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
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Date
of Report (Date of earliest event reported)
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June 22,
2010
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NEOPROBE CORPORATION
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(Exact
name of registrant as specified in its
charter)
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Delaware
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0-26520
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31-1080091
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(State or other jurisdiction
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(Commission
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(IRS Employer
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of incorporation)
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File Number)
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Identification No.)
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425 Metro Place North, Suite 300, Columbus,
Ohio
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43017
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant's
telephone number, including area code
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(614)
793-7500
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(Former
name or former address, if changed since last
report.)
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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 June 22, 2010, Neoprobe Corporation
(the “Company”) entered into a Securities Exchange Agreement (the “Montaur
Exchange Agreement”) with Platinum-Montaur Life Sciences, LLC (“Montaur”),
pursuant to which, effective June 25, 2010, Montaur delivered to the Company for
cancellation and retirement: (1) the Company’s Amended and Restated 10% Series A
Convertible Senior Secured Promissory Note in the principal amount of
$7,000,000, due December 26, 2011 (the “Amended Series A Note”); (2) the
Company’s Amended and Restated 10% Series B Convertible Senior Secured
Promissory Note in the principal amount of $3,000,000, due December 26, 2011
(the “Amended Series B Note,” and together with the Amended Series A Note the
“Amended Notes”); and (3) 3,000 shares of the Company’s 8% Series A Convertible
Preferred Stock (the “Series A Stock”), all as originally purchased by Montaur
pursuant to the terms of the Securities Purchase Agreement, dated December 26,
2007, between the Company and Montaur, as amended by the Securities Amendment
and Exchange Agreement, dated July 24, 2009, between the Company and Montaur.
Upon the surrender of the Amended Notes and the Series A Stock, the Company
issued to Montaur 10,000 shares of the Company’s Series B Convertible Preferred
Stock, par value $.001 per share (“Series B Preferred Stock”). As part of the
consideration for Montaur’s performance of its obligations under the Montaur
Exchange Agreement, the Company will prepay interest and dividends due through
the original maturity date of the Amended Notes by issuing an additional 1.3
million shares of the Company’s common stock, $.001 par value (“Common Stock”),
upon the conversion of the new Series B Preferred Stock.
Also on June 22, 2010, the Company
entered into a Securities Exchange Agreement (the “Bupp Exchange Agreement”)
with David C. Bupp, the Company’s president and chief executive officer, and
Cynthia B. Gochoco, both individually and as co-executors of the Estate of
Walter H. Bupp (the “Bupp Investors”), pursuant to which, effective June 25,
2010, the Bupp Investors delivered to the Company for cancellation and
retirement the Company’s 10% Convertible Note in the principal amount of
$1,000,000, due July 8, 2008, as subsequently amended to extend the maturity
date to December 27, 2011 (the “Bupp Note”), purchased by the Bupp Investors
pursuant to the terms of the 10% Convertible Note Purchase Agreement dated as of
June 29, 2007, between the Company and the Bupp Investors. Upon the surrender of
the Bupp Note, the Company issued the Bupp Investors 1,000 shares of the
Company’s Series C Convertible Preferred Stock, par value $.001 per
share (“Series C Preferred Stock”).
The foregoing description of the terms
of the Montaur Exchange Agreement and the Bupp Exchange Agreement (collectively,
the “Exchange Agreements”), is qualified in its entirety by reference to the
full text of each of the Exchange Agreements, copies of which are attached
hereto Exhibits 10.1 and 10.2, respectively, and each of which is incorporated
herein in its entirety by reference.
Item
1.02. Termination of a Material Definitive
Agreement.
The contents of Item 1.01 are
incorporated by reference into this item.
As a condition precedent to the
Company’s performance of its obligations under the Montaur Exchange Agreement,
Montaur agreed to the termination of the Patent, Trademark and Copyright
Security Agreement, dated as of December 26, 2007, by and among the Company, its
subsidiaries Cardiosonix Ltd. and Cira Biosciences Inc., and Montaur, pursuant
to the terms of a Termination of Patent, Trademark, and Copyright Security
Agreement, in the form attached to the Montaur Exchange Agreement as Exhibit C.
Additionally, pursuant to the terms of the Montaur Exchange Agreement, upon the
consummation of the transactions contemplated thereby the following agreements
terminated, and are of no further force or effect: (1) the Security Agreement,
dated December 26, 2007, between the Company and Montaur; and (2) the
Registration Rights Agreement, dated December 26, 2007, between the Company and
Montaur, as amended.
Pursuant to the terms of the Bupp
Exchange Agreement, upon the consummation of the transactions contemplated
thereby the Registration Rights Agreement, dated July 3, 2007, by and among the
Company, and David C. Bupp, the Company’s President and Chief Executive Officer,
Cynthia B. Gochoco and Walter H. Bupp, as joint tenants with right of
survivorship, terminated and is of no further force or effect.
Item
3.02. Unregistered Sale of Equity Securities.
The contents of Item 1.01 are
incorporated by reference into this item. The shares of Series B Preferred Stock
and Series C Preferred Stock issued pursuant to the Exchange Agreements were
offered and sold to investors in private transactions made in reliance upon
exemptions from registration pursuant to Section 4(2) under the Securities Act
of 1933, as amended, and Rule 506 promulgated thereunder. The
investors are each accredited investors as defined in Rule 501(a) of Regulation
D and were fully informed regarding the investment. In addition,
neither the Company nor anyone acting on its behalf offered or sold these
securities by any form of general solicitation or general
advertising.
