sv3za
As filed with the Securities and Exchange Commission on May 19, 2009
Registration
Statement No. 333-157174
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Escalon Medical Corp.
(Exact name of Registrant as specified in its charter)
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Pennsylvania
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33-0272839 |
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.) |
Escalon Medical Corp.
435 Devon Park Drive, Building 100
Wayne, PA 19087
(610) 688-6830
(Address, including zip code, and telephone number, including area code,
of Registrants principal executive offices)
Richard J. DePiano
Chairman and Chief Executive Officer
Escalon Medical Corp.
435 Devon Park Drive, Building 100
Wayne, PA 19087
(610) 688-6830
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Kathleen M. Shay, Esq.
John W. Kauffman, Esq.
Duane Morris LLP
30 South 17th Street
Philadelphia PA, 19103
(215) 979-1210
Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this registration statement as determined by market conditions.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
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. þ
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. o
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. o
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. o
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. o
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 the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
Large accelerated filer o |
Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company þ |
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Title of Each |
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Maximum |
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Maximum |
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Class of Securities |
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Amount To Be |
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Aggregate Price |
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Aggregate |
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Amount of |
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To Be Registered |
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Registered |
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Per Share |
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Offering Price |
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Registration Fee |
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Common Stock, par
value $0.001 per share |
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1,150,000 shares |
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(1 |
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$ |
2,645,000 |
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$ |
103.95* |
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* |
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Paid upon the initial filing of this Registration Statement |
(1) |
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Calculated pursuant to Rule 457(c), based on $2.30 per share, which
was the average of the high and low prices of the registrants common
stock as reported by the NASDAQ Stock Market on February 6, 2009. |
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 or until the registration statement shall become effective on
such date as the SEC, acting pursuant to said Section 8(a), may
determine.
The information in this prospectus is not complete and may be changed. These securities may not be
sold until the registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities, and 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 MAY 19, 2009
ESCALON MEDICAL CORP.
1,150,000 Shares
Common Stock
This prospectus relates to the resale from time to time of up to 1,150,000 shares of our
common stock, including up to 150,000 shares of our common stock issuable upon exercise of
warrants, by the selling shareholders named in this prospectus and the selling shareholders
transferees. These shares were issued pursuant to a private placement that closed on November 20,
2008. The private placement is more fully described on page 6 of this prospectus under the heading
Selling Shareholders. We are not selling any securities under this prospectus and will not
receive any of the proceeds from the sale of shares by the selling shareholders.
The selling shareholders may sell the common stock being offered by this prospectus from time
to time on terms to be determined at the time of sale through ordinary brokerage transactions or
through any other means described in this prospectus under Plan of Distribution. The selling
shareholders may sell the shares in negotiated transactions or otherwise, at the prevailing market
price for the shares or at negotiated prices. We will not be paying any underwriting discounts or
commissions in this offering.
Our common stock is listed on the NASDAQ Capital Market under the symbol ESMC. On May 15,
2009, the last reported sale price of our common stock on the NASDAQ Capital Market was $1.79 per
share.
Investing in our common stock involves a high degree of risk. You are urged to read the
section entitled Risk Factors in Item 1A of our Form 10-K annual report for the year ended June
30, 2008 and in the other reports we have subsequently filed under the Securities Exchange Act of
1934, or the Exchange Act, which describe specific risks and other information that should be
considered before you make an investment decision.
These securities have not been approved or disapproved by the Securities and Exchange
Commission, or the SEC, nor has the SEC passed upon the accuracy or adequacy of this prospectus.
Any representation to the contrary is a criminal offense.
The date of this prospectus is May 19, 2009.
TABLE OF CONTENTS
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1 |
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1 |
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1 |
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3 |
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5 |
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You should rely only on the information contained in or incorporated by reference into this
prospectus or any applicable prospectus supplement. We have not, and the selling shareholders have
not, authorized anyone to provide you with different information. Neither we nor the selling
shareholders are making an offer to sell or seeking an offer to buy shares of our common stock
under this prospectus or any applicable prospectus supplement in any jurisdiction where the offer
or sale is not permitted. The information contained in this prospectus, any applicable prospectus
supplement and the documents incorporated by reference herein and therein are accurate only as of
their respective dates, regardless of the time of delivery of this prospectus or any sale of a
security. Our business, financial condition, results of operations and prospects may have changed
since that date.
SUMMARY
The following summary highlights selected information from this prospectus and in the
documents incorporated by reference in this prospectus. Because this section is a summary, it does
not contain all information about us that may be important to you. You should read this entire
prospectus and the other documents referred to in Where You Can Find More Information, and the
consolidated financial statements and related notes that are incorporated by reference in this
prospectus referred to in Incorporation of Certain Information by Reference. Unless the context
otherwise requires, references in this prospectus to Escalon, we, us, and our refer to
Escalon Medical Corp. and its subsidiaries collectively.
