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Form 8-K OMNI BIO PHARMACEUTICAL, For: Jun 23
June 25, 2015 6:05 AM
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):
June 23, 2015
Omni Bio Pharmaceutical, Inc.
(Exact name of registrant as specified in its charter)
Colorado
000-52530
20-8097969
(State or other jurisdiction of
incorporation or organization)
(Commission File Number)
(I.R.S. Employer
Identification No.)
181 W. Boardwalk Drive, Suite 202, Fort Collins CO
80525
(Address of principal executive offices)
(Zip Code)
(970) 237-5142
(Registrant’s telephone number, including area code)
(Former name or former 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:
??
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))
Item 1.01 Entry into a Material Definitive Agreement
The description set forth under Item 2.01 below is incorporated herein by reference.
Item 2.01 Completion of Acquisition or Disposition of Assets
On June 23, 2015, Omni Bio Pharmaceutical, Inc. (the “Company”) entered into an Assignment and Covenant Not to Sue; Assignment, Bill of Sale and Conveyance; and Patent Assignment (together, the “Assignment Agreements”) providing for the assignment of all of the Company’s remaining transferrable assets to the designee (Advent Bio Holdings, LLC) of its sole secured creditor, Bohemian Investments, LLC (“Bohemian”). These assets consist principally of patents co-owned by the Company, cell lines in frozen storage and related data reports, and the Company’s shares of stock in BioMimetix Pharmaceutical, Inc. Bohemian held a security interest in such assets pursuant to the Company’s Loan and Warrant Purchase Agreement dated April 24, 2014, as amended (the “Loan Agreement”). Pursuant to the Assignment Agreements, upon receipt of consent from the Regents of the University of Colorado (“RUC”) to the transfer of the Company’s patent licenses with RUC to Bohemian’s designee, the approximately $2.5 million in outstanding principal and interest owed by the Company to Bohemian under the Loan Agreement will be cancelled.
The foregoing description of the Assignment Agreements is qualified in its entirety by reference to exhibits 10.1, 10.2 and 10.3 to this Current Report on Form 8-K.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers
(a)(d) On June 23, 2015, John Riccardi was appointed to fill a vacant seat on the Company’s Board of Directors. All other members of the Company’s Board of Directors – Michael Kamarck, Albert Kramer, Sandra Wrobel, Michael Wort and Bruce Schneider – resigned effective June 24, 2015. Mr. Riccardi will serve on behalf of the Company to wind up any remaining administrative matters. Mr. Riccardi expects that an Indemnification Agreement dated as of June 24, 2015 between Mr. Riccardi and BOCO Investments, LLC, (“BOCO) will be executed wherein BOCO will indemnify Mr. Riccardi for potential liabilities associated with his actions as a director of the Company taken in good faith and reasonably believed to be in the best interests of the Company.
(b)
On June 16, 2015, Charles Dinarello resigned as the Company’s Chief Science Officer. On June 24, 2015, Bruce Schneider resigned from the as Chief Executive Officer and John Riccardi resigned as Chief Financial Officer.
Item 9.01 Exhibits
10.1 Assignment and Covenant Not to Sue dated June 23, 2015 between the Company and Bohemian Investments, Inc.
10.2 Assignment, Bill of Sale and Conveyance dated June 23, 2015 between the Company and Advent Bio Holdings, LLC
10.3 Patent Assignment dated June 23, 2015 between the Company and Advent Bio Holdings, LLC
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.
Omni Bio Pharmaceutical, Inc.
Date: June 24, 2015
By:
/s/ John F. Riccardi
John F. Riccardi
Chief Financial Officer
Exhibit 10.1
ASSIGNMENT AGREEMENT AND COVENANT NOT TO SUE
This Assignment Agreement and Covenant Not To Sue (the “Agreement”) is made as of the date set forth on the signature page hereto in Denver, Colorado by and between Omni Bio Pharmaceutical, Inc., a publicly traded Colorado corporation (the “Company”) and Bohemian Investments, LLC, a Colorado limited liability company (“Bohemian”). The Company and Bohemian are sometimes hereinafter referred to collectively as the “Parties”.
