Washington,
D.C. 20549
FORM
6-K
REPORT OF
FOREIGN PRIVATE ISSUER
PURSUANT
TO RULE 13a-16 OR 15d-16
UNDER THE
SECURITIES EXCHANGE ACT OF 1934
EDAP TMS
S.A. Files
On February
2, 2009
EDAP TMS
S.A.
Parc
Activite La Poudrette Lamartine
4/6 Rue
du Dauphine
69120
Vaulx-en-Velin - France
Indicate
by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form
20-F [ X ] Form 40-F [ ]
Indicate
by check mark whether the registrant by furnishing the information contained in
this Form is also thereby furnishing the information to the Commission pursuant
to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes
[ ] No [ X ]
This
report on Form 6-K is hereby incorporated by reference in the registration
statement of EDAP TMS S.A. on Forms F-3, file number 333-136811, 333-147762 and
333-152738.
To Our
Shareholders,
The Board
of Directors has decided to convene the EDAP Shareholders Meeting on February
26, 2009, and to submit for your vote a resolution (resolution N°
1) that allows the Board of Directors to issue new ordinary shares. The
shares will be used for payment in kind (PIK) of our Convertible Debt
interest, as provided by the Agreement we signed with Bondholders on October 29,
2007, upon raising USD20 million.
The
Company’s objective is to prudently manage its financial resources in an
increasingly challenging economic environment. This objective is in line with
our strategy to assure an optimal cash position for our US clinical trials
designed to obtain Food and Drug Administration approval to market our
Ablatherm-HIFU device.
The Board
of Directors strongly recommends that shareholders vote in favour of resolution
N° 1 as in the best interests of the Company. This resolution will
ensure that the Company preserves its capital to move forward aggressively with
its strategic plan to market its high definition device for the treatment of
prostate in the U.S., the largest market for such treatment.
The Board
of Directors recommends that EDAP shareholders reject Resolution N° 2. This
resolution is being presented in accordance with French law, which requires this
resolution when a Company is submitting a request for the issuance of new
shares.
Sincerely,
S/
Philippe Chauveau
Chairman
EDAP
TMS S.A.
Capital : Euros
1.300.823,29
Corporate
Headquarters : Parc d'Activité La Poudrette Lamartine
4, rue du
Dauphiné
69120
Vaulx-en-Velin
France
316 488 204
RCS Lyon
Vaulx-en-Velin,
January 23 2009
NOTICE
On Thursday February 26, 2009,
the shareholders are convened to attend an Extraordinary General Meeting of the
shareholders of EDAP TMS S.A., to be held:
at
10:30 am,
at
EDAP TMS’s headquarters
4,
rue du Dauphiné,
69120
Vaulx-en-Velin,
France
to
consider the following agenda:
|
1.
|
Authorization
to be granted to the Board of Directors of the Company to increase the
Company’s share capital by issuing shares to one category of persons or
legal entities, with preferential subscription rights of existing
shareholders suppressed in favor of such persons or legal
entities.
|
|
2.
|
Authorization
to be granted to the Board of Directors of the Company to increase the
Company’s share capital by issuing shares reserved for members of savings
plans, with preferential subscription rights of existing shareholders
suppressed in favor of the members.
|
Yours
sincerely,
The
Board of Directors
This
is a free translation from the French language and is supplied solely for
information purposes. Only the original version in French language
has legal force.