Our Company
We are a Pennsylvania corporation initially incorporated in California in 1987 and
reincorporated in Pennsylvania in November 2001. We operate in the healthcare market specializing
in the development, manufacture, marketing and distribution of medical devices and pharmaceuticals
in the areas of ophthalmology, diabetes, hematology and vascular access. We and our products are
subject to regulation and inspection by the United States Food and Drug Administration, or the FDA.
The FDA and other governmental authorities require extensive testing of new products prior to sale
and have jurisdiction over the safety, efficacy and manufacture of products, as well as product
labeling and marketing.
Corporate Information
Our principal executive offices are located at 435 Devon Park Drive, Building 100, Wayne,
Pennsylvania 19087. Our telephone number is (610) 688-6830. Our website is www.escalonmed.com.
The contents of our website are not a part of this prospectus.
RISK FACTORS
Investing in our common stock involves a high degree of risk. You should carefully consider
all of the risks described under Risk Factors in our most recent Form 10-K annual report and the
Form 10-Q and Form 8-K reports we have subsequently filed with the SEC. If any of these risks
actually occurs, it could materially harm our business and our financial condition and results of
operations. In this event, the market price of our common stock could decline and you may lose
part of or all of your investment.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus incorporates by reference certain forward-looking statements under the Private
Securities Litigation Reform Act of 1995. Forward-looking statements convey our current
expectations or forecasts of future events. All statements contained or incorporated by reference
in this prospectus other than statements of historical fact are forward-looking statements. Words
such as anticipates, estimates, expects, projects, intends, plans, believes and words
and terms of similar substance used in connection with any discussion of future operating or
financial performance identify forward-looking statements.
We claim the protection of the safe harbor for forward-looking statements provided in the
Private Securities Litigation Reform Act of 1995. These statements may be made directly in this
prospectus and they may also be incorporated by reference to other documents filed with the SEC.
These forward-looking statements are based upon the current beliefs and expectations of our
management and are inherently subject to significant business, economic and competitive
uncertainties and contingencies, many of which are difficult to predict and generally beyond our
control. In addition, these forward-looking statements are subject to assumptions with respect to
future business strategies and decisions that are subject to change. Actual results may differ
materially from the anticipated results discussed in these forward-looking statements. The
uncertainties and risks include whether we are able to:
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implement our growth and marketing strategies, improve upon the operations of our
business units, including the ability to make acquisitions and the integration of any
acquisitions we may undertake, if any, of which there can be no assurance, |
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implement cost reductions, |
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generate cash, |
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identify, finance and enter into business relationships and acquisitions, and make
timely payments for any financing, and |
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new product development, commercialization, manufacturing and market acceptance of
new products. |
Other factors include uncertainties and risks related to:
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marketing acceptance of our existing products in new markets, |
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research and development activities, including failure to demonstrate clinical
efficacy, |
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delays by regulatory authorities, scientific and technical advances by us or third
parties, |
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introduction of competitive products, |
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ability to reduce staffing and other costs and retain benefit of prior reductions |
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third party reimbursement and physician training, and |
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general economic conditions. |
Further information about these and other relevant risks and uncertainties may be found in our
reports on Form 10-K for year ended June 30, 2008 and Form 10-Q for the quarters ended September
30, 2008, December 31, 2008 and March 31, 2009, and our other filings with the SEC, all of which
are available from the SEC as well as other sources.
We caution you not to place undue reliance on these forward-looking statements, which speak
only as of the date of this prospectus or the date of any document incorporated by reference in
this prospectus. All subsequent written and oral forward-looking statements attributable to us or
any person acting on our behalf are expressly qualified in their entirety by these cautionary
statements. Except to the extent required by applicable law or regulation, we undertake no
obligation to update these forward-looking statements to reflect events or circumstances after the
date of this prospectus or to reflect the occurrence of unanticipated events.
-2-
SELECTED FINANCIAL DATA
The following selected financial data are derived from our consolidated financial statements.
The data should be read in conjunction with Managements Discussion and Analysis of Financial
Condition and Results of Operations included herein in Item 7 and the financial statements and
related notes to consolidated financial statements thereto included herein in Item 8 of our Form
10-K annual report for the year ended June 30, 2008.
