UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
13D
Under the Securities Exchange Act of
1934
(Amendment No. 6)*
|
BioDrain
Medical, Inc.
|
|
(Name of Issuer)
|
|
Common Stock, par value $0.01 per share
|
|
(Title of Class of Securities)
|
SOK Partners, LLC
122 Willow Street
Brooklyn, New York 11217
Attn: Dr. Samuel Herschkowitz
(718) 624-6277
with copies to:
Goodwin Procter
llp
620 Eighth Avenue
New York, New York 10018
Attn: Jeffrey A. Legault, Esq.
(212) 813-8800
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
|
August 15, 2012
|
|
(Date of Event Which Requires Filing of This Statement)
|
If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d
1(e), 240.13d 1(f) or 240.13d 1(g), check the following box:
¨
Note:
Schedules filed in paper format shall include a
signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are
to be sent.
*The remainder of this cover page shall
be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for
any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”)
or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
|
1
|
NAME OF REPORTING PERSON:
SAMUEL HERSCHKOWITZ
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
(a)
¨
(b)
x
|
|
3
|
SEC USE ONLY:
|
|
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS):
PF, OO
|
|
5
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
¨
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
|
7
|
SOLE VOTING POWER
41,983,411
|
|
8
|
SHARED VOTING POWER
49,579,695
|
|
9
|
SOLE DISPOSITIVE POWER
41,983,411
|
|
10
|
SHARED DISPOSITIVE POWER
49,579,695
|
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
97,863,106
|
|
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
¨
|
|
13
|
PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
66.9%
1
|
|
14
|
TYPE OF REPORTING PERSON
IN
|
1
Calculated based upon 146,296,444 shares of the
Issuer’s common stock outstanding, which include (i) 67,316,108 shares of common stock outstanding as of August 13, 2012,
as reported by the Issuer in its Form 10-Q filed on August 14, 2012, (ii) the 19,381,411 shares of common stock issuable upon
the conversion of the outstanding principal amount and accrued interest under the First Note, as more fully described in Item
3 below, (iii) the 27,098,925 shares of common stock issuable upon conversion of the current outstanding principal amount and
accrued interest under the Grid Note, as more fully described in Item 3 below, (iv) the 6,000,000 shares of common stock issuable
upon the exercise of Mr. Kornberg’s options granted under the CEO Employment Agreement, as more fully described in Item
3 below, (v) the 13,250,000 shares of common stock issuable to Dr. Herschkowitz pursuant to the Forbearance Agreement, as more
fully described in Item 3 below, and (vi) the 13,250,000 shares of common stock issuable to SOK Partners LLC pursuant to the Forbearance
Agreement, as more fully described in Item 3 below.
|
1
|
NAME OF REPORTING PERSON:
JOSHUA KORNBERG
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
(a)
¨
(b)
x
|
|
3
|
SEC USE ONLY:
|
|
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS):
OO
|
|
5
|
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
¨
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
|
7
|
SOLE VOTING POWER
6,300,000
|
|
8
|
SHARED VOTING POWER
49,579,695
|
|
9
|
SOLE DISPOSITIVE POWER
6,300,000
|
|
10
|
SHARED DISPOSITIVE POWER
49,579,695
|
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
97,863,106
|
|
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
¨
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.9%
2
|
|
14
|
TYPE OF REPORTING PERSON
IN
|
2
See Footnote 1.
|
1
|
NAME OF REPORTING PERSON:
SOK PARTNERS, LLC
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
(a)
¨
(b)
x
|
|
3
|
SEC USE ONLY:
|
|
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS):
WC, OO
|
|
5
|
CHECK IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
¨
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
NEW JERSEY
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
|
7
|
SOLE VOTING POWER
49,579,695
|
|
8
|
SHARED VOTING POWER
0
|
|
9
|
SOLE DISPOSITIVE POWER
49,579,695
|
|
10
|
SHARED DISPOSITIVE POWER
0
|
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
97,863,106
|
|
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
¨
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.9%
3
|
|
14
|
TYPE OF REPORTING PERSON
OO
|
3
See Footnote 1.