EDAP -
TMS
French
société anonyme with a
share capital of 1,300,823.29 euros
Registered
office: Parc d’activité La Poudrette Lamartine
4, rue du
Dauphiné 69120 Vaulx-en-Velin
Lyon
Registry of Commerce 316 488 204
Report
from the Board of Directors to the Extraordinary General Meeting of February 26,
2009
Shareholders
are invited to attend the Extraordinary General Shareholders’ Meeting of
EDAP-TMS S.A. (the “Company”) on February 26, 2009 at 10:30 a.m., at the
Company’s Headquarters, 4 rue du Dauphiné, 69120 Vaulx-en-Velin, France. The
meeting will deliberate on the following agenda:
|
1.
|
Authorization
to be granted to the Board of Directors of the Company to increase the
Company’s share capital by issuing shares to one category of persons or
legal entities, with preferential subscription rights of existing
shareholders suppressed in favor of such persons or legal
entities.
|
|
2.
|
Authorization
to be granted to the Board of Directors of the Company to increase the
Company’s share capital by issuing shares reserved for members of savings
plans, with preferential subscription rights of existing shareholders
suppressed in favor of the members.
|
I. Authorizations to be granted to the
Board of Directors to increase share capital by issuing
new shares for interest payments on its October 29, 2007 Convertible 9%
Bonds.
In line
with the Company’s development strategy, particularly in the U.S., with the
objective to obtain the Food and Drug Administration (“FDA”)’s approval for its
Ablatherm-HIFU device dedicated to treating localized prostate cancer, the Board
of Directors raised USD 20 million on October 29, 2007, by issuing a certain
number of convertible debentures with detachable warrants to a certain category
of persons, as per the 10th
resolution approved by the shareholders on May 22, 2007.
Terms and
conditions of these convertible debentures with warrants, approved by the Board
of Directors on October 29, 2007, provide for the Company’s election to pay
interest in kind (PIK) by issuing new ordinary shares, as per article 2(b) of
the Agreement, thus allowing the Company to preserve its cash position to
finance its development strategy described above. Conforming the Agreement, the
Company elected to pay quarterly interests in kind on July 1, 2008 and October
1, 2008, respectively. The new interest shares have been issued within a global
limit of 6,000,000 shares authorized by the shareholders on May 22, 2007,
including the shares underlying the debentures and warrants.
Terms and
conditions of the convertible debentures determine the calculation of each
quarterly interest payment based on the Volume Weighted Average Price (VWAP) of
the Company’s stock during the last 20 trading days preceding the
1/3
interest
payment date. However, due to the condition of the global financial market which
dramatically deteriorated during the last months of 2008, the Company’s share
price has been significantly and negatively impacted. Hence, the number of new
shares to be issued in payment of interests increased dramatically.
Consequently, the balance of new PIK (payment in kind) shares to be issued
within the authorized global limit above is not adequate to allow for the next
payment of interest in shares.
In that
respect, the Board of Directors asks the General Shareholders’ Meeting to
approve the resolution N°1 attached through the legal provisions of the
delegation of authority (délégation de compétence),
and provide the Board of Directors with this authority for a period of 18 months
in order to enact share capital increases by issuing new shares in payment of
the October 29, 2007 convertible debentures’ interests.
The total
maximum nominal value of the increases of share capital that may be carried out,
at different period of times, as per the resolution submitted to your approval,
would be set at €390,000, representing a maximum of 3,000,000 new shares. The
Board points out that, as of this date, the Company’s share capital amounts to
€1,300,823.29, divided into 10,006,333 ordinary shares with a nominal value of
€0.13. The maximum number of new authorized shares thus corresponds to
approximately 30% of the Company’s share capital on the day of the meeting, and
less than 20% on a fully diluted basis.
The Board
of Directors intends to make usage of this authorization as soon as possible to
pay in shares the next quarterly interest due, in order to preserve the
Company’s cash position dedicated to the U.S. Ablatherm-HIFU clinical trial. The
Board of Directors highlighted its strong cash position entering 2009. However,
the Board of Directors considers this resolution submitted to your vote as being
prudent to ensure appropriate financial resources to address the forthcoming,
still uncertain, months, preserving its shareholders interests.
II.
Authorization
to be granted to the Board of Directors of the Company to increase the Company’s
share capital by issuing shares reserved for members of savings plans, with
preferential subscription rights of existing shareholders suppressed in favor of
the members.
