BSD MEDICAL CORPORATION (NASDAQ:PRSNQ) Files An 8-K Bankruptcy or Receivership

BSD MEDICAL CORPORATION (NASDAQ:PRSNQ) Files An 8-K Bankruptcy or Receivership

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Item 1.03 Bankruptcy or Receivership.

As reported previously, on May 23, 2016, BSD Medical Corporation
f/k/a Perseon Corporation (the Company) filed a voluntary
petition for relief under Chapter 11 of 11 U.S.C. 101 et seq. of
the United States Code (the Bankruptcy Code). The matter is
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Confirmation of Plan
On December 28, 2016, the Bankruptcy Court entered findings of
fact and conclusions of law (Findings and Conclusions), which
supported the Bankruptcy Courts entry of an order (the
Confirmation Order) confirming the Companys Plan to Chapter 11 of
the Bankruptcy Code (the Plan). Copies of the Findings and
Conclusions, the Confirmation Order, and the Plan are filed as
Exhibit 99.1, Exhibit 99.2 and Exhibit 2.1, respectively, to this
Current Report on Form 8-K and are incorporated by reference into
this Item 1.03.
Summary of Plan
The Plan, as confirmed by the Bankruptcy Court, provides for
distributions by the Company to holders of allowed claims on the
effective date of the Plan, and the appointment of a disbursing
agent (the Disbursing Agent). The Disbursing Agent will
administer the Plan and will also serve as a representative of
the Companys estate for the purpose of (i) liquidating the
Companys remaining assets, (ii) resolving all disputed claims and
interests, (iii) making distributions to holders of allowed
claims and allowed interests in accordance with the terms of the
Plan, (iv) dissolving the Company, and (v) otherwise implementing
the Plan.
The classes and types of claims and interests in the Company are
described in detail in the Plan. The Plan generally provides
that:
Administrative Claims will receive payment in full in
cash for the unpaid portions of such claims.
Priority claims identified in the Plan will be paid in
full in cash plus interest accrued, if applicable, on the
amount allowed under the plan at an interest rate of 5%
from May 23, 2016 through the Effective Date.
General unsecured claims will receive payment in full in
cash plus interest accrued on the amount allowed under
the Plan at an interest rate of 5% from May 23, 2016
through the Effective Date.
Holders of the Companys common stock will receive their
pro rata share of the Companys assets being disbursed
under the Plan, subject to a de minimis distribution
threshold of $25 per holder.
Holders of those certain warrants issued by the Company
on April 12, 2013, with an exercise price of $16.50, and
on July 2, 2014, with an exercise price of $11.00
(together, the Private Warrants), will receive their pro
rata share of the Companys assets being disbursed under
the Plan, subject to a de minimis distribution threshold
of $25 per holder.
Holders of those certain warrants issued by the Company
on July 29, 2015 and on August 4, 2015, at an exercise
price of $0.99 (the Public Warrants), will not receive
any distribution on account of such warrants.
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The effective date of the Plan will be a date specified by the
Company in a notice filed with the Bankruptcy Court as the date
on which the Plan will take effect (the Effective Date), which
date will be the first business date after the later of: (i) the
Confirmation Order shall have become a final order that has not
been stayed or modified or vacated on appeal; and (ii) the
Disbursing Agent is appointed to a Disbursing Agent Agreement. We
anticipate that the Effective Date will be no later than January
20, 2017. Except for the purpose of evidencing a right to
distribution under the Plan and except as otherwise set forth in
the Plan, on the Effective Date, all notes, stock, warrants,
agreements, instruments, certificates, and other documents
evidencing any claim against or interest in the Company will be
cancelled and the obligations of the Company thereunder or in any
way related thereto will be fully released. All derivative claims
of the Company and most third party claims will also be released
on the Effective Date, in accordance with the provisions of the
Plan.
The foregoing description is a summary of the material terms of
the Plan and does not purport to be complete, and is qualified in
its entirety by reference to the full text of the Plan filed as
Exhibit 2.1 to this Current Report on Form 8-K.
Common Stock
As of December 28, 2016, the Company had issued and outstanding
9,766,323 shares of common stock, Private Warrants exercisable
for 985,736 shares of common stock and Public Warrants
exercisable for 11,500,000 shares of common stock. Under the
Plan, the holders of the Companys common stock and Private
Warrants will receive pro rata distributions in accordance with
the Plan. Holders of the Public Warrants will not receive any
distribution on account of such warrants. The Companys common
stock, the Private Warrants and the Public Warrants will be
cancelled on the Effective Date.
No shares of the Companys common stock, Private Warrants or
Public Warrants are being reserved for future issuance in respect
of claims and interests filed and allowed under the Plan.
Assets and Liabilities
In the Companys most recent monthly operating report filed with
the Bankruptcy Court on December 14, 2016 and furnished as
Exhibit 99.3 to this Current Report on Form 8-K, the Company
reported total assets of $3,538,295.30 and total liabilities of
$2,736,203.75 as of November 30, 2016.
Item 3.03 Material Modification to Rights of Security Holders.
As provided in the Plan, all notes, stock, warrants, agreements,
instruments, certificates, and other documents evidencing any
claim against or interest in the Company will be cancelled on the
Effective Date and the obligations of the Company thereunder or
in any way related thereto will be fully released. The registered
securities to be cancelled on the Effective Date include all of
the Companys common stock as well as the Private Warrants and
Public Warrants.
Item 5.02 Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
The Plan provides that the Companys board of directors will be
dissolved and its officers will be discharged on the Effective
Date. As provided in the Plan, each of the Companys directors,
Timothy C. McQuay, Harold R. Wolcott, Steven G. Stewart, Damian
E. Dupuy and Peter Vitulli, and Mr. McQuay in his role as
President of the Company, will cease to be directors and officers
of the Company on the Effective Date. Also on the Effective Date,
