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As filed with the Securities and Exchange Commission on June 12, 2000.
Registration No. 333-76151
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 2
to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NEOPROBE CORPORATION (Exact Name of Registrant as Specified in Its Charter)
DELAWARE (State of Incorporation)
31-1080091 (I.R.S. Employer Identification Number)
425 Metro Place North
Suite 300
Dublin, Ohio 43017-1367 (Address of Registrant's Principal Executive Offices)
(614) 793-7500 (Telephone Number of Registrant's Principal Executive Offices)
Brent L. Larson (Name, Address, and Telephone Number, of Agent for Service)
425 Metro Place North
Suite 300
Dublin, Ohio 43017-1367
(614) 793-7500
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Approximate date of commencement of proposed sale to the public:
as soon as possible after the effective date of this registration statement
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If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PURSUANT TO RULE 429 THE PROSPECTUS CONTAINED HEREIN ALSO RELATES TO
REGISTRATION STATEMENTS NOS. 33-72700; 33-73622; 333-15989.
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PROSPECTUS
[Neoprobe Logo]
3,000,000 SHARES OF COMMON STOCK
The Aries Master Fund and the Aries Domestic Fund may sell shares of
common stock of Neoprobe Corporation at prices based on market conditions at the
time of sale. The Funds may make these sales at any time that they choose
through brokers selected by them individually. The Funds may compensate their
brokers for selling shares by giving them discounts on the shares they are
selling or paying them commissions and fees in amounts set through negotiations
between them and their brokers. You should read the Section entitled "Plan of
Distribution" within this document
The OTC Bulletin Board reports trades of common stock under the symbol
"NEOP." On June 9, 2000, the closing price for the common stock was $0.78.
Neoprobe is located at 425 Metro Place North, Suite 300, Dublin, Ohio
43017, and its telephone number is (614) 793-7500.
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SEE "RISK FACTORS," BEGINNING ON PAGE 2.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED NOR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
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June 12, 2000
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RISK FACTORS
NEOPROBE HAS SUFFERED SIGNIFICANT OPERATING LOSSES IN EACH YEAR IN ITS HISTORY
AND IT MAY NEVER BECOME PROFITABLE.
Neoprobe had an accumulated deficit of approximately $120 million as of
December 31, 1999. For the years ended December 31, 1997, 1998 and
1999, Neoprobe's net losses were $23.2 million, $28 million and $7.9
million. Neoprobe made an operating profit in the fourth quarter of
1999 but it must expend substantial resources to continue development
and marketing of its products and can not assure investors that it will
make an operating profit in 2000.
NEOPROBE HAS LIMITED EXPERIENCE IN MANUFACTURING, MARKETING AND SELLING ITS
PRODUCTS AND IT MAY NOT BE ABLE TO DO THESE THINGS SUCCESSFULLY.
Neoprobe began active marketing of its gamma radiation detection
devices for use in intraoperative lymphatic mapping in 1997 and has
limited experience in manufacturing, marketing and selling ILM
products. Since its organization in 1983, Neoprobe expended the vast
majority of its efforts and resources in the research and development
of its antibody based surgical cancer detection technology. During
1998, based on disappointing regulatory feedback from the FDA and
European regulatory authorities, Neoprobe revised its business plan to
severely curtail research and development of that technology and to
focus on gamma guided surgery products. Potential investors must
evaluate Neoprobe's prospects in light of the substantial risks,
expenses, delays and difficulties that small companies normally
encounter in the medical device industry, which is characterized by an
increasing number of participants, intense competition and a high rate
of failure.
NEOPROBE MAY HAVE DIFFICULTY RAISING ADDITIONAL CAPITAL, WHICH COULD DEPRIVE IT
OF NECESSARY RESOURCES.
Neoprobe has depended on the proceeds of sales of its securities to
fund its losses, continue research and development and provide working
capital. Neoprobe expects to continue to devote substantial capital
resources to market and sell its products, to fund research and
development of additional gamma guided surgery products, and to
maintain existing and secure new manufacturing capacity. Neoprobe may
need to raise additional funds through the sale of assets, public or
private financing, collaborative relationships or other arrangements.
Neoprobe's ability to raise additional financing may be dependent on
many factors beyond Neoprobe's control, including the state of capital
markets and the development or prospects for development of competitive
technology by others.
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Because common stock is not listed on a stock exchange many investors
may not be willing or allowed to purchase it or may demand steep
discounts. The necessary additional financing may not be available to
Neoprobe or may be available only on terms that would result in further
dilution to the owners of Neoprobe's common stock. If Neoprobe is
unable to raise additional funds when it needs them, it may have to
curtail its operations.
NEOPROBE PRODUCTS MAY NOT ACHIEVE THE BROAD MARKET ACCEPTANCE THEY NEED IN ORDER
TO BE A COMMERCIAL SUCCESS.
Neoprobe's products are currently only widely used in the treatment and
diagnosis of two primary types of cancer: melanoma and breast cancer.
Neoprobe's success is dependent on acceptance of ILM, and of its
devices for use in ILM, by the medical community as a reliable, safe
and cost effective alternative to current treatments and procedures.
Although Neoprobe believes that ILM has significant advantages over
other currently competing procedures, broad-based clinical adoption of
ILM will not occur until physicians outside the major cancer centers
and teaching hospitals determine that the ILM approach is an attractive
alternative to current treatments for use in melanoma and breast cancer
and expand its use to other types of cancer. These things may not
happen. Neoprobe's marketing efforts may not result in significant
demand for its products, and the current demand for Neoprobe's products
may decline.
