UNITED
STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, DC
20549
___________________
FORM 8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d) of
the
Securities Exchange Act of
1934
Date of Report: March 30,
2020
(Date of earliest event
reported)
BIORESTORATIVE THERAPIES,
INC.
(Exact Name of Registrant as
Specified in Charter)
Registrant's telephone number,
including area code: (631) 760-8100
Securities registered pursuant to Section 12(b) of the
Act:
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:
Indicate by
check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 (§230.405 of this
chapter) or Rule 12b-2 of the Securities Exchange Act of 1934
(§240.12b-2 of this chapter).
Emerging
growth company x
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the
extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a)
of the Exchange Act.
On March 30, 2020, BioRestorative Therapies, Inc. (the
“Company”) entered into an
amended and restated stalking horse asset purchase agreement (the
“Amended and
Restated Asset
Purchase Agreement”) with Phoenix Cell Group Holdings LLC,
an affiliate of John M. Desmarais (the “Purchaser”), to acquire substantially
all of the Company’s assets (the “Sale”). The Amended and Restated
Asset Purchase Agreement replaced the prior stalking horse asset
purchase agreement discussed in the Company’s Current Report on
Form 8-K filed with the Securities and Exchange Commission (the
“SEC”) on March 20,
2020.
Pursuant
to the terms and subject to the conditions of the Amended and
Restated Asset Purchase Agreement, the purchase price is $500,000
in cash, subject to adjustment (the “Cash Component”), plus the Credit Bid
Amount, the Expense Reimbursement and the aggregate Cure Amounts
(as such terms are defined in the Amended and Restated Asset
Purchase Agreement). The Amended and Restated Asset Purchase
Agreement is subject to certain closing conditions, including
certain orders being entered by the Bankruptcy Court (as defined in
Item 1.03 below) and other customary closing conditions detailed in
the Amended and Restated Asset Purchase Agreement.
The
Amended and Restated Asset Purchase Agreement remains subject to
higher or better offers, as well as approval of the Bankruptcy
Court. The Asset Purchase Agreement provides for reimbursement of
up to $250,000 of the Purchaser’s expenses incurred in connection
with the Amended and Restated Asset Purchase Agreement and the
Amended and Restated DIP Loan Agreement (as defined in Item 1.03
below), each of which is payable upon certain termination events in
accordance with the terms of the Amended and Restated Asset
Purchase Agreement.
No hearing before the Bankruptcy Court has been scheduled with
regard to the approval of all or any portion of the Amended
and Restated Asset Purchase Agreement, and such agreement remains
subject to Bankruptcy Court approval.
The foregoing description of the Amended and Restated Asset
Purchase Agreement and the transactions contemplated thereby,
including the Sale, does not purport to be complete and is
qualified in its entirety by reference to the text of the Asset
Purchase Agreement, which is filed as Exhibit 2.1 to this
Current Report on Form 8-K and incorporated herein by
reference.
Also, see Item 1.03 for a discussion of the Amended and Restated
DIP Loan Agreement.
Chapter 11 Filing
As previously disclosed, on March 20, 2020 (the “Petition Date”), the Company filed a
voluntary petition commencing a case under chapter 11 of title 11
of the U.S. Code (the “Bankruptcy
Code”) in the United States Bankruptcy Court for the Eastern
District of New York (the “Bankruptcy Court”). The Company’s
chapter 11 case (the “Chapter 11
Case”) is being administered under the caption, In re: BioRestorative Therapies,
Inc., Case No. 8-20-71757. The Company
will continue to operate its business as a “debtor-in-possession”
under the jurisdiction of the Bankruptcy Court and in accordance
with the applicable provisions of the Bankruptcy Code and orders of
the Bankruptcy Court.
