As filed with the Securities and Exchange Commission on July 15, 2002
Registration No. _____________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Computerized Thermal Imaging, Inc.
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(Exact name of issuer as specified in its charter)
Nevada 87-0458721
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(State or Other Jurisdiction of Incorporation (I.R.S. Employer Identification
or Organization) Number)
Two Centerpointe Drive, Suite 450
Lake Oswego, OR 97035
(503) 594-1210
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(Address of principal executive offices, including zip code)
Computerized Thermal Imaging, Inc. 401(k) Retirement Plan
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(Full title of the plan)
Bernard J. Brady, Chief Financial Officer
Two Centerpointe Drive, Suite 450
Lake Oswego, OR 97035
(503) 594-1210
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(Name, Address and Telephone Number of Agent for Service)
With a copy to:
Michael McArthur-Phillips, Esq.
Davis Wright Tremaine LLP
23rd Floor
1300 S.W. Fifth Avenue
Portland, OR 97201
(503) 241-2300
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
securities maximum maximum
to be Amount offering aggregate Amount of
registered to be price offering registration
(2)(3)(4) registered per share (1) price (1) fee
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Common stock, 350,000 $.78 $273,000 $ 26.00
par value $.001 shares
per share
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(1) Estimated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended (the "Securities Act"), solely for purposes of calculating the
registration fee and based on the average of the high and low price of
the Registrant's common stock as reported on the American Stock
Exchange on July 11, 2002.
(2) Pursuant to Rule 416(c) under the Securities Act, this Registration
Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Computerized Thermal Imaging, Inc.
401(k) Retirement Plan Restatement 2001, as amended (the "Plan").
(3) This Registration Statement also relates to such additional and
indeterminable number of shares of Common Stock as may become issuable
as a result of stock dividends, stock splits, recapitalizations,
mergers, reorganizations, combinations or exchanges or other similar
events.
(4) Includes 22,881 shares of common stock issued previously by the
Registrant to the Plan and 327,119 shares that may be issued by the
Registrant's Plan in the future.
PART I
EXPLANATORY NOTE
Computerized Thermal Imaging, Inc., has prepared this Registration
Statement in accordance with the requirements of Form S-8 under the Securities
Act of 1933, as amended (the "Securities Act"), to register certain shares of
common stock held by the Computerized Thermal Imaging, Inc. (a) 401(k)
Retirement Plan Restatement 2001, as amended(the "Plan") that constitute
"restricted securities" (as defined by Rule 144(a)(3) promulgated under the
Securities Act, as contemplated by Instruction C to Form S-8 under the
Securities Act,(b) certain shares of common stock to be issued by Computerized
Thermal Imaging, Inc. to the Plan and (c)the Plan interests themselves. The
following Reoffer Prospectus has been prepared in accordance with Part I of Form
S-3 under the Securities Act. The Reoffer Prospectus may be utilized for
reofferings and resales of up to 22,881 shares of common stock acquired by the
Plan prior to the date of this Reoffer Prospectus who is the sole selling
shareholder ("Selling Shareholder"). Shares of common stock issued by the
Registrant from the date of this Reoffer Prospectus, may be resold by the Plan
or the Plan participants without regard to this Reoffer Prospectus.
REOFFER PROSPECTUS
July 15, 2000
COMPUTERIZED THERMAL IMAGING, INC.
22,881 SHARES OF COMMON STOCK
This Reoffer Prospectus relates to the resale of our common stock by
the Selling Shareholder listed on Page 14. Our common stock trades on the
American Stock Exchange ("AMEX") under the trading symbol "CIO." On July 11,
2002, the closing bid price for our common stock as reported on the AMEX was
$0.79 per share.
The shares of common stock covered by this Reoffer Prospectus (the
"Shares") are "restricted securities" under the Securities Act of 1933, as
amended(the "Securities Act"), as they were issued pursuant to an exception from
registration under the Securities Act. The Reoffer Prospectus has been prepared
to enable future sales of such Shares by the Selling Shareholder without
restriction.
Our common stock is speculative and involves a high degree of risk. You
should carefully read and consider our discussion of risk factors beginning on
page 7 before making an investment decision.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THE REOFFER PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
July 15, 2002
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TABLE OF CONTENTS
Cautionary Statement.........................................................2
Available Information....................................................... 2
Information About Forward-Looking Statements.................................3
Summary of Information in the Reoffer Prospectus.............................3
The Company..................................................................4
The Offering.................................................................7
Risk Factors.................................................................7
Use of Proceeds............................................................. 8
Price Range of Our Common Stock............................................. 8
Description of Securities................................................... 9
Certain Provisions of the Articles of Incorporation and Bylaws..............12
Plan of Distribution........................................................13
Selling Shareholder........................................................ 14
Legal Matters...............................................................15
Experts.....................................................................15
Material Changes........................................................... 15
Information Incorporated into this Reoffer Prospectus.......................15
CAUTIONARY STATEMENT
You should rely only on the information contained in this Reoffer
Prospectus. We have not authorized anyone to provide information different from
what is contained in this Reoffer Prospectus. The Selling Shareholder is
offering to sell and seeking offers to buy the Shares only in jurisdictions
where offers and sales are permitted. The information contained in this Reoffer
Prospectus is accurate only as of the date of this Reoffer Prospectus regardless
of the time of delivery of this Reoffer Prospectus or of any sale of the Shares.
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AVAILABLE INFORMATION
We are subject to the reporting requirements of the Securities and
Exchange Commission (the "Commission"). We file periodic reports, proxy
statements, and other information with the Commission under the Securities
Exchange Act of 1934. We will provide, without charge, to each person who
receives a copy of this filing, upon written or oral request, a copy of any
information that is incorporated by reference into this Reoffer Prospectus (not
including exhibits to the information that are incorporated by reference unless
the exhibits are themselves specifically incorporated by reference). Requests
should be directed to: Computerized Thermal Imaging, Inc., Attn: Investor
Relations, Two Centerpointe Drive, Lake Oswego, OR 97035, voice: (503) 594-1210,
fax: (503) 594-1215. Our Internet address is www.cti-net.com. The information
contained on our web site, however, is not part of this document.
We have filed a Registration Statement on Form S-8 under the Securities
Act of 1933, as amended, with the Commission in connection with the Shares
offered by this Reoffer Prospectus. This Reoffer Prospectus does not contain all
of the information that is in the Registration Statement. For further
information with respect to us, you may inspect without charge and copy our
filings at the public reference room maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549. Copies of this material also may be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. Information about the
public reference room is available from the Commission by calling
1-800-SEC-0330. The Commission maintains a web site on the Internet that
contains reports, proxy statements and other information regarding issuers that
file electronically with the Commission. The Internet address of the site is
www.sec.gov. Visitors to the site may access information by searching the EDGAR
archives on this web site.
