UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 6
to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
ONCOSEC MEDICAL INCORPORATED
(Name of Issuer)
Common Stock ($0.0001 par value per share)
(Title of Class of Securities)
68234L207
(CUSIP Number)
Hee Do Koo
CEO
Alpha Holdings, Inc.
Gangnam-gu Apgujeong-ro 62-gil 17-10
Seoul, KOREA
+82-2-517-8841
With a copy to:
Joon Kim
Lee & Ko
Hanjin Building 63 Namdaemun-ro, Jung-gu
Seoul, KOREA
+82-2-772-4000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
January 14, 2020
(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. ☐
* 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 the disclosures provided in a prior cover page.
The information required in 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 provision of the Act (however, see the Notes).
CUSIP No. 68234L207
| 1. | Names of Reporting Persons: | |
| Alpha Holdings, Inc. | ||
| 2. | Check the Appropriate Box if a Member of a Group | |
| (a) ☐ | ||
| (b) ☐ | ||
| 3. | SEC Use Only | |
| 4. | Source of Funds (See instructions) WC | |
| 5. | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) | |
| 6. | Citizenship or Place of Organization: | |
| Republic of Korea |
| Number of | 7. Sole Voting Power: 1,610,999(1) |
| shares | |
| Beneficially | 8. Shared Voting Power: 0 |
| owned | |
| By each | 9. Sole Dispositive Power: 1,610,999(1) |
| reporting | |
| Person with: | 10. Shared Dispositive Power: 0 |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person: 1,610,999 | |
| 12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares ☐ | |
| 13. | Percent of Class Represented by Amount in Row (11): 15.06% (2) | |
| 14. | Type of Reporting Person (See Instructions): | |
| CO |
| (1) | Excludes 368,250 shares of common stock issuable upon exercise of warrants that are not exercisable due to a contractual beneficial ownership limitation, which provides that such warrants may not be exercised if, after such exercise, the Reporting Persons would beneficially own more than 9.99% of the outstanding shares of common stock. |
| (2) | This percentage is calculated based on 10,695,428 shares of common stock outstanding as of November 19, 2019, as reported on the Issuer’s Definitive Proxy Statement filed with the SEC on December 2, 2019. |
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CUSIP No. 68234L207
| 1. | Names of Reporting Persons: | |
| Alpha Biolabs, Inc. | ||
| 2. | Check the Appropriate Box if a Member of a Group | |
| (a) ☐ | ||
| (b) ☐ | ||
| 3. | SEC Use Only | |
| 4. | Source of Funds (See instructions) WC | |
| 5. | Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) | |
| 6. | Citizenship or Place of Organization: | |
| Republic of Korea |
| Number of | 7. Sole Voting Power: 0 |
| shares | |
| Beneficially | 8. Shared Voting Power: 1,610,999(1) |
| owned | |
| By each | 9. Sole Dispositive Power: 0 |
| reporting | |
| Person with: | 10. Shared Dispositive Power: 1,610,999(1) |
| 11. | Aggregate Amount Beneficially Owned by Each Reporting Person: 1,610,999 | |
| 12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares ☐ | |
| 13. | Percent of Class Represented by Amount in Row (11): 15.06% (2) | |
| 14. | Type of Reporting Person (See Instructions): | |
| CO |
| (1) | Excludes 368,250 shares of common stock issuable upon exercise of warrants that are not exercisable due to a contractual beneficial ownership limitation, which provides that such warrants may not be exercised if, after such exercise, the Reporting Persons would beneficially own more than 9.99% of the outstanding shares of common stock. |
| (2) | This percentage is calculated based on 10,695,428 shares of common stock outstanding as of November 19, 2019, as reported on the Issuer’s Definitive Proxy Statement filed with the SEC on December 2, 2019. |
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The following constitutes Amendment No. 6 to the Schedule 13D filed by the undersigned. This Amendment No. 6 amends the Schedule 13D as specifically set forth herein:
Item 4. Purpose of Transaction
Item 4 of the Schedule 13D is hereby amended by adding the following:
On January 14, 2020, Alpha Holdings submitted a binding term sheet (the “Proposal”) to the board of directors of the Issuer with a proposal to: (i) commence an all cash tender offer to purchase 35% of the outstanding common stock of the Issuer at a purchase price of $2.50 per share (the “Tender Offer”) and (ii) purchasing newly issued common stock of the Company for an aggregate purchase price of $30.0 million (the “Stock Purchase” and together with the Tender Offer the “Proposed Transactions”). Alpha will not consummate the Proposed Transactions unless Alpha Holdings, upon the completion of the Tender Offer, will own at least 50.1% of the Issuer’s common stock then outstanding (on a fully diluted basis). The Proposed Transactions are subject to a number of conditions, including but not limited to: (i) termination of the two Stock Purchase Agreements, dated October 10, 2019, between the Issuer and China Grand Pharmaceuticals and Healthcare Holdings (“CGP”) and the Issuer and Sirtex Medical US Holdings, Inc. (“Sirtex”); (ii) termination of the License Agreement, dated October 10, 2019 between the Issuer and CGP; (iii) termination of the Services Agreement, dated October 10, 2019 between the Issuer and Sirtex; and (iv) the resignation of Dan O’Connor, Avtar Dhillon and Punit Dhillon from all positions held at the Issuer.