NEOPROBE RELIES ON A THIRD PARTY FOR ITS MARKETING AND DISTRIBUTION, WHO MAY NOT
BE SUCCESSFUL IN SELLING NEOPROBE'S PRODUCTS.
Neoprobe has limited resources and experience in sales, marketing and
distribution of medical devices. Neoprobe currently distributes its
products on a worldwide basis through a partner who is solely
responsible for distributing Neoprobe's products. In the past 4 years,
Neoprobe has terminated marketing arrangements affecting major global
markets 3 times including once with its current distribution partner.
Neoprobe's current distribution partner has agreed to purchase minimum
quantities of Neoprobe's products during the first three years of the
initial five-year term of their agreement which began on October 1,
1999. While Neoprobe believes that its distribution partner intends to
aggressively market its products, there can be no assurance that the
distribution partner will make purchases in excess of its minimum
annual purchase requirements or that the minimum purchases will
generate profitability or adequate cash flow for Neoprobe over the long
run. Neoprobe may not be able to maintain satisfactory arrangements
with a marketing or distribution partner, who may not devote adequate
resources to selling Neoprobe's products. If this happens, Neoprobe may
not be able to sucessfully market its products, which would decrease
its revenues.
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NEOPROBE MAY LOSE OUT TO LARGER AND BETTER ESTABLISHED COMPETITORS.
The medical device industry is intensely competitive. Neoprobe's
competitors have significantly greater financial, technical,
manufacturing, and distribution resources as well as greater experience
in the medical device industry than Neoprobe. The particular medical
conditions that can be treated using Neoprobe's ILM products can also
be treated and diagnosed by other medical devices, procedures or drugs.
Many of these alternatives are widely accepted by physicians and have a
long history of use. Physicians may use Neoprobe's competitors'
products. Neoprobe's products may not be competitive with other
technologies. If these things happen, Neoprobe's sales and revenues
will decline.
NEOPROBE'S PRODUCTS MAY BE DISPLACED BY NEWER TECHNOLOGY.
The medical device industry is undergoing rapid and significant
technological change. Third parties may succeed in developing or
marketing technologies and products that are more effective than those
developed or marketed by Neoprobe, or that would make Neoprobe's
technology and products obsolete or noncompetitive. Additionally,
researchers could develop new surgical procedures and medications that
replace or reduce the importance of the procedures that use Neoprobe's
products. Accordingly, Neoprobe's success will depend, in part, on its
ability to respond quickly to medical and technological changes through
the development and introduction of new products. Neoprobe may not have
the resources to do this. If Neoprobe's products become obsolete and
its efforts to develop new products do not result in any commercially
successful products, Neoprobe's sales and reveues will decline.
NEOPROBE RELIES ON THIRD PARTIES TO MANUFACTURE ITS PRODUCTS AND NEOPROBE WILL
SUFFER IF THEY DO NOT PERFORM.
Neoprobe relies on independent contract manufacturers for the
manufacture of its current line of gamma guided surgery products.
Neoprobe's business will suffer if its contract manufacturers have
production delays or quality problems. Furthermore, medical device
manufacturers are subject to the Good Manufacturing Practices
regulations of the FDA, international quality standards, and other
regulatory requirements. If Neoprobe's contractors do not operate in
accordance with regulatory requirements and quality standards,
Neoprobe's business will suffer. Neoprobe uses or relies on components
and services used in its devices that are provided by sole source
suppliers. The qualification of additional or replacement vendors is
time consuming and costly. If a sole source supplier has significant
problems supplying Neoprobe, its sales and revenues will be hurt until
it could find a new source of supply.
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NEOPROBE IS IN A HIGHLY REGULATED BUSINESS AND IT COULD FACE SEVER PROBLEMS IF
DOES NOT COMPLY WITH ALL REGULATORY REQUIREMENTS.
The FDA regulates Neoprobe's medical device products in the United
States. Foreign countries also subject Neoprobe's medical device
products to varying government regulations. In addition, such
regulatory authorities may impose limitations on the use of Neoprobe's
products. FDA enforcement policy strictly prohibits the marketing of
FDA approved medical devices for unapproved uses. Within the European
Union, Neoprobe's products are required to display the CE mark in order
to be sold. Neoprobe has obtained FDA clearance to market its medical
device products and European certification to display the CE mark on
its current line of portable radiation detection instruments. Neoprobe
may not be able to obtain certification for any new products in a
timely manner, or at all. Failure to comply with these and other
regulatory requirements could result in, among other things, warning
letters, fines, injunctions, civil penalties, recall or seizure of
products, total or partial suspension of production, refusal of the
government to grant premarket clearance or premarket approval for
devices, withdrawal of clearances or approvals, and criminal
prosecution.
NEOPROBE'S INTELLECTUAL PROPERTY MAY NOT HAVE OR PROVIDE SUFFICIENT LEGAL
PROTECTIONS AGAINST INFRINGEMENT OR LOSS OF TRADE SECRETS.
Neoprobe's success depends, in part, on its ability to secure and
maintain patent protection, to preserve its trade secrets, and on its
ability to operate without infringing on the patents of third parties.