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INFORMATION ABOUT FORWARD-LOOKING STATEMENTS
This Reoffer Prospectus and the documents incorporated by reference
contain forward-looking statements within the meaning of the Securities Act and
Securities Exchange Act of 1934. Forward-looking statements involve known and
unknown risks, uncertainties and other factors that may cause our actual
results, performance or achievements to be materially different from any future
results, performance or achievements expressed or implied. When used in this
Reoffer Prospectus, the words "expects", "anticipates," "intends," "plans,"
"may," "believes," "seeks," "estimates" and similar expressions generally
identify forward-looking statements. All forward-looking statements included in
this document are based on information available to the Company ("we", "us",
"our", "CTI" and the "Company") on the date of this Reoffer Prospectus. Except
as otherwise required under federal and state securities laws, we assume no
obligation to update any forward-looking statements.
SUMMARY OF INFORMATION IN THE REOFFER PROSPECTUS
THIS SUMMARY HIGHLIGHTS SELECTED INFORMATION ABOUT US. TO UNDERSTAND THIS
OFFERING FULLY, YOU SHOULD READ THE ENTIRE REOFFER PROSPECTUS CAREFULLY,
INCLUDING OUR DISCUSSION OF RISK FACTORS AND THE FINANCIAL STATEMENTS FILED AS
PART OF OUR ANNUAL REPORT ON FORM 10-K FOR THE YEAR ENDED JUNE 30, 2001 AND AS
PART OF OUR QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED MARCH 31, 2002.
We design, manufacture and market thermal imaging devices and services
for use in clinical diagnosis, pain management and industrial non-destructive
testing. We market our products worldwide through an internal sales force and a
network of independent distributors.
To date, we have focused our research activities on the application of
thermal imaging technology and the development of equipment and methods
utilizing those applications. Our efforts led to the development of our
non-invasive and non-destructive infrared imaging systems. We believe our
thermal imaging systems generate data, difficult to obtain or not available
using other imaging methods, that are useful to health care providers in the
detection of certain diseases and disorders and useful to the industry for
product quality testing. While we are changing our primary focus from research
and development to commercializing our proprietary technology, we expect to
continue to conduct research.
We are publicly traded on the American Stock Exchange under the symbol
"CIO". On June 30, 2002, we had 83,004,313 million shares of common stock
outstanding held by approximately 29,000 shareholders, primarily individuals. In
addition to common stock outstanding, we have approximately 16.4 million shares
of common stock underlying warrants and options that remain unexercised. On a
fully diluted basis, we have approximately 99.2 million common shares
outstanding, 22.7% of which are beneficially owned by insiders and affiliates.
Other than our wholly-owned subsidiary, Bales Scientific, Inc., we have no other
interest in any other entity.
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THE COMPANY
OUR PRODUCTS AND SERVICES
Our imaging systems integrate standard third party hardware and our
proprietary software and heat-sensing camera to produce, interpret, and
catalogue thermal images. These systems provide medical professionals with
information to assist in the evaluation of breast abnormalities and the
management of chronic pain. They also permit non-destructive testing and
inspection of industrial products like turbine blades.
We have developed six significant proprietary technologies: (1) a
climate-controlled examination unit to provide patient comfort and facilitate
reproducible tests (the "Breast Cancer System 2100 TM"); (2) an imaging protocol
that produces consistent results; (3) a statistical model that detects
physiological irregularities; (4) infrared imaging and analysis hardware,
including our proprietary heat-sensing camera (collectively, we refer to items
2-4 as the "Thermal Imaging Process"); (5) a system to treat pain and other
symptoms of diabetes, carpal tunnel syndrome and reflex sympathetic dystrophy
syndrome (the "Photonic Stimulator"); and (6) a system for non-destructive
testing and examination of turbine blades and other industrial components,
including composite materials and metals (the "Turbine Blade Inspection
System").
Our Breast Cancer SystemTM, which uses the Thermal Imaging Process
technology, provides a non-invasive, painless adjunct to mammography for the
evaluation of breast lesions. The Breast Cancer System tests suspicious breast
tissue by first cooling the breast and then monitoring the rate at which the
breast reheats. Malignant tissue, because it is more vascular (has more blood
flowing to and through it) than benign tissue, reheats more quickly than the
normal tissue surrounding it. Our software provides a color-coded thermal image
of the breast for interpretation and clinical decision making.
Mammography and other imaging methods capture a snapshot of structure
at a moment in time, but do not provide information about the behavior of the
structures exposed. While mammography may detect the presence of an abnormality
in the breast, a biopsy is required to determine whether the abnormality is
malignant. We believe our technology provides images that expose the behavior of
structures and provide health professionals a tool for discriminating between
cases requiring invasive biopsy and those that do not. We believe the Breast
Cancer System can provide physiological data and reduce the number of biopsies,
80% of which have benign findings, while offering patients, physicians, health
care institution and payers the following additional advantages:
o For the patient - fast, painless and non-invasive diagnostic
procedure
o For the physician - earlier diagnosis of disease and chronic
conditions and assistance in providing more cost-effective
treatment options
o For the health care institution - procedure duration
comparable to other diagnostic modalities, taking
approximately 10 minutes, involving no hazardous radiation and
providing immediate digital images to assist in diagnosis
o For the payer - significant reduction in cost
-4-
Our Thermal Imaging Process provides continuous information streams and
measures changes in temperature over time. By measuring both absolute
temperature and changes in temperature over time and comparing that data to
empirical information, our systems generate data that indicate the presence of
characteristics that indicate certain conditions, e.g., the presence of abnormal
or cancerous tissue, casting defects, adhesion failures.
The Turbine Blade Inspection System provides customers an effective,
cost-efficient quality assurance tool. Our system reduces turbine blade test
time approximately 90 percent compared to other methods. Using techniques
similar to our Breast Cancer System, our technology meets industrial
requirements for non-destructive testing and examination of turbine blades and
other industrial components, composite materials, and metals. Our automated
infrared inspection system thermally stresses the component, collects a series
of images, and analyzes them to determine the presence or absence of
characteristics determined to correlate with certain manufacturing and
usage-induced defects. The analysis identifies defects, abnormalities and flaws
in the test material. This system can identify blockages in cooling holes as
small as the diameter of a human hair.