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For the Years Ended June 30, |
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2008 |
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2007 |
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2006 |
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2005 |
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2004 |
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(Amounts in thousands, except per share amounts) |
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Statement of Operations Data: |
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Net revenues: |
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Product revenue |
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$ |
29,988 |
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$ |
27,893 |
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$ |
27,544 |
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$ |
23,864 |
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$ |
12,348 |
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Other revenue |
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222 |
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10,945 |
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2,247 |
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3,060 |
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2,373 |
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Revenues, net |
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30,210 |
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38,838 |
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29,791 |
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26,924 |
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14,721 |
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Costs and expenses: |
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Cost of goods sold |
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17,310 |
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15,771 |
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16,004 |
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13,158 |
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5,476 |
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Marketing, general and administrative |
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14,392 |
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13,806 |
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13,995 |
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12,556 |
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5,206 |
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Research and development |
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4,058 |
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3,461 |
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2,828 |
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1,893 |
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776 |
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Goodwill Impairment(1) |
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9,575 |
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0 |
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0 |
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0 |
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0 |
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Total costs and expenses |
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45,335 |
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33,038 |
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32,827 |
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27,607 |
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11,458 |
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(Loss) income from operations |
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(15,125 |
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5,800 |
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(3,036 |
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(683 |
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3,263 |
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Other (expense) and income: |
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Gain on sale
of available for sale securities |
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0 |
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75 |
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1,157 |
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3,412 |
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0 |
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Equity in
Ocular Telehealth Management, LLC |
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(88 |
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(88 |
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(174 |
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(64 |
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0 |
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Interest income |
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300 |
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208 |
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162 |
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69 |
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59 |
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Interest expense |
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(12 |
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(29 |
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(64 |
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(55 |
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(407 |
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Total other (expense) and income |
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200 |
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166 |
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1,081 |
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3,362 |
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(348 |
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Net (loss) income before taxes |
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(14,925 |
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5,966 |
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(1,955 |
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2,679 |
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2,915 |
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Provision for income taxes |
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135 |
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51 |
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31 |
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232 |
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173 |
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Net (loss) income |
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$ |
(15,060 |
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$ |
5,915 |
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$ |
(1,986 |
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$ |
2,447 |
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$ |
2,742 |
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Basic net (loss) income per share |
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$ |
(2.36 |
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$ |
0.93 |
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$ |
(0.32 |
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$ |
0.42 |
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$ |
0.70 |
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Diluted net (loss) income per share |
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$ |
(2.36 |
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$ |
0.92 |
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$ |
(0.32 |
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$ |
0.39 |
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$ |
0.64 |
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Weighted average shares basic used
in per share calculation |
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6,389 |
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6,375 |
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6,152 |
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5,832 |
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3,897 |
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Weighted average shares diluted
used in per share calculation |
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6,389 |
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6,434 |
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6,152 |
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6,231 |
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4,304 |
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At June 30, |
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2008 |
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2007 |
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2006 |
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2005 |
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2004 |
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(Amounts in thousands) |
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Balance Sheet Data: |
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Cash and cash equivalents |
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$ |
3,708 |
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$ |
8,879 |
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$ |
3,380 |
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$ |
5,116 |
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$ |
12,602 |
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Working capital |
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10,547 |
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17,238 |
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10,616 |
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13,613 |
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13,966 |
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Total assets |
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31,896 |
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45,017 |
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38,645 |
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40,049 |
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29,457 |
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Current portion of ling term debt |
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502 |
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150 |
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Long-term debt, net of current portion |
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251 |
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0 |
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163 |
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392 |
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2,396 |
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Total liabilities |
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7,364 |
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5,612 |
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5,545 |
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5,530 |
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5,996 |
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Accumulated deficit |
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(43,267 |
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(28,208 |
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(34,122 |
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(32,136 |
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(34,585 |
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Total shareholders equity |
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24,532 |
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39,406 |
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33,100 |
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34,519 |
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23,461 |
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-3-
No cash dividends were paid in any of the periods presented.
Drew encountered a series of events during the third and fourth quarters of the fiscal year
ended June 30, 2008 that had a material affect on the valuation of our goodwill related to the
purchase of Drew. These events include a development delay of Drews DS-360 instrument that Drew
had previously anticipated would be completed by the fourth quarter of the fiscal year ended June
30, 2008, and a contract dispute with Point Care Technologies (PCT) that has delayed the
development of Drews 2280 HT HIV instrument (see footnote 8 Commitments and Contingencies in the
notes to the financial statements in Form 10-K).
The development of Drews proposed new diabetes instrument, the DS-360, is significantly
delayed because of difficulties related to the final phase of its development. The DS-360 is to be
Drews next generation diabetes instrument, which a key line of business for Drew. The uncertainty
of the DS-360s completion combined with the continued aging of Drews existing diabetes instrument
offerings has had a negative impact on Drews estimated future operating results and cash flow.
