UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 22, 2004
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In Vivo Medical Diagnostics, Inc.
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(Exact name of registrant as specified in its charter)
Colorado 000-49972 84-1579760
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(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
The Green House, Beechwood Business Park, North, Inverness, Scotland IV2 3BL
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(Address of principal executive offices and Zip Code)
Registrant's telephone number, including area code 011-44-1463-667347
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Copies to:
Richard A. Friedman, Esq.
Sichenzia Ross Friedman Ference LLP
1065 Avenue of the Americas
New York, New York 10018
Phone: (212) 930-9700
Fax: (212) 930-9725
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule
14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On December 22, 2004, In Vivo Medical Diagnostics, Inc. ("we" or "In Vivo")
entered into a Subscription Agreement with an accredited investor, NITE Capital,
L.P. (the "Investor"), pursuant to which the Investor purchased an aggregate
principal amount of $250,000 in a 8% promissory note, and 60,096 shares of our
common stock, par value $.001 per share. The aforementioned securities were
issued to the Investor by us pursuant to Section 4(2) of the Securities Act of
1933, as amended.
The promissory note bears simple interest at 8% per annum payable on the
maturity date, which is the earlier of (i) June 22, 2005 of (ii) the date
subsequent to the date of the note which we enter into any financing or
financings of any type aggregating $1,500,000 or more. If we do not repay the
note within 3 business days of the maturity date (either on June 22, 2005 of
upon subsequent financing as described in the preceding sentence), the Investor
may, at its sole option, convert such note into common stock at a 50% discount
of the average of the three lowest closing prices for our common stock on the
NASD OTC Bulletin Board (or such other principal market or exchange where our
common stock is listed or traded at the time of conversion) for the ten days
immediately preceding the maturity date.
We may prepay the principal amount of the note, in whole or in part without
premium or penalty, at any time. In the event that we intend to prepay any or
all of the outstanding principal or interest on the note, we must provide
written notice to the Investor at least 10 days prior to the proposed prepayment
date. In the event that we, subsequent to the date of the note, enter into any
financing or financings of any type aggregating $1,000,000, then and in such
event we shall be required to make a partial prepayment of $175,000 of the
principal amount of the note and the pro rata share of interest accrued to date
on such portion of the note. In addition, in the event that we, subsequent to
the date of the note, enter into any financing or financings of any type
aggregating more than $1,000,000 but less than $1,500,000, then and in such
event the amount of the partial prepayment shall be increased on a pro-rata
basis (up to the full principal amount of the note and the pro rata share of
interest accrued to date on the note in the case of a financing totaling at
least $1,500,000). We are required to notify the Investor in writing of any
financing which results in In Vivo being required to prepay the note, in whole
or in part, prior to June 22, 2005, and to make such payment within three
business days after we receive the proceeds of such financing.
In addition, we entered into a Registration Rights Agreement with the
Investor dated as of December 22, 2004. If we at any time after the date hereof,
but before December 22, 2005, propose to register any of our securities under
the Securities Act of 1933, as amended (other than pursuant to a registration
statement in connection with an acquisition or in a manner which would not
permit the registration of the shares issuable pursuant to the note for sale to
the public, such as on Form S-8 or on Form S-4 or other comparable form), we
shall include the shares issuable pursuant to the note in such registration.
Provided, however, that if, at any time after giving such written notice of our
intention to register any of the Investor's securities and prior to the
effective date of the registration statement filed in connection with such
registration, we may determine for any reason not to register or to delay the
registration. We must give written notice of such determination to the Investor
and thereupon shall be relieved of our obligation to register any securities
issued or issuable in connection with such registration (but not from our
obligation to pay registration expenses in connection therewith or to register
the securities in a subsequent registration).
Item 2.03 Creation of a Direct Financial Obligation.
See Item 1.01 above.
Item 3.02 Unregistered Sales of Equity Securities.
See Item 1.01 above.
Item 9.01 Financial Statements and Exhibits.
(a) Financial statements of business acquired.
Not applicable.
(b) Pro forma financial information.
Not applicable.
(c) Exhibits.
Exhibit Number Description
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4.1 Subscription Agreement, dated December 22, 2004 by and among
In Vivo Medical Diagnostics, Inc. and NITE Capital, L.P.
4.2 Registration Rights Agreement, dated December 22, 2004 by
and among In Vivo Medical Diagnostics, Inc. and NITE
Capital, L.P.
4.3 Form of 8% Promissory Note issued to NITE Capital, L.P.
SIGNATURES
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 hereunto duly authorized.
In Vivo Medical Diagnostics, Inc.
Date: December 29, 2004 /s/ John Fuller
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John Fuller
Chief Executive Officer