Neoprobe seeks to protect its proprietary positions by filing United
States and foreign patent applications for its important inventions and
improvements. But, domestic and foreign patent offices may not issue
these patents. Third parties may challenge, invalidate, or circumvent
Neoprobe's patents or patent applications in the future. Competitors,
many of which have substantially more resources than Neoprobe and have
made substantial investments in competing technologies, apply for and
obtain patents that will prevent, limit, or interfere with Neoprobe's
ability to make, use, or sell its products either in the United States
or abroad.
In the United States, patent applications are secret until patents
issue, and in foreign countries, patent applications are secret for a
time after filing. Publications of discoveries in tend to significantly
lag the actual discoveries and the filing of related patent
applications. Third parties may have already filed applications for
patents for products or processes that will make Neoprobe's products
obsolete or will limit Neoprobe's patents or invalidate its patent
applications.
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Neoprobe typically requires its employees, consultants, and advisers to
execute confidentiality and assignment of invention agreements in
connection with their employment, consulting, or advisory relationships
with Neoprobe. They may breach these agreements and Neoprobe may not
obtain an adequate remedy for breach. Further, third parties may gain
access to Neoprobe's trade secrets or independently develop or acquire
the same or equivalent information.
Agencies of the United States government conducted some of the research
activities that led to the development of antibody technology that some
of Neoprobe's proposed antibody based surgical cancer detection
products use. When the United States government participates in
research activities, it retains rights that include the right to use
the technology for governmental purposes under a royalty-free license,
as well as rights to use and disclose technical data that could
preclude Neoprobe from asserting trade secret rights in that data and
software.
NEOPROBE COULD BE DAMAGED BY PRODUCT LIABILITY CLAIMS.
Neoprobe's products are medical devices that are used during certain
cancer surgeries. If one of them malfunctions or a physician misuses it
and injury results to a patient or operator, the injured party could
assert a product liability claim against Neoprobe. Neoprobe currently
has product liability insurance which, Neoprobe believes, is adequate
for its current activities. However, Neoprobe may not be able to
continue to obtain insurance at a reasonable cost. Furthermore
insurance may not be sufficient to cover all of the liabilities
resulting from a product liability claim, and Neoprobe might not have
sufficient funds available to pay any claims over the limits of its
insurance. Because personal injury claims based on product liability in
a medical setting may be very large, an underinsured or an uninsured
claim could financially damage Neoprobe.
NEOPROBE MARKETS ITS PRODUCTS INTERNATIONALLY AND IS SUBJECT TO THE RISKS OF
INTERNATIONAL TRADE.
Changes in overseas economic conditions, currency exchange rates,
foreign tax laws or tariffs and trade regulations could have a material
adverse effect on Neoprobe's business. Neoprobe and its distributors
will also be subject to laws and regulations of the foreign countries
where they operate or Neoprobe's products are sold. The regulation of
medical devices in a number of foreign countries, particularly the
European Union, continues to develop and new laws or regulations may
adversely affect Neoprobe's business.
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NEOPROBE MAY HAVE TROUBLE ATTRACTING AND RETAINING QUALIFIED PERSONNEL AND ITS
BUSINESS MAY SUFFER IF IT DOES NOT.
Neoprobe's business has experienced developments the past two years,
which have resulted in several significant changes in Neoprobe's
strategy and business plan, including downsizing to what Neoprobe
considers to be the minimal level of management and employees necessary
to operate a publicly traded medical device business. Neoprobe believes
its restructured organization is appropriate to support modest growth
over the next few years. However, losing any members of the management
team could have an adverse effect on Neoprobe's operations. Neoprobe's
success is dependent on its ability to attract and retain technical and
management personnel with expertise and experience in the medical
device business. The competition for qualified personnel in the medical
device industry is intense and Neoprobe may not be successful in hiring
or retaining the requisite personnel. If Neoprobe is not able to
attract and retain qualified technical and management personnel, its
will suffer diminished chances of future success.
COMMON STOCK IS TRADED OVER THE COUNTER, WHICH MAY DEPRIVE STOCKHOLDERS OF THE
FULL VALUE OF THEIR SHARES.
Unlisted securities may have fewer market makers, lower trading volumes
and larger spreads between bid and asked prices than listed securities.
These factors may result in higher price volatility and less market
liquidity for the common stock.
NEOPROBE'S STOCKHOLDER RIGHTS PLAN, AND SOME PROVISIONS OF NEOPROBE'S CHARTER
AND APPLICABLE CORPORATE LAWS MAY HAVE THE EFFECT OF DETERRING THIRD PARTIES
FROM MAKING TAKEOVER BIDS FOR CONTROL OF NEOPROBE OR MAY BE USED TO HINDER OR
DELAY A TAKEOVER BID.
This would decrease the chance that Neoprobe's stockholders would
realize a premium over market price for their shares of common stock as
a result of a takeover bid. See "DESCRIPTION OF STOCK -- Stockholder
Rights Plan; and -- Anti-takeover Charter Provisions And Laws"
Neoprobe's certificate of incorporation has "blank check" preferred
stock. The board of directors may divide this stock into series and set
their rights. The board of directors may, without prior stockholder
approval, issue any of the shares "blank check" preferred stock with
dividend, liquidation, conversion, voting or other rights which could
adversely affect the relative voting power or other rights of the
common stock. Preferred stock could be used as a method of
discouraging, delaying, or preventing a take-over of Neoprobe. If
Neoprobe
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issues "blank check" preferred stock, it could have a dilutive effect
upon the common stock. See "DESCRIPTION OF STOCK -- Preferred Stock."