Drew, in consultation with independent consultants, continues to evaluate the development status of
the DS-360 project. Until the evaluation is completed, Drew cannot estimate the timing of the
510(k) application submission for the instrument to the FDA or whether the submission will be made.
Also, Drew had anticipated that the joint development project it had undertaken with PCT of
Drews 2280 HT HIV instrument would be completed during the fiscal year ended June 30, 2008. Drew
recently settled a contract dispute with PCT relating to this project (see footnote 8 Commitments
and Contingencies in Form 10-K for a details on the dispute). As part of the settlement dated
November 3, 2008 Drew and PCT are no longer jointly developing the 2280 HT HIV instrument and Drew
is unable to estimate when or if the 2280 HT HIV instrument will be completed. Drew undertook the
development effort at considerable cost because it believed that the 2280 HT HIV instrument had
significant potential in monitoring the status of HIV patients. The uncertainty whether the 2280
HT HIV will be completed has had a negative impact on Drews estimated future operating results and
cash flow.
Because of these developments and the continued diminished operating results of Drews aging
legacy projects, the Company reduced its work force during the fourth quarter of the year ended
June, 30, 2008 by 23 positions and restructured certain management responsibilities. These events
negatively affected the evaluation by the Company of the future operating results and cash flows of
Drew.
The Company tests goodwill for possible impairment on an annual basis and at any other time
events occur or circumstances indicate that the carrying amount of goodwill may be impaired.
The first step of the SFAS No. 142 impairment analysis consists of a comparison of the fair
value of the reporting unit with its carrying amount, including the goodwill. The fair value was
determined based on the income approach, which estimates the fair value based on the future
discounted cash flows. Under the income approach, the Company assumed, with respect to Drew, a
forecasted cash flow period of five years, long-term annual growth rates of 5% and a discount rate
of 14%.
Based on the annual income approach analysis that was separately performed for each operating
segment it was determined that in the Drew segment the carrying amount of the goodwill was in
excess of its respective fair value. As such, the Company was required to perform the second step
analysis for Drew in order to determine the amount of the goodwill impairment. The second step
-4-
analysis consisted of comparing the implied fair value of the goodwill with the carrying amount of
the goodwill, with an impairment charge resulting from any excess of the carrying value of the
goodwill over the implied fair value of the goodwill. Based on the second step analysis, the
Company concluded that all $9,574,655 of the goodwill recorded at Drew was impaired. As a result,
the Company recorded a non-cash goodwill impairment charge to operations totaling $9,574,655 for
the year ended June 30, 2008.
The determination as to whether a write-down of goodwill is necessary involves significant
judgment based on short-term and long-term projections of the Company. The assumptions supporting
the estimated future cash flows of the reporting unit, including profit margins, long-term
forecasts, discount rates and terminal growth rates, reflect the Companys best estimates.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares of common stock offered by
this prospectus.
SELLING SHAREHOLDERS
On November 20, 2008, we completed a private placement of 1,000,000 shares of our common
stock, for which we received net proceeds of approximately $1,029,000. We also issued warrants to
purchase up to an aggregate of 150,000 shares of our common stock to the purchasers in the private
placement. The warrant exercise price is $1.21 per share. The warrants have a term of five years,
but cannot be exercised for 181 days after issuance.
In connection with our issuance of the shares, we entered into a registration rights agreement
with the initial purchaser pursuant to which we agreed to register the resale of the shares. We
have agreed to keep the registration statement relating to the shares effective until the earlier
of the date on which the holders are eligible to sell all of their shares pursuant to Rule 144
under the Securities Act of 1933, or the Securities Act, the date that all shares covered by this
prospectus have been sold or the date all of the shares covered by this prospectus cease to be
outstanding.
We prepared the following table based on information supplied to us by the listed selling
shareholders. We do not know when or in what amounts the selling shareholders may offer shares for
sale. The selling shareholders may or may not sell all or any of the shares offered by this
prospectus. We may amend or supplement this prospectus from time to time to update the disclosures
regarding the selling shareholders.
Except as identified below, none of the selling shareholders is a broker-dealer or an
affiliate of a broker-dealer. All selling shareholders who are affiliated with a broker-dealer
have informed us that they have purchased the shares in the ordinary course of business and at the
time of the purchase of the shares, they had no agreements or understandings, directly or
indirectly, with any person to distribute the shares covered by this prospectus. We currently have
no agreements, arrangements or understandings with any of the selling shareholders regarding sales
of their shares other than a registration rights agreement requiring us to register for sale their
shares of common stock pursuant to this prospectus. None of the selling shareholders has had a
material relationship with us or any of our subsidiaries within the past three years.
Beneficial ownership is determined in accordance with the rules of the SEC.
