As filed with the Securities and Exchange Commission on February 4, 1997
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Neoprobe Corporation
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation or Organization)
31-1080091
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(I.R.S. Employer Identification No.)
425 Metro Place North, Suite 400, Dublin, Ohio 43017-1367
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(Address of Principal Executive Offices) (Zip Code)
Restricted Stock Purchase Agreement
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(Full Title of the Plan)
Robert S. Schwartz, c/o Benesch, Friedlander, Coplan & Aronoff P.L.L.
88 East Broad Street, Suite 900, Columbus, Ohio 43215-3506
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(Name and Address of Agent For Service)
614-223-9300
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Telephone Number, Including Area Code, of Agent For Service.
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
Title of securities AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
to be registered REGISTERED PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE(3)
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COMMON STOCK, $.001 PAR VALUE(1) 10,000 $.001 $10.00 $100.00
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(1) Each share of Common Stock carries one right to purchase a unit which
currently consists of one-hundredth of a share of Series A Junior
Participating Preferred Stock, par value $.001 per share, pursuant to a
Rights Agreement dated July 18, 1995.
(2) The proposed maximum offering price per share of $.001 is based upon the
aggregate offering price of the maximum number of securities issuable under
the above referenced Restricted Stock Purchase Agreement pursuant to
paragraph (h) of Rule 457.
(3) The registration fee is the minimum registration fee pursuant to Section
6(b) of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (d) below are incorporated by
reference in this registration statement; and all documents subsequently filed
by Neoprobe Corporation, a Delaware corporation (the "Registrant") pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of filing of such documents.
(a) The Registrant's latest annual report on Form 10-KSB (Commission
File No. 0-26520), filed pursuant to Section 13(a) of the Exchange
Act.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Registrant's annual report referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, as amended by
Amendment No. 6 (Commission File No. 0-26520), including any
amendment or report filed for the purpose of updating such
description.
(d) The description of Rights to Purchase Series A Junior Participating
Preferred Stock contained in the Registrant's Registration
Statement on Form 8-A (Commission File No. 0-26520).
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock of the Registrant issuable under the Plan
will be passed upon for the Registrant by Benesch, Friedlander, Coplan & Aronoff
P.L.L., Columbus, Ohio.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the General Corporation Law of the State of Delaware
("Section 145") provides that directors and officers of Delaware corporations
are entitled, under certain circumstances, to 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 the Company's By-laws has provisions requiring the Company to
indemnify its officers, directors, employees and agents which are in
substantially the same language as Section 145.
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Article Nine, section (b), of the Company's Certificate of Incorporation
further provides that no director will be personally liable to the Company or
its stockholders for monetary damages or for any breach of fiduciary duty except
for breach of the director's duty of loyalty to the Company 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following Exhibits are filed as part of this Registration Statement:
(4) Instruments Defining the Rights of Security Holders.
4.1. See 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. 0-26520).
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 (incorporated by reference to Exhibit 99.4 of
Registrant's Current Report on Form 8-K, dated June 20,
1996; Commission File No. 0-26520).
4.3. Rights Agreement dated as of July 18, 1995 between the
Registrant and Continental Stock Transfer & Trust Company
(incorporated by reference to Exhibit 1 to Form 8-A dated
July 27, 1995; Commission File No. 0-26520).
(5) Opinion re Legality.
5.1. Opinion of Benesch, Friedlander, Coplan & Aronoff P.L.L.
as to the validity of the Common Stock being registered
hereunder.
(23) Consents of Experts and Counsel.
23.1. Consent of Coopers & Lybrand L.L.P.
23.2. Consent of Benesch, Friedlander, Coplan & Aronoff P.L.L.
is set forth as part of Exhibit 5.1 above.
(24) Powers of Attorney.
24.1. Powers of Attorney.
24.2. Certified copy of resolution of Registrant's Board of
Directors authorizing officers and directors signing on
behalf of the Registrant to sign pursuant to a power of
attorney.
ITEM 9. UNDERTAKINGS.
(a) Not applicable.
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(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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Columbus, State of Ohio, this 23rd day of January,
1997.
NEOPROBE CORPORATION
(Registrant)
By: /s/DAVID C. BUPP
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David C. Bupp
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on January 23, 1997.
Signature Title
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JOHN L. RIDIHALGH* Director, Chairman of the Board, and Chief Executive
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John L. Ridihalgh
/s/DAVID C. BUPP Director, President, and Chief Operating Officer
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David C. Bupp
JOHN SCHROEPFER* Vice President, Finance and Administration
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John Schroepfer
JERRY K. MUELLER, JR.* Director
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Jerry K. Mueller, Jr.
C. MICHAEL HAZARD* Director
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C. Michael Hazard
JULIUS R. KREVANS* Director
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Julius R. Krevans
MICHAEL P. MOORE* Director
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Michael P. Moore
J. FRANK WHITLEY, JR.* Director
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J. Frank Whitley, Jr.
JAMES F. ZID* Director
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James F. Zid
ZWI VROMEN* Director
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Zwi Vromen
*David C. Bupp, by signing his name hereto, does sign this document on behalf of
the person indicated above pursuant to a Power of Attorney duly executed by such
person.
By:/s/DAVID C. BUPP
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David C. Bupp, Attorney-in-Fact
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EXHIBIT INDEX
PAGE NUMBER IN
SEQUENTIALLY
NUMBERED
COPY
4.1. See 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. 0-26520).
*
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 (incorporated by reference to Exhibit 99.4 of
Registrant's Current Report on Form 8-K, dated June 20, 1996; Commission File
No. 0-26520).
*
4.3. Rights Agreement dated as of July 18, 1995 between the Registrant and Continental
Stock Transfer & Trust Company (incorporated by reference to Exhibit 1 to Form
8-A dated July 27, 1995; Commission File No. 0-26520).
*
5.1. Opinion of Benesch, Friedlander, Coplan & Aronoff P.L.L. as to the validity of the
Common Stock being registered hereunder.
7
23.1. Consent of Coopers & Lybrand L.L.P. 9
23.2. Consent of Benesch, Friedlander, Coplan & Aronoff P.L.L. is set forth as part of
Exhibit 5.1 above.
24.1. Powers of Attorney. 10
24.2. Certified copy of resolution of Registrant's Board of Directors authorizing officers
and directors signing on behalf of the Registrant to sign pursuant to a power of
attorney.
19
* Incorporated by reference.
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