BECAUSE NEOPROBE WILL NOT PAY DIVIDENDS, STOCKHOLDERS WILL ONLY BENEFIT FROM
OWNING COMMONS STOCK IF IT APPRECIATES.
Neoprobe has never paid dividends on its common stock. Neoprobe intends
to retain any future earnings to finance its growth. Accordingly, any
potential investor who anticipates the need for current dividends from
his investment should not purchase common stock.
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SELLING STOCKHOLDERS
COMMON STOCK
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Shares
owned Shares % of class
before Shares owned owned
Name offering offered afterwards afterwards
(1) (1)(2) (2)
The Aries Master Fund 2,100,100 2,100,000 0 0
Aries Domestic Fund 900,000 900,000 0 0
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(1) Does not include shares of common stock issuable upon the exercise of
the warrants owned by the Funds. 2,100,000 for the Master Fund and
900,000 for the Domestic Fund.
(2) Assuming all shares are sold.
RELATIONSHIPS BETWEEN NEOPROBE AND THE FUNDS
On February 16, 1999, Neoprobe entered into a Preferred Stock and
Warrant Purchase Agreement with the Funds, under which the Funds paid Neoprobe
$3 Million and Neoprobe issued to the Funds 30,000 shares of its Series B
Preferred Stock and seven year warrants to purchase an additional 2,912,621
shares of common stock. Each share of Series B Preferred Stock was convertible
into a minimum of 97 shares of common stock. But if the market value of common
stock at the time of conversion was less than $1.03, the number of shares
issuable upon conversion would have been increased, up to a maximum of 182
shares of common stock. The exercise price of the warrants issued was $1.03 per
share.
The Purchase Agreement and the preferred stock terms contained numerous
restrictions on Neoprobe's conduct of its business. The Purchase Agreement and
the preferred stock terms also contained provisions that would allow the Funds
to require Neoprobe to redeem the Series B Preferred Stock if the common stock
were delisted, Neoprobe received a qualified opinion from its accountants or if
the common stock issuable upon conversion of the Series B Preferred Stock was
not registered. All of these
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conditions occurred. In order to resolve the situation, the Funds and Neoprobe
entered into a Settlement Agreement in January, 2000.
Under the Settlement Agreement, Neoprobe paid the Funds $2.5 million,
issued to them 3,000,000 shares of common stock and three year warrants to
purchase to purchase an additional 3 million shares of common stock for 74 cents
per share. The Funds returned the Series B Preferred Stock and old warrants to
Neoprobe. Additionally the Funds and Neoprobe terminated the old Purchase
Agreement and its restrictions. The Funds agreed to attend stockholders meetings
for the next 2 years and to vote their shares of common stock on issues
presented to those meetings in accordance with the recommendations of Neoprobe's
management. The Funds also agreed to not buy any additional shares of common
stock before August, 2000. Neoprobe agreed to register the Fund's shares of
common stock with the SEC. If the filing or effectiveness of that registration
is delayed beyond the times set by the agreement, Neoprobe must pay a penalty in
shares of Common Stock to the Funds.
Neoprobe amended its stockholder rights plan, described below under the
heading "DESCRIPTION OF STOCK -- Stockholder Rights Plan," to exempt the
acquisition of common stock by the Funds under the Purchase Agreement together
with up to 1,000,000 more shares even though these transactions may result in
the Funds owning more than 15% of the common stock. This provision has not been
changed as a result of the Settlement Agreement.
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PLAN OF DISTRIBUTION
The Funds may sell shares of common stock through brokers selected by
them individually. The Funds have not yet selected any brokers. Neither the
Funds nor Neoprobe has appointed an underwriter or coordinating broker to sell
the Funds' shares. The Funds may make these sales at any time that they choose.
Sales may be made through ordinary transactions on the OTC Bulletin Board;
special offerings in accordance with the rules of the National Association of
Securities Dealers in which the brokers may act as principals or agents; block
trades in which the brokers may attempt to sell shares as agents and may
position and resell all or part of the block as a principal to facilitate the
transaction or a combination of these methods. The Funds may also sell their
shares in privately negotiated transactions off the OTC Bulletin Board, which
need not be through brokers. The shares are expected to be sold at market
related prices prevailing at the time of sale. The pledgees, trustees and other
successors to the Funds may also use this prospectus to sell common stock. The
Funds may, if they so choose, sell their shares under this prospectus or may
sell them under Rule 144 if the shares and their sale meet the conditions of the
Rule.
The Funds may compensate the brokers for selling shares of common stock
by giving them discounts on the shares they are selling or paying them
commissions and fees in amounts determined by negotiations between them and
their brokers. The brokers may also receive compensation from the purchasers of
shares for whom they act as agents or to whom they sell shares as principals, in
amounts determined by negotiations between the buyers and the brokers, or from
both buyer and seller. The compensation of the brokers may exceed amounts
customary in similar transactions. The brokers selected by the Funds, and any
other participating brokers may be considered to be underwriters as that term is
defined in the Securities Act of 1933, in which event discounts, commissions and
fees received by the brokers may be considered to be underwriting compensation.
The Funds may agree to indemnify their brokers against some types of
liabilities, including liabilities under the Securities Act of 1933.
