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 27, 2019
Ohr
Pharmaceutical, Inc.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware
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333-88480
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46-5622433
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(State
or Other Jurisdiction
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(Commission
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(I.R.S.
Employer
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of
Incorporation)
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File
Number)
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Identification
No.)
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800
Third Avenue, 11
th
Floor, New York, NY
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10022
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(Address of Principal
Executive Offices)
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(Zip
Code)
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(212)
682-8452
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(Registrant's
Telephone Number, Including Area Code)
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Not
Applicable
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(Former
Name or Former Address, if Changed Since Last Report)
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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:
☒
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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☐
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Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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☐
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Pre-commencement
communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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☐
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Pre-commencement
communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities
registered pursuant to Section 12(b) of the Act:
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, par value $0.0001 per share
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OHRP
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Nasdaq
Capital Market
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Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17
CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
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. ☐
Item 1.01
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Entry into a Material Definitive Agreement.
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As
previously reported, on January 2, 2019, Ohr Pharmaceutical, Inc., a Delaware corporation (“
Ohr
” or the “
Company
”),
Ohr Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the Company (“
Merger Sub
”),
and NeuBase Therapeutics, Inc., a Delaware corporation (“
NeuBase
”), entered into an Agreement and Plan of Merger
and Reorganization (the “
Merger Agreement
”), pursuant to which, among other things, subject to the satisfaction
or waiver of the conditions set forth in the Merger Agreement, Merger Sub will merge with and into NeuBase, with NeuBase becoming
a wholly-owned subsidiary of the Company and the surviving corporation of the merger (the “
Merger
”).
On
June 27, 2019, the parties to the Merger Agreement executed that certain First Amendment to the Merger Agreement (the “
First
Amendment
”) to extend the date that Ohr or NeuBase may terminate the Merger Agreement from June 30, 2019 to August 31,
2019.
The
foregoing summary of the First Amendment does not purport to be complete and is subject to, and qualified in its entirety by reference
to, the full text of the First Amendment, a copy of which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
On
March 18, 2019, a lawsuit was filed by an alleged individual shareholder in the United States District Court for the Southern
District of New York against Ohr Pharmaceutical, Inc. (“
Ohr
”) and its board of directors, captioned
Gomez
v. Ohr Pharmaceutical, Inc., et al.
, Case No. 1:19-cv-02386 (the “
Gomez
Action
”), alleging that
the defendants violated federal securities laws by disseminating proxy materials that included allegedly material misstatements
or omissions in connection with a Form S-4 Registration Statement (the “
Registration Statement
”) filed by Ohr
with the U.S. Securities and Exchange Commission (“
SEC
”) on March 8, 2019. Subsequently, on March 20, 2019,
David Lowinger, an alleged stockholder of Ohr, filed a putative class action in the Delaware Court of Chancery, captioned
Lowinger
v. Ferguson, et al.
, Case No. 2019-0221-SG (the “
Lowinger
Action
”) against Ohr and its board members
alleging that the board of directors of Ohr had breached their fiduciary duties in connection with the acquisition of Ohr by NeuBase
Therapeutics, Inc. (“
NeuBase
”) and the disclosures made in the Registration Statement . Specifically, the Mr.
Lowinger sought additional disclosures to address the alleged deficiencies in the Registration Statement relating to the proposed
merger in connection with the stockholder vote thereupon and/or injunctive relief. On April 4, 2019, another putative class action
was filed in the United States District Court for the Southern District of New York asserting similar securities violations against
Ohr and its board of directors, captioned
Garaygordobil v. Ohr Pharmaceutical, Inc., et al.
, Case No. 1:19-cv-03006 (the
“
Garaygordobil
Action
”).
On
April 16, 2019, Defendants filed an amended Form S-4 Registration Statement with the SEC that addressed and mooted claims made
in the
Gomez
Action,
Lowinger
Action, and
Garaygordobil
Action regarding the sufficiency of the disclosures
in the Recommendation Statement, and further disclosed that the Company had waived the “don’t-ask-don’t-waive”
provisions of 25 standstill agreements that previously had been entered into with potential suitors to acquire the Company.