PATENTS AND TRADEMARKS
As we emerge from the product development stage, we anticipate that we
will increasingly rely upon formal patent protection for our intellectual
property and products. As of June 30, 2002, we have the following patents or
patent applications pending before the United States Patent and Trademark
Office:
o Patent No. 5,999,842, dated December 7, 1999, acquired by
assignment from TRW on a Functional Thermal Imaging Apparatus (our
Breast Cancer System Patient Positioning Table).
o Patent No. 6,157,854, dated December 5, 2000, covering techniques
designed to reduce or eliminate pain by the application of infrared
therapy while monitoring the process as it is being conducted. The
techniques involve the use of our Photonic Stimulator to apply
infrared energy to a patient while using the Thermal Image
Processor to monitor the patient's response to the therapy.
o Patent application (Serial No. 60/105,147, dated October 21, 1998)
for an algorithm used to analyze imaging data collected through our
Breast Cancer System.
o Patent application (Serial No. 09/487,465, dated January 13,
2000) for photo irradiation treatment monitored by thermal
imaging.
o Patent application (Serial No. 60/339,725, dated November 1, 2001)
for a turbine component inspection system, emphasizing the system's
integration and ability to deliver precise thermal stimuli
independent of the overall inspection cycle.
o Patent application (Serial No. 60/339,765, dated November 1, 2001)
for a heat exchanger for turbine component inspection system
covering an improved convective heat exchanger design for use in
the turbine component inspection system.
o Patent application (Serial No. 60/339,724, dated November 1, 2001)
for an infrared imaging arrangement for the turbine component
inspection system covering the overall fixture and infrared imager
arrangement.
o Patent application (Serial No. 10/006,441, dated November 21,
2001) for software providing operator assistance during the
use of an automated infrared inspection system for the inspection
of turbine components.
-5-
o Patent application (Serial No. 10/006,436, dated November 21, 2001)
for software performing automated analysis of the thermal response
of a turbine component to application of thermal stimuli by an
infrared inspection system. We expect that other technologies or
components of our products will warrant patent protection in the
future.
o Patent application (Serial No. 60/378,764, filed May 7, 2002)
for Cold Stimulus Turbine Component Inspection System
providing precision delivery of a cold stimulus to be utilized
for infared inspection of a turbine component.
REGULATORY (FDA) PROCESS - BREAST CANCER SYSTEM
Our Breast Cancer System, Thermal Imaging Process and Photonic
Stimulator qualify as medical devices under federal law because they are
intended for use in the diagnosis, cure, mitigation, treatment or prevention of
disease but do not interact chemically with the body. Typically, low risk
devices substantially similar to approved products already on the market,
generally described as Class I or Class II devices, obtain U.S. Food and Drug
Administration ("FDA") clearance by the agency's pre-market notification, known
as a 510(k) filing. Instruments that entail significant risk, generally
described as Class III devices, require manufacturers to submit a Pre-Market
Application ("PMA") to the FDA. A PMA typically contains significant clinical
testing, manufacturing and other data, all of which are scrutinized by the FDA
to demonstrate the product's safety, reliability and effectiveness. The Photonic
Stimulator was approved in a 510k filing.
We are pursuing FDA approval for our Breast Cancer System through the
PMA process, because such approval will allow us to reference medical efficacy
claims in connection with marketing our Breast Cancer System. We also believe
that FDA approval will improve physician acceptance of our systems and help us
obtain designation of insurance reimbursement codes. We submitted our PMA in
five modules.
We submitted the fifth module, an evaluation of our clinical studies,
on June 15, 2001. The FDA is performing the in-depth scientific, regulatory and
manufacturing reviews and inquiries required by its procedures. After the FDA
staff completes its work, the PMA will be subjected to an advisory panel for
review and recommendation. After the FDA receives the advisory panel
recommendation, it will issue a decision.
CONTACTING US
Our web site is www.cti-net.com. However, the information contained on
our web site is not part of this Reoffer Prospectus. Our principal executive
offices are located at: Computerized Thermal Imaging, Inc., Two Centerpointe
Drive, Suite 450, Lake Oswego, OR 97035, voice: (503) 594-1210, fax: (503)
594-1215.
-6-
THE OFFERING
Common stock outstanding . . . . . . . . . . . . . . . .83,004,313 shares (1)
Common stock to be offered . . . . . . . . . . . . . . . . .22,881 shares
by the Selling Shareholder
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(1) Includes shares of common stock outstanding as of June 30, 2002, but
does not include approximately 16.4 million shares underlying any fully
vested and outstanding options and warrants.
THE MARKET FOR OUR COMMON STOCK
Our common stock trades on the American Stock Exchange under the symbol
CIO.
RISK FACTORS
WE ARE SUBJECT TO GOVERNMENT REGULATION.
Our Breast Cancer System is presently under review with the FDA. There
is no assurance that we will receive FDA approval. Failure to secure FDA
approval would materially reduce or eliminate the market for our Breast Cancer
System and, thereby, materially reduce the chances that we would be profitable.
WE HAVE LIMITED REVENUES FROM OPERATIONS AND MAY NEVER HAVE SUBSTANTIAL REVENUE
FROM OPERATIONS.
Since inception, we have engaged in research and development
activities. With limited exceptions, our products have not been used in
commercial applications and there is no assurance that the market will accept
our products. Without such acceptance, it is unlikely we will ever be
profitable.
WE EXPECT TO CONTINUE TO INCUR LOSSES, DEFICITS, AND DEFICIENCIES IN LIQUIDITY
THAT COULD IMPAIR OUR ABILITY TO GROW.
We must develop clinical applications, obtain regulatory approvals and
market our products in order to become profitable. There is no assurance that we
will be able to accomplish this. We have incurred substantial losses in the past
and expect to continue to incur losses, deficits and deficiencies in liquidity
due to the significant costs associated with the continuing development and
commercialization of our products.
WE MAY HAVE TO RAISE ADDITIONAL CAPITAL IN ORDER TO FUND OPERATIONS IN THE
FORESEEABLE FUTURE.
Until our operating results improve, we will have to rely on outside
financing to fund our business. We expect that we will use a combination of
equity and debt securities and instruments in order to secure additional
funding. The sale of equity securities could dilute our existing shareholders
and borrowings from third parties could result in assets being pledged as
collateral and loan terms that could restrict our operations. There is no
assurance that capital will be available from any source or, if available, upon
acceptable terms and conditions.
THE MARKET PRICE OF OUR SHARES IS VOLATILE.
The market price of our stock may continue to experience wide
fluctuations, as it has in the recent past, which could be unrelated to our
financial and operating results. Such volatility could result in a material loss
in the value of your investment in our shares.