When they are selling common stock under this prospectus, the Funds may
be considered to be underwriters as that term is defined in the Securities Act
of 1933. It is unlikely that they will perform any of the functions of an
underwriter as that term is understood in its usual commercial usage, including
performing a due diligence investigation of Neoprobe or making any estimates of
the value of its securities. By making this disclosure, the Funds do not admit
that they are underwriters within the meaning of the Securities Act of 1933 and
they reserve the right to contest any allegation that they are acting as
underwriters or that they have any liabilities as underwriters.
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DESCRIPTION OF STOCK
AUTHORIZED AND ISSUED STOCK
NUMBER OF SHARES AT MAY 30, 2000
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NAME IN THIS
TITLE OF CLASS PROSPECTUS AUTHORIZED OUTSTANDING RESERVED
Common Stock, par value
$0.001 per share common stock 50,000,000 26,241,777 5,210,464
Series A Junior
Participating Preferred
Stock, par value Series A
$0.001 per share Preferred Stock 500,000 0 500,000
Preferred Stock, par value
$0.001 per share Preferred Stock 4,500,000 0 0
COMMON STOCK
Dividends Each share will receive an equal dividend,
if one is declared, which is unlikely. See
"RISK FACTORS -- No Dividends."
Liquidation If Neoprobe is liquidated, any assets that
remain after the creditors are paid and the
owners of preferred stock receive any
liquidation preferences will be distributed
to the owners of common stock pro-rata.
Voting Rights One vote per share.
No Cumulative Voting There is no cumulative voting. A simple
majority can elect all of the directors at
a given meeting and the minority would not
be able to elect any directors at that
meeting.
Free Transfer Common stock sold under this prospectus will
be freely transferable.
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No Personal Liability Owners of common stock are not personally
liable for Neoprobe's debts, just because
they own shares of common stock.
No Preemptive Rights Neoprobe can sell common stock to third
parties without first offering it to current
stockholders.
No Redemption Rights Neoprobe does not have the right to buy back
shares except in extraordinary transactions
such as mergers and court approved
bankruptcy reorganizations. Owners of common
stock do not ordinarily have the right to
require Neoprobe to buy their common stock.
Neoprobe does not have a sinking fund to
provide assets for any buy back.
No Conversion Rights Common stock can not be converted into any
other kind of stock except in extraordinary
transactions such as mergers and court
approved bankruptcy reorganizations.
PREFERRED STOCK
Neoprobe's certificate of incorporation has "blank check" preferred
stock. The board of directors may divide this stock into series and set their
rights. Neoprobe's board of directors has created one series of preferred stock.
500,000 shares of preferred stock have been designated as Series A Junior
Participating Preferred Stock and reserved for issuance under the stockholder
rights plan described below. 63,000 shares of preferred stock were previously
designated as 5% Series B Convertible Preferred Stock but they have been
redeemed and returned to the status of unissued shares. The board of directors
may, without prior stockholder approval, issue any of the remaining 4,500,000
shares preferred stock with dividend, liquidation, conversion, voting or other
rights which could adversely affect the relative voting power or other rights of
the common stock. Preferred stock could be used as a method of discouraging,
delaying, or preventing a take-over of Neoprobe. Although Neoprobe has no
present intention of issuing any shares of preferred stock it may do so in the
future. If Neoprobe issues preferred stock, it could have a dilutive effect upon
the common stock. See "Risk Factors -- Blank Check Preferred Stock."
STOCKHOLDER RIGHTS PLAN
Operation of the Plan. Neoprobe has a stockholder rights plan. The purpose of
the stockholder rights plan is to protect the interests of Neoprobe's
stockholders if Neoprobe is confronted with coercive or unfair takeover tactics
by encouraging third parties interested in acquiring Neoprobe to negotiate with
the board of directors. Under the plan Neoprobe distributed rights to purchase
one hundredth of a share of Series A
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Preferred Stock at an exercise price of $35 per right to the stockholders at the
rate of one right per share of common stock. The rights are attached to the
common stock and are not exercisable until after 15 percent of the common stock
has been acquired or tendered for. At that point, the rights would be separately
traded and exercisable. If a third party crosses the 15 percent threshold, the
rights would "flip-in" (but not the rights of the 15 percent stockholder) and
become rights to acquire, upon payment of the exercise price, common stock (or,
in some circumstances, other securities) with a value of twice the exercise
price of the right. If a third party were to take actions to acquire Neoprobe,
such as a merger, the rights would "flip-over" and entitle the owners of the
rights to acquire stock of the acquiring person with a value of twice the
exercise price. Neoprobe has amended its stockholder rights plan to exempt the
acquisition of common stock by Aires in the transactions described above
together with up to 1,000,000 more shares even though these transactions may
result in Aires owning more than 15% of the common stock. Neoprobe may redeem
the rights at any time before they become exercisable for $.01 per right. The
plan expires on August 28, 2005. The number of rights per share of common stock
will be adjusted in the future to reflect future splits and combinations of, and
common stock dividends on, the common stock. The exercise price of the rights
will be adjusted to reflect changes in the Series A Preferred Stock.
Series A Preferred Stock.
Redemption Neoprobe may redeem Series A Preferred Stock
at a price equal to 100 times the current
per share market price of the common stock,
together with accrued but unpaid dividends.
Neoprobe is not required to create a sinking
fund to provide assets for a redemption.
