UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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):
FEBRUARY 28, 2008
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XENOMICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA
(STATE OR OTHER JURISDICTION OF INCORPORATION)
333-103083 04-3721895
(COMMISSION FILE NUMBER) (I.R.S. EMPLOYER IDENTIFICATION NO.)
420 LEXINGTON AVENUE. SUITE 1701
NEW YORK, NEW YORK 10170
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(212) 297-0808
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
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 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 MATERIAL DEFINITIVE AGREEMENT.
Subsequent to the approval of all of the disinterested members of the Board
of Directors, Xenomics, Inc. (the "Company") and Gian Luigi Longinetti-Buitoni,
the Executive Chairman of the Company ("Lead Investor") entered into Amendment
No. 3 (the "Amendment"), dated as of February 25, 2008, to the Warrant and Put
Option Agreement originally dated as of November 30, 2006 (the "Agreement"), as
amended August 29, 2007 and October 30, 2007 ("Warrant and Put Option
Agreement"), pursuant to which the Amendment extended to April 11, 2008, the
date on which the Company may, at its sole discretion, exercise a put option
(the "Put Option") pursuant to which it may require the Lead Investor to invest
in the Company up to an additional $1,500,000 to purchase the Maximum Put Amount
of Units at a purchase price of $.55 per share of common stock, par value
$0.0001 (the "Shares"). Upon notification on or before April 11, 2008, the Lead
Investor shall purchase the number of Units specified in such notice by April
12, 2008 up to the Maximum Put Amount. The Company terminated all other options
the Lead Investor may purchase under the Agreement in the amount of 6,363,636
Units, which were subject to adjustment, other than the Company's Put Option and
the Lead Investor's option to purchase an additional 2,727,272 Shares at $.70
per Share or an additional $1,900,000 under the Warrants underlying the Maximum
Put Option. The Amendment is filed as Exhibit 4.1 to this report. (Capitalized
terms not otherwise defined herein are given the meaning ascribed to them as set
forth in the Amendment).
ITEM 8.01 OTHER EVENTS
On February 1, 2008, the Company sold a private placement of 1,075,000
shares of common stock and 322,500 warrants to overseas institutional investors
for aggregate gross proceeds of $645,000 pursuant to a Securities Purchase
Agreement dated as of February 1, 2008 (the "Private Placement"). The warrants
have a two-year term and are exercisable at prices of $0.75 per share in the
first year and $1.50 per share in the second year.
The Company is seeking to restructure the debt owed to holders of its 6%
convertible debentures who are owed $2,225,500 in principal, plus interest and
penalties, following various possible events of default and covenant breaches.
The ability of the Company to restructure this debt upon satisfactory terms in
whole or in part, will have a material impact on the Company's financial
condition.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
4.1 Form of Amendment No. 3 to Warrant and Put Option Agreement dated
February 25, 2008.
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.
XENOMICS, INC.
Date: February 28, 2008 By: /s/ Gian Luigi Longinotti-Buitoni
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Gian Luigi Longinotti-Buitoni
Executive Chairman
EXHIBIT 4.1
AMENDMENT NO. 3 TO WARRANT AND PUT OPTION AGREEMENT
This AMENDMENT NO. 3 (the "Third Amendment") to the WARRANT AND PUT OPTION
AGREEMENT (the "Agreement") originally dated as of November 30, 2006, by and
between Gian Luigi Longinotti-Buitoni (the "Lead Investor"), and Xenomics, Inc.
(the "Company"), as amended August 29, 2007 and October 30, 2007, is dated as of
February 25, 2008.
WITNESSETH:
WHEREAS, on November 30, 2006, the Lead Investor and the Company entered
into the Agreement and amended such Agreement on August 29, 2007 and October 30,
2007; and
WHEREAS, the entire amount of the Financing Condition has not been met as
set forth in the Agreement; however, the Company and the Lead Investor wish to
amend the Agreement to extend the time in which the Company may exercise its
Maximum Put Amount;
WHEREAS, the parties now desire to amend Section 3(b) of such Agreement in
order to preserve the Company's right to exercise the Maximum Put Amount until
April 11, 2008;
NOW, THEREFORE, in consideration of and for the mutual promises and
covenants contained herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Agreement is hereby amended as
follows:
I. The last sentence of the definition of "Maximum Put Amount" in Section
3(b)(i) is hereby replaced in its entirety with "In no event shall the Maximum
Put Amount exceed $1,500,000 for the Units or $.55 per Share. The Lead Investor
shall have the option to purchase an additional 2,727,272 Shares (the
"Additional Shares") at $.70 per Share or an additional $1,900,000 under the
Warrants attached to aforesaid Units."
II. Section 3(b)(ii) shall be replaced in its entirety with the following:
"Since the Financing Condition has not been met, at the Company's
sole discretion, upon written notice from the Company on or before
April 11, 2008, by April 12, 2008 (the "Put Closing Date"), the Lead
Investor shall purchase the number of Units specified in such notice
up to the Maximum Put Amount divided by the applicable Exercise Price,
i.e. $.55 per Share. On the Put Closing Date, the Lead Investor shall
surrender this Warrant and the full Exercise Price of the Units
specified in the Notice in immediately available funds against the
Company's delivery of Lead Investor's Securities. If less than all of
the Additional Shares which may then be acquired on the exercise of
this Warrant are specified in the Notice, the Company shall cancel
this Warrant and issue and deliver to the Lead Investor a new Warrant
for the Lead Investor's Additional Shares remaining."
III. The Company and the Lead Investor acknowledge that the Lead Investor's
Warrants under Paragraph 1 of the Agreement shall be terminated other than the
Lead Investor's option to purchase the Additional Shares underlying the Units
referred to in Paragraphs 1 and 2 herein and other
than the Warrants underlying the Maximum Put Option, which the Company may "put"
to the Lead Investor pursuant to Paragraphs and 1 and 2 hereof.
IV. (A) This Third Amendment shall be construed and interpreted in
accordance with the laws of the State of New York without giving effect to the
conflict of laws rules thereof or the actual domiciles of the parties.
(B) Except as amended hereby, the terms and provisions of the
Agreement shall remain in full force and effect, and the Agreements and
Amendments Nos. 1 and 2 are in all respects ratified and confirmed. On and after
the date of this Third Amendment, each reference in the Agreement to the
"Agreement," "hereinafter," "herein," "hereunder," "hereof," or words of like
import shall mean and be a reference to the Agreement as amended by this Third
Amendment. Capitalized terms not otherwise defined herein are given the meaning
ascribed to them as set forth in the Agreement.
(C) This Third Amendment may be executed in one or more counterparts,
each of which shall be deemed an original and all of which taken together shall
constitute a single Amendment.
V. Copies of all notices to the Company pursuant to Paragraph 14 of the
Agreement shall also be sent to: Herrick, Feinstein LLP, 2 Park Avenue, New
York, New York 10016, Attn: Ted D. Rosen, Esq.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as of the date stated above.
LEAD INVESTOR
By:
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Gian Luigi Longinotti-Buitoni
XENOMICS, INC.
By:
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Name: Gian Luigi Longinotti-Buitoni
Title: Executive Chair