-7-
WE COULD ISSUE PREFERRED STOCK AND THIS COULD HARM YOUR INTERESTS.
We have authorized 3.0 million shares of preferred stock, par value
$5.00 per share, none of which are outstanding. The preferred stock, if issued,
could have preferential voting, dividend and liquidation rights which adversely
affect the rights of our common shareholders. Our authority to issue preferred
stock without shareholder approval could discourage potential takeover attempts
and could delay or prevent a change in control through merger, tender offer,
proxy contest or otherwise by making such attempts more difficult and costly.
The inability for a third party to enter into such a transaction may reduce the
value of our shares.
WE RELY ON THIRD PARTIES TO HELP DEVELOP AND MANUFACTURE OUR PRODUCTS. IF THEY
FAIL TO PERFORM, FDA APPROVALS, PRODUCT DEVELOPMENT, AND/OR PRODUCTION COULD BE
SUBSTANTIALLY DELAYED.
We depend upon third parties to assist in with clinical studies,
product development and the manufacture of our products. Our products are highly
specialized and have component parts developed and manufactured according to
unique specifications. Although there may be more than one developer or
manufacturer for these components, failure to develop or manufacture in a timely
manner could result in a loss of business and further result in substantial
delays in FDA approvals and/or commercialization of our products.
IF WE WERE UNSUCCESSFUL IN PREVENTING OTHERS FROM USING OUR INTELLECTUAL
PROPERTY, WE WOULD LOSE A COMPETITIVE ADVANTAGE.
Our success will depend, in part, on our ability to use and prevent
others from using our trademarks and other intellectual property. We currently
hold two patents and have submitted eight patent applications. There can be no
assurance that the steps we have taken to protect our property will protect our
rights. Defense of our intellectual property could be expensive and time
consuming, and parties that misappropriate our intellectual property could have
significantly more financial resources than the Company, making it financially
impossible to protect our rights.
WE MAY NOT HAVE ENOUGH PRODUCT LIABILITY INSURANCE.
The manufacture and sale of medical imaging systems may entail
significant risk of product liability claims. There can be no assurance that our
insurance coverage will protect us from liabilities that might arise in
connection with the sale of our products. Further, we cannot guarantee that the
company will be able to renew existing policies, or secure sufficient coverage
in the future. Without such insurance, we may have to pay claims with Company
funds, thereby making it impossible to maintain operations.
USE OF PROCEEDS
We will not receive any proceeds upon the sale by the Selling
Shareholder of the Shares covered by this Reoffer Prospectus. We will pay for
the cost of registering the Shares in this offering.
PRICE RANGE OF OUR COMMON STOCK
Our common stock trades on the American Stock Exchange under the
trading symbol CIO. The table summarizes quarterly low and high bid prices per
share for our common stock.
-8-
Fiscal year ended June 30, 2000 Low Bid High Bid
------------------------------- ------- --------
First Quarter $ 0.63 $ 1.45
Second Quarter $ 1.40 $ 5.03
Third Quarter $ 3.00 $19.97
Fourth Quarter $ 5.38 $13.75
Fiscal year ended June 30, 2001
-------------------------------
First Quarter $ 3.00 $ 9.44
Second Quarter $ 1.13 $ 5.03
Third Quarter $ 1.63 $ 3.94
Fourth Quarter $ 1.95 $ 5.74
Fiscal year ended June 30, 2002
-------------------------------
First Quarter $ 1.85 $ 4.05
Second Quarter $ 1.28 $ 2.40
Third Quarter $ 0.82 $ 1.62
Fourth Quarter $ 0.56 $ 1.10
Fiscal year ended June 30, 2002
-------------------------------
July 1 - July 11 $ 0.65 $ 0.90
On July 11, 2002, the closing price of our common stock as reported on
the AMEX was $0.79 per share. On July 11, 2002, we had approximately 29,000
beneficial shareholders of our common stock and 83,004,313 shares of our common
stock outstanding.
DESCRIPTION OF SECURITIES
Under our Articles of Incorporation ("Articles"), we are authorized to
issue a total of 203,000,000 shares, of which 200,000,000 shares are common
stock, par value $0.001 per share (the "Common Stock") and 3,000,000 shares are
preferred stock (the "Preferred Stock"). As of June 30, 2002, there were
83,004,313 shares of Common Stock issued and outstanding. No shares of Preferred
Stock are issued or outstanding.
The following description of certain matters relating to the Common
Stock, the Preferred Stock, and Options is a summary and is qualified in its
entirety by the provisions of our Articles of Incorporation and Bylaws.
COMMON STOCK
Common shareholders are entitled to one vote per share on all matters
submitted to a shareholder vote. In addition, shareholder are entitled to
receive ratably dividends, if any, as may be declared from time to time by the
Board of Directors out of funds legally available therefore, subject to the
payment of preferential dividends with respect to any shares of the preferred
stock that may be outstanding. In the event of dissolution, liquidation or
winding up, common shareholders are entitled to share ratably in all assets
remaining after payment of all our liabilities, subject to the primary
distribution rights of the holders of any shares of preferred stock that may be
outstanding at that time.