the Disbursing Agent will succeed to
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such powers as would have been applicable to the Companys
officers, directors and shareholders and will become the sole
representative of the Company.
Item 7.01 Regulation FD Disclosure.
Modified SEC Reporting
During the pendency of the Chapter 11 Case, the Company has
adopted a modified reporting program with respect to its
reporting obligations under federal securities laws. In lieu of
filing annual reports on Form 10-K and quarterly reports on Form
10-Q, each month the Company will file with the Securities and
Exchange Commission (the SEC) a current report on Form 8-K that
will have attached to it the monthly operating report required by
the Bankruptcy Court. The Company does not intend to file
periodic reports while the Chapter 11 Case is pending, but will
continue to file current reports on Form 8-K as required by
federal securities laws. The Company believes that this modified
reporting program is consistent with the protection of its
investors as set forth in Exchange Act Release No. 9660, dated
June 30, 1972.
Operating Reports
On December 14, 2016, the Company filed a monthly operating
report with the Bankruptcy Court that presides over the Chapter
11 Case for the period that began on November 1, 2016 and ended
on November 30, 2016 (the Operating Report). The Operating Report
is attached hereto as Exhibit 99.3 and is incorporated herein by
reference.
The Operating Report is furnished for informational purposes only
and shall not be deemed filed for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended (the Exchange Act),
or otherwise subject to the liabilities of that section, nor will
such information be deemed incorporated by reference in any
filing under the Exchange Act or the Securities Act of 1933, as
amended, except as expressly set forth by specific reference in
such a filing. This Current Report on Form 8-K (including the
exhibits hereto) should not be deemed an admission as to the
materiality of any information required to be disclosed solely by
Regulation FD.
Cautionary Note Regarding the Operating Reports
The Company cautions investors and potential investors not to
place undue reliance upon the information contained in the
Operating Report, which report was not prepared for the purpose
of providing the basis for an investment decision relating to any
of the securities of the Company. The Operating Report is limited
in scope, covers a limited time period, has been prepared solely
for the purpose of complying with the requirements applicable in
the Chapter 11 Case and is in a format acceptable to the U.S.
Trustee. The financial information contained in the Operating
Report was not audited or reviewed by independent public
accountants, does not contain all of the information and
footnotes required by generally accepted accounting principles in
the United States, is in a format prescribed by applicable
bankruptcy laws, and is subject to future adjustment and
reconciliation. There can be no assurance that, from the
perspective of an investor or potential investor in the
Company’s securities, the financial information contained in the
Operating Report is complete. The Operating Report also contains
information for periods which are shorter or otherwise different
from those required in the Company’s reports to the Exchange
Act, and such information might not be indicative of the
Company’s financial condition or operating results for the
period that would be reflected in the Company’s financial
statements or in its reports to the Exchange Act. Results set
forth in the Operating Report should not be viewed as indicative
of future results.
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Cautionary Note Regarding Forward-Looking Statements
Certain statements and information included herein may constitute
forward-looking statements that are generally identifiable
through the use of words such as believe, expect, anticipate,
intend, plan, estimate, project and similar expressions and
include any statements that are made regarding earnings
expectations. The forward-looking statements speak only as of the
date of this report, and the Company undertakes no obligation to
update or revise such statements to reflect new information or
events as they occur. These statements are based on a number of
assumptions, risks and uncertainties, many of which are beyond
the control of the Company. Investors are cautioned that any such
statements are not guarantees of future performance and that
actual future results may differ materially due to a variety of
factors. Factors that could cause the Company’s results to
differ materially include: (i) the Company’s ability to obtain
Bankruptcy Court approval with respect to motions in the Chapter
11 Case; (ii) the Company’s ability to operate its business
during this process, (iii) the effects of the Company’s
bankruptcy filing on the Company’s business and the interests of
various creditors, equity holders and other constituents, (iv)
the length of time the Company will operate under the Chapter 11
Case, (v) risks associated with third-party motions in the
Chapter 11 Case, which may interfere with the Company’s ability
to develop and consummate a plan of reorganization, (vi) the
potential adverse effects of the Chapter 11 Case on the
Company’s liquidity or results of operations, and (vii) other
factors disclosed by the Company from time to time in its filings
with the SEC, including those described under the caption Risk
Factors in the Company’s Annual Report on Form 10-K and
Quarterly Reports on Form 10-Q. As a result of these factors, the
Company’s actual results may differ materially from those
indicated or implied by such forward-looking statements.
Item 9.01 Financial Statements and Exhibits.
Exhibit Number
Description
2.1
Companys Plan to Chapter 11 of the Bankruptcy Code
99.1
Findings and Conclusions of the Bankruptcy Court
99.2
Order Confirming Companys Plan to Chapter 11 of the
Bankruptcy Code
99.3
November 2016 Monthly Operating Report
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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.
BSD MEDICAL CORPORATION
Date: January 3, 2017
By: /s/ Timothy C. McQuay
Name: Timothy C. McQuay
Title: President
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EXHIBIT INDEX
Exhibit Number
Description
2.1
Companys Plan to Chapter 11 of the Bankruptcy Code
99.1
Findings and Conclusions of the Bankruptcy Court
99.2
Order Confirming Companys Plan
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