The
second resolution would allow your Board of Directors to offer the members of
the company savings plan of the EDAP TMS Group, in France and abroad, the
possibility to subscribe to shares or other securities that provide access to
the Company’s share capital.
This
resolution responds to the requirement set forth by Article L.225-129-6 of the
French Commercial Code (Code
de commerce), which requires that the Shareholders’ General Meeting makes
a decision on a proposed resolution aimed at the completion of a share capital
increase reserved for members of savings plans as soon as the agenda of the
meeting includes the adoption of resolutions authorizing the completion of a
capital increase by cash contribution , except when the capital increase results
from a prior issuance of securities that provide access to the Company’s
capital, or when the Assembly meeting authorizes increases in share capital as
per Article L.225-129-2 of the French Commercial Code (See Resolution 1). This
authority will be granted for a period of 26 months.
The
maximum nominal amount of capital increases that would be affected immediately
or over time pursuant to this delegation would be set at €6,500, which
represents a maximum of 50,000 shares; it being specified that the total
amount
2/3
of share
capital increases that may be carried out pursuant to this resolution shall also
be counted towards the amount of the new global limit set up in Resolution N°
1.
This
resolution, rendered obligatory by French legislation, is not a major element of
the Company’s employee shareholding plan. The Board of Directors recommends to
reject this resolution.
The Board of Directors
3/3
This
is a free translation from the French language and is supplied solely for
information purposes. Only the original version in French language
has legal force.
EDAP -
TMS
French
société anonyme with a
share capital of 1,300,823.29 euros
Registered
office: Parc d’activité La Poudrette Lamartine
4, rue du
Dauphiné 69120 Vaulx en Velin, France
Lyon
Registry of Commerce 316 488 204
|
PROJECT OF RESOLUTIONS TO BE
SUBMITTED
TO
THE EXTRAORDINARY
SHAREHOLDERS
MEETING'S HELD
ON FEBRUARY 26th 2009 |
Shareholders
are invited to attend the Extraordinary General Meeting of EDAP-TMS S.A. (the
“Company”) on Thursday February 26th, 2009,
at 10:30 a.m., at the Company’s headquarters: 4 rue du Dauphiné, 69120
Vaulx-en-Velin, France. The meeting will deliberate on the following
agenda:
|
1.
|
Authorization
to be granted to the Board of Directors of the Company to increase the
Company’s share capital by issuing shares to one category of persons or
legal entities, with preferential subscription rights of existing
shareholders suppressed in favor of such persons or legal
entities.
|
|
2.
|
Authorization
to be granted to the Board of Directors of the Company to increase the
Company’s share capital by issuing shares reserved for members of savings
plans, with preferential subscription rights of existing shareholders
suppressed in favor of the members.
|
|
|
* *
*
|
Text
of the resolutions
First
resolution (Authorization to be granted to the
Board of Directors of the Company to increase the Company’s share capital by
issuing shares to one category of persons or legal entities, with preferential
subscription rights of existing shareholders suppressed in favor of such persons
or legal entities).
In line
with the Company’s development strategy and in view of preserving at best its
cash position, particularly to finance its US operations, conforming the terms
and conditions of the convertible debentures with warrants, approved by the
Board of Directors on October 29, 2007, which provide for the Company’s election
to pay interest in kind by issuing new ordinary shares, as per article 2(b) of
the Agreement, the General Meeting, acting in accordance with the quorum and
majority criteria required for extraordinary general meetings, and having taken
note of the report of the Board of Directors and the Auditor's Special Report,
and pursuant to the provisions of Articles L.225-129 et seq. of the French
Commercial Code, in particular the provisions of Articles L.225-129-2 and
L.225-138 of said Code:
|
1.
|
Delegates
to the Board of Directors the authority and powers necessary to increase
the share capital, in view of paying Convertible debt interests in shares,
on one or more occasions, in a proportion and at any time that it may
decide, in euros, by issuing shares (excluding preferred
chares);
|
1/4
|
2.