The Proposed Transactions are subject to the execution of definitive agreements in connection with the Proposed Transactions and will be subject to the terms and conditions provided therein. Accordingly, it is possible that the Proposed Transactions may not occur on the terms and conditions described herein or at all.
The description of the Proposal in this Item 4 is qualified in its entirety by reference to the complete text of the Proposal, which has been filed as Exhibit 99.1 hereto and which is incorporated herein by reference in its entirety. Alpha Holdings reserves the right to acquire, or cause to be acquired, additional securities of the issuer, to dispose of, or cause to be disposed, such securities at any time or to formulate any purposes, plans or proposals regarding the Issuer or any of its securities, to the extent deemed advisable in light of general investment and trading policies of Alpha, market conditions or other factors.
The proposed Tender Offer for the outstanding common stock has not yet commenced. This communication is not an offer to purchase or a solicitation of an offer to sell the Issuer’s common stock. The solicitation and the offer to purchase the common stock will only be made pursuant to an offer to purchase and related materials filed with the Securities and Exchange Commission (the “SEC”). At the time a tender offer is commenced, Alpha Holdings will file a Tender Offer Statement on Schedule TO with the SEC, and the Issuer will file a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Tender Offer. THE ISSUER’S STOCKHOLDERS ARE ADVISED TO READ ANY SCHEDULE TO (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND OTHER OFFER DOCUMENTS) AND ANY SCHEDULE 14D-9, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE, BEFORE MAKING ANY DECISION WITH RESPECT TO THE TENDER OFFER BECAUSE THESE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO. Investors and stockholders may obtain free copies of the Schedule TO and Schedule 14D-9, as each may be amended or supplemented from time to time, and other documents filed by the parties (when available), at the SEC’s web site at www.sec.gov.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
The information set forth or incorporated in Item 3 and Item 4 is hereby incorporated herein by reference.
Item 7. Exhibit
| 99.1 | Binding Term Sheet delivered by Alpha Holdings, Inc. to the board of directors of OncoSec Medical Incorporated, dated January 14, 2020. |
[The remainder of this page is intentionally left blank. The signature page follows.]
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SIGNATURE
After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
| Dated: January 14, 2020 | ||
| ALPHA HOLDINGS, INC. | ||
| By: | /s/ Hee Do Koo | |
| Hee Do Koo | ||
| Chief Executive Officer | ||
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Exhibit 99.1
Hee Do Koo
Chief Executive Officer
Alpha Holdings, Inc.
Gangnam-gu Apgujeongro 62-gil 17 -10
Seoul, Korea
January 14, 2020
Oncosec Medical Incorporated
24 North Main Street
Pennington, NJ 08534-2218
| RE: | Binding Term Sheet |
| TO: | OnocSec Medical Incorporated and the Board of Directors of OncoSec Medical Incorporated (the “Board”) |
Ladies and Gentlemen of the Board:
Alpha Holdings, Inc., on behalf of its affiliates and other designees, including co-investors (collectively “Alpha”), is submitting the attached Binding Term Sheet (the “Binding Term Sheet”) for the proposed Transaction described in the Binding Term Sheet. The Transaction is subject to the terms set forth in the Binding Term Sheet.
If the items in the Binding Term Sheet are acceptable to the Board, please return an executed copy of the Binding Term Sheet to Alpha by delivering an original signature page to Alpha at the address listed above and a pdf copy of such signature page to Hee Do Koo via e-mail.