Recitals
A. Whereas, Bohemian is a secured creditor of the Company having loaned to the Company the total principal amount of $2,300,000.00 pursuant to a senior secured promissory note, as amended (the “Note”). The Note has accrued interest of more than $205,155.00 (the Note and accrued interest, collectively, the “Debt”); and,
B. Whereas, Bohemian has a senior security interest in all of the assets of the Company as set forth in the Loan and Warrant Purchase Agreement, as amended, pursuant to which the Note, as amended, was issued and as further set forth in Exhibit A hereto (the “Assets”); and,
C. Whereas, the Company has been unsuccessful in its fundraising and partnering/licensing efforts and does not anticipate being able to raise sufficient capital to continue operations; and,
D. Whereas, Bohemian is the largest creditor of the Company, and the Company does not have sufficient cash assets to pay the Note; and,
E. Whereas, the Company desires to discharge the Debt by assigning to Bohemian, or its designee, the Assets without recourse, warranty or representation, on an “as is, where is basis” (the “Assignment”); and,
F. Whereas, Bohemian desires to accept delivery of the Assets, discharge the Debt, release its lien against the Company, as provided herein.
NOW THEREFORE, for the following bargained for consideration, including the agreements set forth below, the receipt and sufficiency of which the Parties hereby acknowledge as good and sufficient consideration;
The Parties hereby agree as follows:
1. The facts, circumstances, and transactions recounted in recital paragraphs A through F, inclusive, are true and correct.
2. On the date this Agreement is executed, the Company shall assign to Advent Bio Holdings LLC (“Advent”), Bohemian’s designee, the Assets in forms substantially similar to Exhibits A and B to this Agreement (the “Assignment”). The Company makes no representation or warranty with respect to the Assets, other than as expressly set forth in the Assignment, which is made without recourse. The Company shall cooperate with Bohemian to complete the legally enforceable Assignment to Advent. The Company shall execute whatever additional documents or instruments Advent or Bohemian reasonably require to perfect such Assignment; provided, however, the Company and its officers, directors or employees shall not be required to expend any monies or undertake or perform any act to enhance or otherwise add value to the Assets upon completion of the Assignment.
3. The Assignment shall be effective upon execution by the Parties with respect to all Assets other than the Licenses (as defined in Exhibit A). On the date of the Assignment, Bohemian shall deliver the original Note to Fox Rothschild LLP, c/o Heather Badami, to be held in escrow (the “Escrow Agent”). If the Escrow Agent receives a written consent from the University of Colorado to the Assignment of the Licenses (as defined in Exhibit A) (the “Consent”) prior to the date which is six months from the date of the Assignment, (i) the Note shall be marked “Paid in Full”, (ii) the Debt shall be permanently discharged, and (iii) the Assignment of the Licenses shall be effective upon the date of the Consent. If the Escrow Agent does not receive the Consent prior to the date which is six months from the date of the Assignment, or prior to such six months receives written notice from the University of Colorado that the Consent will not be provided under any circumstances (a “Notice”), (i) the Note shall be released from escrow and delivered to Bohemian, (ii) the Debt shall not be discharged, and (iii) the Licenses shall not be included in the Assignment to Advent. Notwithstanding the foregoing, from the date of this Assignment, Advent undertakes to perform all of the Company’s obligations under the Licenses (including but not limited to making payments thereunder) until the Assignment or, if earlier, receipt of the Notice.
4. Bohemian shall execute whatever additional documents the Company reasonably requests so that the Debt can be discharged and the lien on the Assets released in accordance with the terms of this Agreement.
5. Bohemian declares and represents that no promise, inducement nor agreement, not otherwise stated herein, has been made to them with respect to the Assignment other than as set forth in this Agreement. This Agreement contains the entire agreement between the Parties.
6. As consideration for the effective assignment of the Assets, the Parties, each on behalf of themselves and on behalf of the respective heirs, legal representatives, officers, directors, managers, shareholders, members, agents, parents, successors, and assigns promise not to sue or proceed in any manner, in agency or other proceedings, whether at law, in equity, by way of administrative hearing, or otherwise, to solicit others to institute any such actions or proceedings, or consent to be a complainant in any criminal action or proceeding, against the other party and its respective heirs, legal representatives, officers, directors, managers, shareholders, members, agents, parents, successors and assigns, because of or arising out of the Debt and any events, actions or inactions related thereto, including (but not limited to) the Assignment, occurring on or before the date the Assignment becomes effective.