-9-
PREEMPTIVE RIGHTS
Pursuant to Title 7, Chapter 79 of the Nevada Revised Statutes,
shareholders of corporations organized before October 1, 1991, with certain
limited exceptions set out in the statute, have preemptive rights to acquire
unissued shares, treasury shares or securities convertible into such shares,
being offered for sale, except to the extent limited or denied by the
corporation's Articles of Incorporation. Prior to October 1, 1991, among other
circumstances, preemptive rights did not exist with respect to (i) shares issued
to our directors, officers or employees pursuant to a vote of the shareholders,
or pursuant to a plan authorized by the shareholders, (ii) shares sold for a
consideration other than cash, and (iii) shares issued at the same time that the
shareholder who claims a preemptive right acquired his shares. We were
incorporated on June 10, 1987, and prior to March 16, 1998, our Articles did not
provide for any limitation with respect to preemptive rights. In the various
offerings of our securities, we did not offer to our existing shareholders
preemptive rights to acquire any of the securities so offered other than to
persons in exchange for services rendered. The applicable remedy, if any, for
our failure to offer to our shareholders the preemptive rights is not certain
after the passage of time and Common Stock price fluctuations. Under Nevada law,
the preemptive right is only an opportunity to acquire shares upon such terms as
the Board of Directors fixes for the purpose of providing a fair and reasonable
opportunity for the exercise of such right. If a shareholder were to timely
demand preemptive rights for a particular non-excepted prior sale, we might be
required to sell additional shares of Common Stock to the complaining
shareholder at previously offered prices to enable a shareholder exercising such
rights to maintain his ownership percentage for prior sales that would affect
preemptive rights. To the extent that any shareholders were entitled to the
right to purchase shares of Common Stock upon the exercise of any such
preemptive rights, we plan to allow any such requesting shareholder the right to
purchase his pro rata amount of such shares at the same price per share to which
he would have been entitled if such preemptive rights had been offered in
conformity with Nevada law. Any such offering of preemptive rights will be in
conformity with the Securities Act and the various states where any such
shareholders may be located. If any shareholders were to exercise their
preemptive rights within the applicable statute of limitations for any sale of
securities which carried a preemptive right prior to March 16, 1998, the
percentage interests of investors may be diluted by any such sales of additional
securities and the contributions to us from such sales, if required to be
offered at the price of previous issuances and if such price is below the
current market value, could result in contributions to us at a per share
contribution less than the current market value. We cannot speculate whether any
shareholders would elect such preemptive rights, if the statute of limitations
has not barred such rights, or how much additional capital would be raised or
how many shares would be issued or whether other remedies would be available. As
of the date of this Reoffer Prospectus, we are not aware of any shareholder who
intends to make any claim with respect to our failure to offer any such
preemptive rights. On February 4, 1998, a majority of our shareholders voted to
amend the Articles to deny preemptive rights with respect to each new issuance
of shares of Common Stock. However, the amendment to the Articles will have no
effect with respect to preemptive rights that may have existed for certain sales
of Common Stock prior to such amendment.
CUMULATIVE VOTING RIGHTS
Common shareholders do not have cumulative voting rights. Accordingly,
holders of more than 50 percent of the issued and outstanding shares of common
stock voting for the election of directors can elect all of the directors if
they choose to do so, and in such event, the holders of the remaining shares of
common stock voting for the election of the directors will be unable to elect
any person or persons to the Board of Directors.
-10-
PREFERRED STOCK
We are authorized to issue up to 3,000,000 shares of Preferred Stock in
one or more series, to establish the number of shares to be included in each
series and to fix the designations, powers, preferences and rights of the shares
of each such series and the qualifications, limitations or restrictions thereof.
This includes, among other things, voting rights, conversion privileges,
dividend rates, redemption rights, sinking fund provisions and liquidation
rights which may be superior to the Common Stock. The issuance of Preferred
Stock could decrease the amount of earnings and assets available for
distribution to holders of Common Stock, and adversely affect the rights and
powers, including voting rights, of such holders and may have the effect of
delaying, deferring or preventing a change in control. The Board of Directors
does not currently intend to seek shareholder approval prior to any issuance of
authorized, but unissued stock, unless required by law. As of the date of this
Reoffer Prospectus, there are no shares of the Preferred Stock issued and
outstanding.
OPTIONS
EMPLOYEE OPTIONS. Messrs. John Ott, David Alles, and Brian Dalio are
employees of the Company and were granted options during June 2000 to purchase
825,000 shares of Common Stock in the aggregate at prices between $1.50 to
$7.72. As of May 14, 2002, 437,084 of these options were vested and exercisable.
This Reoffer Prospectus does not apply to these options or the shares of Common
Stock into which these options may be converted.
CONTRACTOR OPTIONS. Messrs. Harry Register MD., Lawrence Lemak, M.D.,
John Shearer, M.D., and Dean Clark, D.C., are contractors or consultants to the
Company and have been granted options since June 30, 2001, to purchase 75,000
shares of Common Stock in the aggregate at prices between $1.55 and $1.95. As of
May 14, 2002, all 75,000 of these options were vested and exercisable. This
Reoffer Prospectus does not apply to these options or the shares of Common Stock
into which these options may be converted.
WARRANTS AND CONVERTIBLE DEBENTURES
BEACH BOULEVARD WARRANTS. On December 31, 2001, we concluded a
financing with Beach Boulevard, LLC, in which we issued a convertible debenture
in the amount of $2.5 million (the "Debenture Offering").
In connection with the Debenture Offering, we will issue up to
4,201,390 shares of common stock upon conversion of the debenture and otherwise
under the debenture acquisition agreements. We also issued a warrant to purchase
260,417 shares of Common Stock. These warrants are exercisable at $2.03 a share
and expire December 31, 2004. Pursuant to a registration rights agreement
entered into connection with the Debenture Offering, we are required to register
200% of the shares of Common Stock which may be acquired upon exercise of the
warrant, or 520,833 shares. In connection with the Equity Line, we issued a
warrant to purchase 641,026 shares of Common Stock. These warrants are
exercisable at $1.95 a share, are callable if certain conditions are met, and
are exercisable, unless called, between April 1, 2002 and April 1, 2007.
Pursuant to a Registration Rights Agreement entered into in connection with the
Equity Line, we are required to register 112% of the shares of Common Stock that
may be acquired upon exercise of the warrant, or 717,949 shares.
ROTH WARRANTS. We retained Roth Capital Partners, LLC to provide
financial advice in connection with the Debenture Offering and Equity Line. As
partial compensation for these services, we issued to Roth a warrant to purchase
100,000 shares of Common Stock at an exercise price of $1.87. These were issued
January 2, 2002 and will expire January 2, 2007.
-11-
CERTAIN PROVISIONS OF THE ARTICLES OF INCORPORATION AND BYLAWS
GENERAL
A number of provisions of our Articles of Incorporation ("Articles")
and Bylaws ("Bylaws") concern matters of corporate governance and the rights of
shareholders. Certain of these provisions, as well as the ability of the Board
of Directors to issue shares Preferred Stock and to set the voting rights,
preferences and other terms thereof, may be deemed to have an anti-takeover
effect and may discourage takeover attempts not first approved by the Board of
Directors (including takeovers which certain shareholders may deem to be in
their best interests). To the extent takeover attempts are discouraged,
temporary fluctuations in the market price of the Common Stock, which may result
from actual or rumored takeover attempts, may be inhibited. These provisions,
together with the ability of the Board of Directors to issue the Preferred Stock
without further shareholder action, also could delay or frustrate the removal of
incumbent directors or the assumption of control by the shareholders, even if
such removal or assumption would be beneficial to our shareholders. These
provisions also could discourage or make more difficult a merger, tender offer
or proxy contest, even if they could be favorable to the interests of the
shareholders, and could potentially depress the market price of the Common
Stock. The Board of Directors believes that these provisions are appropriate to
protect our interests and those of our shareholders.
