
WILLIAM E. TANIS, ESQ. ROBERT S. BROWN, ESQ.
IRELAND, STAPLETON, PRYOR & PASCOE, BROCK, FENSTERSTOCK, SILVERSTEIN,
P.C. MCAULIFFE & WADE, LLC
1675 BROADWAY, 26TH FLOOR ONE CITICORP CENTER, 56TH FLOOR
DENVER, COLORADO 80202 NEW YORK, NEW YORK 10022-4614
(303) 623-2700 (212) 371-2000
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APPROXIMATE DATE OF PROPOSED SALE TO 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. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 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. / /
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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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 7-109-102 and 7-109-107 of the Colorado Business Corporation Act
(the "CBCA") permit indemnification of directors, officers, employees,
fiduciaries and agents of corporations under certain conditions and subject to
certain limitations. The Registrant's Bylaws include provisions which require
the Registrant to indemnify its directors and officers to the fullest extent
permitted by the CBCA, including circumstances in which indemnification is
otherwise discretionary. The Registrant's Bylaws include a provision which
permits, but does not require, the Registrant to indemnify its employees and
agents under certain prescribed circumstances within certain prescribed
limitations. In addition, the Registrant maintains directors' and officers'
liability coverage to insure its indemnification of its directors and officers.
Section 8 of the Underwriting Agreement filed as Exhibit 1.1 hereto provides
for the indemnification by the Underwriters of the Registrant and its directors
and officers, and by the Registrant of the Underwriters, for certain liabilities
arising under the Securities Act of 1933, as amended (the "Securities Act"), or
otherwise.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following are the estimated expenses (other than underwriting discounts
and commissions) of the issuance and distribution of the securities being
registered, all of which will be paid by the Registrant.
SEC registration fee............................................. $ 3,128
NASD filing fee.................................................. *
Nasdaq listing Fee............................................... *
Blue Sky filing fees and expenses................................ *
Printing and engraving expenses.................................. *
Legal fees and expenses.......................................... *
Accounting fees and expenses..................................... *
Transfer agent and registrar fees................................ *
Premium on directors and officers liability insurance............ 58,000
Underwriter's non-accountable expense allowance**................ 180,000
Miscellaneous.................................................... *
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Total........................................................ $ 600,000
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* To be supplied by amendment.
** Will increase to $207,000 if the Underwriter's over-allotment option is
exercised in full.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
During the past three years, the Registrant has issued unregistered
securities in the transactions described below. Securities issued in such
transactions were offered and sold in reliance upon the exemption from
registration under Section 4(2) of the Securities Act, relating to sales by an
issuer not involving any public offering, Regulation D promulgated pursuant to
the Securities Act and/or Rule 701 promulgated under the Securities Act. The
sales of securities were made without the use of an underwriter and the
certificates evidencing the shares bear a restrictive legend permitting the
transfer thereof only upon registration of the shares or an exemption under the
Securities Act.
(1) On July 1, 1993 and April 5, 1994, the Registrant issued an aggregate of
1,804 shares of Common Stock (7,216 after the Registrant's December, 1994 four
for one stock split) to a director of the Registrant upon conversion of a note
payable by the Registrant to the director at a conversion price of $5.33 per
share for a total consideration of $9,615.32.
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(2) On March 25, 1994, the Registrant issued 6,000 shares of Common Stock
(24,000 after the Registrant's December, 1994 four for one stock split) to a
director of the Registrant upon exercise of a warrant at an exercise price of
$.40 per share for a total consideration of $2,400.
(3) On March 18, 1994, the Registrant issued 15,465 shares of Common Stock
(61,860 after the Registrant's December, 1994 four for one stock split) to 10
existing shareholders of the Registrant at a price of $5.33 per share for an
aggregate consideration of $82,428.45.
(4) On March 18, 1994, the Registrant issued an aggregate of 8,448 shares of
Common Stock (33,792 after the Registrant's December, 1994 four for one stock
split) to two directors of the Registrant, a partnership affiliated with one of
such directors, and an employee of the Registrant. Such issuances were made upon
the conversion of notes payable by the Registrant to said parties at a
conversion price of $5.33 per share for a total consideration of $45,006.52.
(5) Between March 18, 1994 and June 23, 1995, the Registrant issued an
aggregate of 36,395 shares of Common Stock (145,580 after the Registrant's
December, 1994 four for one stock split) to various employees, directors and a
consultant of the Registrant, in addition to a limited liability company
affiliated with one of such directors, at a price of $.01 per share for
aggregate consideration of $363.95, pursuant to the exercise of options
previously granted to such parties by the Registrant.
(6) On July 6, 1994, the Registrant issued 46,904 shares of Common Stock
(187,616 after the Registrant's December, 1994 four for one stock split) to a
director of the Company at a price of $5.33 per share in exchange for the
director's payment of a note payable by the Registrant to Vectra Bank in the
amount of $250,000.
(7) In July and August, 1994, the Registrant issued an aggregate of 101,024
shares of Common Stock and an aggregate of 83,332 shares of Series A Preferred
Stock pursuant to a private placement of such stock to six sophisticated
investors (404,096 and 333,328 shares, respectively, after the Registrant's
December, 1994 four for one stock split). The purchase price was $2.97 per share
for Common Stock and $12.00 per share for Series A Preferred Stock for an
aggregate purchase price of $1,300,000. One of the investors received his shares
in lieu of payment of a $300,000 note payable by the Registrant to such
investor.
