|
|
|
|
|
|
CURRENT REPORT
|
|
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
|
Date of Report (Date of earliest event reported)
|
August 30, 2018
|
|
BOVIE MEDICAL CORPORATION
|
(Exact name of registrant as specified in its charter)
|
Delaware
|
0-12183
|
11-2644611
|
(State or other jurisdiction of
incorporation or organization)
|
(Commission File Number)
|
(I.R.S. Employer
Identification No.)
|
(Former name or former address, if changed since last report)
|
o
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
|
|
o
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
|
|
o
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
|
|
o
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
|
|
|
|
|
|
|
|
|
|
|
|
(i)
|
The Company’s stockholders approved the Asset Sale Transaction by the following vote:
|
||
|
Votes For
|
Votes Against
|
Votes Abstained
|
|
19,022,337
|
371,404
|
360,024
|
(iii)
|
The Company’s stockholders ratified the appointment of Frazier & Deeter, LLC as its independent registered public accounting firm for the year ending December 31, 2018 by the following vote:
|
||
|
Votes For
|
Votes Against
|
Votes Abstained
|
|
26,879,974
|
510,939
|
397,874
|
(iv)
|
The Company’s stockholders approved the compensation of the named executive officers of the Company by the following vote:
|
||
|
Votes For
|
Votes Against
|
Votes Abstained
|
|
18,370,157
|
1,272,699
|
110,909
|
(v)
|
The proposal to approve one or more adjournments of the annual meeting to a later date or dates if necessary or appropriate to solicit additional proxies if there are insufficient votes to adopt the Purchase Agreement at the time of the annual meeting was deemed unnecessary because there was a quorum present and there were sufficient votes at the time of the annual meeting to approve the adoption of the Purchase Agreement.
|
|
|
|
|
|
|
Exhibit No.
|
|
Description
|
|
|
|
10.1
|
|
|
99.1
|
|
|
99.2
|
|
Date: August 30, 2018
|
By:
|
/s/ Jay D. Ewers
|
|
|
|
Jay D. Ewers
|
|
|
|
Chief Financial Officer and Secretary
|
|
a.
|
All wages, wage supplements and any and all other employment compensation and benefits due the Executive through and including the Effective Date (receipt of which is acknowledged by the Executive).
|
b.
|
A lump sum payment in the gross amount of $1,033,450 (representing three (3) times the Executive’s annual base salary in effect under the Employment Agreement immediately prior to the date of this Agreement”) payable on the Effective Date less applicable federal, state and local deductions and withholdings.
|
c.
|
As of the Effective Date, if applicable, the Executive may elect to continue the Executive’s group medical, vision and/or dental insurance coverage at his expense pursuant to the terms and conditions of the applicable plan(s) and COBRA continuation coverage requirements under applicable law. The Company will provide the Executive with further information relating to the Executive’s eligibility for COBRA coverage under separate cover.
|
d.
|
Indemnification in accordance with Section 16 of the Employment Agreement.
|
e.
|
All options to purchase shares of the Company’s common stock granted to the Executive shall be treated in accordance with the terms of the applicable plan and award agreement(s), provided that all options that were not exercisable on the Effective Date shall become immediately exercisable on the Effective Date and all options (including those options that were exercisable prior to the Effective Date) shall remain exercisable for the period expiring ten (10) years after the applicable grant date.