MEETINGS OF SHAREHOLDERS
Our Bylaws provide that a special meeting of the shareholders may be
called by the Chairman of the Board, the President, the Board of Directors, or
the holders of not less than 10 percent of the outstanding shares of our capital
stock entitled to vote at such a meeting unless otherwise required by law. Our
Bylaws provide that only those matters set forth in the notice of the special
meeting may be considered or acted upon at the special meeting.
AMENDMENT OF BYLAWS
The Bylaws provide that the Bylaws may be altered, amended or repealed
by the Board of Directors or our shareholders. Such action by the Board of
Directors requires the affirmative vote of a majority of the directors present
at such meeting.
CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
One effect of having authorized but unissued capital stock may be to
enable the Board of Directors to render more difficult, or to discourage, an
attempt to obtain control of us by means of a tender offer, proxy contest or
otherwise, and thereby protect the continuity of the our management. If, in the
due exercise of its fiduciary obligations, for example, the Board of Directors
determines that a takeover proposal is not in the best interests of the Company
or its shareholders, such shares could be issued by the Board of Directors
without shareholder approval in one or more private or public offerings or other
transactions that might prevent or render more difficult or costly the
completion of the proposed takeover transaction by diluting the voting or other
rights of the proposed acquirer or insurgent shareholder or shareholder group,
by creating a substantial voting block of institutional or other investors that
might undertake to support the position of the incumbent Board of Directors, by
effecting an acquisition that might complicate or preclude the takeover, or
-12-
otherwise. In this regard, our Articles grant the Board of Directors broad power
to establish the rights and preferences of the authorized, but unissued
Preferred Stock, one or more series of which would be issued entitling holders
to vote separately as a class on any proposed merger or consolidation, to
convert Preferred Stock into a larger number of shares of Common Stock or other
securities, to demand redemption at a specified price under prescribed
circumstances related to a change in control, or to exercise other rights
designed to impede a takeover.
PLAN OF DISTRIBUTION
This Reoffer Prospectus relates to the aggregate resale of 22,881
Shares that may be resold by the Selling Shareholder.
The Selling Shareholder and any of their pledgees, assignees, and
successors-in-interest may, from time to time, sell any or all of their Shares
on any stock exchange, market, or trading facility on which the Shares are
traded or in private transactions. These sales may be at fixed or negotiated
prices. There is no assurance that the Selling Shareholder will sell any or all
of the Shares in this offering. The Selling Shareholder may use any one or more
of the following methods when selling Shares:
o Ordinary brokerage transactions and transactions in which the
broker- dealer solicits purchasers.
o Block trades in which the broker dealer will attempt to sell the
shares as an agent but may position and resell a portion of the
block as principal to facilitate the transaction.
o Purchases by a broker-dealer as principal and resale by the
broker-dealer for its own account.
o An exchange distribution following the rules of the applicable
exchange.
o Privately negotiated transactions.
o Short sales or sales of shares not previously owned by the seller.
o Broker-dealers may agree with the Selling Shareholder to sell a
specified number of such Shares at a stipulated price per Share.
o A combination of any such methods of sale.
o Any other lawful method.
A Selling Shareholder may also engage in:
o Short selling against the box, which is making a short sale when the
seller already owns the Shares.
o Buying puts, which is a contract whereby the person buying the
contract may sell shares at a specified price by a specified date.
o Selling calls, which is a contract giving the person buying the
contract the right to buy shares at a specified price by a specified
date.
o Selling under Rule 144 under the Securities Act, if available,
rather than under this Reoffer Prospectus.
o Other transactions in our securities, or in derivatives of our
securities, and the subsequent sale or delivery of Shares by the
shareholder.
o Pledging Shares to its brokers under the margin provisions of
customer agreements. If a selling shareholder defaults on a margin
loan, the broker may, from time to time, offer and sell the pledged
Shares.
Broker-dealers engaged by a Selling Shareholder may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Shareholder in amounts to be negotiated.
-13-
If any broker-dealer acts as agent for the purchaser of Shares, the
broker-dealer may receive commission from the purchaser in amounts to be
negotiated.
The Selling Shareholder does not expect these commissions and discounts
to exceed what is customary in the types of transactions involved. The Selling
Shareholder and any broker-dealers or agents involved in selling the Shares may
be considered to be "underwriters" within the meaning of the Securities Act for
such sales. An underwriter is a person who has purchased shares from an issuer
with a view towards distributing the shares to the public. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the Shares purchased by them may be considered to be underwriting
commissions or discounts under the Securities Act. We pay all fees and expenses
incident to the registration of the Shares in this offering. However, we will
not pay any commissions or any other fees in connection with the resale of the
Shares in this offering. If we are notified by a Selling Shareholder that they
have a material arrangement with a broker-dealer for the resale of Common Stock,
then we would be required to amend the Registration Statement of which this
Reoffer Prospectus is a part, and file a Reoffer Prospectus supplement to
describe the agreements between the selling shareholder and the broker-dealer.
SELLING SHAREHOLDER
The following table describes certain information with respect to the
resale of the Shares by the Selling Shareholder as described in this Reoffer
Prospectus. We will not receive any proceeds from the resale of Common Stock by
the Selling Shareholder.
RESALE BY THE SELLING SHAREHOLDER OF SHARES CURRENTLY OUTSTANDING ("S")
Shares Shares
Beneficially Beneficially
Owned Before Amount Owned After
Shareholder Resale (1) Offered(2) Resale Percent(3)
---------------------- ------------ ----------- ------------ ----------
Computerized Thermal 22,881 22,881 0 *
Imaging, Inc. 401(k)
Retirement Plan (S)(4)
* Less than one percent.
(1) Shares Beneficially Owned Before Resale include only the Shares. For
purposes of this table, ownership of Shares Currently Outstanding ("S")
is calculated based on the record number of outstanding shares believed
to be held by such person as of June 30, 2002.
(2) Shares offered include Shares Currently Outstanding ("S") subject to
the restrictions of the Securities Act and held by the Selling
Shareholder.
(3) Percentage based on the number of shares of Common Stock outstanding as
of June 30, 2002, without regard to beneficial ownership as may be
calculated under Rule 13d-3 of the Exchange Act. (4) Denotes that
Selling Shareholder is an "affiliate."
A current prospectus must be in effect at the time of the sale the
Shares to which this Reoffer Prospectus relates. The Selling Shareholder or a
dealer effecting a transaction in the Shares, whether or not participating in a
distribution, is required to deliver a prospectus. Unless otherwise exempted,
the Selling Shareholder and their agents engaged in the resale of the Shares
may be deemed underwriters under the Securities Act.