7. This Agreement and its reduction to final written form is the result of good faith negotiations between the Parties and their respective counsel. This Agreement, together with its Exhibits, shall be considered a total integration of the Parties’ negotiations and understandings. This Agreement is the product of mutual negotiation and drafting, any ambiguities remaining herein shall not be construed against any party. In the event of any disputes concerning this Agreement the Parties agree to submit to the jurisdiction of the District Court of Jefferson County, the State of Colorado. This Agreement shall be governed by the laws of the State of Colorado both as to interpretation and performance. The prevailing party in any litigation to enforce this Agreement shall be awarded their reasonable attorneys’ fees and all related costs.
8. The provisions of this Agreement are severable and if any provision is declared illegal, unenforceable or void, the remaining provisions shall remain in full force and effect.
9. This Agreement may be executed in counterparts, and by facsimile, e-mail, or image; each counterpart shall constitute an original and the counterparts, when taken together, will have the same force and effect as if the Agreement was executed by the parties without counterparts.
10. The Parties acknowledge and state that they have carefully read this entire Agreement, have consulted with their attorneys concerning this Agreement, and have been fully and completely advised concerning the contents of this Agreement and had sufficient opportunity to investigate and review the Assets and the terms of this Agreement. There are no other promises, understandings, representations, warranties, covenants, or agreements, verbal or otherwise, in relation to the subject matter of this Agreement between the Parties, except as expressly set forth in this Agreement.
11. Each Party covenants and represents that it is fully authorized to enter into this Agreement and to carry out the obligations provided for in this Agreement. Where a person has executed this Agreement on behalf of a Party, that person covenants, warrants, and represents that he or she is authorized to do so by that Party.
12. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assigns.
13. This Agreement shall not be altered, amended, modified, or otherwise changed except by a writing duly signed by the Parties.
14. The Parties acknowledge that they shall be solely responsible for their own respective legal fees and expenses including legal fees and expenses incurred in the negotiation, execution, and performance of this Agreement.
DATED this 23rd day of June, 2015.
COMPANY:
Omni Bio Pharmaceutical, Inc.,
a publicly traded Colorado corporation
By: /s/ Bruce E. Schneider
Name: Bruce E. Schneider
Its: Chief Executive Officer
BOHEMIAN:
Bohemian Investments, LLC,
a Colorado limited liability company
By: /s/ Joseph C. Zimlich
Name: Joseph C. Zimlich
Its: Managing Member, Sole Member, BOCO Holdings, LLC
Exhibit 10.2
ASSIGNMENT, BILL OF SALE AND CONVEYANCE
KNOW ALL MEN BY THESE PRESENTS:
This ASSIGNMENT, BILL OF SALE AND CONVEYANCE (this “Assignment”) is made effective 7:00 A.M. Mountain Time on the ____ day of June 2015 (“Effective Date”), by and between Omni Bio Pharmaceutical, Inc., a Colorado corporation (the “Assignor”), and Advent Bio Holdings, LLC, a Colorado limited liability company (the “Assignee”), each, a “Party,” and collectively, the “Parties.”
For and in consideration of TEN DOLLARS ($10.00), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Assignor hereby grants, bargains conveys, sells, assigns, and transfers unto the Assignee all of the Assignor’s right, title and interest in and to the assets of the Company described on Schedule A, attached hereto and incorporated herein (the “Assets”).
1.
Assignee acknowledges that it has conducted its own investigation and inspection of the Assets and further acknowledges that Assignor is assigning the Assets in an “AS IS, WHERE IS” condition. Assignee acknowledges that Assignor has not made any representations or given any warranties with respect to Assets.
This Assignment is made without recourse.
2.
This Assignment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The terms, covenants and conditions hereof shall be binding upon and shall inure to the benefit of Assignor and Assignee and their respective successors and assigns.
3.
This Assignment is made subject to the terms and conditions of all agreements which affect the Assets, including, but not limited to, the terms and conditions of the Assignment Agreement entered into between the Parties on the date of this Assignment (the “Assignment Agreement”).
TO HAVE AND TO HOLD all right, title and interest of Assignor in and to the Assets unto Assignee forever.
[INTENTIONALLY LEFT BLANK – SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the Assignor hereunto has executed this Assignment upon the date indicated below.
STATE OF PENNSYLVANIA)
CITY OF ) ss.
COUNTY OF )
ASSIGNOR: OMNI BIO PHARMACEUTICALS, INC.
Dated: June 23, 2015
/s/ Bruce E. Schneider
(signature)
Place: West Chester, PA
By: Bruce E. Schneider
(printed name of authorized agent of assignor)
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