|
Decides
to suppress the preferential subscription right of shareholders for
securities to be issued pursuant to this resolution in favor of the
following category of investors: October 29, 2007 Convertible debentures
with warrants’ Holders (the
“Bondholders”);
|
|
3.
|
Decides
to limit as follows the total amounts of the authorized issues in the
event that the Board of Directors uses this
delegation:
|
3.1. the
maximum nominal value of the capital increases that may be carried out
immediately or over time pursuant to this delegation is set at €390,000
representing a maximum of 3,000,000 new shares on basis of the current nominal
value of €0,13,
3.2. to
these limits shall be added the nominal value of additional shares, if any, that
may be issued upon the occurrence of new financial transactions, to preserve, in
accordance with law, the rights of holders of securities entitled to shares over
time;
|
4.
|
Sets
the term of validity of the delegation of authority that is the subject of
this resolution as eighteen months from the date of this
meeting;
|
|
5.
|
Enacts
and decides, to the extent necessary, that this delegation automatically
provides to the Bondholders of issued securities, subscribed on October
29, 2007, an express waiver by the shareholders of their preferential
subscription right regarding securities to which the issued securities
would give rights;
|
|
6.
|
Decides
that the Board of Directors shall have all powers to implement this
delegation, within the limitations and subject to the conditions specified
above, and in particular, to:
|
|
·
|
decide
of share capital increases,
|
|
·
|
decide
upon the amount to be issued within the global limits fixed in item 3 of
the current resolution;
|
|
·
|
determine
the dates and conditions of share capital
increases;
|
|
·
|
decide
the method of payment for the shares, particularly to allow offsetting
with the bondholders interest
receivables;
|
|
·
|
provide,
potentially, for the right to suspend the exercise of the rights attached
to such securities in accordance with applicable law and
regulation;
|
|
·
|
at
its sole initiative, allocate the costs of capital increases to the amount
of associated premiums and withdraw from such amount the sums necessary to
raise the level of the statutory
reserve;
|
|
·
|
declare
the completion of each capital increase and amend the articles of
association accordingly;
|
|
·
|
generally,
enter into all agreements, in particular for the successful completion of
the contemplated issuances, take all measures and perform all formalities
necessary to issue, list and service the securities issued pursuant to
this delegation and facilitate the exercise of rights attached
thereto
|
|
7.
|
Takes
note of the fact that, in the event that the Board of Directors should use
the delegation granted to it in this resolution, the Board of Directors
shall report to the next ordinary general meeting, in compliance with
applicable laws and regulations, the use it has made of the authorizations
granted in this resolution.
|
Second
resolution (Authorization for the Board of
Directors to increase share capital by issuing shares reserved for members of
savings plans, with preferential subscription rights of existing shareholders
suppressed in favor of such members)
For EDAP
TMS members of Saving Plans, the General Meeting, acting in accordance with the
quorum and majority criteria required for extraordinary general meetings, and
having taken note of the report of the Board of Directors and the Auditor's
Special Report, and pursuant on the one hand to the provisions of Articles L.
225-129-6 and L.225-138-1 of the French Commercial Code, and on the other hand
to the provisions of Articles L.3332-1 et seq. of the French Labor
Code:
|
1.
|
Grants
to the Board of Directors the powers necessary to increase share capital,
on one or more occasions, by a maximum nominal value of EUR 6,500
representing a maximum of 50,000 new shares, by issuing shares or other
securities providing access to the Company's capital reserved for members
of one or more company savings plans (or other plan whereby, pursuant to
Article L.3332-24 of the French Labor
Code,
|
2/4
| such plan’s members could be reserved a share capital increase under equivalent conditions) that will be put in place within a company or group of companies, which group is composed of the Company and of French and foreign companies entering within the scope of consolidation or combination of the financial statements of the Company through application of Article L. 3344-1 and L. 3344-2 of the French Labor Code; it being specified that the total amount of share capital increases that may be effected pursuant to this resolution immediately or over time shall be subject to the total cap set forth in paragraph 3.1 of the first resolution of this meeting; | |
|
2.
