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 and Exchange Act of 1934
Date of Report (Date of earliest event reported): September 1, 2009
| OXYGEN BIOTHERAPEUTICS, INC. | |||
| (Exact name of registrant as specified in its charter) | |||
| 2-31909 | ||
| (Commission File No.) | ||
| Delaware | 26-2593535 | ||||
|
(State or Other Jurisdiction of
Incorporation or Organization) |
(IRS Employer Identification No.) | ||||
| 2530 Meridian Parkway, 3 rd Floor, Durham, North Carolina 27713 | |||
| (Address of principal executive offices) | |||
| (919) 806-4414 | |||
| (Registrant’s telephone number) | |||
| Not applicable | ||
| (Former name or address, if changed since last report) | ||
| 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(b) under the Exchange Act (17 CFR 240.14a-12(b))
|
| [ ] | 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)) |
FORWARD LOOKING STATEMENTS
Except for the historical information contained herein, the discussion and information presented in this report contain forward-looking statements that involve risks and uncertainties. Oxygen Biotherapeutics’ actual results could differ materially from those presented in the forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, unexpected problems and delays in product development, unexpected problems and delays in obtaining regulatory approvals, failure of third parties to meet funding commitments, inability to form agreements and strategic relationships that can facilitate development objectives, and other factors discussed in Oxygen Biotherapeutics’ Annual Report on Form 10-K for the year ended April 30, 2009, and subsequent filings made with the Securities and Exchange Commission. Oxygen Biotherapeutics cannot guarantee future results, levels of performance or achievements. Moreover, neither Oxygen Biotherapeutics nor any other person assumes responsibility for the accuracy and completeness of the forward-looking statements. Oxygen Biotherapeutics is under no obligation to update any of the forward-looking statements after the filing of this report to conform such statements to actual results or changes in expectations.
| Item 1.01 | Entry into a Material Definitive Agreement |
On June 8, 2009, Oxygen Biotherapeutics, Inc. (“OBI”), entered into a securities purchase agreement with JP SPC 1 Vatea, Segregated Portfolio (formerly Vatea Fund, Segregated Portfolio), an investment fund formed under the laws of the Cayman Islands. This agreement was previously reported on the Current Report on Form 8-K filed by OBI with the Securities and Exchange Commission on June 8, 2009.
Under the terms of the agreement, Vatea purchased on July 10, 2009, 20 million shares of OBI restricted common stock at a price of $0.25 per share, or a total of $5 million. Furthermore, the agreement establishes milestones for the achievement of product development and regulatory targets and other objectives, after which Vatea is required to purchase 60 million additional shares for $15 million, assuming all the milestones are achieved. On September 1, 2009, OBI and Vatea entered into an amendment to the agreement. Under the amendment, the parties agreed to add an additional schedule of milestones, which is an alternative to the original schedule. Accordingly, if OBI achieves a milestone under the original schedule first, then the milestones and payment terms of the original schedule will apply under the agreement, but if the first milestone achieved is in the new alternative schedule added by the amendment, the new alternative schedule of milestones and payment terms will apply under the agreement. The following table shows the new alternative milestone schedule added by the amendment.
| Alternative 2 Milestone Schedule | ||
|---|---|---|
| A. Clinical trial for Oxycyte in traumatic brain injury approved by Swissmedic | 0.40 | 31-10-09** |
| B. Clinical trial for Oxycyte in traumatic brain injury approved by the US FDA | 0.10 | 31-03-11 |
| C. Written license with unaffiliated party for distribution of Oxycyte that provides for license fee payments totaling US$1,000,000 within three months of contract date, exclusive of royalties | 0.25 | 30-09-10 |
| D. Battlefield exception for sale and use of Oxycyte issued by any of the US armed forces, NATO, or the Israel Defense Forces | 0.25 | 30-06-11 |
Under the agreement, closing of the stock purchase and investment is required within 20 business days after notice of the milestone achievement is given to Vatea with respect to the original schedule of milestones. Under the amendment, Vatea is entitled to defer the closing of the first milestone achieved under the new alternative milestone schedule to a date no later than December 10, 2009.
The following table shows the total number of shares to be purchased by Vatea for milestones achieved under the new additional milestone schedule, assuming all the milestones are achieved on a timely basis.
| New Alternative Milestone | Shares | Proceeds | ||
|---|---|---|---|---|
| A | 24,000,000 | $6,000,000 | ||
| B | 6,000,000 | $1,500,000 | ||
| C | 15,000,000 | $3,750,000 | ||
| D | 15,000,000 | $3,750,000 |
| Item 9.01 | Financial Statement and Exhibits |
Pursuant to Item 601 of Regulation S-K, OBI is filing with this report as Exhibit 10.1 Amendment No. 1 to Securities Purchase Agreement (including Appendix A) between OBI and JP SPC 1 Vatea, Segregated Portfolio, dated September 1, 2009.
Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
OXYGEN BIOTHERAPEUTICS, INC.
| Date: September 1, 2009 | By: | /s/ Chris J. Stern | |||
| Chris J. Stern, Chief Executive Officer |
2
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
This Amendment No. 1 (this “Amendment”) to the Securities Purchase Agreement dated June 8, 2009 (individually the SPA and with this Amendment the “Agreement” ) is dated as of September 1, 2009, by and between Oxygen Biotherapeutics, Inc., a Delaware corporation (the “Company” ), and JP SPC 1 Vatea, Segregated Portfolio (formerly Vatea Fund, Segregated Portfolio), a Cayman Islands company (the “Investor” ). All capitalized terms used herein and not otherwise defined shall have the meaning ascribed to such terms in the SPA.
WHEREAS, the SPA provides that the Investor will make additional investments in the Company through the purchase of Common Stock, subject to the Company achieving Milestones listed in Appendix A to the SPA.
WHEREAS, the parties have agreed on certain modifications to the Milestones and other terms of the SPA, and wish to enter into this Amendment to memorialize the changes and the Agreement between the parties.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and the Investor agree as follows:
1. Section 2.2(b) of the SPA is deleted and the following new Section 2.2(b) inserted in lieu thereof:
(b) Except as otherwise specifically provided for in Appendix A, on the 20th Business Day following the date on which an Installment Notice is given to the Investor, a closing (a “ Subsequent Closing ”) shall take place at the offices of Parsons, Behle & Latimer, 201 South Main Street, Suite 1800, Salt Lake City, Utah 84111 (i) at 1:00 p.m. local time on that date, or (ii) at such other time and place or on such date as the Investor and the Company may agree upon (a “ Subsequent Closing Date ”), and at each such Subsequent Closing the Company shall deliver or cause to be delivered to the Investor the Installment Shares, and the Investor shall deliver or cause to be delivered to the Company by wire transfer to an account designated in writing by the Company prior to each Subsequent Closing the Installment Payment.
2. Pursuant to Section 4.10 of the SPA the Company is required to take all action required by its certificate of incorporation, bylaws, and applicable law to increase the number of persons then comprising the board of directors by one and electing the Investor Nominee to the vacancy thereby created following the Subsequent Closing Date where the sum of the payment paid for Shares at that closing and the payments for all Shares sold in Subsequent Closings prior to that closing equals or exceeds US$5,000,000. On August 24, 2009, the Company increased the number of persons comprising the board of directors by one and elected Gregory Pepin to fill the director position created thereby. The Company agrees that the condition precedent to the election of the Investor Nominee, that there be an investment of US$5,000,000 in one or more Subsequent Closings, is waived, and the Investor agrees that Gregory Pepin is the Investor Nominee for purposes of Section 4.10 and that the obligations of the Company under Section 4.10 have been fulfilled.
3. Appendix A to the SPA deleted and the new Appendix A attached to this Amendment inserted in lieu thereof.
4. Except as otherwise specifically provided for in his Amendment, all of the terms and provisions of the SPA remain in full force and effect. This Amendment is one of the Transaction Documents and the Transaction Documents, together with the appendices and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements, understandings, discussions and representations, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, appendices, and schedules.
5. This Amendment may be executed in two or more counterparts, all of which when taken together with the Transaction Documents shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by image file attached to an email, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile signature page or image file of the signature page were an original thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to the SPA to be duly executed by their respective authorized signatories as of the date first indicated above.
OXYGEN BIOTHERAPEUTICS, INC.
| By: | /s/ Chris J. Stern | ||
| Name: | Chris J. Stern | ||
| Title: | Chief Executive Officer | ||
JP SPC 1 VATEA, SEGREGATED PORTFOLIO
| By: | /s/ Gregory Pepin | ||
| Name: | Gregory Pepin | ||
| Title: | Managing Director | ||
2
APPENDIX A
MILESTONES
The dates listed in the following table (the “Target Dates”) are the estimated dates by which the corresponding Milestone listed under Milestone Alternative 1 or Alternative 2 (individually an “Alternative” and collectively the “Alternatives”) are to be accomplished. Once the first Milestone of any one of the Alternatives is achieved and the Installment Notice given by the Company to the Investor, then that Alternative shall be the sole schedule of Milestones to be achieved and investment required under the Agreement. If the first Milestone of any of the Alternatives is not achieved by its corresponding Target Date or any subsequent Milestone of the applicable Alternative is not achieved by its corresponding Target date, that date shall automatically be extended to the date that is three calendar months following the Target Date (the “Extended Target Date”), without any action by the Company or Investor. Thereafter, if the Milestone is not achieved by its corresponding Extended Target Date, the Company and Investor shall negotiate in good faith agreement on a new Target Date for the Milestone; provided, however, except as otherwise set forth in the following table or the notes thereto, if the Company and Investor are unable to reach agreement on a new Target Date for the Milestone within 30 days following the Extended Target Date, the Investor shall have no obligation to purchase any Shares with respect to that Milestone should it subsequently be achieved. The termination of the obligation of the Investor to purchase Shares in respect of a Milestone pursuant to this paragraph shall not affect in any way the obligation of the Investor to purchase Shares in respect of any other Milestone under the applicable Alternative.
The obligation of the Investors to purchase any of the Additional Commitment Shares not previously purchased under Section 2.2 shall terminate on September 30, 2011; provided, however, the Investors are obligated to purchase any such shares that are the subject of an Installment Notice given on or before that date, even though the Subsequent Closing Date is after.
3
4