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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4
TO
FORM 8-A/A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act of 1934
NEOPROBE CORPORATION
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(Exact name of registration as specified in its charter)
Delaware 31-1080091
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
425 Metro Place North, Suite 400, Dublin, Ohio 43017
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(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check the
following box. [ ]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.001 per share
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(Title of Class)
Class E Redeemable Common Stock Purchase Warrants
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(Title of Class)
This Amendment No. 4 is being filed by Registrant to amend and restate the
descriptions of its Common Stock, par value $.001 per share ("Common Stock"),
and Class E Redeemable Common Stock Purchase Warrants ("Warrants") set forth in
item 1 hereof and to amend item 2.
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
Neoprobe is authorized to issue 50,000,000 shares of Common Stock, par
value $.001 per share, 19,625,405 shares of which were outstanding as of April
12, 1996 and 5,000,000 shares of Preferred Stock, par value $.001 per share,
none of which are outstanding. The following brief description of the capital
stock of Neoprobe is qualified in its entirety by reference to Neoprobe's
Certificate of Incorporation, a copy of which is on file with the Securities and
Exchange Commission (the "Commission").
COMMON STOCK
Each share of Common Stock entitles the holder thereof to one vote on all
matters submitted to a vote of the stockholders including the election of
directors. Since the holders of Common Stock do not have cumulative voting
rights, the holders of a simple majority of the outstanding shares have the
power to elect all of the directors to be elected at a given meeting and the
holders of the remaining shares by themselves would not be able to elect any
directors at that meeting. The holders of Common Stock do not have preemptive,
redemption or conversion rights. Holders of Common Stock are entitled to receive
ratably such dividends as may be declared by the Board of Directors, from time
to time, out of funds legally available therefor. If Neoprobe is liquidated,
dissolved, or wound up, holders of the Common Stock have the right to receive a
ratable portion of the assets remaining after the payment of creditors and the
holders of the shares of any class or series of Preferred Stock to the extent
that the then existing terms of the Preferred Stock grant them priority over the
holders of shares of Common Stock.
PREFERRED STOCK
The Company's Certificate of Incorporation authorizes the issuance of
"blank check" Preferred Stock in one or more classes or series with such
designations, rights, preferences and restrictions as may be determined from
time to time by the Board of Directors, 500,000 shares of which have been
designated as Series A Junior Participating Preferred Stock ("Series A Preferred
Stock") and reserved for issuance pursuant to the stockholder rights plan
described below. As of the date hereof, there are no shares of Preferred Stock
outstanding. The Board of Directors may, without prior stockholder approval,
issue Preferred Stock with dividend, liquidation, conversion, voting or other
rights which could adversely affect the relative voting power or other rights of
the holders of Common Stock. Preferred Stock could be used, under certain
circumstances, as a method of discouraging, delaying, or preventing a change in
control of Neoprobe. Although Neoprobe has no present intention of issuing any
shares of preferred stock, there can be no assurance that it will not do so in
the future. If Neoprobe issues Preferred Stock, such issuance may have a
dilutive effect upon the common stockholders.
STOCKHOLDER RIGHTS PLAN
Adoption of the Stockholder Rights Plan. On July 18, 1995, the Board of
Directors adopted a stockholder rights plan for the Company. The purpose of the
stockholder rights plan is to protect the interests of the Company's
stockholders if the Company is confronted with coercive or unfair takeover
tactics by encouraging third parties interested in acquiring the Company to
negotiate with the Board of Directors.
The stockholder rights plan is a plan by which the Company has distributed
rights ("Rights") to purchase (at the rate of one Right per share of Common
Stock) one hundredth of a share of Series A Preferred Stock at an exercise price
of $35 per Right. 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, they would be separately traded and exercisable.
Upon certain events, including a third party crossing the 15 percent threshold,
the Rights would "flip-in" (but not the Rights of such substantial stockholder)
and become Rights to acquire, upon payment of the exercise price, Common Stock
(or, in certain circumstances, other consideration) with a value of twice the
exercise price of the Right. If a third party were to take certain action to
acquire the Company, such as a merger, the Rights would "flip-over" and entitle
the holder to acquire stock of the acquiring person with a value of twice the
exercise price. The Rights are redeemable by the Company at any time before they
become exercisable for $.01 per Right and expire on August 28, 2005. The number
of Rights per share of Common Stock will be adjusted in the future to
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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. The Series A Preferred Stock purchasable upon
exercise of the Rights will be redeemable at a price equal to 100 times the
current per share market price of the Common Stock at the time of redemption,
together with accrued but unpaid dividends. Each share of Series A Preferred
Stock will have a minimum preferential quarterly dividend of $.05 per share and
will be entitled to an aggregate dividend of 100 times the dividend declared on
the Common Stock. In the event of liquidation, the holders of the Series A
Preferred Stock will receive a preferred liquidation payment equal to $.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. If dividends on Series A Preferred Stock are in arrears in an amount
equal to six quarterly dividend payments, all holders of Preferred Stock of the
Company (including holders of Series A Preferred Stock) with dividends in
arrears equal to such amount, voting as a class, would have the right to elect
two directors of the Company. Series A Preferred Stock would rank senior to the
Company's Common Stock, but junior to any other outstanding class of Preferred
Stock of the Company as to both the payment of dividends and the distribution of
assets. Each share of Series A Preferred Stock will have 100 votes on all
matters submitted to the stockholders. In the event of any merger, consolidation
or other transaction in which Common Stock is exchanged, each share of Series A
Preferred Stock will be entitled to receive 100 times the amount received per
share of Common Stock. It was the intention of the Company that each share of
Series A Preferred Stock 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 have been, and
will in the future be, adjusted to reflect splits and combinations of, and
Common Stock dividends on, the Common Stock.