-5-
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Shares of Common |
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Stock Beneficially |
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Number of Shares of |
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Shares of Common |
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Owned Prior |
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Common Stock Being |
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Stock Held After |
Name of Selling Shareholder |
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to This Offering(1) |
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Offered(1) |
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This Offering(1) |
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Michelle B. White |
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330,685 |
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258,750 |
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71,950 |
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Charles E. White TTEE,
Lucille D. White Income
Only Trust(2) |
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86,250 |
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86,250 |
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Richard J. Snizek TTEE,
Richard J. Snizek Rev
Trust |
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121,200 |
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115,000 |
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6,200 |
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James F. Langway |
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230,000 |
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230,000 |
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W. Lincoln Mossop Jr.
TTEE, W. Lincoln Mossop
Jr. Trust(2) |
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125,100 |
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115,000 |
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10,100 |
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W. Lincoln Mossop III
TTEE, W. Lincoln Mossop
III Trust |
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86,250 |
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86,250 |
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Wilson and Ellen Saville(2) |
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198,500 |
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172,500 |
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26,000 |
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Robin Saville Wheeler
TTEE, Robin Saville Living
Trust |
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91,250 |
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86,250 |
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5,000 |
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(1) |
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Includes shares of our common stock purchasable upon exercise of warrants held by the selling
shareholders, as follows: Michelle B. White, 33,750 shares (in addition, these shares include
71,950 shares owned by this selling shareholder); Charles E. White TTEE, Lucille D. White Income
Only Trust, 11,250 shares; Richard J. Snizek TTEE, Richard J. Snizek Rev Trust, 15,000 shares (in
addition, these shares include 6,200 owned by Richard J. Snizak/IRA); James F. Langway, 30,000
shares; W. Lincoln Mossop Jr. TTEE, W. Lincoln Mossop Jr. Trust, 15,000 shares (in addition, these
shares include 10,100 shares owned by this trust); W. Lincoln Mossop III TTEE, W. Lincoln Mossop
III Trust, 11,250 shares; Wilson and Ellen Saville, 22,500 shares (in addition, these shares
include 10,000 shares owned by Wilson G. Saville and 16,000 shares owned by 401k plan fbo Wilson
Saville); and Robin Saville Wheeler TTEE, Robin Saville, 11,250 shares (in addition, these shares
include 5,000 shares owned by Robin Saville). The warrants become exercisable commencing on May
20, 2009. |
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(2) |
|
This selling shareholder has identified itself as an affiliate of a registered broker-dealer
and has represented to us that such selling shareholder acquired its shares of our common stock in
the ordinary course of business and, at the time of the purchase of the securities, such selling
shareholder had no agreements or understandings, direct or indirect, with any person to distribute
the securities. To the extent that we become aware that such selling shareholder did not acquire
its shares of our common stock in the ordinary course of business or did have such an agreement or
understanding, we will file a post-effective amendment to the registration statement of which this
prospectus supplement forms a part to designate such affiliate as an underwriter within the
meaning of the Securities Act. |
-6-
PLAN OF DISTRIBUTION
We are registering the shares of common stock issued to the selling shareholders to permit the
resale of these shares of common stock by the holders of the shares of common stock from time to
time after the date of this prospectus. We will not receive any of the proceeds from the sale by
the selling shareholders of the shares of common stock. We will bear all fees and expenses
incident to our obligation to register the shares of common stock.
The selling shareholders may sell all or a portion of the shares of common stock beneficially
owned by them and offered hereby from time to time directly or through one or more underwriters,
broker-dealers or agents. If the shares of common stock are sold through underwriters or
broker-dealers, the selling shareholders will be responsible for underwriting discounts or
commissions or agents commissions. The shares of common stock may be sold on any national
securities exchange or quotation service on which the securities may be listed or quoted at the
time of sale, in the over-the-counter market or in transactions otherwise than on these exchanges
or systems or in the over-the-counter market and in one or more transactions at fixed prices, at
prevailing market prices at the time of the sale, at varying prices determined at the time of sale,
or at negotiated prices. These sales may be effected in transactions, which may involve crosses or
block transactions. The selling shareholders may use any one or more of the following methods when
selling shares:
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ordinary brokerage transactions and transactions in which the broker-dealer solicits
purchasers; |
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block trades in which the broker-dealer will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to facilitate the
transaction; |
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purchases by a broker-dealer as principal and resale by the broker-dealer for its
account; |
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an exchange distribution in accordance with the rules of the applicable exchange; |
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privately negotiated transactions; |
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settlement of short sales entered into after the effective date of the registration
statement of which this prospectus is a part; |
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broker-dealers may agree with the selling shareholders to sell a specified number of
such shares at a stipulated price per share; |
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through the writing or settlement of options or other hedging transactions, whether
such options are listed on an options exchange or otherwise; |
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the distribution of the shares by any selling shareholder to its partners, members
or shareholders; |
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a combination of any such methods of sale; and |
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any other method permitted pursuant to applicable law. |
The selling shareholders also may resell all or a portion of the shares in open market
transactions in reliance upon Rule 144 under the Securities Act, as permitted by that rule, or
Section
-7-
4(1) under the Securities Act, if available, rather than under this prospectus, provided that they
meet the criteria and conform to the requirements of those provisions.