On
May 1, 2019, the Court of Chancery entered an order dismissing the
Lowinger
Action and retained jurisdiction solely for
the purpose of ruling on the plaintiff's anticipated application for an award of attorneys’ fees and reimbursement of expenses
related to all three actions. On May 17, 2019 and May 21, 2019, the plaintiffs in the
Gomez
Action and
Garaygordobil
Action each filed a notice of voluntary dismissal, dismissing those actions with prejudice as to the name plaintiff and, in
the
Garaygordobil
Action, without prejudice as to any claims by other putative class members. The parties subsequently
agreed to a payment by Ohr to plaintiffs’ counsel of $180,000 in full satisfaction of any claim for attorneys’ fees
and expenses in the
Gomez
Action,
Lowinger
Action, and
Garaygordobil
Action. Neither the Court of Chancery
nor the United States District Court for the Southern District of New York has been asked to review or approve this payment.
Special Meeting
As previously reported, on July 10,
2019 at 10:00 a.m. Eastern Time, Ohr will hold a special meeting of its stockholders to vote upon the Merger and related proposals
as set forth in the Company’s joint proxy statement/prospectus for the special meeting, dated June 6, 2019, a copy of which
has been provided to the Company’s stockholders of record as of June 3, 2019.
On July 3, 2019, the Company issued
a press release reminding its stockholders to vote “FOR” all of the proposals in connection with the Merger. A copy
of the press release is attached hereto as Exhibit 99.1 and is incorporated by reference herein.
Additional
Information about the Merger and Where to Find It
In
connection with the Merger, Ohr has filed with the SEC a registration statement on Form S-4 that contains a joint proxy statement/prospectus.
The registration statement was declared effective by the SEC on June 6, 2019. Investors and security holders of the Company and
NeuBase are urged to read these materials when they become available because they will contain important information about the
Company, NeuBase and the Merger. The joint proxy statement, information statement, prospectus, and other relevant materials (when
they become available), and any other documents filed by the Company with the SEC, may be obtained free of charge at the SEC web
site at www.sec.gov. In addition, investors and security holders may obtain free copies of the documents filed with the SEC by
the Company by directing a written request to: Ohr Pharmaceutical, Inc., 800 Third Avenue, 11th Floor, New York, NY, Attention:
Corporate Secretary. Investors and security holders are urged to read the joint proxy statement, prospectus and the other relevant
materials when they become available before making any voting or investment decision with respect to the Merger.
This
Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to sell or the solicitation of
an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation
or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering
of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933,
as amended. Subject to certain exceptions to be approved by the relevant regulators or certain facts to be ascertained, the public
offer will not be made directly or indirectly, in or into any jurisdiction where to do so would constitute a violation of the
laws of such jurisdiction, or by use of the mails or by any means or instrumentality (including without limitation, facsimile
transmission, telephone and the internet) of interstate or foreign commerce, or any facility of a national securities exchange,
of any such jurisdiction.
Participants
in the Solicitation
The
Company, its directors, executive officers and other employees and NeuBase, its directors, executive officers and other
employees may be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection
with the proposed transaction. Information regarding the special interests of these directors and executive officers in the
merger is included in the joint proxy statement/prospectus referred to above. Additional information regarding the directors
and executive officers of the Company is also included in the Company’s Annual Report on Form 10-K for the year
ended September 30, 2018 and the proxy statement for the Company’s 2018 Annual Meeting of Stockholders. These documents
are available free of charge at the SEC web site (
www.sec.gov
) and from the Company, Attn: Corporate Secretary, at
the address described above.