-14-
LEGAL MATTERS
Certain legal matters relating to the issue and resale of the shares of
Common Stock under the Reoffer Prospectus will be passed upon by Davis Wright
Tremaine LLP, of Portland, Oregon.
EXPERTS
The consolidated financial statements incorporated in this Reoffer
Prospectus by reference from the Company's Annual Report on Form 10-K/A for the
year ended June 30, 2001, have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
The consolidated financial statements and schedules incorporated by
reference into this Reoffer Prospectus from the Company's Annual Report on Form
10-K for the year ended June 30, 2000, have been audited by HJ & Associates LLC,
independent certified public accountants, to the extent and for the periods set
forth in their reports appearing elsewhere herein. All such statements and
schedules are included in reliance upon such reports given upon the authority of
said firm as an expert in auditing and accounting.
MATERIAL CHANGES
Except as described in our Form 10-Q for the quarter ended March 31,
2002 and the Form 8-K filed April 9, 2002, May 15, 2002 and June 19, 2002 we
have had no material changes since the filing of our Annual Report on Form
10-K/A for our fiscal year ended June 30, 2001.
INFORMATION INCORPORATED INTO THIS REOFFER PROSPECTUS
The SEC allows us to incorporate by reference the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this Reoffer Prospectus, and information that we file
later with the SEC will automatically update and supersede this information. We
incorporate by reference into this Reoffer Prospectus the following documents or
information filed with the SEC.
1. The Company's Annual Report on Form 10-KA for the fiscal year
ended June 30, 2001, as amended;
2. The Company's Quarterly Reports on Form 10-Q filed with the
Commission for the quarters ended September 30, 2001, December
31, 2001 and March 31, 2002;
3. The Company's Current Reports on Form 8-K filed with the
Commission on November 2, 2001, December 20, 2001, January 14,
2002, April 9, 2002 and May 15, 2002, June 19, 2002; and
4. All future filings by the Company with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act until all
securities offered under this Reoffer Prospectus have been
either sold or deregistered.
You may request a copy of these filings at no cost by writing to us at:
Computerized Thermal Imaging, Inc., Two Centerpointe Drive, Suite 450, Lake
Oswego, OR 97035, or by calling us at (503) 594-1210. We will not provide copies
of exhibits to these filings unless the exhibits are specifically incorporated
by reference into the body of the filing.
-15-
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by Computerized
Thermal Imaging, Inc. (the "Company") with the Securities and Exchange
Commission (the "Commission") and are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 2001 filed with the Commission on September 28,
2001, together with Amendment No. 1 on Form 10-K/A filed with
the Commission on October 2, 2001, pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended (the "1934
Act");
(b) The Company's Quarterly Reports on Form 10-Q filed with the
Commission for the quarters ended September 30, 2001, December
31, 2001 and March 31, 2002;
(c) The Company's Current Reports on Form 8-K filed with the
Commission on November 2, 2001, December 20, 2001, January 14,
2002, April 9, 2002, May 15, 2002, June 19, 2002; and
(d) The Company's Registration Statement No. 333-82016 on Form S-3
filed with the Commission on February 1, 2002, together with
Amendment No. 1 on Form S-3/A filed with the Commission on
March 15, 2002, and including any amendments or reports filed
for the purpose of updating such description, in which there
is described the terms, rights and provisions applicable to
the Company's Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
II-1
Item 6. Indemnification of Directors and Officers
Consistent with the overall scope of Nevada law, our Bylaws at Article
VI provides that any director or officer who is the subject of or a participant
in a threatened, pending or completed legal action by reason of the fact that
such individual is or was a director or officer shall be indemnified and held
harmless by us from and against the consequences of such action if it is
determined that he acted in good faith and reasonably believed (i) his conduct
was in our best interest, (ii) in all other cases, that his conduct was not
opposed to our best interests, and (iii) with respect to criminal proceedings,
that he had no reasonable cause to believe his conduct was unlawful; provided
that if it is determined that such person is liable to us or is found liable on
the basis that personal benefit was improperly received by such person, the
indemnification is limited to reasonable expenses actually incurred by such
person in connection with the legal action and shall not be made in respect of
any legal action in which such person shall have been found liable for willful
or intentional misconduct in the performance of his duty to us. Any
indemnification (unless ordered by a court of competent jurisdiction) shall be
made by us only upon a determination that indemnification of such person is
proper in the circumstances by virtue of the fact that it shall have been
determined that such person has met the applicable standard of conduct.
Our Bylaws also provide that reasonable expenses, including court costs
and attorneys' fees, incurred by our officers and directors in connection with a
covered legal action shall be paid by us at reasonable intervals in advance of
the final disposition of such action, upon receipt by us of a written
affirmation by such person of his good faith belief that he has met the standard
of conduct necessary for indemnification, and a written undertaking by or on
behalf of such person to repay the amount paid or reimbursed by us if it is
ultimately determined that he is not entitled to be indemnified.
Our Board of Directors may also authorize us to indemnify our employees
or agents, and to advance the reasonable expenses of such persons, to the same
extent, following the same determinations and upon the same conditions as are
required for the indemnification of and advancement of expenses to our directors
and officers. As of the date of this Registration Statement, the Board of
Directors has not extended indemnification rights to persons other than
directors and officers.
The Company has also purchased director and officer liability
insurance, as permitted by Section 6.6 of its Bylaws.
The foregoing discussion of our Bylaws is not intended to be exhaustive
and is qualified in its entirety by our Bylaws.
The Company has entered into an agreement with certain of its directors
and officers indemnifying them to the fullest extent permitted by the foregoing.
The Company has also purchased director and officer liability insurance, as
permitted by Section 6.6 of its Bylaws.
II-2
Item 7. Exemption from Registration Claimed
The shares were issued to the Plan. The issuance was made in reliance
on the exemption from the registration requirements of the Securities Act, as
amended, contained in Section 4(2) thereof covering transactions not involving
any public offering or not involving any "offer" or "sale."
Item 8. Exhibits.
The following exhibits are filed, or were previously filed, as part of
this registration statement:
* Incorporated by reference as noted.
** Filed herewith.
Exhibit No. Description of Exhibit
----------- ----------------------
4.1.0 * Articles of Incorporation of Computerized Thermal Imaging,
Inc., filed June 10, 1987 (incorporated by reference to the
Registrant's Registration Statement SB-2 filed March 3, 1998,
as subsequently amended).
4.1.1 * Amendment to Articles of Incorporation filed July 31, 1987
(incorporated by reference to the Registrant's Registration
Statement SB-2 filed March 3, 1998, as subsequently amended).