The Binding Term Sheet will expire at 5:00 p.m. (Eastern Standard Time) on January 16, 2020 unless prior to that time you have executed the Binding Term Sheet and returned the Binding Term Sheet as set forth above.
Sincerely,
| ALPHA HOLDINGS, INC. | |||
| By: | /s/ Hee Do Koo | ||
| Name: | Hee Do Koo | ||
| Title : | Chief Executive Officer | ||
BINDING TERM SHEET
DATED JANUARY 14, 2020
Alpha Holdings, Inc., on behalf of its affiliates and other designees, including co-investors (collectively “Alpha”), hereby submits this Binding Term Sheet (the “Binding Term Sheet”) to the board of directors of OncoSec Medical Incorporated, a Nevada corporation (the “Company”). Pursuant to this Binding Term Sheet, Alpha proposes to: (i) commence an all cash tender offer to purchase 35% of the outstanding common stock of the Company at a purchase price of $2.50 per share (the “Tender Offer”) and (ii) purchase newly issued common stock of the Company for an aggregate purchase price of $30.0 million (the “Stock Purchase” and together with the Tender Offer, the “Transaction”). The Transaction is subject to the terms set forth below, shall be superseded by the Definitive Documents (defined below) when executed and is subject to completion of all the conditions set forth in Part C.
| Part A | PRINCIPAL TERMS OF TENDER OFFER |
| Number of Shares | Alpha will tender for 35% of the total outstanding shares of common stock of the Company (the “Common Stock”). |
| Who May Tender | All holders of Common Stock may tender their shares of Common Stock. If more than 35% of the outstanding Common Stock is tendered, Alpha will purchase the shares of Common Stock on a pro rata basis from all stockholders that tendered. |
| Purchase Price of Tender Offer | Alpha will purchase each share of Common Stock for $2.50 a share. |
| Specific Tender Offer Closing Conditions |
In addition to the closing conditions set forth in Part C, completion of the Tender Offer is subject to the following Tender Offer specific closing conditions (the “Tender Offer Closing Conditions”):
· A minimum tender condition whereby upon the completion of the Tender Offer, Alpha will own at least 50.1% of the Company’s Common Stock then outstanding (determined on a fully diluted basis); and
· A recommendation by the board of directors of the Company to the stockholders of the Company to accept the Tender Offer. |
| Launch Date | Alpha will launch the Tender Offer within 30 days after the parties enter into the Definitive Documents and close the Tender Offer upon completion of all of the conditions set forth in Part C. |
| PART B | PRINCIPAL TERMS OF THE STOCK PURCHASE |
| Type of Securities |
Alpha will purchase Common Stock for an aggregate purchase price of $30.0 million in two tranches as follows:
· In the First Tranche, Alpha will purchase Common Stock for an aggregate purchase price of $10.0 million; and
· In the Second Tranche, Alpha will purchase Common Stock for an aggregate purchase price of $20.0 million. |
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| Purchase Price Per Share |
For the First Tranche, the subscription price per Common Stock shall be $2.50.
For the Second Tranche, the subscription price per Common Stock shall be at a premium of 25% of the volume weighted average price of the Common Stock of the Company for the 30 days prior to the date Alpha submits a notice to the Company electing to purchase Common Stock in the Second Tranche. |
| Closing |
The First Tranche will be completed 60 days after Alpha submits a notice to the Company electing to purchase Common Stock; provided, however, the First Tranche shall be completed no later than six (6) months after the parties enter into the Definitive Documents (the “First Tranche”).