Safe
Harbor Statement under the Private Securities Litigation Reform Act of 1995:
This
Current Report on Form 8-K contains “forward-looking statements” within the meaning of the Private Securities Litigation
Reform Act. These forward-looking statements include, among other things, statements regarding the structure, timing and completion
of the proposed merger; the combined company's listing on Nasdaq upon the closing of the proposed merger; the financial position
and cash balance of the combined company; expectations regarding ownership structure of the combined company; expectations regarding
an issuance and sale of securities or other financing by NeuBase and the expected proceeds thereof, the future operations of the
combined company and its ability to successfully initiate and complete clinical trials and achieve regulatory milestones; the
nature, strategy and focus of the combined company; the development and commercial potential and potential benefits of any product
candidates of the combined company; that the proposed merger will close and will enable the combined company to participate in
the possible success of the combined company’s product candidates; that the product candidates have the potential to address
critical unmet needs of patients with serious diseases and conditions; and the executive and board structure of the combined company.
These forward-looking statements are distinguished by use of words such as “will,” “would,” “anticipate,”
“expect,” “believe,” “designed,” “plan,” or “intend,” the negative
of these terms, and similar references to future periods. These views involve risks and uncertainties that are difficult to predict
and, accordingly, our actual results may differ materially from the results discussed in our forward-looking statements. Our forward-looking
statements contained herein speak only as of the date of this Current Report on Form 8-K. Factors or events that we cannot predict,
including those described in the risk factors contained in our filings with the SEC, may cause our actual results to differ from
those expressed in forward-looking statements. Ohr and the combined company may not actually achieve the plans, carry out the
intentions or meet the expectations or projections disclosed in the forward-looking statements, and you should not place undue
reliance on these forward-looking statements. Because such statements deal with future events and are based on Ohr’s current
expectations, they are subject to various risks and uncertainties and actual results, performance or achievements of Ohr or the
combined company could differ materially from those described in or implied by the statements in this Current Report on Form 8-K,
including: the risk that the conditions to the closing of the transaction are not satisfied, including the failure to timely or
at all obtain stockholder approval for the transaction; uncertainties as to the timing of the consummation of the transaction
and the ability of each of Ohr and NeuBase to consummate the transaction; risks related to the combined company’s ability
to correctly manage its operating expenses and its expenses; risks related to the market price of Ohr’s common stock relative
to the exchange ratio; unexpected costs, charges or expenses resulting from the transaction; potential adverse reactions or changes
to business relationships resulting from the announcement or completion of the proposed merger transaction; the combined company’s
plans to develop and commercialize its product candidates, including NT0100 and NT0200; the timing of initiation of the combined
company’s planned clinical trials; the
timing of the availability of data from the combined company’s clinical trials; the timing of any planned investigational
new drug application or new drug application; the combined company’s plans to research, develop and commercialize its current
and future product candidates; the clinical utility, potential benefits and market acceptance of the combined company’s
product candidates; the combined company’s commercialization, marketing and manufacturing capabilities and strategy; the
combined company’s ability to protect its intellectual property position; and the requirement for additional capital to
continue to advance these product candidates, which may not be available on favorable terms or at all, as well as those risks
discussed under the heading “Risk Factors” in Ohr’s most recent Annual Report on Form 10-K, subsequent Quarterly
Reports on Form 10-Q, and in any subsequent filings with the SEC. Except as otherwise required by law, Ohr disclaims any intention
or obligation to update or revise any forward-looking statements, which speak only as of the date hereof, whether as a result
of new information, future events or circumstances or otherwise.
Item
9.01
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Financial
Statements and Exhibits.
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(d) Exhibits
Exhibit
Number
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Description
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2.1
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First
Amendment, dated as of June 27, 2019, to the Agreement and Plan of Merger and Reorganization, dated as of January 2, 2019,
by and among Ohr Pharmaceutical, Inc., Ohr Acquisition Corp. and NeuBase Therapeutics, Inc.
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99.1
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Press
Release dated July 3, 2019.
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SIGNATURE
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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OHR
PHARMACEUTICAL, INC
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(Registrant)
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Date: July 3, 2019
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By:
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/s/ Sam Backenroth
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Sam
Backenroth
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Chief
Financial Officer
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