Item 1.01. Entry into a Material Definitive Agreement.
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.
Item 4.01. Changes in Registrant’s Certifying Accountant.
(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
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).
Item 7.01 Regulation FD Disclosure.
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
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, http://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
Item 9.01. Financial Statements and 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.
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