Broker-dealers engaged by the selling shareholders may arrange for other broker-dealers to
participate in sales. If the selling shareholders effect such transactions by selling shares of
common stock to or through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts, concessions or
commissions from the selling shareholders or commissions from purchasers of the shares of common
stock for whom they may act as agent or to whom they may sell as principal. Such commissions will
be in amounts to be negotiated, but, except as set forth in a supplement to this prospectus, in the
case of an agency transaction will not be in excess of a customary brokerage commission in
compliance with NASD Rule 2440; and in the case of a principal transaction a markup or markdown in
compliance with NASD IM-2440.
In connection with sales of the shares of common stock or otherwise, the selling shareholders
may enter into hedging transactions with broker-dealers or other financial institutions, which may
in turn engage in short sales of the shares of common stock in the course of hedging in positions
they assume. The selling shareholders may also sell shares of common stock short and if such short
sale shall take place after the date that this Registration Statement is declared effective by the
SEC, the selling shareholders may deliver shares of common stock covered by this prospectus to
close out short positions and to return borrowed shares in connection with such short sales. The
selling shareholders may also loan or pledge shares of common stock to broker- dealers that in turn
may sell such shares, to the extent permitted by applicable law. The selling shareholders may also
enter into option or other transactions with broker-dealers or other financial institutions or the
creation of one or more derivative securities which require the delivery to such broker-dealer or
other financial institution of shares offered by this prospectus, which shares such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended
to reflect such transaction). Notwithstanding the foregoing, the selling shareholders have been
advised that they may not use shares registered on this registration statement to cover short sales
of our common stock made prior to the date the registration statement, of which this prospectus
forms a part, has been declared effective by the SEC.
The selling shareholders may, from time to time, pledge or grant a security interest in some
or all of the shares of common stock owned by them and, if they default in the performance of their
secured obligations, the pledgees or secured parties may offer and sell the shares of common stock
from time to time pursuant to this prospectus or any amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act, amending, if necessary, the list of
selling shareholders to include the pledgee, transferee or other successors in interest as selling
shareholders under this prospectus. The selling shareholders also may transfer and donate the
shares of common stock in other circumstances in which case the transferees, donees, pledgees or
other successors in interest will be the selling beneficial owners for purposes of this prospectus.
The selling shareholders and any broker-dealer or agents participating in the distribution of
the shares of common stock may be deemed to be underwriters within the meaning of Section 2(11)
of the Securities Act in connection with such sales. In such event, any commissions paid, or any
discounts or concessions allowed to, any such broker-dealer or agent and any profit on the resale
of the shares purchased by them may be deemed to be underwriting commissions or discounts under the
Securities Act. Selling Shareholders who are underwriters within the meaning of Section 2(11) of
the Securities Act will be subject to the applicable prospectus delivery requirements of the
Securities Act, including Rule 172 thereunder, and may be subject to certain statutory liabilities
of, including but not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under
the Exchange Act.
-8-
Each selling shareholder has informed us that it is not a registered broker-dealer and does
not have any written or oral agreement or understanding, directly or indirectly, with any person to
distribute the common stock. Upon our being notified in writing by a selling shareholder that any
material arrangement has been entered into with a broker-dealer for the sale of common stock
through a block trade, special offering, exchange distribution or secondary distribution or a
purchase by a broker or dealer, a supplement to this prospectus will be filed, if required,
pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of each such selling
shareholder and of the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such shares of common stock were sold, (iv) the commissions paid or discounts or
concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did
not conduct any investigation to verify the information set out or incorporated by reference in
this prospectus, and (vi) other facts material to the transaction. The selling shareholders may
indemnify any broker-dealer that participates in transactions involving the sale of the shares of
common stock against certain liabilities, including liabilities arising under the Securities Act.
Under the securities laws of some states, the shares of common stock may be sold in such
states only through registered or licensed brokers or dealers. In addition, in some states the
shares of common stock may not be sold unless such shares have been registered or qualified for
sale in such state or an exemption from registration or qualification is available and is complied
with.
There can be no assurance that any selling shareholder will sell any or all of the shares of
common stock registered pursuant to the shelf registration statement, of which this prospectus
forms a part.