Item
5.03 Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On June 22, 2010, the Company filed a
Certificate of Designations, Voting Powers, Preferences, Limitations,
Restrictions, and Relative Rights (the “Series B Certificate of Designations”)
with the Secretary of State of the State of Delaware, designating 10,000 shares
of Series B Preferred Stock. Each share of Series B Preferred Stock is
convertible at the option of the holder into shares of Common Stock, at a
conversion rate of 3,270 shares of Common Stock for each share of Series B
Preferred Stock, subject to certain adjustments set forth in the Series B
Certificate of Designations. Except with respect to transactions upon which the
shares of Series B Preferred Stock have the right to vote separately as a class
pursuant to the Series B Certificate of Designations, the shares of Series B
Preferred Stock have no voting rights. The shares of Series B
Preferred Stock rank senior to shares of all other series of Common Stock and
Preferred Stock of the Company designated as junior to the Series B Preferred
Stock with respect to dividends, distributions, and payments upon liquidation,
dissolution, and winding up of the Company. The Series B Preferred Stock ranks
junior to the Company’s Series C Preferred Stock as to rights to cash dividends,
and on a parity with the Series C Preferred Stock as to distributions on
liquidation, dissolution or winding up.
Also on June 22, 2010, the Company
filed a Certificate of Designations, Voting Powers, Preferences, Limitations,
Restrictions, and Relative Rights (the “Series C Certificate of Designations”)
with the Secretary of State of the State of Delaware, designating 1,000 shares
of Series C Preferred Stock. Each share of Series C Preferred Stock is
convertible at the option of the holder into shares of Common Stock at a
conversion rate of 3,226 shares of Common Stock for each share of Series C
Preferred Stock, subject to certain adjustments set forth in the Series C
Certificate of Designations. Except with respect to transactions upon which
shares of the Series C Preferred Stock have the right to vote separately as a
class pursuant to the Series C Certificate of Designations, the shares of Series
C Preferred Stock have no voting rights. The shares of Series C Preferred Stock
rank senior to shares of all other series of Common Stock and Preferred Stock of
the Company designated as junior to the Series C Preferred Stock with respect to
dividends, distributions, and payments upon liquidation, dissolution, and
winding up of the Company. The Series C Preferred Stock ranks senior to the
Series B Preferred Stock as to rights to cash dividends, and on a parity with
the Series B Preferred Stock as to distributions on liquidation, dissolution or
winding up.
The foregoing description of the Series
B Preferred Stock is qualified in its entirety by reference to the Series B
Certificate of Designations, filed as Exhibit 4.1 to this Current Report on Form
8-K and incorporated herein by reference. The foregoing description of the
Series C Preferred Stock is qualified in its entirety by reference to the Series
C Certificate of Designations, filed as Exhibit 4.2 to this Current Report on
Form 8-K and incorporated herein by reference.
Item
8.01. Other Events.
On June 22, 2010, the Company issued a
press release announcing that Montaur had agreed to exchange the Amended Notes
and Series A Stock for Series B Preferred Stock, and that as part of the
consideration for the exchange, the Company would prepay interest and dividends
due through the original maturity date of the Amended Notes by agreeing to issue
an additional 1.3 million shares of Common Stock on the conversion of the new
Series B Preferred Stock. Additionally, the press released announced that the
Bupp Note was being exchanged for Series C Preferred Stock, thereby effectively
retiring all of the outstanding debt of the Company. A copy of the complete
text of the Company’s June 22, 2010, press release is furnished as Exhibit 99.1
to this Current Report on Form 8-K and is incorporated herein by
reference.
Statements contained or incorporated by
reference in this Current Report on Form 8-K which relate to other than strictly
historical facts, such as statements about the Company’s plans and strategies,
expectations for future financial performance, new and existing products and
technologies, and markets for the Company’s products, are forward-looking
statements. The words “believe,” “expect,” “anticipate,” “estimate,”
“project,” and similar expressions identify forward-looking statements that
speak only as of the date hereof. Investors are cautioned that such
statements involve risks and uncertainties that could cause actual results to
differ materially from historical or anticipated results due to many factors
including, but not limited to, the Company’s continuing operating losses,
uncertainty of market acceptance, reliance on third party manufacturers,
accumulated deficit, future capital needs, uncertainty of capital funding,
dependence on limited product line and distribution channels, competition,
limited marketing and manufacturing experience, and other risks detailed in the
Company’s most recent Annual Report on Form 10-K and other Securities and
Exchange Commission filings. The Company undertakes no obligation to
publicly update or revise any forward-looking statements.
Item
9.01 Financial
Statements and Exhibits.
(d)
Exhibits.
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Exhibit
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Number
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Exhibit Description
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4.1
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*
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Neoprobe
Corporation Certificate of Designations, Voting Powers, Preferences,
Limitations, Restrictions, and Relative Rights of Series B Cumulative
Convertible Preferred Stock.
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4.2
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*
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Neoprobe
Corporation Certificate of Designations, Voting Powers, Preferences,
Limitations, Restrictions, and Relative Rights of Series C Cumulative
Convertible Preferred Stock.
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10.1
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*
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Securities
Exchange Agreement, dated June 22, 2010, by and between Neoprobe
Corporation and Platinum-Montaur Life Sciences, LLC.
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10.2
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*
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Securities Exchange
Agreement, dated June 22, 2010, by and among Neoprobe Corporation, and
David C. Bupp, Cynthia B. Gochoco, both individually and as
co-executors of the Estate of Walter H. Bupp.
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99.1
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*
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Neoprobe
Corporation press release dated June 22, 2010, entitled “Neoprobe Completes
Senior Debt and Preferred Stock
Exchanges.”
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*Filed
Herewith
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.
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Neoprobe
Corporation
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Date: June
28, 2010
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By:
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/s/ Brent L. Larson
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Brent
L. Larson, Vice President, Finance and
Chief
Financial Officer
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