4.1.2 * Amendment to Articles of Incorporation filed August 12, 1989
(incorporated by reference to the Registrant's Registration
Statement SB-2 filed March 3, 1998, as subsequently amended).
4.1.3 * Amendment to Articles of Incorporation filed November 6,
1989 (incorporated by reference to the Registrant's
Registration Statement SB-2 filed March 3, 1998, as
subsequently amended).
4.1.4 * Amendment to Articles of Incorporation filed April 22, 1992
(incorporated by reference to the Registrant's Registration
Statement SB-2 filed March 3, 1998, as subsequently amended).
4.1.5 * Amendment to Articles of Incorporation filed February 17,
1998 (incorporated by reference to the Registrant's
Registration Statement SB-2 filed March 3, 1998, as
subsequently amended).
4.1.6 * Amendment to Articles of Incorporation filed July 5, 2000
(incorporated by reference to the Registrant's Registration
Statement SB-2 filed March 3, 1998, as subsequently amended).
4.2 * Bylaws of Computerized Thermal Imaging, Inc., as amended
January 15, 1998 (incorporated by reference to the
Registrant's Registration Statement SB-2 filed March 3, 1998,
as subsequently amended).
5.1 ** Opinion of Davis Wright Tremaine LLP.
23.1 ** Consent of Deloitte & Touche, LLP.
23.2 ** Consent of HJ & Associates LLC.
23.3 ** Consent of Davis Wright Tremaine LLP (included in
Exhibit 5).
24.1 ** Power of Attorney (included on Signature Pages).
99.1 ** Computerized Thermal Imaging, Inc. 401(k) Retirement Plan
Restatement 2001 (the "Plan")
99.2 ** Computerized Thermal Imaging, Inc. 401(k) Retirement Plan
Restatement 2001 Amendment
99.3 ** Computerized Thermal Imaging, Inc. 401(k) Retirement Plan
Restatement 2001 Second Amendment
The undersigned Registrant hereby undertakes to submit, or cause to be
submitted, the Plan and any amendments thereto to the Internal Revenue Service
(the "IRS") in a timely manner and to make all changes required by the IRS in
order to qualify the Plan under Section 401 of the Internal Revenue Code.
II-3
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933.
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of the securities offered would not
exceed that which was registered) and any
deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume
and price represent no more than a 20%
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement.
(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 the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 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.
II-4
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-5
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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lake Oswego, State of Oregon on July 15, 2002
COMPUTERIZED THERMAL IMAGING, INC.
/s/Bernard J. Brady
------------------------------------------
Bernard J. Brady, Chief Financial Officer,
Secretary & Treasurer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature to
this Registration Statement appears below hereby constitutes and appoints
Bernard J. Brady, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for such person and in such person's
name, place and stead, in any and all capacities, to sign any and all amendments
(including 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
attorney-in-fact and agent 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 attorney-in-fact and
agent or his or her or their substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
/s/Richard V. Secord July 15, 2002
---------------------------------
RICHARD V. SECORD
Chairman of the Board & Chief Executive Officer
/s/John M. Brenna July 15, 2002
---------------------------------
JOHN M. BRENNA
Director, President, & Chief Operating Officer
/s/Brent M. Pratley July 15, 2002
---------------------------------
BRENT M. PRATLEY, M.D.
Director
/s/Milton R. Geilmann July 15, 2002
---------------------------------
MILTON R. GEILMANN
Director
/s/Harry C. Aderholt July 15, 2002
---------------------------------
HARRY C. ADERHOLT
Director
/s/Robert L. Simmons July 15, 2002
---------------------------------
ROBERT L. SIMMONS
Director
/s/Bernard J. Brady July 15, 2002
---------------------------------
BERNARD J. BRADY
Chief Financial Officer, Secretary & Treasurer
II-6
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the Computerized Thermal Imaging, Inc.
401(k) Retirement Plan Restatement 2001) have duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lake Oswego, State of Oregon, on July 15, 2002.
Computerized Thermal Imaging, Inc.
401(k) Retirement Plan Restatement 2001
By: /s/ Bernard J. Brady
-----------------------------------
Bernard J. Brady
Plan Trustee
II-7
Exhibit Index
* Incorporated by reference as noted.
** Filed herewith.
Exhibit No. Description of Exhibit
----------- ----------------------
4.1.0 * Articles of Incorporation of Computerized Thermal Imaging,
Inc., filed June 10, 1987 (incorporated by reference to the
Registrant's Registration Statement SB-2 filed March 3, 1998,
as subsequently amended).
4.1.1 * Amendment to Articles of Incorporation filed July 31, 1987
(incorporated by reference to the Registrant's Registration
Statement SB-2 filed March 3, 1998, as subsequently amended).
4.1.2 * Amendment to Articles of Incorporation filed August 12, 1989
(incorporated by reference to the Registrant's Registration
Statement SB-2 filed March 3, 1998, as subsequently amended).
4.1.3 * Amendment to Articles of Incorporation filed November 6,
1989 (incorporated by reference to the Registrant's
Registration Statement SB-2 filed March 3, 1998, as
subsequently amended).
4.1.4 * Amendment to Articles of Incorporation filed April 22, 1992
(incorporated by reference to the Registrant's Registration
Statement SB-2 filed March 3, 1998, as subsequently amended).
4.1.5 * Amendment to Articles of Incorporation filed February 17,
1998 (incorporated by reference to the Registrant's
Registration Statement SB-2 filed March 3, 1998, as
subsequently amended).
4.1.6 * Amendment to Articles of Incorporation filed July 5, 2000
(incorporated by reference to the Registrant's Registration
Statement SB-2 filed March 3, 1998, as subsequently amended).
4.2 * Bylaws of Computerized Thermal Imaging, Inc., as amended
January 15, 1998 (incorporated by reference to the
Registrant's Registration Statement SB-2 filed March 3, 1998,
as subsequently amended).
5.1 ** Opinion of Davis Wright Tremaine LLP.
23.1 ** Consent of Deloitte & Touche, LLP.
23.2 ** Consent of HJ & Associates LLC.
23.3 ** Consent of Davis Wright Tremaine LLP (included in
Exhibit 5).
24.1 ** Power of Attorney (included on Signature Pages).
99.1 ** Computerized Thermal Imaging, Inc. 401(k) Retirement Plan
Restatement 2001 (the "Plan")
99.2 ** Computerized Thermal Imaging, Inc. 401(k) Retirement Plan
Restatement 2001 Amendment
99.3 ** Computerized Thermal Imaging, Inc. 401(k) Retirement Plan
Restatement 2001 Second Amendment
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