Each selling shareholder and any other person participating in such distribution will be
subject to applicable provisions of the Exchange Act of 1934 and the rules and regulations
thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit the
timing of purchases and sales of any of the shares of common stock by the selling shareholder and
any other participating person. Regulation M may also restrict the ability of any person engaged
in the distribution of the shares of common stock to engage in market-making activities with
respect to the shares of common stock. All of the foregoing may affect the marketability of the
shares of common stock and the ability of any person or entity to engage in market-making
activities with respect to the shares of common stock.
We will pay all expenses of the registration of the shares of common stock pursuant to the
registration rights agreement, including, without limitation, the SECs filing fees and expenses of
compliance with state securities or blue sky laws; provided, however, that each selling
shareholder will pay all underwriting discounts and selling commissions, if any and any related
legal expenses incurred by it. We will indemnify the selling shareholders against certain
liabilities, including some liabilities under the Securities Act, in accordance with the
registration rights agreements, or the selling shareholders will be entitled to contribution. We
may be indemnified by the selling shareholders against civil liabilities, including liabilities
under the Securities Act, that may arise from any written information furnished to us by the
selling shareholders specifically for use in this prospectus, in accordance with the related
registration rights agreements, or we may be entitled to contribution.
LEGAL MATTERS
The validity of the shares of our common stock being offered hereby is being passed upon for
us by Duane Morris LLP, Philadelphia, Pennsylvania.
-9-
EXPERTS
The financial statements as of June 30, 2008 and 2007 and for the years ended June 30, 2008,
2007 and 2006 incorporated in the accompanying prospectus by reference from our Annual Report on
Form 10-K have been audited by Mayer Hoffman McCann P.C., an independent registered public
accounting firm, as stated in their report which are incorporated herein by reference, and are
incorporated in reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the
SEC. You may read and copy any reports, statements or other information that we file with the SEC
at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may request
copies of these documents, upon payment of a copying fee, by writing to the SEC. Please call the
SEC at 1-800-SEC-0330 for information on the operation of the Public Reference Room. Our SEC
filings are also available to the public on the SEC internet site at http://www.sec.gov. Unless
specifically listed in Incorporation of Certain Information by Reference, the information
contained on the SEC website about us is not intended to be incorporated by reference in this
prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
Certain information about us is not included in this prospectus and is incorporated by
reference to reports and exhibits we file with the SEC. We disclose important information to you
by referring you to these documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference into this prospectus will be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained in this prospectus or any
other subsequently filed document that is deemed to be incorporated by reference into this
prospectus modifies or supersedes such statement. Any statement so modified or superseded will not
be deemed, except as so modified or superseded, to constitute a part of this prospectus. We
incorporate by reference the documents listed below that we have filed with the SEC:
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Annual Report on Form 10-K and Form 10-K/A for the year ended June 30, 2008; |
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Quarterly Reports on Form 10-Q for the periods ended September 30, 2008, December
31, 2008 and March 31, 2009; |
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Current Reports on Form 8-K filed on November 21, 2008 and January 7, 2009; and |
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The description of our common stock. |
All documents that we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this registration statement and until the offering under this registration statement is
completed will be deemed to be incorporated by reference into this registration statement and will
be a part of this registration statement from the date of the filing of the document. Any
statement contained in a document incorporated or deemed to be incorporated by reference into this
registration statement will be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained in this registration statement or
in any other subsequently filed document that also is or is deemed to be incorporated by reference
into this registration statement conflicts with, negates, modifies or supersedes that statement.
Any statement that is modified or superseded will not constitute a part of this registration
statement, except as modified or superseded.
-10-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses incurred by us in connection with the issuance and distribution of the securities
being offered hereby are as follows and are all estimated, other than the SEC filing fee:
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SEC filing fee |
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$ |
103.95 |
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Accounting fees and expenses |
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5,000.00 |
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Legal fees and expenses |
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5,000.00 |
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Printing and engraving |
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500.00 |
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Miscellaneous |
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500.00 |
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Total |
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11,103.95 |
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Item 15. Indemnification of Directors and Officers.
As permitted by the provisions for indemnification of directors and officers in the
Pennsylvania Business Corporation Law (the BCL), our bylaws provide for indemnification of
directors and officers for all expenses, including without limitation attorneys fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred or suffered by such person in
any threatened, pending or completed action, suit or proceeding, including without limitation an
action, suit or proceeding by us or in our right, whether civil, criminal, administrative or
investigative, or through arbitration, unless the act or failure to act giving rise to the claim
for indemnification is determined by a court to have constituted willful misconduct or
recklessness.