|
1
|
NAME OF REPORTING PERSON:
ATLANTIC PARTNERS ALLIANCE LLC
|
|
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):
(a)
¨
(b)
x
|
|
3
|
SEC USE ONLY:
|
|
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS):
OO
|
|
5
|
CHECK IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
¨
|
|
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
|
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON WITH
|
7
|
SOLE VOTING POWER
0
|
|
8
|
SHARED VOTING POWER
49,579,695
|
|
9
|
SOLE DISPOSITIVE POWER
0
|
|
10
|
SHARED DISPOSITIVE POWER
49,579,695
|
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
97,863,106
|
|
12
|
CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
¨
|
|
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
66.9%
4
|
|
14
|
TYPE OF REPORTING PERSON
OO
|
4
See Footnote 1.
This Amendment
No. 6 is filed by Samuel Herschkowitz, Joshua Kornberg, SOK Partners, LLC and Atlantic Partners Alliance LLC (collectively, the
“Reporting Persons”), and amends and supplements the statement on Schedule 13D (the “Statement”) originally
filed by the Reporting Persons with the Securities and Exchange Commission (the “SEC”) on April 6, 2012, Amendment
No. 1 thereto filed with the SEC on April 17, 2012, Amendment No. 2 thereto filed with the SEC on April 24, 2012, Amendment No.
3 thereto filed with the SEC on May 17, 2012, Amendment No. 4 thereto filed with the SEC on June 7, 2012, and Amendment No. 5 thereto
filed with the SEC on August 15, 2012, with respect to the common stock, par value $0.01 per share (the “Shares”),
of BioDrain Medical, Inc., a Minnesota corporation (the “Issuer”). All references herein to the Statement or terms
of similar import shall be deemed to refer to the Statement as amended and supplemented by Amendment No. 1 thereto, Amendment No.
2 thereto, Amendment No. 3 thereto, Amendment No. 4 thereto, Amendment No. 5 thereto, and hereby.
Except as specifically provided herein, this
Amendment No. 6 does not modify any of the information previously reported in the Statement, and unless otherwise indicated, each
capitalized term used but not defined herein shall have the meaning assigned to such term in the Statement.
The Reporting Persons previously entered
into the Joint Filing Agreement, a copy of which was filed as Exhibit 99.1 to the Statement, and which is incorporated herein by
reference thereto.
Neither the fact of this filing nor anything
contained herein shall be deemed an admission by the Reporting Persons that they constitute a “group” as such term
is used in Section 13(d)(1)(k) of the rules and regulations under the Act.
Item
1.
Security and Issuer.
Response unchanged.
Item
2.
Identity and Background.
Response unchanged.
Item
3.
Source and Amount of Funds or Other Consideration.
Item 3 is hereby amended and replaced in
its entirety as follows:
Mr. Kornberg was issued 300,000 Shares
on or about March 9, 2012 pursuant to a Letter Agreement, dated as of March 13, 2012, between Mr. Kornberg and the
Issuer (the “March 13 Letter Agreement”), as compensation for services rendered to the Issuer. On August 13, 2012,
Mr. Kornberg and the Issuer entered into an Employment Agreement (the “CEO Employment Agreement”) pursuant to which
Mr. Kornberg was granted options to purchase 6,000,000 Shares at an exercise price of $0.08 per Share. Such options were fully
vested upon the grant date and expire ten years following such grant date. Mr. Kornberg may be deemed to beneficially own (as such
term is defined in Rule 13d-3 under the Act) the 6,000,000 Shares issuable upon exercise of such options.
