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: April 23,
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.
See Item 1.03.
Chapter 11 Filing
As previously disclosed, on March 20, 2020, BioRestorative
Therapies, Inc. (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 is continuing 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 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 Secured Term Note (the “DIP Note”), dated as of April 23, 2020,
issued by the Company to Auctus Fund, LLC (the “DIP Lender”). The DIP Note provides for
a senior secured superpriority debtor-in-possession credit facility
of up to $713,000 of which approximately $354,000 (the
“Interim DIP Facility”) was
approved for funding pursuant to the entry of an interim DIP order
(the “Interim DIP Order”)
and until the entry of a final order approving the DIP Note (the
“Final DIP Order”), 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, pursuant to a Security Agreement (the
“DIP Security Agreement”),
dated as of April 23, 2020, executed by the Company in favor of the
DIP Lender. The Interim DIP Order was approved by the
Bankruptcy Court at a hearing held on April 23, 2020. The
Company received approximately $244,000 of the Interim DIP Facility
from the DIP Lender on April 24, 2020.
The proceeds from the DIP Financing will be used, subject to the
Interim DIP Order and the Final DIP Order, (a) for working
capital and other general purposes of the Company; (b) United
States Trustee fees; (c) Bankruptcy Court approved professional
fees and other administrative expenses arising in the Chapter 11
Case; and (d) interest, fees, costs and expenses incurred in
connection with the DIP Financing, including professional fees,
each subject to the terms and conditions of the DIP Note, the
orders of the Bankruptcy Court approving the DIP Note and
consistent with the financing budget attached to the DIP Motion as
an exhibit, subject to certain exceptions as provided in the DIP
Note.
The maturity date of the DIP Financing will be the earliest to
occur of (a) July 6, 2020; (b) ten days following entry of an order confirming
a chapter 11 plan in the Chapter 11 Case ; (c) ten days
following the entry of an order approving the sale of the Company
or the Company’s assets; or (d) the occurrence of an event of
default under the DIP Note, following any applicable grace or cure
periods.
Interest on the outstanding principal amount of the loans under the
DIP Note will be payable in arrears on the maturity date at the
rate of 8% per annum. Upon the occurrence and during the
continuance of an event of default, all obligations under the DIP
Note will bear interest at a rate equal to the then current rate
plus an additional 2% per annum.
The foregoing descriptions of the DIP Note and the DIP Security
Agreement do not purport to be complete and are qualified in their
entirety by reference to the texts of the DIP Note and the DIP
Security Agreement, which are filed as Exhibits 10.1 and 10.2,
respectively, 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 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), 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 the Company’s 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 28, 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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