Dividend A minimum quarterly dividend of $.05 per
share plus an aggregate dividend of 100
times any dividend declared on the common
stock.
Election of Directors If dividends on Series A Preferred Stock are
in arrears in an amount equal to six
quarterly payments, all owners of Preferred
Stock (including holders of Series A
Preferred Stock) with dividends in arrears
equal to this amount, voting as a class,
could elect two directors.
Liquidation If Neoprobe is liquidated, the holders of
the Series A Preferred Stock will receive a
preferred liquidation payment of $.10 per
share and, after the common stock has
received a proportionate distribution, will
share in the remaining assets on a
proportionate basis with the common stock.
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Priority Series A Preferred Stock is senior to common
stock, but junior to all other classes of
preferred stock as to the payment of
dividends and the distribution of assets.
Voting 100 votes per share.
Exchanges In any merger or other transaction where
common stock is exchanged, each share of
Series A Preferred Stock will be entitled to
receive 100 times the amount received by the
common stock.
Anti-Dilution Neoprobe intended each share of Series A
Preferred Stock to approximate 100 shares of
common stock as they existed on the date the
rights were distributed (August 28, 1995);
therefore, the redemption price, dividend,
liquidation price and voting rights will be
adjusted to reflect splits and combinations
of, and common stock dividends on, the
common stock after that date.
Anti-Takeover Effects. Neoprobe's stockholder rights plan is designed to deter
coercive takeover tactics and otherwise to encourage persons interested in
acquiring Neoprobe to negotiate with the board of directors. The stockholder
rights plan will confront a potential acquirer of Neoprobe with the possibility
that Neoprobe's stockholders will be able to substantially dilute the acquirer's
equity interest by exercising rights to buy additional stock in Neoprobe or, in
some cases, stock in the acquirer, at a substantial discount. The plan may have
the effect of deterring third parties from making takeover bids for control of
Neoprobe or may be used to hinder or delay a takeover bid. This would decrease
the chance that Neoprobe's stockholders would realize a premium over market
price for their shares of common stock as a result of a takeover bid. See "Risk
Factors -- Anti-Takeover Provisions." The board of directors may redeem the
rights for a nominal payment if it considers the proposed acquisition of
Neoprobe to be in the best interests of Neoprobe and its stockholders.
Accordingly, the stockholder rights plan would not interfere with any merger or
other business combination which has been approved by the board of directors.
Any plan which effectively requires an acquiring company to negotiate with
Neoprobe's management may be characterized as increasing management's ability to
maintain its position with Neoprobe, including the negotiation of a transaction
which provides less value to the stockholders while providing benefits to
management.
ANTI-TAKEOVER CHARTER PROVISIONS AND LAWS
In addition to the stockholder rights plan and the "blank check" preferred stock
described above, some features of Neoprobe's certificate of incorporation and
by-laws
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and the Delaware General Corporation Law (DGCL), which are further described
below, may have the effect of deterring third parties from making takeover bids
for control of Neoprobe or may be used to hinder or delay a takeover bid. This
would decrease the chance that Neoprobe's stockholders would realize a premium
over market price for their shares of common stock as a result of a takeover
bid. See "Risk Factors -- Anti-Takeover Provisions."
Limitations on Stockholder Actions. Neoprobe's certificate of incorporation
provides that stockholder action may only be taken at a meeting of the
stockholders. Thus an owner of a majority of the voting power could not take
action to replace the board of directors, or any class of directors, without a
meeting of the stockholders nor could he amend the by-laws without presenting
the amendment to a meeting of the stockholders. Furthermore, under the
provisions of the certificate of incorporation and by-laws, only the board of
directors has the power to call a special meeting of stockholders. Therefore, a
stockholder, even one who owns a majority of the voting power, may neither
replace sitting board of directors members nor amend the by-laws before the next
annual meeting of stockholders.
Advance Notice Provisions. Neoprobe's by-laws establish advance notice
procedures for the nomination of candidates for election as directors by
stockholders, as well as for other stockholder proposals to be considered at
annual meetings. Generally, notice of intent to nominate a director or raise
matters at meetings must be received by Neoprobe not less than 120 days before
the first anniversary of the mailing of Neoprobe's proxy statement for the
previous year's annual meeting, and must contain required information concerning
the person to be nominated or the matters to be brought before the meeting and
concerning the stockholder submitting the proposal.
Delaware Law. Neoprobe is subject to Section 203 of the DGCL, which provides
that a corporation may not engage in any business combination with an
"interested stockholder" during the three years after he becomes an interested
stockholder unless:
o Neoprobe's board of directors approved in advance either the business
combination or the transaction which resulted in the stockholder
becoming an interested stockholder;
o The interested stockholder owned at least 85 percent of Neoprobe's
voting stock at the time the transaction commenced; or
o The business combination is approved by the Neoprobe's board of
directors and the affirmative vote of at least two-thirds of the voting
stock which is not owned by the interested stockholder.
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An interested stockholder is anyone who owns 15 percent or more of Neoprobe's
voting stock, or who is Neoprobe's affiliate or associate and was the owner of
15 percent or more of Neoprobe's voting stock at any time within the previous
three years; and the affiliates and associates of any those persons. Section 203
of the DGCL makes it more difficult for an "interested stockholder" to implement
various business combinations with Neoprobe for a three-year period, although
Neoprobe's stockholders may vote to exclude it from the law's restrictions.