Pursuant to the terms of an Amended and Restated
Note Purchase Agreement, dated as of December 20, 2011, between Dr. Herschkowitz and the Issuer (the “First Note
Purchase Agreement”), in exchange for a loan in cash in the amount of $240,000 from Dr. Herschkowitz to the Issuer,
the Issuer issued to Dr. Herschkowitz a Convertible Promissory Note (the “First Note”), dated December 20,
2011, in the original principal amount of $240,000. The First Note is convertible, in part or in full and at any time during which
the First Note remains outstanding, into a number of Shares equal to the outstanding principal amount of, and accrued interest
under, the First Note divided by $0.014 per Share, subject to adjustment for certain events. On August 15, 2012, the conversion
price under the First Note was adjusted from $0.065 per Share to $0.014 per Share pursuant to the Forbearance Agreement (as defined
below).
As long as any amount payable under the First
Note remains outstanding, Dr. Herschkowitz or his designee is entitled to appoint a special advisor to the Issuer’s
board of directors, who will be appointed as a member of the Board upon request. Pursuant to this authority, Josh Kornberg
was appointed to the Board on March 9, 2012. Under the First Note Purchase Agreement, Dr. Herschkowitz may be entitled
to receive additional Shares as compensation for the attendance by his nominee at board of directors meetings, should he elect
to receive such compensation in Shares in lieu of cash.
Pursuant to the First Note Purchase Agreement,
the Issuer has issued to Dr. Herschkowitz an equity bonus consisting of 1,600,000 Shares. An additional 7,500,000 Shares were
issued to Dr. Herschkowitz as a penalty upon the occurrence of an event of default under the First Note.
As of the date hereof, the outstanding principal
amount under the First Note is convertible into 17,142,857 Shares. In addition, the accrued interest under the First Note of $31,339.73
as of the date hereof is convertible into 2,238,554 Shares. Dr. Herschkowitz used available personal funds to acquire the
First Note from the Issuer.
Pursuant to the terms of a Note Purchase
Agreement, dated as of March 28, 2012, between SOK Partners, LLC (“SOK Partners”) and the Issuer (the “SOK
Note Purchase Agreement”), in exchange for a loan in cash of up to $600,000 from SOK Partners to the Issuer, the Issuer issued
to SOK Partners a Convertible Promissory Grid Note (the “Grid Note”), dated March 28, 2012, in the original principal
amount of up to $600,000. The Grid Note is convertible, in part or in full and at any time during which the Grid Note remains outstanding,
into a number of Shares equal to the outstanding principal amount of, and accrued interest under, the Grid Note divided by $0.014,
subject to adjustment for certain events. On August 15, 2012, the conversion price under the Grid Note was adjusted from $0.065
per Share to $0.014 per Share pursuant to the Forbearance Agreement (as defined below).
As of the date hereof, the outstanding principal
amount under the Grid Note is $357,282 and is convertible into 25,520,143 Shares. In addition, the accrued interest under the Grid
Note of $22,102.95 as of the date hereof is convertible into 1,578,782 Shares. SOK Partners used its working capital to acquire
the Grid Note from the Issuer.
As long as any amount payable under the Grid
Note remains outstanding, SOK Partners or its designee is entitled to appoint a special advisor to the Issuer’s board of
directors, who will be appointed as a member of the board upon request. In addition, the Issuer is required to issue two installments
of an equity bonus to SOK Partners in the form of Shares valued at the rate of $0.065 per Share. The Issuer has issued to SOK Partners
such two installments, in each case consisting of 4,615,385 Shares per installment.
Until the maturity date of the Grid Note,
if the Issuer obtains financing from any other source without the consent of SOK Partners, then the Issuer is required to issue
additional bonus equity with an aggregate value of $600,000 (assuming a value per Share of $0.014) less the aggregate advances
under the Grid Note made prior to such time.
On August 15, 2012, the Issuer entered into
a letter agreement (the “Forbearance Agreement”) with Dr. Herschkowitz (both on his own behalf and on behalf of Atlantic
Partners) and SOK Partners pursuant to which Dr. Herschkowitz and SOK Partners agreed to (i) forbear from enforcing their rights
under the First Note and the Grid Note in connection with certain events of default thereunder, (ii) terminate the Anti-Dilution
Agreement (as defined in Item 6 below) and (iii) extend the maturity date of each of the First Note and the Grid Note to December
31, 2012. In consideration of such agreements, the Issuer agreed to (x) issue to each of Dr. Herschkowitz and SOK Partners on the
date of the Forbearance Agreement 13,250,000 Shares and (y) adjust the conversion price under each of the First Note and the Grid
Note to $0.014 per Share.
