STAB

false 0001318641 0001318641 2022-03-22 2022-03-22

 

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): March 22, 2022

 

 

Statera Biopharma, Inc.

(Exact Name of Registrant as Specified in Charter)

 

 

 

Securities registered or to be registered pursuant to Section 12(b) of the Act:

 

 

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:

 

 

 

 

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).                                                                

 

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. Entry into a Material Definitive Agreement.

 

On March 24, 2022 (the “Closing Date”), Statera Biopharma, Inc., a Delaware corporation (the “Company”), sold an aggregate of 12,555,555 units (the “Units”) for an aggregate of $5,650,000, at a price to the public of $0.45 per Unit (the “Offering”), consisting of (i) 12,555,555 shares (the “Shares”) of the Company’s common stock, par value $0.005 per share (the “Common Stock”), (ii) 12,555,555 warrants with a one-year term to purchase 12,555,555 shares of our Common Stock at an exercise price of $0.45 per share (100% of the offering price per Unit) (the “One-Year Warrants”), and (iii) 12,555,555 warrants with a five-year term to purchase 12,555,555 shares of our Common Stock at an exercise price of $0.5625 per share (125% of the offering price per Unit) (the “Five-Year Warrants”) pursuant to an underwriting agreement, dated as of March 22, 2022 (the “Underwriting Agreement”), between the Company and EF Hutton, division of Benchmark Investments, LLC, as representative (the “Representative”) of the several underwriters named in Schedule I to the Underwriting Agreement.

 

The Company offered Pre-Funded Units to those purchasers whose purchase of Units in the Offering would have resulted in the purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% (or at the election of the purchaser, 9.99%) of our shares of Common Stock immediately following the consummation of the Offering, the opportunity to purchase, if purchasers so chose,  pre-funded units (“Pre-Funded Units”) in lieu of the Units that would otherwise result in ownership in excess of 4.99% (or at the election of the purchaser, 9.99%) of the outstanding shares of Common Stock of the Company.  However, no Pre-Funded Units were sold in the Offering. Each Pre-Funded Unit would have consisted of (i) one pre-funded warrant to purchase one share of Common Stock (“Pre-Funded Warrant”), (ii) one One-Year Warrant, and (iii) one Five-Year Warrant. For each Pre-Funded Unit purchased in the Offering in lieu of Units, the Company would have reduced the number of Units being sold in the Offering on a one-for-one basis.

 

Pursuant to the Underwriting Agreement, the Company granted the Underwriter an option exercisable at any time, in whole or in part, for a period of 45 days from March 22, 2022 to purchase up to (i) an additional 1,883,333 shares of Common Stock at a public offering price of $0.43 per share, (ii) 1,883,333 One-Year Warrants to purchase 1,883,333 shares of Common Stock at a purchase price of $0.01 per One-Year Warrant, and (iii) 1,883,333 Five-Year Warrants to purchase 1,883,333 shares of Common Stock at the public offering price of $0.01 per Five-Year Warrant, which if exercised in full would provide $847,500 in gross proceeds, less the underwriting discount per share and per warrant, solely to cover over-allotments, if any. On March 22, 2022, the Representative partially exercised its over-allotment option, pursuant to the terms of the Underwriting Agreement, to purchase 1,883,333 One-Year Warrants to purchase 1,883,333 shares of our Common Stock and 1,883,333 Five-Year Warrants to purchase 1,883,333 shares of our Common Stock, each with a purchase price of $0.01 per warrant, providing $37,666 in gross proceeds.

 

The Units and Common Stock, One-Year Warrants, and Five-Year Warrants forming part of the Units and over-allotment option were being offered and sold pursuant to a prospectus supplement, filed with the Securities and Exchange Commission (the “Commission”) on March 24, 2022, to the Company’s effective shelf registration statement on Form S-3 (File No. 333-238578) (the “Registration Statement”), which was filed with the Commission on May 21, 2020 and was declared effective on May 29, 2020. The offering closed on March 24, 2022.

 

The Offering resulted in gross proceeds to the Company of approximately $5,700,000 before deducting the Underwriter discounts and commissions and related offering expenses, and excluding proceeds to the Company, if any, that may result from the future exercise of One-Year Warrants and Five-Year Warrants issued in the Offering which formed part of the Units and over-allotment option.

 

The net proceeds to the Company from the sale of the Units and the One-Year Warrants and Five-Year Warrants forming part of the over-allotment option, after deducting the Underwriters’ discounts and commissions and estimated offering expenses payable by the Company, were approximately $4,806,504.78.

 

Pursuant to the Underwriting Agreement, the underwriting discount was 9.0% of the aggregate gross proceeds of the Offering, a non-accountable expense reimbursement of 1.0% of the aggregate gross proceeds in the Offering, and $100,000 for the reimbursement of certain of the Representative’s accountable expenses.

 

The Underwriting Agreement contains customary conditions to closing, representations and warranties of the Company, and termination rights of the parties, as well as certain indemnification obligations of the Company and ongoing covenants for the Company. In addition, under the Underwriting Agreement, the Company has agreed not to issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of the Company’s (or its subsidiaries’) Common Stock or common stock equivalents for a period of 180 days from the closing of the Offering, other than certain exempt issuances including, but not limited to, securities issued pursuant to the Company’s equity compensation plans and for strategic acquisitions (subject to certain customary requirements). Additionally, in connection with the Offering, each of the officers and directors of the Company entered into lock-up agreements, pursuant to which they agreed not to sell or transfer any of the Company securities they hold, subject to certain exceptions, during the 180-day period following the closing of the Offering.