Classified Board. Neoprobe's certificate of incorporation and by-laws divide its
board of directors into three classes with staggered three year terms. There are
currently seven directors, three in two classes and one in the third. At each
annual meeting of stockholders, the terms of one class of directors will expire
and the newly nominated directors of that class will be elected for a term of
three years. The board of directors will be able to determine the total number
of directors constituting the full board of directors and the number of
directors in each class, but the total number of directors may not exceed 17 nor
may the number of directors in any class exceed six. Subject to these rules, the
classes of directors need not have equal numbers of members. No reduction in the
total number of directors or in the number of directors in a given class will
have the effect of removing a director from office or reducing the term of any
then sitting director. Stockholders may only remove directors for cause. If the
board of directors increases the number of directors in a class, it will be able
to fill the vacancies created for the full remaining term of a director in that
class even though the term may extend beyond the next annual meeting. The
directors will also be able to fill any other vacancies for the full remaining
term of the director whose death, resignation or removal caused the vacancy.
A person who has a majority of the voting power at a given meeting will
not in any one year be able to replace a majority of the directors since only
one class of the directors will stand for election in any one year. As a result,
at least two annual meeting elections will be required to change the majority of
the directors by the requisite vote of stockholders. The purpose of classifying
the board of directors is to provide for a continuing body, even in the face of
a person who accumulates a sufficient amount of voting power, whether by
ownership or proxy or a combination, to have a majority of the voting power at a
given meeting and who may seek to take control of Neoprobe without paying a fair
premium for control to all of the owners of common stock. This will allow the
board of directors time to negotiate with such a person and to protect the
interests of the other stockholders who may constitute a majority of the shares
not actually owned by that person. However, it may also have the effect of
deterring third parties from making takeover bids for control of Neoprobe or may
be used to hinder or delay a takeover bid.
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LEGAL INSTRUMENT
Neoprobe's certificate of incorporation is the legal instrument that
created its stock and gives the express terms of the common and preferred stock.
A copy of Neoprobe's certificate of incorporation is on file with the SEC.
Neoprobe is incorporated in the state of Delaware, and has filed its certificate
of incorporation with the Delaware Secretary of State. However, in order to
fully understand the rights of the different classes of stock, you should also
review Neoprobe's by-laws and its Shareholders Rights Plan, both of which are
also on file with the SEC, and consult with a lawyer who knows Delaware
corporate law
TRANSFER AGENT
The transfer agent for the common stock, and the rights agent for the
stockholder rights plan is Continental Stock Transfer & Trust Company, 2
Broadway, New York, New York 10004; telephone (212) 509-4000.
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DOCUMENTS INCORPORATED BY REFERENCE
The following documents that Neoprobe has filed or will file with the
SEC are incorporated in this prospectus by reference:
1. Neoprobe's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999 (SEC File Number 0-26520);
2. Neoprobe's Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2000 (SEC File Number 0-26520);
3. Neoprobe's Current Reports on Form 8-K dated January 19, 2000 and April
24, 2000 (SEC File Number 0-26520);
4. The description of the common stock contained in Neoprobe's
Registration Statement on Form 8-A, as amended by Amendment No. 4 (SEC
File Number 0-26520);
5. The description of the rights to purchase Series A preferred stock
contained in Neoprobe's Registration Statement on Form 8-A (SEC File
No. 0-26520); and
6. All documents subsequently filed by Neoprobe pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior
to the termination of the offering of the securities hereunder.
Neoprobe will provide to each person, including a beneficial owner, to
whom a copy of this prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in this prospectus but not
delivered with the prospectus. Neoprobe will provide this information upon
written or oral request and at no cost to the requester. Requests for this
information must be made to: Brent L. Larson, Vice President--Finance and Chief
Financial Officer; Neoprobe Corporation, 425 Metro Place North, Suite 300,
Dublin, Ohio 43017; Telephone (614) 793-7500
You should not rely on a statement contained in any of these documents
if a statement in this prospectus or in any other subsequently filed document
which is also listed above modifies or supersedes it.
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MORE INFORMATION
Neoprobe files annual, quarterly and periodic reports, proxy statements
and other information with the SEC. You may read and copy any materials Neoprobe
files with the SEC at its Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The public may obtain information on the operation of
the Public Reference Room by calling the SEC at 1-800-SEC-0330.
Neoprobe electronically files its reports, proxy statements and other
information with the SEC through the SEC's EDGAR system. The SEC maintains a
World Wide Web site on the internet that contains the reports, proxy statements
and other information filed by Neoprobe and other issuers who file
electronically through the EDGAR system. The internet address of this site (its
uniform resource locator or URL) is http://www.sec.gov.
This prospectus is part of a registration statement under the
Securities Act of 1933 that Neoprobe has filed with the SEC. This Prospectus
does not contain all of the information in the registration statement or any of
the exhibits. You can learn more about Neoprobe and the common stock, by reading
the entire registration statement, including any amendments, and the exhibits to
the registration statement.
The statements in this prospectus about the provisions of documents are
summaries of the documents. Summaries, by their nature, omit details of
documents. If you need to know the details of a document, you must read the
original. In most cases, Neoprobe has filed the original document with the SEC.
Summaries, by their nature, also interpret documents. The interpretations
implied by the summaries of documents in this prospectus do not control the
legal meaning of the documents, which will be determined by the parties to the
document or the courts without referring to these summaries. If you need to
interpret a document, you must read the original.