Anti-Takeover Effects. The Company's stockholder rights plan is designed to
deter coercive takeover tactics and otherwise to encourage persons interested in
acquiring the Company to negotiate with the Board of Directors. The stockholder
rights plan will confront a potential acquirer of the Company with the
possibility that the Company's stockholders will be able to substantially dilute
the acquirer's equity interest by exercising Rights to buy additional stock in
the Company or, in certain cases, stock in the acquirer, at a substantial
discount and may have the effect of deterring third parties from making takeover
bids for control of the Company or may be used to hinder or delay a takeover bid
thereby decreasing the chance of the stockholders of the Company realizing a
premium over market price for their shares of Common Stock as a result of such
bidsThe Board of Directors may redeem the Rights at a nominal consideration if
it considers the proposed acquisition of the Company to be in the best interests
of the Company and its stockholders. Accordingly, the stockholder rights plan
should not interfere with any merger or other business combination which has
been approved by the Board of Directors. Any plan or arrangement which
effectively requires an acquiring company to negotiate with the Company's
management may be characterized as increasing such management's ability to
maintain its position with the Company, including the approval of a transaction
which provides less value to the stockholders while providing benefits to
management.
CERTAIN CHARTER PROVISIONS AND LAWS
In addition to the stockholder rights plan and the Preferred Stock
provisions described above, certain features of the Company's Certificate of
Incorporation and By-laws and the General Corporation Law of the State of
Delaware ("GCL"), which are further described below, may have the effect of
deterring third parties from making takeover bids for control of the Company or
may be used to hinder or delay a takeover bid thereby decreasing the chance of
the stockholders of the Company realizing a premium over market price for their
shares of Common Stock as a result of such bids.
Limitations on Stockholder Actions. The Certificate of Incorporation
provides that stockholder action may only be taken at a meeting of the
stockholders. Thus a holder of a majority of the voting power could not take
action to replace the Board of Directors, or any class thereof, without a
meeting of the stockholders nor could such a holder 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 of the Company,
special meetings of the stockholders may only be called by the Board. Therefore,
a stockholder, even one who holds a majority of the
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voting power, may neither replace sitting Board members nor amend the By-laws
before the next annual meeting of stockholders.
Advance Notice Provisions. The Company's By-laws provide for an advance
notice procedure for the nomination, other than by the Board, of candidates for
election as directors as well as for other stockholder proposals to be
considered at annual meetings of stockholders. In general, notice of intent to
nominate a director or raise matters at meetings must be received by the Company
not less than 120 days before the first anniversary of the mailing of the
Company's proxy statement for the previous year's annual meeting, and must
contain certain 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. The Company is subject to Section 203 of the GCL, 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 the corporation's board of directors approved in advance
either the business combination or the transaction which resulted in the
stockholder becoming an interested stockholder; the interested stockholder owned
at least 85 percent of the voting stock of the corporation outstanding at the
time the transaction commenced; or the business combination is approved by the
corporation's board of directors and the affirmative vote of at least two-thirds
of the outstanding voting stock which is not owned by the interested
stockholder. An interested stockholder is anyone who owns 15 percent or more of
the outstanding voting stock of the corporation, or is an affiliate or associate
of the corporation and was the owner of 15 percent or more of the outstanding
voting stock of the corporation at any time within the previous three years; and
the affiliates and associates of any such person. Under certain circumstances,
Section 203 of the GCL makes it more difficult for an interested stockholder to
effect various business combinations with a corporation for a three-year period,
although the stockholders of a corporation may elect to exclude a corporation
from the section's restrictions.
Classified Board. The Certificate of Incorporation and By-laws of the
Company divide the Board into three classes with staggered three year terms.
There are currently nine directors, three in each class. 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 will be able to determine the total number of directors constituting the
full Board 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 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.
Holders of 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 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 the Company without paying a fair premium for
control to all the holders of Common Stock. This will allow the Board 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
such person. However, it may also have the effect of deterring third parties
from making takeover bids for control of the Company or may be used to hinder or
delay a takeover bid thereby decreasing the chance of the stockholders of the
Company realizing a premium over market price for their shares of Common Stock
as a result of such bids.