The foregoing descriptions of the March 13
Letter Agreement, the First Note Purchase Agreement, the First Note, the SOK Note Purchase Agreement, the Grid Note and the Settlement
Agreement do not purport to be complete and are qualified in their entirety by reference to such agreements. A copy of the March 13
Letter Agreement, attached as Exhibit 99.2 hereto, is incorporated herein by reference. A copy of the First Note Purchase
Agreement and form of First Note, listed as Exhibit 99.3 hereto, is incorporated herein by reference to Exhibit 10.24
to the Issuer’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”)
on April 3, 2012. A copy of the SOK Note Purchase Agreement and the form of Grid Note, listed as Exhibit 99.4 hereto,
is incorporated herein by reference to Exhibit 10.23 to the Issuer’s Current Report on Form 8-K filed with the SEC on
April 3, 2012. A copy of the Forbearance Agreement, attached as Exhibit 99.8 hereto, is incorporated herein by reference.
Item
4. Purpose of Transaction.
Item 4 is hereby amended and replaced in its
entirety as follows:
The information set forth in Items 3 and 6
of this Statement is incorporated herein by reference.
Pursuant to the First Note Purchase Agreement,
Mr. Kornberg is a member of the Issuer’s board of directors. Mr. Kornberg is also President and Chief Executive Officer of
the Issuer.
The transactions contemplated by the March
13 Letter Agreement, the First Note Purchase Agreement, the First Note, the SOK Note Purchase Agreement, the Grid Note and the
Forbearance Agreement have resulted in, or will result in, as applicable, certain actions specified in Items 4(a) through (j) of
Schedule 13D, including the acquisition by any person of additional securities of the Issuer. On an ongoing basis, the Reporting
Persons will review the Issuer’s operating, management, business affairs, capital needs and general industry and economic
conditions, and, based on such review, the Reporting Persons may, from time to time, determine to increase or decrease such Reporting
Persons’ ownership of Shares, vote to approve an extraordinary corporate transaction with regard to the Issuer or engage
in any of the events set forth in Items 4(a) through (j) of Schedule 13D.
The Reporting Persons intend to encourage
the Issuer to explore various strategic alternatives with the objective of raising additional capital for the Issuer, which may
include a merger with another company which already possesses the necessary additional capital.
Item
5.
Interest in Securities of the Issuer.
Item 5 is hereby amended and replaced in its
entirety as follows:
(a)
The Reporting Persons may be deemed to beneficially
own (as such term is defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Act”)), in the
aggregate, 97,863,106 Shares (including Shares issuable upon the conversion of the amounts outstanding under the First Note and
the Grid Note), representing approximately 66.9% of the outstanding Shares (calculated based upon 146,296,444 Shares outstanding,
which include (i) 67,316,108 Shares outstanding as of August 13, 2012, as reported by the Issuer in its Form 10-Q filed on August
14, 2012, (ii) the 19,381,411 Shares issuable upon the conversion of the outstanding principal amount and accrued interest under
the First Note, as more fully described in Item 3 above, (iii) the 27,098,925 Shares issuable upon conversion of the current outstanding
principal amount and accrued interest under the Grid Note, as more fully described in Item 3 above, (iv) the 6,000,000 Shares issuable
upon the exercise of Mr. Kornberg’s options granted under the CEO Employment Agreement, as more fully described in Item 3
above, (v) the 13,250,000 Shares issuable to Dr. Herschkowitz pursuant to the Forbearance Agreement, as more fully described in
Item 3 above, and (vi) the 13,250,000 Shares issuable to SOK Partners pursuant to the Forbearance Agreement, as more fully described
in Item 3 above.).