The Second Tranche will be completed 60 days after Alpha submits a notice to the Company electing to purchase additional Common Stock; provided, however, the Second Tranche shall be completed no later than one (1) year after the parties enter into the Definitive Documents (the “Second Tranche”). |
| Specific Stock Purchase Closing Condition |
In addition to the closing conditions set forth in Part C, completion of the Stock Purchase is subject to the following specific closing conditions (the Stock Purchase Closing Conditions):
· The shares of Common Stock to be issued upon the closing of the First Tranche and Second Tranche shall have been listed for trading on The NASDAQ Capital Market upon notice of issuance; and
· Approval by the stockholders of the Company approving the issuance of the Common Stock pursuant to the Stock Purchase Agreement. |
| PART C | CONDITIONS OF THE TRANSACTION |
| Board of Directors | After the closing of the Tender Offer, Alpha shall have the right to appoint three (3) additional directors to the board of the Company resulting in Alpha appointing four of the seven directors of the Company. |
| Closing Conditions |
In addition to customary closing conditions for a transaction of this size and type, the closing of the Transaction will be subject to the following additional conditions:
· negotiation and execution of the Definitive Documents on terms satisfactory to all parties;
· the Tender Offer Closing Conditions and the Stock Purchase Closing Conditions are both completed;
· the termination of the Stock Purchase Agreement, dated October 10, 2019, as amended, and the Stockholder Agreement, dated October 10, 2019 between the Company and Grand Decade Developments Limited, a British Virgin Islands limited company and a wholly owned subsidiary of China Grand Pharmaceutical and Healthcare Holdings Limited, (“CGP”);
· the termination of the Stock Purchase Agreement, dated October 10, 2019, as amended, and the Stockholder Agreement, dated October 10, 2019 between the Company and Sirtex Medical US Holdings, Inc.; |
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|
· the termination of the License Agreement, dated October 10, 2019 between the Company and CGP;
· the termination of the Services Agreement, dated October 10, 2019 between the Company and Sirtex Medical US Holdings, Inc., an affiliate of CGP;
· termination of the Change in Control Plan, effective June 7, 2019 with no payments to be made pursuant to the Transaction;
· no material adverse change of the Company or material litigation after the date of this Binding Term Sheet;
· the receipt of all required regulatory approvals related to the Transaction;
· the resignation of Dan O’Connor, Avtar Dhillon and Punit Dhillon (collectively the “Resigning Individuals”) from all positions held at the Company; and
· waivers and releases from the Resigning Individuals, CGP, and Sirtex Medical US Holdings, Inc. waiving and releasing any and all claims they may have against the Company and Alpha and any of their affiliates, officers and directors, employees, agents and successors or assigns; provided, further that no member of the Resigning Individuals shall receive any severance, benefits, or any other compensation related to their resignation and departure from the Company or the execution of the waiver and release.
If for any reason Alpha is unable to complete the Tender Offer, Alpha would not be obligated to consummate the Stock Purchase. | |
| Documentation |
The following transaction documents which will need to be negotiated and executed between Alpha and the Company (collectively, the “Definitive Documents”):
· Stock Purchase Agreement. The subscription of the Common Stock will be consummated via a stock purchase agreement that will contain representations, warranties, covenants, closing conditions and indemnities that are reasonable and customary for a transaction of this size and type.
· Amended and Restated Investor Rights Agreement. In addition, contemporaneously with the purchase of the Common Shares in the First Tranche, Alpha, and the Company will amend and restate the existing Investor Rights Agreement to accommodate the rights of Alpha as set forth herein, and any other required amendments as a result of the transactions described herein. |
| PART D | MISCELLANEOUS TERMS |
| Expiration | This Binding Term Sheet is valid and effective until January 16, 2020 at 5:00 P.M. E.S.T., upon which time this Binding Term Sheet shall expire by its own terms unless previously agreed and accepted in writing and returned and received by Alpha. PDF via email and multiple counterparts are acceptable. |
| Governing Law and Jurisdiction | This Binding Term Sheet and the Definitive Documents shall be governed by the laws of the State of New York. |
[Signature page follows]
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| ALPHA HOLDINGS, INC. | |||
| By: | /s/ Hee Do Koo | ||
| Name: | Hee Do Koo | ||
| Title : | Chief Executive Officer | ||
ONCOSEC MEDICAL INCORPORATED
| By: | ||
| Name: | ||
| Title: |
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The proposed Tender Offer for the outstanding Common Stock has not yet commenced. This communication is not an offer to purchase or a solicitation of an offer to sell the Company’s Common Stock. The solicitation and the offer to purchase the Common Stock will only be made pursuant to an offer to purchase and related materials filed with the Securities and Exchange Commission (the “SEC”). At the time a tender offer is commenced, Alpha will file a Tender Offer Statement on Schedule TO with the SEC, and the Company will file a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Tender Offer.
THE COMPANY’S STOCKHOLDERS ARE ADVISED TO READ ANY SCHEDULE TO (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND OTHER OFFER DOCUMENTS) AND ANY SCHEDULE 14D-9, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE, BEFORE MAKING ANY DECISION WITH RESPECT TO THE TENDER OFFER BECAUSE THESE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO.
Investors and stockholders may obtain free copies of the Schedule TO and Schedule 14D-9, as each may be amended or supplemented from time to time, and other documents filed by the parties (when available), at the SEC’s web site at www.sec.gov.
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