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WARRANTS
The Class E Redeemable Stock Purchase Warrants (the "Warrants") were issued
pursuant to a Warrant Agreement dated November 10, 1992 or a Supplemental
Warrant Agreement dated November 12, 1993 (which is substantially the same as
the Warrant Agreement), between the Company and Continental Stock Transfer &
Trust Company, Two Broadway, New York, New York 10004, as Warrant Agent. The
following statements are subject to the detailed provisions of and are qualified
in their entirety by reference to the Warrant Agreement and the Supplemental
Warrant Agreement, copies of which are on file with the Commission.
During the three-year period commencing November 10, 1993, each Warrant
entitles the registered holder to purchase one share of the Company's Common
Stock at an exercise price of $6.50 per share. Due to the Veterans' Day holiday,
the three-year period will end on November 12, 1996. Warrants may be exercised
by surrendering the Warrant certificates to the Warrant Agent, together with
full payment of the exercise price in cash or by certified or bank check payable
to the Company. No fractional shares of Common Stock will be issued in
connection with the exercise of Warrants. Upon exercise, the Company will pay
the holder the value of any such fractional shares based upon the market value
of the Common Stock at such time.
Unless extended by the Company at its discretion, the Warrants will expire
November 12, 1996. In the event a holder of Warrants fails to exercise the
Warrants prior to their expiration, the Warrants will expire and the holder
thereof will have no further rights with respect to the Warrants.
The Company may redeem the Warrants at a price of $.01 per Warrant at any
time after they become exercisable and prior to their expiration by giving not
less than 30 days written notice mailed to the record holders at any time if the
last sale price of the Common Stock has been at least 150% of the then effective
exercise price of the Warrants on each of the 20 consecutive trading days ending
on the third day prior to the date on which the notice of redemption is given.
A holder of Warrants does not have any of the rights of a stockholder of
the Company prior to exercise of the Warrants. However, for the life of the
Warrants, a holder thereof is given the opportunity to profit from a rise in the
market price of the Common Stock that may result in a dilution of the interest
of other stockholders. In addition, the Company may find it more difficult to
raise equity capital if it should be needed for the business of the Company
while Warrants are outstanding. At any time when the holders of the Warrants
might be expected to exercise them, the Company would probably be able to obtain
additional equity capital on terms more favorable than those provided in the
Warrants.
The exercise price of the Warrants and the number of shares issuable upon
exercise of the Warrants will be subject to adjustment to protect against
dilution in the event of stock dividends, stock splits, combinations,
subdivisions and reclassifications. Although the market price of the Common
Stock is in excess of the exercise price of the Warrants, no assurance can be
given that the market price of the Common Stock will exceed the exercise price
of the Warrants during the remainder of the exercise period.
OTHER OPTIONS AND WARRANTS
At March 31, 1996, Neoprobe had outstanding options to purchase 1,970,237
shares of Common Stock to its employees, directors and consultants under the
Company's Incentive Stock Option and Restricted Stock Purchase Plan. At March
31, 1996, the Company had outstanding warrants (other than the Warrants) to
purchase 362,259 shares of Common Stock having a weighted average exercise price
of $4.56 per share. In addition, 100,000 shares of Common Stock were issuable
upon conversion of outstanding convertible debentures. The expiration dates of
these warrants range from November 10, 1996 to January 2001. To the extent that
such options and warrants are exercised, the interests of the Company's
stockholders will be diluted.
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TRANSFER AGENT, WARRANT AGENT, RIGHTS AGENT
The transfer agent for the Common Stock, the Warrant Agent for the Warrants
and the Rights Agent for the Rights is Continental Stock Transfer & Trust
Company, Two Broadway, New York, New York 10004.
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ITEM 2. EXHIBITS
Exhibit Number Description
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1 Articles FOUR, FIVE, SIX, SEVEN and EIGHT of the Restated
Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 99.1, of Registrant's Current Report on Form
8-K dated June 20, 1996; Commission File No. 0-20676).
2 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).
3 Specimen of Common Stock Certificate (incorporated by reference
to Exhibit 4.1 to the registration statement on Form S-1, No.
33-51446)
4 Specimen of Class E Redeemable Common Stock Purchase Warrant
certificate (incorporated by reference to Exhibit 4.9 to the
registration statement on Form S-1, No. 33-51446)
5. Warrant Agreement dated November 10, 1992 between the Registrant
and Continental Stock Transfer & Trust Company (incorporated by
reference to Exhibit 4.4 to Registrant's Annual Report on Form
10-KSB for the fiscal year ended December 31, 1992; Commission
File No. 0-20676)
6 Supplemental Warrant Agreement dated November 12, 1993 between
the Registrant and Continental Stock Transfer & Trust Company
(incorporated by reference to Exhibit 4.5 of the registration
statement on Form S-3, No. 33-72658)
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
NEOPROBE CORPORATION
Dated: June 17, 1996 By: /s/ David C. Bupp
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David C. Bupp, President
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