(b)
Dr. Herschkowitz is the record holder of 9,352,000
Shares, may be deemed to beneficially own (as such term is defined in Rule 13d-3 under the Act) the 19,381,411 Shares issuable
upon the conversion of the aggregate outstanding principal amount and accrued interest of $271,339.73 under the First Note and
the 13,250,000 Shares issuable to him pursuant to the Forbearance Agreement (in each case as described in Item 3 above), and has
sole voting power and sole dispositive power with respect to all of such Shares. Dr. Herschkowitz, by virtue of his relationship
with SOK Partners, Atlantic Partners and Mr. Kornberg as described in Item 2 above, may be deemed to beneficially own (as such
term is defined in Rule 13d-3 under the Act) the 9,230,770 Shares which SOK Partners directly beneficially owns, the 27,098,925
Shares issuable to SOK Partners upon the conversion of the currently aggregate outstanding principal amount and accrued interest
of $379,384.95 under the Grid Note (as described in Item 3 above), the 13,250,000 Shares issuable to SOK Partners pursuant to the
Forbearance Agreement, the 300,000 Shares which Joshua Kornberg directly beneficially owns, and the 6,000,000 Shares issuable to
Mr. Kornberg upon the exercise of options granted under the CEO Employment Agreement, which Mr. Kornberg may be deemed to beneficially
own (as such term is defined in Rule 13d-3 under the Act). Because he is one of the two members of Atlantic Partners, Dr. Herschkowitz
may be deemed to have shared voting power and shared dispositive power with Mr. Kornberg with respect to the 9,230,770 Shares which
SOK Partners directly beneficially owns, the 27,098,925 Shares issuable to SOK Partners upon the conversion of the aggregate outstanding
principal amount and accrued interest of $379,384.95 under the Grid Note (as described in Item 3 above), and the 13,250,000
Shares issuable to SOK Partners pursuant to the Forbearance Agreement (as described in Item 3 above).
Mr. Kornberg is the record holder of 300,000
Shares and has sole voting power and sole dispositive power with respect to all of such Shares. Mr. Kornberg may also be deemed
to beneficially own (as such term is defined in Rule 13d-3 under the Act) the 6,000,000 Shares issuable upon the exercise of Mr.
Kornberg’s stock options granted under the CEO Employment Agreement. Mr. Kornberg, by virtue of his relationship with SOK
Partners, Atlantic Partners and Dr. Herschkowitz as described in Item 2 above, may be deemed to beneficially own (as such term
is defined in Rule 13d-3 under the Act) the 9,230,770 Shares which SOK Partners directly beneficially owns, the 27,098,925 Shares
issuable to SOK Partners upon the conversion of the aggregate outstanding principal amount and accrued interest of $379,384.95
under the Grid Note (as described in Item 3 above), the 9,352,000 Shares which Dr. Herschkowitz directly beneficially owns, and
the 19,381,411 Shares issuable to Dr. Herschkowitz upon the conversion of the aggregate outstanding principal amount and accrued
interest of $271,339.73 under the First Note (as described in Item 3 above), the 13,250,000 Shares issuable to Dr. Herschkowitz
pursuant to the Forbearance Agreement (as described in Item 3 above), and the 13,250,000 Shares issuable to SOK Partners pursuant
to the Forbearance Agreement (as described in Item 3 above). Because he is one of the two members of Atlantic Partners, Mr. Kornberg
may be deemed to have shared voting power and shared dispositive power with Dr. Herschkowitz with respect to the 9,230,770 Shares
which SOK Partners directly beneficially owns, the 27,098,925 Shares issuable to SOK Partners upon the conversion of the aggregate
outstanding principal amount and accrued interest of $379,384.95 under the Grid Note (as described in Item 3 above), and the 13,250,000
Shares issuable to SOK Partners pursuant to the Forbearance Agreement (as described in Item 3 above).