 

 

Each One-Year Warrant and Five-Year Warrant sold in the Offering will be exercisable for one share of Common Stock at an initial exercise price of $0.45 per share and $0.5625, respectively, (the “Initial Exercise Price”). The One-Year Warrants and Five-Year Warrants may be exercised commencing on the issuance date (the “Initial Exercise Date”) and terminating on the first anniversary and fifth anniversary, respectively, of the Initial Exercise Date. The Warrants are exercisable for cash; provided, however that they may be exercised on a cashless exercise basis if, at the time of exercise, there is no effective registration statement registering, or no current prospectus available for, the issuance or resale of the shares of Common Stock issuable upon exercise of the Warrants. The exercise of the Warrants will be subject to a beneficial ownership limitation, which will prohibit the exercise thereof, if upon such exercise the holder of the Warrants, its affiliates and any other persons or entities acting as a group together with the holder or any of the holder’s affiliates would hold 4.99% (or, upon election of a purchaser prior to the issuance of any shares, 9.99%) of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of the Warrant held by the applicable holder, provided that the holders may increase or decrease the beneficial ownership limitation (up to a maximum of 9.99%) upon 60 days advance notice to the Company, which 60 day period cannot be waived.

 

If the Company fails for any reason to deliver shares of Common Stock upon the valid exercise of the One-Year Warrants and Five-Year Warrants, subject to its receipt of a valid exercise notice and the aggregate exercise price, by the time period set forth in the One-Year Warrants and Five-Year Warrants, the Company will be required to pay the applicable holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of shares subject to such exercise (as calculated in the One-Year Warrant and Five-Year Warrant), $10 per trading day (increasing to $20 per trading day on the third trading day after such liquidated damages begin to accrue) for each trading day that such shares are not delivered. The One-Year Warrants and Five-Year Warrants also include customary buy-in rights in the event the Company fails to deliver shares of Common Stock upon exercise thereof within the time periods set forth in the One-Year Warrant and Five-Year Warrant.

 

The foregoing description of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to such Underwriting Agreement, which is filed as Exhibit 1.1 hereto and is incorporated herein by reference. The foregoing descriptions of the One-Year Warrants, the Five-Year Warrants and the Pre-Funded Warrants do not purport to be complete and are qualified in their entirety by reference to the Form of One-Year Warrant, Form of Five-Year Warrant and Form of Pre-Funded warrants, which are filed as Exhibits 4.1, 4.2 and 4.3 hereto, respectively and are incorporated herein by reference.

 

This Current Report on Form 8-K does not constitute an offer to sell any securities or a solicitation of an offer to buy any securities, nor shall there be any sale of any securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.

 

A copy of the opinion of Anthony L.G., PLLC, relating to the validity of the issuance of the Securities, is attached as Exhibit 5.1 hereto and is incorporated herein and into the Registration Statement and prospectus supplement filed in connection with the Offering by reference.

 

Item 7.01. Regulation FD Disclosure.

 

On March 22, 2022, the Company issued a press release announcing the pricing of the Offering. A copy of the foregoing press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated by reference herein.

 

On March 24, 2022, the Company issued a press release announcing the closing of the Offering. A copy of the foregoing press release is attached as Exhibit 99.2 to this Current Report on Form 8-K and is incorporated by reference herein.

 

In accordance with General Instruction B.2 of Form 8-K, the press releases attached to this Current Report on Form 8-K as Exhibit 99.1 and Exhibit 99.2 shall not be deemed “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section. The press releases attached as Exhibit 99.1 and Exhibit 99.2 shall not be incorporated by reference into any filing or other document pursuant to the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such filing or document.

 

Forward- Looking Statements

 

This Current Report on Form 8-K contains forward-looking statements that are made pursuant to the safe harbor provisions within the meaning of Section 27A of the Securities Act of 1933, as amended, Section 21E of the Securities Exchange Act of 1934, as amended and the Private Securities Litigation Reform Act, as amended. Forward-looking statements are based on management’s current expectations and are subject to risks and uncertainties, many of which are beyond the Company’s control, that may cause actual results or events to differ materially from those projected. These risks and uncertainties include risks described in the section entitled “Risk Factors” and elsewhere in the Company’s Annual Report on Form 10-K filed with the Commission on March 22, 2021 and in its other filings with the Commission, including, without limitation, its reports on Forms 8-K and 10-Q, and the prospectus supplement filed with the Commission on March 22, 2022, relating to the Offering, all of which can be obtained on the SEC website at www.sec.gov. Readers are cautioned not to place undue reliance on the forward-looking statements, which speak only as of the date on which they are made and reflect management’s current estimates, projections, expectations and beliefs. The Company expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in its expectations or any changes in events, conditions or circumstances on which any such statement is based, except as required by law.

 

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

The following exhibits are filed with this Current Report on Form 8-K:

 

 

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.