(8) In May and June, 1996, the Registrant issued 337,500 shares of Common
Stock to five holders of outstanding notes payable by the Registrant upon the
exercise of warrants issued by the Registrant to such parties in connection with
their loans to the Registrant. The warrants were exercised at a price of $1.00
per share for an aggregate consideration of $337,500.
ITEM 27. EXHIBITS.
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION
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1.1 -- Form of Underwriting Agreement.+
3.1 -- Amended and Restated Articles of Incorporation of the Company and Articles of Amendment and
Certificate of Correction thereto.+
3.2 -- Bylaws of the Company.+
4.1 -- Specimen Common Stock Certificate.*
5.1 -- Opinion of Ireland, Stapleton, Pryor & Pascoe, P.C.*
10.1 -- 1994 Stock Option Plan of the Company, as amended, and after the Company's December 1994 four
for one stock split.+
10.2 -- Form of Stock Option Agreement under the Company's 1994 Stock Option Plan.+
10.3 -- Registration Rights Agreement dated as of July 8, 1994, among the Company and holders of the
Company's Series A Preferred Stock.+
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EXHIBIT
NUMBER DESCRIPTION
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10.4 -- Form of Consultant Non-Disclosure Agreement used between the Company and consultants.+
10.5 -- Form of Employee Non-Disclosure and Inventions Agreement used between the Company and its
employees.+
10.6 -- Form of Promissory Notes payable by the Company to each of the Company's Lenders and form of
Extension Agreements thereto.+
10.7 -- Form of Security Agreement between the Company and each of the Company's Lenders.+
10.8 -- Form of Stock Purchase Warrants issued by the Company to each of the Company's Lenders.+
10.9 -- OEM Agreement dated as of April 25, 1996, between the Company and DeeMed International.**
10.10 -- Strategic Alliance Agreement dated as of February 27, 1995 between the Company and Surgical
Navigation Technologies, Inc. and letters regarding termination of such agreement.+
10.11 -- Equipment Lease Agreement between the Company and Machinery Systems, Inc., for a refurbished
Zeiss Coordinate Measuring Machine.+
10.12 -- Commercial Industrial Lease dated January 11, 1996, between the Company and Life Investors
Company of America.+
10.13 -- Domestic Sales Representation Agreement dated December 21, 1993, between the Company and Sandab,
Inc.+
10.14 -- Terms and Conditions of Sale between the Company and Carl Zeiss, Inc.**
10.15 -- Employment Agreement between the Company and Paul L. Ray and Amendment thereto.+
10.16 -- Employment Agreement between the Company and Robert E. Silligman.+
10.17 -- Employment Agreement between the Company and Waldean A. Schulz.+
10.18 -- Employment Agreement between the Company and Jeffrey J. Hiller.+
10.19 -- Lease between the Company and Raycon Properties.+
10.20 -- Form of Representative's Warrants.+
10.21 -- Letter Agreement dated June 24, 1992, between the Company and Giken Shoji Company, Ltd. and
notice of termination thereof.+
10.22 -- License Agreement dated as of August 1, 1996, between the Company and Vexcel Corporation.**
11.1 -- Statement re computation of earnings per share.+
16.1 -- Letter from Ernst & Young to the Commission.+
23.1 -- Consent of Independent Accountants.+
23.2 -- Consent of Ireland, Stapleton, Pryor & Pascoe, P.C. (included in Exhibit 5.1).*
23.3 -- Consent of Nikaido, Marmelstein, Murray & Oram.+
24.1 -- Power of Attorney (included in signature pages).+
27.1 -- Financial Data Schedule.+
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* To be filed by amendment.
+ Previously filed.
** The Company has applied for confidential treatment with respect to portions
of this exhibit.
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ITEM 28. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) 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.
(2) For the purpose of determining any liability under the Securities Act,
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.
(3) It will:
(a) File, during any period in which it offers or sells securities, a
post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information in the Registration Statement; and 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 the 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.
(iii) Include any additional or changed material information on the
plan of distribution.
(b) For determining liability under the Securities Act, treat each
post-effective amendment as a new Registration Statement of the securities
offered, and the offering of the securities at that time to be the initial
bona fide offering.
(c) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
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SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements of filing on Form SB-2 and authorized this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned, in
Boulder, Colorado, on this 13th day of August, 1996.
IMAGE GUIDED TECHNOLOGIES, INC.
By: /s/ PAUL L. RAY
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Paul L. Ray, Chief Executive
Officer
IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT WAS SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES STATED.
SIGNATURES TITLE DATE
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/s/ PAUL L. RAY
- ----------------------------------- Principal Executive August 13, 1996
Paul L. Ray Officer and Director
*
- ----------------------------------- President August 13, 1996
Robert E. Silligman
* Principal Financial
- ----------------------------------- Officer and Principal August 13, 1996
Jeffrey J. Hiller Accounting Officer
*
- ----------------------------------- Vice President, August 13, 1996
Waldean A. Schulz Technology and Director
*
- ----------------------------------- Director August 13, 1996
Ray L. Hauser
*
- ----------------------------------- Director August 13, 1996
Clifford F. Frith
*
- ----------------------------------- Director August 13, 1996
Derace Schaffer
*
- ----------------------------------- Director August 13, 1996
Robert Hamilton
*
- ----------------------------------- Director August 13, 1996
David G. Sengpiel
*By /s/ PAUL L.
RAY
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Paul L. Ray
ATTORNEY-IN-FACT
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