|
|
|
|
|
|
By: Charles D. Goodwin II, Chief Executive Officer
|
DATE
|
|
|
|
|
|
|
J. ROBERT SARON
|
DATE
|
|
|
|
|
|
|
NOTARY PUBLIC
|
|
|
|
|
EXHIBIT 99.1
|
|
|
|
|
|
EXHIBIT 99.2
|
|
|
|
|
As Reported
|
|
Pro Forma Adjustments (a)
|
|
As Adjusted
|
||||||
ASSETS
|
|
|
|
|
|
||||||
Current assets:
|
|
|
|
|
|
||||||
Cash and cash equivalents
|
$
|
7,875
|
|
|
$
|
92,000
|
|
|
$
|
99,875
|
|
Restricted cash
|
660
|
|
|
—
|
|
|
660
|
|
|||
Trade accounts receivable, net of allowance of $180 and $204
|
5,592
|
|
|
—
|
|
|
5,592
|
|
|||
Inventories, net
|
7,533
|
|
|
(2,400
|
)
|
|
5,133
|
|
|||
Prepaid expenses and other current assets
|
568
|
|
|
—
|
|
|
568
|
|
|||
Total current assets
|
22,228
|
|
|
89,600
|
|
|
111,828
|
|
|||
Property and equipment, net
|
6,314
|
|
|
(96
|
)
|
|
6,218
|
|
|||
Brand name and trademark
|
1,510
|
|
|
(1,510
|
)
|
|
—
|
|
|||
Purchased technology and license rights, net
|
235
|
|
|
(112
|
)
|
|
123
|
|
|||
Goodwill
|
185
|
|
|
—
|
|
|
185
|
|
|||
Deposits
|
115
|
|
|
—
|
|
|
115
|
|
|||
Other assets
|
67
|
|
|
—
|
|
|
67
|
|
|||
Total assets
|
$
|
30,654
|
|
|
$
|
87,882
|
|
|
$
|
118,536
|
|
|
|
|
|
|
|
||||||
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
|
|
|
|
|
||||||
Current liabilities:
|
|
|
|
|
|
||||||
Accounts payable
|
$
|
2,745
|
|
|
$
|
—
|
|
|
$
|
2,745
|
|
Accrued severance and related
|
439
|
|
|
—
|
|
|
439
|
|
|||
Accrued payroll
|
394
|
|
|
—
|
|
|
394
|
|
|||
Current portion of mortgage note payable
|
239
|
|
|
—
|
|
|
239
|
|
|||
Accrued and other liabilities
|
2,420
|
|
|
2,100
|
|
|
4,520
|
|
|||
Total current liabilities
|
6,237
|
|
|
2,100
|
|
|
8,337
|
|
|||
Mortgage note payable, net of current portion
|
2,335
|
|
|
—
|
|
|
2,335
|
|
|||
Note payable
|
140
|
|
|
—
|
|
|
140
|
|
|||
Deferred tax liability
|
368
|
|
|
17,777
|
|
|
18,145
|
|
|||
Derivative liabilities
|
—
|
|
|
—
|
|
|
—
|
|
|||
Total liabilities
|
$
|
9,080
|
|
|
$
|
19,877
|
|
|
$
|
28,957
|
|
STOCKHOLDERS’ EQUITY
|
|
|
|
|
|
||||||
Common stock, $0.001 par value; 75,000,000 shares authorized; 33,055,131 issued and 32,912,556 outstanding as of June 30, 2018 and 75,000,000 shares authorized; 33,021,170 issued and 32,878,091 outstanding as of December 31, 2017, respectively
|
33
|
|
|
—
|
|
|
33
|
|
|||
Additional paid-in capital
|
51,244
|
|
|
—
|
|
|
51,244
|
|
|||
Accumulated deficit
|
(29,703
|
)
|
|
68,005
|
|
|
38,302
|
|
|||
Total stockholders’ equity
|
21,574
|
|
|
68,005
|
|
|
89,579
|
|
|||
Total liabilities and stockholders’ equity
|
$
|
30,654
|
|
|
$
|
87,882
|
|
|
$
|
118,536
|
|
|
|
|
|
Six Months Ended
June 30, 2018 |
|
Twelve Months Ended
December 31, 2017 |
|
Twelve Months Ended
December 31, 2016 |
||||||||||||||||||||||||||||||
|
As Reported
|
|
Pro Forma Adjustments (b)