SOK Partners is the record holder of 9,230,770
Shares, may be deemed to beneficially own (as such term is defined in Rule 13d-3 under the Act) the 27,098,925 Shares issuable
to SOK Partners upon the conversion of the aggregate outstanding principal amount and accrued interest of $379,384.95 under the
Grid Note (as described in Item 3 above) and the 13,250,000 Shares issuable to SOK Partners pursuant to the Forbearance Agreement
(as described in Item 3 above), and has sole voting power and sole dispositive power with respect to all of such Shares. SOK Partners,
by virtue of its relationship with Dr. Herschkowitz and Mr. Kornberg as described in Item 2 above, may be deemed to beneficially
own (as such term is defined in Rule 13d-3 under the Act) the 9,352,000 Shares which Dr. Herschkowitz directly beneficially owns,
the 19,381,411 Shares issuable to Dr. Herschkowitz upon the conversion of the aggregate outstanding principal amount and accrued
interest of $271,339.73 under the First Note (as described in Item 3 above), the 13,250,000 Shares issuable to Dr. Herschkowitz
pursuant to the Forbearance Agreement (as described in Item 3 above), the 300,000 Shares which Mr. Kornberg directly beneficially
owns, the 6,000,000 Shares issuable to Mr. Kornberg upon the exercise of options granted under the CEO Employment Agreement, which
Mr. Kornberg may be deemed to beneficially own (as such term is defined in Rule 13d-3 under the Act).
Atlantic Partners is not the record holder
of any Shares. By virtue of its being the sole member of SOK Partners, Atlantic Partners may be deemed to beneficially own (as
such term is defined in Rule 13d-3 under the Act) the 9,230,770 Shares which SOK Partners directly beneficially owns, the 27,098,925
Shares issuable to SOK Partners upon the conversion of the aggregate outstanding principal amount and accrued interest of $379,384.95
under Grid Note (as described in Item 3 above), and the 13,250,000 Shares issuable to SOK Partners pursuant to the Forbearance
Agreement (as described in Item 3 above). Because Dr. Herschkowitz and Dr. Kornberg are the two members of Atlantic Partners, Atlantic
Partners may be deemed to beneficially own (as such term is defined in Rule 13d-3 under the Act) the 9,352,000 Shares which Dr.
Herschkowitz directly beneficially owns, the 19,381,411 Shares issuable to Dr. Herschkowitz upon the conversion of the aggregate
outstanding principal amount and accrued interest of $271,339.73 under the First Note (as described in Item 3 above), the 13,250,000
Shares issuable to Dr. Herschkowitz pursuant to the Forbearance Agreement (as described in Item 3 above), the 300,000 Shares which
Mr. Kornberg directly beneficially owns, and the 6,000,000 Shares issuable to Mr. Kornberg upon the exercise of options granted
under the CEO Employment Agreement, which Mr. Kornberg may be deemed to beneficially own (as such term is defined in Rule 13d-3
under the Act).
As of the date hereof, none of the Reporting
Persons owns any Shares other than the Shares described in this Statement.
(c)
The information set forth in Item
3 of this Statement is incorporated herein by reference.
Item
6.
Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
Item 6 is hereby amended and replaced in its
entirety with the following:
The information set forth in Items 3 and 4
of this Statement is incorporated herein by reference.
Pursuant to Rule 13-d1(k) promulgated under
the Act, the Reporting Persons have entered into a Joint Filing Agreement, a copy of which is filed with this Schedule 13D as Exhibit
99.1, with respect to the joint filing of this Schedule 13D and any amendment or amendments thereto.
Pursuant to a letter agreement, dated March
14, 2012, between the Issuer and Atlantic Partners (the “Anti-Dilution Agreement”), Atlantic Partners was granted certain
anti-dilution rights with respect to Shares in the event that the Issuer issues Shares to an person other than Atlantic Partners
or its affiliates within 120 days of March 14, 2012. The Anti-Dilution Letter was terminated on August 15, 2012 pursuant to the
Forbearance Agreement.
