bsdm8k20100503.htm
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): May 3, 2010
BSD
MEDICAL CORPORATION
(Exact
name of registrant as specified in its charter)
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Delaware
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0-10783
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75-1590407
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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2188
West 2200 South
Salt
Lake City, Utah 84119
(Address
of principal executive offices, including Zip Code)
Registrant’s
telephone number, including area code: (801) 972-5555
N/A
(Former
name or former address, if changed since last report)
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:
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
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Item
1.01 Entry into a Material Definitive Agreement.
On May 3,
2010, BSD Medical Corporation (the “Company”) entered into a placement agency
agreement (the “Agency Agreement”) with Roth Capital Partners, LLC (the
“Placement Agent”), pursuant to which the Placement Agent agreed to use its
reasonable efforts to arrange for the sale of up to 1,644,737 shares of the
Company’s common stock and warrants to purchase up to 1,233,553 shares of the
Company’s common stock in a registered direct public offering (the
“Offering”). The Placement Agent will be entitled to a cash fee of
6.5% of the gross proceeds paid to the Company for the securities the Company
sells in this Offering. The Company will also reimburse the Placement
Agent for all reasonable and documented out-of-pocket expenses that have been
incurred by the Placement Agent in connection with the Offering, which shall not
exceed the lesser of (i) $75,000 or (ii) 8% of the gross proceeds of the
Offering, less the Placement Agent’s placement fee.
The
Agency Agreement contains customary representations, warranties and covenants by
the Company. It also provides for customary indemnification by the
Company and the Placement Agent for losses or damages arising out of or in
connection with the sale of the securities being offered. The Company
has agreed to indemnify the Placement Agent against liabilities under the
Securities Act of 1933, as amended. The Company has also agreed to
contribute to payments the Placement Agent may be required to make in respect of
such liabilities.
Also on
May 3, 2010, the Company and certain institutional investors entered into a
securities purchase agreement (the “Purchase Agreement”) in connection with the
Offering, pursuant to which the Company agreed to sell an aggregate of 1,644,737
shares of its common stock and warrants to purchase a total of 1,233,553 shares
of its common stock to such investors for aggregate gross proceeds, before
deducting fees to the Placement Agent and other estimated offering expenses
payable by the Company, of approximately $2.5 million. The common
stock and warrants were sold in fixed combinations, with each combination
consisting of one share of common stock and a warrant to purchase 0.75 shares of
common stock. The purchase price is $1.52 per fixed
combination. The warrants will become exercisable six months and one
day following the closing date of the Offering and will remain exercisable for
five years thereafter at an exercise price of $1.94 per share. The
exercise price of the warrants is subject to adjustment in the case of stock
splits, stock dividends, combinations of shares and similar recapitalization
transactions.
The
exercisability of the warrants may be limited if, upon exercise, the holder or
any of its affiliates would beneficially own more than 4.9% of the Company’s
common stock.
Under the
Purchase Agreement, the Company has agreed with each of the purchasers that,
subject to certain exceptions, it will not, within the 30 trading days following
the closing of the Offering (which period may be extended in certain
circumstances), enter into any agreement to issue or announce the issuance or
proposed issuance of any securities.
The
Company has also agreed with each of the purchasers that while the warrants are
outstanding, it will not effect or enter into an agreement to effect a “Variable
Rate Transaction,” which means a transaction in which the Company:
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issues
or sells any convertible securities either (A) at a conversion, exercise
or exchange rate or other price that is based upon and/or varies with the
trading prices of, or quotations for, the shares of our common stock at
any time after the initial issuance of such convertible securities, or (B)
with a conversion, exercise or exchange price that is subject to being
reset at some future date after the initial issuance of such convertible
securities or upon the occurrence of specified or contingent events
directly or indirectly related to the business of the Company or the
market for our common stock, other than pursuant to a customary “weighted
average” anti-dilution provision;
or
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enters
into any agreement (including, without limitation, an equity line of
credit) whereby we may sell securities at a future determined price (other
than standard and customary “preemptive” or “participation”
rights).
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The
Company has also agreed with each of the purchasers if the Company issues
securities within the 12 months following the closing of the Offering, the
purchasers shall have the right to purchase all of the securities on the same
terms, conditions and price provided for in the proposed issuance of
securities.
The
Company has also agreed to indemnify each of the purchasers against certain
losses resulting from its breach of any of its representations, warranties, or
covenants under agreements with each of the purchasers, as well as under certain
other circumstances described in the Purchase Agreement.
The net
proceeds to the Company from the Offering, after deducting placement agent fees
and the estimated offering expenses borne by the Company, and excluding the
proceeds, if any, from the exercise of the warrants issued in the Offering, are
expected to be approximately $2.3 million. The Offering will close on
or before May 6, 2010. After giving effect to the Offering, but
without giving effect to the exercise of the warrants being offered, the Company
will have 24,860,509 shares of common stock outstanding.
The
Offering was effected as a takedown off the Company’s shelf registration
statement on Form S-3 (File No. 333-162080), which became effective on
October 1, 2009 pursuant to a prospectus supplement to be filed with the
Securities and Exchange Commission.
The
foregoing summaries of the terms of the Agency Agreement, the form of warrant to
be issued to the purchasers and the Purchase Agreement are subject to, and
qualified in their entirety by, such documents attached hereto as
Exhibits 1.1, 4.1, and 10.1 respectively, which are incorporated herein by
reference.
Item
8.01 Other Events.
The
information set forth in Item 1.01 with respect to the Offering is hereby
incorporated herein by reference. The Company will file the opinion
of its counsel, Dorsey & Whitney LLP, relating to the legality of the
issuance and sale of the shares of common stock, warrants and shares of common
stock issuable upon exercise of the warrants in the Offering, by amendment to
this report.
On May 3,
2010, the Company issued a press release announcing the pricing of the
Offering. A copy of the press release is attached as
Exhibit 99.1 hereto and incorporated by reference herein.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
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Exhibit
No.
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Description
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1.1
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Placement
Agency Agreement, dated as of May 3, 2010, by and among the Company and
Roth Capital Partners, LLC.
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4.1
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Form
of Common Stock Purchase Warrant
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10.1
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Securities
Purchase Agreement, dated as of May 3, 2010, by and between the Company
and each of the purchasers identified on the signature pages
thereto
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99.1
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Press
Release dated May 3, 2010
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Forward-Looking
Statements
Certain
statements in this Report are forward-looking statements that involve a number
of risks and uncertainties. Such forward-looking statements include
statements about the public offering of common stock described
herein. For such statements, the Company claims the protection of the
Private Securities Litigation Reform Act of 1995. Actual events or
results may differ materially from the Company’s
expectations. Factors that could cause actual results to differ
materially from those stated or implied by the Company’s forward-looking
statements are disclosed in its filings with the Commission. These
forward-looking statements represent the Company’s judgment as of the time of
this report. The Company disclaims any intent or obligation to update
these forward-looking statements, other than as may be required under applicable
law.
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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BSD
MEDICAL CORPORATION
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Date: May
3, 2010
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By: /s/ Dennis P.
Gauger
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Name: Dennis P.
Gauger
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Title: Chief
Financial Officer
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