The right to indemnification provided in the bylaws includes the right to have the expenses
incurred by such person in defending any proceeding paid by us in advance of the final disposition
of the proceeding to the fullest extent permitted by Pennsylvania law; provided that, if
Pennsylvania law continues so to require, the payment of such expenses incurred by such person in
advance of the final disposition of a proceeding may be made only upon delivery to us of an
undertaking, by or on behalf of such person, to repay all amounts so advanced without interest if
it is ultimately determined that such person is not entitled to be indemnified under our bylaws or
otherwise. Indemnification under such provisions continues as to a person who has ceased to be a
director or officer of ours and inures to the benefit of his or her heirs, executors and
administrators.
Our bylaws also avail directors of the Pennsylvania law limiting directors liability for
monetary damages for any action taken or any failure to take any action except for those cases in
which they have breached or failed to perform their fiduciary duties under the BCL and such breach
or failure to perform constitutes self-dealing, willful misconduct or recklessness; provided,
however, that this limitation of liability for monetary damages does not apply to the
responsibilities or liabilities of a director pursuant to any criminal statute, or to the
liabilities of a director for payment of taxes pursuant to local, Pennsylvania or federal law.
We maintain policies of insurance under which we and our directors and officers are insured
subject to specified exclusions and deductible and maximum amounts against loss arising from any
claim which may be made against us or any of our directors or officers by reason of any breach of
duty, neglect, error, misstatement, omission or act done or alleged to have been done while acting
in our or their respective capacities.
Item 16. Exhibits.
We are filing the following exhibits with this registration statement:
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Exhibit No. |
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Description of Exhibits |
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Reference |
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5.1
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Opinion of Duane Morris LLP.
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Filed with initial
filing of this
registration
statement |
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23.1
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Consent of Duane Morris LLP (contained in Exhibit 5.1) |
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23.2
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Consent of Mayer Hoffman McCann P.C.
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Filed herewith |
Item 17. Undertakings.
(a) We hereby undertake:
(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;
(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 in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered, if the
total dollar value of securities offered would not exceed that which was registered, and any
deviation from the low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum aggregate offering price set
forth in the Calculation of Registration Fee table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in
this registration statement;
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the SEC by us pursuant to Section 13 or 15(d) of the Exchange
Act 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.
(2) That, for the purpose of determining any liability under the Securities Act, 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.
II-2
(4) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by us 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
(ii) 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 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.
(b) We hereby undertake that, for purposes of determining any liability under the Securities
Act, each filing of our annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act, and, where applicable, each filing of an employee benefit plans annual report pursuant to
Section 15(d) of the Exchange Act, 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 may be
permitted to our directors, officers and controlling persons pursuant to the provisions referred to
in Item 15 above, or otherwise, we have been advised that in the opinion of the 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 us of expenses incurred or paid by a director, officer or controlling person of ours
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, we will, unless in the
opinion of our counsel the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by us is against public
policy as expressed in the Securities Act and will be governed by the final adjudication of such
issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Wayne, Commonwealth of Pennsylvania, on May 19, 2009.
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ESCALON MEDICAL CORP.
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By: |
/s/ Richard J. DePiano
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Richard J. DePiano |
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Chairman and Chief Executive Officer |
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Know all men by these presents, that each person whose signature appears below constitutes and
appoints Richard J. DePiano and Richard J. DePiano, Jr., and each or either of them, as such
persons true and lawful attorneys-in-fact and agents, with full power of substitution, for such
person, and in such persons name, place and stead, in any and all capacities to sign any or all
amendments or post-effective amendments to this registration statement, and to file the same, with
all exhibits thereto and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and about the premises,
as fully to all intents and purposes as such person might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the registration statement has
been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ Richard J. DePiano
Richard J. DePiano
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Chairman of the Board, Chief
Executive Officer and
Director
(principal executive officer)
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May 19, 2009 |
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/s/ Robert M. OConnor
Robert M. OConnor
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Chief Financial Officer
(principal financial and
accounting officer)
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May 19, 2009 |
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/s/ Anthony Coppola
Anthony Coppola
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Director
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May 19, 2009 |
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/s/ Jay L. Federman
Jay L. Federman
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Director
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May 19, 2009 |
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Signature |
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Title |
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Date |
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/s/ William L.G. Kwan
William L.G. Kwan
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Director
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May 19, 2009 |
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/s/ Lisa Napolitano
Lisa Napolitano
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Director
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May 19, 2009 |
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/s/ Fred Choate
Fred Choate
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Director
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May 19, 2009 |
II-5
EXHIBIT INDEX
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Exhibit No. |
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Description of Exhibits |
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23.2
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Consent of Mayer Hoffman McCann P.C. |