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): September 8, 2022
BioRestorative Therapies, Inc.
(Exact name of
registrant as specified in its charter)
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Delaware
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001-37603
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91-1835664
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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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40 MARCUS DRIVE
MELVILLE, New
York
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11747
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(Address of principal executive
offices)
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(Zip code)
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Registrant's
telephone number, including area code (631) 760-8100
Not
Applicable
(Former Name or
Former Address, if Changed Since Last Report)
Securities registered pursuant to
Section 12(b) of the Securities Exchange Act of 1934:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which
registered
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Common Stock, $0.001 par value
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BRTX
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Nasdaq
Capital Market
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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 (see General Instruction A.2.
below):
☐
Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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 ☐
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. ☐
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Item 1.01.
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Entry into a Material Definitive Agreement.
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Effective September 8, 2022, BioRestorative Therapies, Inc. (the
“Company”) issued 1,543,158 shares of Series B preferred stock to
Auctus Fund, LLC (“Auctus”) in exchange for an equal number of
shares of the Company’s outstanding Series A preferred stock.
The terms of the Series B preferred stock are substantially
identical to those of the Series A preferred stock, except that,
among other things, the limitation on beneficial ownership of
common stock of the Company upon a conversion of the Series B
preferred stock into common stock, and the limitation on the number
of votes attributable to the Series B preferred stock, is 9.99% of
the then outstanding common stock of the Company instead of 4.99%
as provided for the Series A preferred stock. For a full
description of the rights, preferences and powers of the Series B
preferred stock, reference is made to the Certificate of
Designations of Preferred Stock Authorized by Resolution of the
Board of Directors for an Issue of 1,543,158 Shares of Preferred
Stock Designated “Series B Preferred Stock” attached hereto as
Exhibit 3.1.
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Item 4.01.
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Changes in Registrant’s Certifying Accountant.
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(a)
Dismissal of Independent Registered Public Accounting
Firm.
Based on information provided by Friedman LLP (“Friedman”), the
Company’s independent registered public accounting firm, effective
September 1, 2022, Friedman combined with Marcum LLP (“Marcum”) and
continues to operate as an independent registered public accounting
firm. On September 13, 2022, the Audit Committee of the Board
of Directors of the Company approved the dismissal of Friedman and
the engagement of Marcum to serve as the independent registered
public accounting firm of the Company. The services previously
provided by Friedman will now be provided by Marcum.
The report of Friedman on the Company’s consolidated financial
statements as of December 31, 2020 and 2021 and for the years then
ended did not contain an adverse opinion or a disclaimer of opinion
and was not qualified or modified as to uncertainty, audit scope,
or accounting principles.
During the Company’s fiscal years ended December 31, 2020 and 2021
and the subsequent period prior to Friedman’s dismissal, (a) there
were no disagreements with Friedman on any matter of accounting
principles or practices, financial statement disclosure, or
auditing scope or procedure which, if not resolved to the
satisfaction of Friedman, would have caused Friedman to make
reference thereto in its reports on the consolidated financial
statements for such years; and (b) there were no reportable events
as described in Item 304(a)(1)(v) of Regulation S-K promulgated by
the Securities and Exchange Commission (“Regulation S-K”).
The Company provided Friedman with a copy of the foregoing
disclosures and requested that Friedman furnish the Company with a
letter addressed to the Securities and Exchange Commission stating
whether or not it agrees with such disclosures. Attached as
Exhibit 16.1 is a copy of Friedman’s letter, dated September 13,
2022.
(b)
Appointment of New Independent Registered Public Accounting
Firm.
On September 13, 2022, the Audit Committee of the Board of
Directors of the Company approved the engagement of Marcum to serve
as the Company’s independent registered public accounting
firm for the fiscal year ending December 31, 2022.
No consultations occurred between the Company and Marcum during the
two most recent fiscal years and the subsequent interim period
prior to Marcum’s appointment regarding either (a) the application
of accounting principles to a specific completed or proposed
transaction, the type of audit opinion that might be rendered on
the Company’s financial statements, or other information provided
that was considered by the Company in reaching a decision as to an
accounting, auditing or financial reporting issue, or (b) any
matter that was the subject of a disagreement (as defined in Item
304(a)(1)(iv) of Regulation S-K) or a reportable event (as
described in Item 304(a)(1)(v) of Regulation S-K).
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Item 5.03.
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
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Item 7.01
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Regulation FD Disclosure.
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The Company has prepared presentation materials (the “Presentation
Materials”) that management intends to use from time to time on and
after September 14, 2022 in presentations about the Company’s
business. The Company intends to use the Presentation
Materials, possibly with modification, at its presentation on
September 14, 2022 at the H.C. Wainwright 24th Annual
Global Investment Conference and may use the Presentation Materials
in other presentations to current and potential investors, lenders,
creditors, insurers, vendors, customers, employees and others with
an interest in the Company and its business.
The information contained in the Presentation Materials is summary
information that should be considered in the context of the
Company’s filings with the Securities and Exchange Commission and
other public announcements that the Company may make by press
release or otherwise from time to time. The Presentation
Materials speak as of the date of this Current Report on Form
8-K. While the Company may elect to update the Presentation
Materials in the future to reflect events and circumstances
occurring or existing after the date of this Current Report on Form
8-K, the Company specifically disclaims any obligation to do
so. The Presentation Materials are furnished as Exhibit 99.1
to this Current Report on Form 8-K and are incorporated herein by
reference. The presentation materials will also be posted in
the Investor Relations section of the Company’s website,
www.biorestorative.com
for 90 days.
The information referenced under Item 7.01 (including Exhibit 99.1
referenced in Item 9.01 below) of this Current Report on Form 8-K
is being “furnished” under “Item 7.01. Regulation FD
Disclosure” and, as such, shall not be deemed to be “filed” for the
purposes of Section 18 of the Securities Exchange Act of 1934, as
amended, or otherwise subject to the liabilities of that
section. The information set forth in this Current Report on
Form 8-K (including Exhibit 99.1 referenced in Item 9.01 below)
shall not be incorporated by reference into any registration
statement, report or other document filed by the Company pursuant
to the Securities Act of 1933, as amended, except as shall be
expressly set forth by specific reference in such filing
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Item 9.01.
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Financial Statements and Exhibits.
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(d) Exhibits
3.1 Certificate
of Designations of Preferred Stock Authorized by Resolution of the
Board of Directors for an Issue of 1,543,158 Shares of Preferred
Stock Designated “Series B Preferred Stock,” filed with the
Secretary of State of the State of Delaware.
16.1 Letter
from Friedman LLP to the Securities and Exchange Commission dated
September 13, 2022.
99.1 Presentation
Materials.
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: September 13, 2022
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By:
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/s/ Lance Alstodt
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Lance Alstodt
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Chief Executive
Officer
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