|
|
As Adjusted
|
|
As Reported
|
|
Pro Forma Adjustments (b)
|
|
As Adjusted
|
|
As Reported
|
|
Pro Forma Adjustments (b)
|
|
As Adjusted
|
||||||||||||||||||
Sales
|
$
|
21,391
|
|
|
$
|
(14,303
|
)
|
|
$
|
7,088
|
|
|
$
|
38,883
|
|
|
$
|
(28,649
|
)
|
|
$
|
10,234
|
|
|
$
|
36,627
|
|
|
$
|
(27,808
|
)
|
|
$
|
8,819
|
|
Cost of sales
|
10,124
|
|
|
(7,785
|
)
|
|
2,339
|
|
|
19,122
|
|
|
(15,846
|
)
|
|
3,276
|
|
|
18,712
|
|
|
(15,009
|
)
|
|
3,703
|
|
|||||||||
Gross profit
|
11,267
|
|
|
(6,518
|
)
|
|
4,749
|
|
|
19,761
|
|
|
(12,803
|
)
|
|
6,958
|
|
|
17,915
|
|
|
(12,799
|
)
|
|
5,116
|
|
|||||||||
Other costs and expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||
Research and development
|
1,378
|
|
|
(101
|
)
|
|
1,277
|
|
|
2,455
|
|
|
(514
|
)
|
|
1,941
|
|
|
2,618
|
|
|
(1,585
|
)
|
|
1,033
|
|
|||||||||
Professional services
|
1,187
|
|
|
—
|
|
|
1,187
|
|
|
1,771
|
|
|
(2
|
)
|
|
1,769
|
|
|
1,486
|
|
|
(13
|
)
|
|
1,473
|
|
|||||||||
Salaries and related costs
|
4,234
|
|
|
(619
|
)
|
|
3,615
|
|
|
7,906
|
|
|
(986
|
)
|
|
6,920
|
|
|
9,038
|
|
|
(1,221
|
)
|
|
7,817
|
|
|||||||||
Selling, general and administrative
|
5,599
|
|
|
(1,276
|
)
|
|
4,323
|
|
|
11,370
|
|
|
(2,681
|
)
|
|
8,689
|
|
|
8,565
|
|
|
(2,380
|
)
|
|
6,185
|
|
|||||||||
Severance and related expense
|
—
|
|
|
—
|
|
|
—
|
|
|
1,524
|
|
|
—
|
|
|
1,524
|
|
|
|
|
—
|
|
|
—
|
|
||||||||||
Total other costs and expenses
|
12,398
|
|
|
(1,996
|
)
|
|
10,402
|
|
|
25,026
|
|
|
(4,183
|
)
|
|
20,843
|
|
|
21,707
|
|
|
(5,199
|
)
|
|
16,508
|
|
|||||||||
Loss from operations
|
(1,131
|
)
|
|
(4,522
|
)
|
|
(5,653
|
)
|
|
(5,265
|
)
|
|
(8,620
|
)
|
|
(13,885
|
)
|
|
(3,792
|
)
|
|
(7,600
|
)
|
|
(11,392
|
)
|
|||||||||
Interest expense, net
|
(72
|
)
|
|
—
|
|
|
(72
|
)
|
|
(136
|
)
|
|
—
|
|
|
(136
|
)
|
|
(158
|
)
|
|
—
|
|
|
(158
|
)
|
|||||||||
Change in fair value of derivative liabilities
|
20
|
|
|
—
|
|
|
20
|
|
|
183
|
|
|
—
|
|
|
183
|
|
|
64
|
|
|
—
|
|
|
64
|
|
|||||||||
Total other income (expense), net
|
(52
|
)
|
|
—
|
|
|
(52
|
)
|
|
47
|
|
|
—
|
|
|
47
|
|
|
(94
|
)
|
|
—
|
|
|
(94
|
)
|
|||||||||
Loss before income taxes
|
(1,183
|
)
|
|
(4,522
|
)
|
|
(5,705
|
)
|
|
(5,218
|
)
|
|
(8,620
|
)
|
|
(13,838
|
)
|
|
(3,886
|
)
|
|
(7,600
|
)
|
|
(11,486
|
)
|
|||||||||
Income tax expense (benefit)
|
24
|
|
|
(950
|
)
|
|
(926
|
)
|
|
(156
|
)
|
|
(1,810
|
)
|
|
(1,966
|
)
|
|
64
|
|
|
(1,596
|
)
|
|
(1,532
|
)
|
|||||||||
Net loss
|
$
|
(1,207
|
)
|
|
$
|
(3,572
|
)
|
|
$
|
(4,779
|
)
|
|
$
|
(5,062
|
)
|
|
$
|
(6,810
|
)
|
|
$
|
(11,872
|
)
|
|
$
|
(3,950
|
)
|
|
$
|
(6,004
|
)
|
|
$
|
(9,954
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||
Loss per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||
Basic
|