SOK Partners and Dr. Herschkowitz are parties
to a Letter Agreement dated March 28, 2012 (the “March 28 Letter Agreement”) pursuant to which, among other things,
SOK Partners and Dr. Herschkowitz have agreed that payment of any and all indebtedness (together with the security interests related
thereto) under the SOK Note Purchase Agreement and the Grid Note are subordinate to the prior payment in full of all of the indebtedness
(and related security interests) under the First Note Purchase Agreement and the First Note. In addition, Dr. Herschkowitz agreed
that, should SOK Partners exercise its conversion rights under the Grid Note, then he will exercise his conversion right to convert
a pro rata portion of the indebtedness under the First Note.
On August 13, 2012, Mr. Kornberg and the Issuer
entered into the CEO Employment Agreement, pursuant to which Mr. Kornberg was granted options to purchase 6,000,000 Shares at an
exercise price of $0.08 per Share. Such options were fully vested upon the grant date and expire ten years following such grant
date. Under the CEO Employment Agreement, Mr. Kornberg will also receive annual equity incentive grants (stock options, restricted
stock or other stock-based awards) with respect to each calendar year ending during the term. The target aggregate grant date fair
value of each annual grant will be 200% of his base salary, subject to increase. Each annual grant will vest in the amounts of
50%, 25% and 25% on the first, second and third anniversaries of the grant date, respectively.
On August 10, Dr. Herschkowitz loaned the
amount of $51,243 to the Issuer in order to allow the Issuer to repay some outstanding secured indebtedness. It is anticipated
that Dr. Herschkowitz and the Issuer will enter into a Note Purchase Agreement in connection with such loan, and that such Note
Purchase Agreement will provide that an equity bonus consisting of a number of Shares approximating the market value of such loan
will be issued to Dr. Herschkowitz, but the terms of such Note Purchase Agreement have not yet been finalized.
The foregoing descriptions of the Anti-Dilution
Agreement, the March 28 Letter Agreement and the CEO Employment Agreement do not purport to be complete and are qualified in their
entirety by reference to such agreements. A copy of the Anti-Dilution Agreement, attached as Exhibit 99.5 hereto, is incorporated
herein by reference. A copy of the March 28 Letter Agreement, attached as Exhibit 99.6 hereto, is incorporated herein by reference.
A copy of the CEO Employment Agreement, attached as Exhibit 99.7 hereto, is incorporated herein by reference.
Item
7.
Material to be Filed as Exhibits.
Item 7 is hereby supplemented by the following:
Exhibit 99.7 Employment Agreement, dated
as of August 13, 2012, between BioDrain Medical, Inc. and Joshua Kornberg
Exhibit 99.8 Letter Agreement, dated August
15, 2012, among BioDrain Medical, Inc., Dr. Samuel Herschkowitz and SOK Partners, LLC
SIGNATURES
After reasonable inquiry and to the best
of its knowledge and belief, the undersigned certifies that the information set forth in this Statement is true, complete and correct.
Dated: August 20, 2012
|
|
SAMUEL HERSCHKOWITZ
|
|
|
|
|
|
/s/ Samuel Herschkowitz
|
|
|
Samuel Herschkowitz
|
|
|
|
|
|
JOSHUA KORNBERG
|
|
|
|
|
|
/s/ Joshua Kornberg
|
|
|
Joshua Kornberg
|
|
|
SOK PARTNERS, LLC
|
|
|
|
|
|
By: Atlantic Partners Alliance LLC, its sole member
|
|
|
|
|
|
By:
|
/s/ Samuel Herschkowitz
|
|
|
|
Name: Samuel Herschkowitz
|
|
|
|
Title: President
|
|
|
|
|
|
ATLANTIC PARTNERS ALLIANCE LLC
|
|
|
|
|
|
By:
|
/s/ Samuel Herschkowitz
|
|
|
|
Name: Samuel Herschkowitz
|
|
|
|
Title: President
|
Biora Therapeutics (PK) (USOTC:BIOR)
Graphique Historique de l'Action
De Nov 2024 à Déc 2024
Biora Therapeutics (PK) (USOTC:BIOR)
Graphique Historique de l'Action
De Déc 2023 à Déc 2024