Senior “Debtor-in-Possession” Financing
In connection with the Chapter 11 Case, the Company has filed a
motion (the “DIP Motion”)
seeking, among other things, interim and final approval of
postpetition, debtor-in-possession financing (the “DIP Financing”) on the terms and
conditions set forth in the Amended and Restated DIP Loan and
Security Agreement (the “Amended
and Restated DIP Loan
Agreement”), dated as of March 30, 2020, by and between the
Company and Phoenix Cell Group Holdings LLC (the “DIP Lender”). The Amended and Restated
DIP Loan Agreement provides for a senior secured superpriority
debtor-in-possession credit facility of $1,424,273 (the
“DIP Facility”), of which $350,000 would be
available following entry of an interim DIP order and until the
entry of the final order approving the Amended and Restated DIP
Loan Agreement, secured by a first priority lien on all tangible
and intangible property and assets of the Company, now owned or
hereafter acquired, subject to certain carve outs. The
Amended and Restated DIP Loan Agreement amended and restated the
prior DIP Loan and Security Agreement discussed in the Company’s
Current Report on Form 8-K filed with the SEC on March 20,
2020. The Company sought emergency approval of a portion of
the proposed DIP Financing with the Bankruptcy Court holding a
hearing on March 26, 2020, which hearing was continued on April 3,
2020. At the conclusion of the April 3, 2020 hearing, the
Court advised that it would not enter an order approving the DIP
Facility on the terms as presented.
The foregoing description of the Amended and Restated DIP Loan
Agreement does not purport to be complete and is qualified in its
entirety by reference to the text of the Amended and Restated DIP
Loan Agreement, which is filed as Exhibit 10.1 to this Current
Report on Form 8-K and incorporated herein by reference.
Forward-Looking Statements
This
Current Report on Form 8-K contains certain forward-looking
statements within the meaning of the “safe harbor” provisions of
the Private Securities Litigation Reform Act of 1995, as amended,
based on our current expectations, estimates and projections about
our operations, financial condition, results of operations, and
liquidity. Statements containing words such as “may,” “believe,”
“anticipate,” “expect,” “intend,” “plan,” “project,” “estimate,” or
similar expressions constitute forward-looking statements. These
forward-looking statements include, but are not limited to,
statements regarding expectations about the timing and execution of
the Company’s strategic transactions (including the contemplated
sale of substantially all of the Debtor’s assets), and the
operating expectations during the pendency of the Chapter 11
Case. Potential factors that could affect such
forward-looking statements include, among others, risks and
uncertainties relating to the Chapter 11 Case, including, but not
limited to, the Company’s ability to obtain Bankruptcy Court
approval of motions filed in the Chapter 11 Case (including, but
not limited to, the DIP Motion and the Bidding Procedures Motion),
the effects of the Chapter 11 Case on the Company and on the
interests of various constituents, Bankruptcy Court rulings in the
Chapter 11 Case and the outcome of the Chapter 11 Case in general,
the length of time the Company will operate under the Chapter 11
Case, risks associated with third-party motions in the Chapter 11
Case, the conditions to which the Company’s DIP Financing is
subject and the risk that these conditions may not be satisfied for
various reasons, including for reasons outside of the Company’s
control; uncertainty associated with evaluating and completing any
strategic or financial alternative as well as the Company’s ability
to implement and realize any anticipated benefits associated with
any alternative that may be pursued; the consequences of the
acceleration of the Company’s debt obligations; the trading price
and volatility of the Company’s common stock and the risks related
to trading on the OTC Pink Market and the other factors disclosed
in the section entitled “Management’s Discussion and Analysis of
Financial Condition and Results of Operations - Factors that
May Affect Future Results and Financial Condition” in the Company’s
most recent Annual Report on Form 10-K filed with the SEC, as
updated from time to time in our subsequent filings with the SEC.
Readers are cautioned not to place undue reliance on these
forward-looking statements, which reflect management’s analysis
only as of the date hereof. Such forward-looking statements are not
guarantees of future performance or results and involve risks and
uncertainties that may cause actual performance and results to
differ materially from those predicted. Reported results should not
be considered an indication of future performance. Except as
required by law, the Company undertakes no obligation to publicly
release the results of any revision to these forward-looking
statements that may be made to reflect events or circumstances
after the date hereof or to reflect the occurrence of unanticipated
events.
(d) Exhibits
_____________
* Certain schedules and exhibits omitted pursuant to Item
601(b)(2) of Regulation S-K promulgated by the SEC. The
Company agrees to furnish a supplemental copy of any omitted
schedule or exhibit to the SEC upon request.
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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BIORESTORATIVE THERAPIES, INC.
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Dated: April 3, 2020
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By:
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/s/ Mark
Weinreb
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Mark Weinreb
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Chief Executive
Officer
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