|
Sets
the term of validity of the delegation that is the subject of this
resolution as twenty-six months from the date of this
meeting;
|
|
3.
|
Decides
that the issue price of the new shares or other securities that provide
access to the share capital shall be determined in compliance with the
objective methods applicable for share valuations by taking into account,
with an appropriate weighting for each case, the accounting net result,
the profitability and the company’s perspectives in accordance with the
provisions of Article L.3332-20 of the French Labor Code, with a maximum
discount within legal and regulatory limitations and as determined by the
Board of Directors, it being specified that the Board of Directors may
reduce or eliminate the aforementioned discount as it deems
appropriate;
|
|
4.
|
Authorizes
the Board of Directors to grant to the beneficiaries indicated above, for
no consideration, in addition to shares or other securities providing
access to the Company’s capital to be subscribed by a cash payment, shares
or other securities providing access to the Company's capital to be issued
or already issued, as a total or partial substitution of the
aforementioned discount and/or the employer’s contribution (abondement); it being
specified that the advantage resulting from this granting shall not exceed
the legal and regulatory provisions provided for in Articles L. 3332-18 to
L. 3332-24 and L. 3332-11 to 3332-13 of the French Labor
Code;
|
|
5.
|
Decides
to suppress in favor of the abovementioned beneficiaries the shareholders'
preferential subscription right to shares or securities providing access
to the Company’s capital the issuance of which is subject to this
delegation, said shareholders further waiving, in the event of a grant for
no consideration of shares or securities providing access to the share
capital to the abovementioned beneficiaries, all rights to said shares or
securities providing access to the share capital, including any part of
premiums, reserves, profits capitalized, which would derive from the grant
for no consideration of the said securities, pursuant to this
resolution;
|
|
6.
|
Authorizes
the Board of Directors, in accordance with the provisions of this
resolution, to transfer shares to members of savings plans as provided for
in Article L.3332-24 of the Labor
Code;
|
|
7.
|
Decides
that the Board of Directors shall have all powers to implement this
delegation, within the limitations and subject to the conditions specified
above, and in particular, to:
|
|
·
|
determine
under the conditions set by law the list of companies whose
above-mentioned beneficiaries shall be able to subscribe for issued shares
and benefit from shares or other securities granted for no consideration,
if any;
|
|
·
|
decide
that the subscriptions may be carried out directly by the beneficiaries,
members of savings plans, or through mutual funds or other structures or
entities permitted under applicable laws and
regulations;
|
|
·
|
determine
the conditions, notably regarding seniority, that beneficiaries of capital
increases must satisfy;
|
|
·
|
set
the opening and closing dates for
subscriptions;
|
|
·
|
determine
the value of issuances that will be realized as a result of this
authorization and set in particular the issue prices, dates, periods,
terms and conditions of subscription, payment, delivery and rights of the
securities (including retroactive), the rules of reduction applicable in
the event of an oversubscription, as well as all other terms and
conditions of the issuances, within the applicable legal and regulatory
restrictions;
|
|
·
|
in
the case of a grant of shares or other securities providing access to the
capital for no consideration, to determine the number of shares or other
securities to be granted, and set the dates, periods, terms and conditions
of the grant of such shares or other securities within the applicable
legal and regulatory restrictions and, in particular, to choose either to
fully or partially substitute the granting of such shares or securities
for the maximum discounts
|
3/4
|
|
provided for above for the determination of the Reference Price, or to allocate the counter-value of such shares and securities for the total amount of the allocation (abondement), or to combine both possibilities; |
|
·
|
in
the event of the issuance of new shares, deduct, if necessary, from the
reserves, profits or issuance premium, the sums required for said paying
up of the shares, declare the completion of capital increase pursuant to
this authorization, amend the articles of association accordingly and more
generally carry out all useful actions and all legal
requirements;
|
|
·
|
declare
the completion of each capital increase up to the amount of the shares
that are actually subscribed pursuant to this
authorization;
|
|
·
|
if
necessary, allocate the costs of capital increases to the amount of
premiums related thereto and withdraw from such amount the sums necessary
to raise the level of the legal reserve to one-tenth of the new capital
after each capital increase;
|
|
·
|
enter
into any agreements, accomplish directly or through an agent any
transactions and terms, including performing formalities following capital
increases and subsequent modifications of the articles of
association;
|
|
·
|
generally,
enter into all agreements, in particular for the successful completion of
the contemplated transactions, take all measures and perform all
formalities necessary for the issue, listing and financial payment of the
securities issued pursuant to this delegation as well as the exercise of
rights attached thereto or following any completed capital increases and,
more generally, to perform all necessary
actions.