(0.04
|
)
|
|
|
|
$
|
(0.15
|
)
|
|
$
|
(0.16
|
)
|
|
|
|
$
|
(0.38
|
)
|
|
$
|
(0.14
|
)
|
|
|
|
$
|
(0.36
|
)
|
|||||||
Diluted
|
(0.04
|
)
|
|
|
|
$
|
(0.15
|
)
|
|
$
|
(0.17
|
)
|
|
|
|
$
|
(0.38
|
)
|
|
$
|
(0.15
|
)
|
|
|
|
$
|
(0.36
|
)
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||||
Weighted average number of shares outstanding - basic
|
32,884
|
|
|
|
|
32,884
|
|
|
31,420
|
|
|
|
|
31,420
|
|
|
27,433
|
|
|
|
|
27,433
|
|
||||||||||||
Weighted average number of shares outstanding - dilutive
|
32,884
|
|
|
|
|
32,884
|
|
|
31,427
|
|
|
|
|
31,427
|
|
|
27,449
|
|
|
|
|
27,449
|
|
|
|
|
(a)
|
To record as of
June 30, 2018
(i) the expected net proceeds received from the sale of the Purchased Assets and (ii) the expected gain on the sale of the Purchased Assets pursuant to the terms of the Asset Purchase Agreement:
|
(In thousands)
|
|
||
Gross consideration from the sale of Purchased Assets
|
$
|
97,000
|
|
Estimated closing and transaction costs
|
5,000
|
|
|
Expected net proceeds from sale of assets before taxes
|
$
|
92,000
|
|
|
|
||
Book value of Purchased Assets
|
|
||
Current assets:
|
|
||
Inventories, net
|
$
|
2,400
|
|
Total current assets
|
2,400
|
|
|
Property and equipment, net of depreciation
|
96
|
|
|
Brand name and trademark
|
1,510
|
|
|
Purchased technology and license rights, net of depreciation
|
112
|
|
|
Total assets
|
$
|
4,118
|
|
|
|
||
Current liabilities:
|
|
||
Accrued inventory liability
|
$
|
2,100
|
|
Total current liabilities
|
2,100
|
|
|
Total book value of purchased assets
|
$
|
6,218
|
|
|
|
||
Expected net gain on sale of assets before taxes
|
$
|
85,782
|
|
Income tax expense
|
17,777
|
|
|
Expected gain on sale of assets after income taxes *
|
$
|
68,005
|
|
|
|
|
(b)
|
To eliminate the operating activity related to the Purchased Assets which includes, revenue, net of returns, allowance and discounts, cost of revenues and operating expenses:
|
|
Six Months Ended
June 30, 2018
|
|
Twelve Months Ended
December 31, 2017 |
|
Twelve Months Ended
December 31, 2016 |
||||||
Sales
|
$
|
14,303
|
|
|
$
|
28,649
|
|
|
$
|
27,808
|
|
Cost of sales
|
7,785
|
|
|
15,846
|
|
|
15,009
|
|
|||
Gross profit
|
6,518
|
|
|
12,803
|
|
|
12,799
|
|
|||
Other costs and expenses:
|
|
|
|
|
|
||||||
Research and development
|
101
|
|
|
514
|
|
|
1,585
|
|
|||
Professional services
|
—
|
|
|
2
|
|
|
13
|
|
|||
Salaries and related costs
|
619
|
|
|
986
|
|
|
1,221
|
|
|||
Selling, general and administrative
|
1,276
|
|
|
2,681
|
|
|
2,380
|
|
|||
Total other costs and expenses
|
1,996
|
|
|
4,183
|
|
|
5,199
|
|
|||
Income from operations
|
4,522
|
|
|
8,620
|
|
|
7,600
|
|
|||
Income tax expense
|
950
|
|
|
1,810
|
|
|
1,596
|
|
|||
Net income
|
$
|
3,572
|
|
|
$
|
6,810
|
|
|
$
|
6,004
|
|
|