SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K/A
AMENDMENT NO. 2
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 2008
COMMISSION FILE NO. 0-10581
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TRIMEDYNE, INC.
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(Exact Name of Registrant as Specified in its Charter)
NEVADA 36-3094439
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(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION) IDENTIFICATION NO.)
25901 COMMERCENTRE DRIVE 92630
LAKE FOREST, CALIFORNIA (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
Registrant's Telephone Number, Including Area Code:
(949) 951-3800
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SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
NONE
Securities Registered Pursuant to Section 12(g) of the Act:
Common Stock, $.01 Par Value per Share
(Title of Class)
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Indicate by check mark if the Registrant is a well-known seasoned issuer, as
defined in Rule 405 of the Securities Act. Yes [_] No [X]
Indicate by check mark if the Registrant is not required to file reports
pursuant to Section 13 or 15(d) of the Act. Yes [_] No [X]
Indicate by check mark whether the registrant (1) has filed all reports to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports) and (2) has been subject to such filing requirements for
the past 90 days. Yes [X] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrants knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [_]
Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer |_| Accelerated filer |_|
Non-accelerated filer |_| Smaller reporting company |X|
Indicate by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Exchange Act of 1934). Yes [X] No [_]
Issuer's revenues for the most recent fiscal year were: $5,871,000.
The aggregate market value of voting stock held by non-affiliates of registrant
on January 12, 2009 based upon the closing price of the common stock on such
date was approximately $1,169,955
As of January 12, 2009, there were outstanding 18,365,960 shares of registrant's
Common Stock.
EXPLANATORY NOTE
This abbreviated Amendment No. 2 to Form 10-K/A for the year ended September 30,
2008 is being filed to amend Part II Item 8A "Controls and Procedures" and to
disclosure revisions to Exhibit 31.1 and 31.2 to be in compliance with the exact
form prescribed by Item 601(b)(31) of Regulation S-K.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Trimedyne, Inc.
Date: March 20, 2009 /s/ Marvin P. Loeb
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Marvin P. Loeb,
Chairman, and
Principal Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Marvin P. Loeb Chairman of the Board March 20, 2009
- ------------------------------ of Directors &
Marvin P. Loeb Principal Executive Officer
/s/ Glenn D. Yeik President, COO March 20, 2009
- ------------------------------ Director
Glenn D. Yeik
/s/ Donald Baker Director March 20, 2009
- ------------------------------
Donald Baker
/s/ Jeffrey S. Rudner Treasurer & March 20, 2009
- ------------------------------ Principal Accounting Officer
Jeffrey S. Rudner
23
Item 8A. Controls and Procedures
Conclusion Regarding Effectiveness of Disclosure Controls and Procedures
Our management is responsible for establishing and maintaining adequate internal
control over financial reporting. As defined in Rule 13a-15(f) under the
Exchange Act, internal control over financial reporting is a process designed
by, or under the supervision of, our principal executive officer (PEO) and
principal financial officer (PFO) and effected by our board of directors,
management and other personnel, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted accounting
principles.
Under the supervision and with the participation of our management including our
PEO and PFO, we evaluated the effectiveness of our internal control over
financial reporting as of September 30, 2008, based on the framework and
criteria established by the Committee of Sponsoring Organizations of the
Treadway Commission ("COSO"), and we concluded that our Internal controls over
financial reporting were not effective.
Our management, including our PEO and our PFO, concluded that our disclosure
controls and procedures were not effective as of September 30, 2008, to ensure
that information required to be disclosed by us in the reports filed or
submitted by us under the Exchange Act (i) is recorded, processed, summarized
and reported within the time periods specified in SEC rules and forms, and (ii)
is accumulated and communicated to our management, including our PEO and our
PFO, as appropriate, to allow timely decisions regarding required disclosure.
In reaching our conclusion we considered our failure to provide management's
report on internal controls over financial reporting as specifically required in
Item 380T of Regulation S-K that constituted a "material weakness" in our
internal control over financial reporting.
A material weakness is a deficiency, or combination of deficiencies, in internal
control over financial reporting, such that there is a reasonable possibility
that a material misstatement of the Company's annual or interim financial
statements will not be prevented or detected on a timely basis.
The following material weaknesses were identified:
1. Procedures were not in place to assure that we file an annual
report for the fiscal year indicating management's assessment
of internal control over financial reporting as specifically
required in Item 308T of Regulation S-K.
2. Procedures were not in place to insure that our Principal
Executive Officer and Principal Financial Officer
certifications were filed in the exact prescribed form set
forth in Item 601(B) (31) of Regulation S-K and include the
introductory language of Paragraph 4 of Item 601(B) (31) of
Regulation S-K
This annual report does not include an attestation report of the Company's
registered public accounting firm regarding internal control over financial
reporting. Management's report was not subject to attestation by the Company's
registered public accounting firm pursuant to temporary rules of the Securities
and Exchange Commission that permit the Company to provide only management's
report in this annual report.
Subsequent Remediation Plan
During 2009, the Company, with the assistance of an external finance and
accounting advisory firm with relevant SEC compliance experience has established
additional procedures to strengthen the Company's financial and disclosure
controls and has taken the following action:
Procedures have been put in place, which includes the review by our external
securities attorney, to properly review our future filings to insure that there
are no omissions of required disclosures and certifications do not contain
language that does not conform to Item (601)(31) of Regulation S-K.
Changes In Internal Control Over Financial Reporting
There were no changes in our internal control over financial reporting during
the quarter ended September 30, 2008 that materially affected or are reasonably
likely to materially affect, our internal control over financial reporting. As
discussed above, in 2009, we have engaged external resources to provide
dedicated expertise to ensure proper reporting.