|
|
8.
|
Decides
that this authorization replaces any prior authorization granted to the
Board of Directors to increase the Company's share capital through issuing
shares reserved for members of savings plans, without preferential
subscription right in favor of the members, effective from this day and
for the value of any unused proportion of such prior
delegation.
|
4/4
|
Please
mark your votes
as indicated in this example |
|||||||
|
The
Board of Directors recommends a vote in FAVOR of Proposal #1 and a vote
AGAINST Proposal #2
|
FOR
|
AGAINST
|
|||||
|
1.
Authorization to be granted to the Board of Directors of the Company to
increase the Company’s share capital by issuing shares to one category of
persons or legal entities, with preferential subscription rights of
existing shareholders suppressed in favor of such persons or legal
entities.
|
[
]
|
[
]
|
|||||
|
2.
Authorization to be granted to the Board of Directors of the Company to
increase the Company’s share capital by issuing shares reserved for
members of savings plans, with preferential subscription rights of
existing shareholders suppressed in favor of the members.
|
[
]
|
[
]
|
|||||
Mark Here for Address Change or Comments SEE REVERSE
Signature
_______________________ Signature_________________________
Date_____________
NOTE: Please sign as name appears hereon. Joint owners should each sign. When signing as attorney, executor, administrator, trustee or guardian, please give full title as such.
^
FOLD AND DETACH HERE
^
|
EDAP TMS
S.A.
|
EDAP TMS S.A.
Instructions to THE BANK OF NEW YORK, as Depositary
Must be received prior to 5:00 pm (New York City time) on February 18, 2009
The
undersigned Holder of American Depositary Receipts hereby requests and instructs
The Bank of New York, as Depositary, to endeavor, insofar as practicable, to
vote or cause to be voted the Deposited EDAP TMS S.A. Shares represented by such
Receipts registered in the name of the undersigned on the books of the
Depositary as of the close of business on January 29, 2009 at the Extraordinary
Shareholders Meeting of EDAP TMS S.A. to be held in France, on February 26, 2009
at 10:30 am in respect of the resolutions specified in the enclosed Notice of
Meeting.
NOTES: Instructions as to voting on the specified resolutions should be indicated by an “X” in the appropriate box. If no Voting Instruction Card is received by the Depositary from an Owner with respect to any of the Shares represented by American Depositary Shares on or before the Receipt Date, or if the Voting Instruction Card is improperly completed or blank, or if the vot
ing instructions included in the Voting Instruction Card are illegible or unclear, such Owner shall be deemed to have instructed the Depositary to vote such Shares and the Depositary shall vote such Shares in favor of any resolution proposed or approved by the Board of Directors of the Company and against any resolution not so proposed or approved.
(Continued and to be marked, dated and signed, on the other side)
BNY
SHAREHOLDER SERVICES
PO
BOX 3549
S
HACKENSACK NJ 07606-9249
Address Change/Comments
(Mark the corresponding box on the reverse side)
^ FOLD AND DETACH HERE ^
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
Date
:
EDAP TMS
S.A.
/S/ MARC
OCZACHOWSKI
MARC
OCZACHOWSKI
CHIEF
EXECUTIVE OFFICER