This prospectus and the documents incorporated by reference are dated
material. Even if we deliver any of them to you at a latter date, it does not
mean that the information in those documents is correct at any time after their
dates.
Neoprobe has not authorized any broker, salesman or other person to
give you any information or make any statements about Neoprobe, the Funds, the
common stock or its sale through this prospectus other than the information in
this prospectus.
TRADEMARKS -- Neoprobe is the owner of United States and foreign registered
trademarks "Neoprobe(R)," "RIGS(R)," "RIGScan(R)" and "neo2000(R)."
"Radioimmunoguided Surgery(TM)," "RIGSystem(TM)," "RIGS/ACT(TM)," and
"BlueTip(TM)" are commercially used trademarks of Neoprobe.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses to be borne by the registrant, other
than underwriting discounts and commissions, in connection with the issuance and
distribution of the common stock.
Registration Fee - Securities and Exchange Commission $ 1,157.58
Accounting fees and expenses $ 5,000.00
Legal fees and expenses $ 7,000.00
Printing costs $ 500.00
Miscellaneous $ 1,342.42
----------
Total $15,000.00
All expenses other than the Securities and Exchange Commission filing fee are
estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware ("Section
145") provides that directors and officers of Delaware corporations may, under
certain circumstances, be indemnified against expenses (including attorneys'
fees) and other liabilities actually and reasonably incurred by them as a result
of any suit brought against them in their capacity as a director or officer, if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, if they had no reasonable cause to believe their
conduct was unlawful. Section 145 also provides that directors and officers may
also be indemnified against expenses (including attorneys' fees) incurred by
them in connection with a derivative suit if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification may be made without court
approval if such person was adjudged liable to the corporation.
Article V of Neoprobe's by-laws has provisions requiring Neoprobe to indemnify
its officers, directors, employees and agents that are in substantially the same
language as Section 145.
Article Nine, section (b), of Neoprobe's certificate of incorporation further
provides that no director will be personally liable to Neoprobe or its
stockholders for monetary damages or for any breach of fiduciary duty except for
breach of the director's duty of loyalty to Neoprobe or its stockholders, for
acts or omissions not in good faith or involving intentional misconduct or a
knowing violation of law, pursuant to Section 174 of the Delaware General
Corporation Law (which imposes liability in connection with the payment of
certain unlawful dividends, stock purchases or redemptions), or any amendment or
successor provision thereto, or for any transaction from which the director
derived an improper personal benefit.
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ITEM 16. EXHIBITS.
The following exhibits are part of this Registration Statement:
(4) INSTRUMENTS DEFINING THE RIGHTS OF HOLDERS, INCLUDING INDENTURES
4.1. See Articles FOUR, FIVE, SIX, SEVEN and EIGHT of the Restated
Certificate of Incorporation of the Registrant (incorporated
by reference to Exhibit 4.1 of Registrant's Annual Report on
Form 10-K, dated March 31, 1996; Commission File No. 0-20676).
4.2. See Articles II and VI and Section 2 of Article III and
Section 4 of Article VII of the Amended and Restated By-laws
of the Registrant (incorporated by reference to Exhibit 99.4
of Registrant's Current Report on Form 8-K dated June 20,
1996; Commission File No. 0-20676).
4.6. Rights Agreement dated as of July 18, 1995 between the
Registrant and Continental Stock Transfer & Trust Company
(incorporated by reference to Exhibit 1 of the registration
statement on Form 8-A; Commission File No. 0-20676).
(5) OPINION REGARDING LEGALITY
5.1. Opinion of Benesch, Friedlander, Coplan & Aronoff LLP.
(23) CONSENTS
23.1. Consent of KPMG LLP.
23.2. Consent of PricewaterhouseCoopers LLP.
23.3. Consent of Benesch, Friedlander, Coplan & Aronoff LLP is set
forth as part of Exhibit 5.1 above.
(24) POWERS OF ATTORNEY
24.1. Powers of Attorney.*
24.2. Certified resolution of the Registrant's Board of Directors.*
* previously filed
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ITEM 17. 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 securities offered would not
exceed that which was registered) and any deviation
from the low or high and 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 20 percent 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 or 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 registration statement is on Form S-3, Form
S-8, and 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 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 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.
(h) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dublin, State of Ohio, on June 12, 2000.
NEOPROBE CORPORATION
By /s/ David C. Bupp
----------------------------
David C. Bupp, President
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed on March 31, 2000 by the following persons in the
capacities indicated.
SIGNATURES CAPACITY
s/ David C. Bupp Director, President, Chief Executive Officer
- --------------------------- (principal executive officer)
David C. Bupp
Brent L. Larson* Vice President, Finance and Chief Financial Officer
- --------------------------- (principal financial and accounting officer)
Brent L. Larson
Julius R. Krevans* Director, Chairman of the Board
- ---------------------------
Julius R. Krevans
Director
- ---------------------------
Melvin D. Booth
John S. Christie* Director
- ---------------------------
John S. Christie
Michael P. Moore* Director
- ---------------------------
Michael P. Moore
J. Frank Whitley, Jr.* Director
- ---------------------------
J. Frank Whitley, Jr.
James F. Zid* Director
- ---------------------------
James F. Zid
*By s/ David C. Bupp
- ---------------------------
David C. Bupp
Attorney-in-Fact
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