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.

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

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* Certain schedules and exhibits omitted 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.

BioRestorative Therapies, Inc. Exhibit
EX-2.1 2 ex2_1.htm AMENDED AND RESTATED ASSET PURCHASE AGREEMENT AMENDED AND RESTATED STALKING HORSE ASSET PURCHASE AGREEMENT BY AND AMONG PHOENIX CELL GROUP HOLDINGS LLC,…
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About BIORESTORATIVE THERAPIES, INC. (OTCMKTS:BRTX)

BioRestorative Therapies, Inc. develops therapeutic products and medical therapies using cell and tissue protocols, involving adult (non-embryonic) stem cells. The Company offers human and plant stem cell derived cosmetic and skin care products. Its programs relate to the treatment of disc/spine disease and metabolic disorders and include Disc/Spine Program (brtxDISC) and Metabolic Program (ThermoStem). Its curved needle device (CND) is a needle system with a curved inner cannula to allow access to difficult-to-locate regions for the delivery or removal of fluids and other substances. The CND is intended to deliver stem cells and/or other therapeutic products or material to the interior of a human intervertebral disc, the spine region, or other areas of the body. The device relies on the use of pre-curved nested cannulae that allows the cells or material to be deposited in the posterior and lateral aspects of the disc to which direct access is not possible due to outlying structures.