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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
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 registrant 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)
This Amendment No. 5 is being filed by Registrant to deregister the
Class E Redeemable Common Stock Purchase Warrants (the "Warrants") which
expired on November 12, 1996; to amend and restate the description of its
Common Stock, par value $.001 per share ("Common Stock") set forth in item 1
hereof; to delete the description of the Warrants 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, 22,326,682 shares of which were outstanding as of
December 3, 1996 and 5,000,000 shares of Preferred Stock, par value $.001 per
share, none of which is 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 bids. The 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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TRANSFER AGENT, RIGHTS AGENT
The transfer agent for the Common Stock and the Rights Agent for the
Rights is Continental Stock Transfer & Trust Company, 2 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 Rights Agreement dated as of July 18, 1995 between
Registrant and Continental Stock Transfer & Trust
Company, as Rights Agent (incorporated by reference
to Exhibit 1 to Form 8-A dated July 27, 1995).
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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: December 5, 1996 By: /s/ DAVID C. BUPP
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David C. Bupp, President
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