false 0001318641 0001318641 2022-03-25
2022-03-25
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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 25,
2022
Statera Biopharma, Inc.
(Exact Name of Registrant as Specified in Charter)
Delaware
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001-32954
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20-0077155
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification Number)
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2537 Research Boulevard, Suite 201
Fort Collins, CO 80526
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(Address of Principal Executive Offices and zip code)
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(888) 613-8802
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(Registrant's Telephone Number, Including Area Code)
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Securities registered or to be 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 $0.005
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STAB
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NASDAQ Capital Market
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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 communications 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 communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
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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
(§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
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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 2.04.
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Triggering Events That Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement.
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On March 25, 2022, Statera Biopharma, Inc. (the “Company”)
received a letter (the “Letter”) from Avenue Venture
Opportunities Fund, L.P. (“Avenue”) regarding alleged events
of default with respect to the Loan and Security Agreement, dated
as of April 26, 2021, between the Company and Avenue (the “Loan
Agreement”). In the Letter, Avenue alleges that certain events
of default under the Loan Agreement have occurred and continue to
exist. Specifically, Avenue alleges that the Company is in
violation of certain provisions of the Loan Agreement as a result
of the Company’s failure to:
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timely deliver monthly financial statements for certain
periods;
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obtain Avenue’s consent to repurchase certain securities from
stockholders;
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pay principal and interest when due, including on March 1, 2022;
and
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maintain unrestricted cash and cash equivalents in one or more
accounts subject to control agreements in favor of Avenue in amount
of at least $5 million.
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In the Letter, Avenue purported to exercise its rights to suspend
further loans or advances to the Company under the Loan Agreement
and to accelerate the amount due under the Loan Agreement, which it
asserts to be approximately $11.2 million, inclusive of fees of
penalties. Avenue further states in the letter that interest will
continue to accrue on the outstanding amounts at the default rate
of 5.0%. In furtherance of the allegations set forth in the Letter,
Avenue foreclosed on approximately $4.8 million of the Company’s
cash. The Company is in the process of determining whether the
assertion of the Company’s default gives rise to, accelerates or
otherwise results in a violation or event of default under any of
its other material obligations.
Item 3.01.
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Notice of Delisting or Failure to Satisfy a Continued Listing
Rule or Standard; Transfer of Listing
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On March 25, 2022, Randy Saluck and Lea Verny, each a member of the
board of directors (the “Board”) of the Company, resigned
from their positions as members of board, effective immediately. At
the time of their resignations, Mr. Saluck and Ms. Verny each
served on the audit, nominating and corporate governance and
compensation committees of the Board. As a result of these
resignations, the Company is no longer in compliance with several
of the Nasdaq Stock Market’s (“NASDAQ”) governance
rules.
First, under NASDAQ Listing Rule 5605(b)(1), a majority of the
directors on the Board must be independent directors, as defined
under the NASDAQ rules. As of the effective time of the
resignations of Mr. Saluck and Ms. Verny, the Board is comprised of
one director who is independent under the NASDAQ Listing Rules and
two directors who are not independent.
Second, under NASDAQ Listing Rule 5605(c)(2)(A), the audit
committee of the Board must be comprised of at least three
independent directors, as defined under the NASDAQ rules. As of the
effective time of the resignations of Mr. Saluck and Ms. Verny, the
audit committee of the Board is comprised of one director who is
independent under the NASDAQ Listing Rules.
Third, under NASDAQ Listing Rule 5605(d)(2)(A), the compensation
committee of the Board must be comprised of at least three
independent directors, as defined under the NASDAQ Rules. As of the
effective time of the resignations of Mr. Saluck and Ms. Verny, the
compensation committee of the Board is comprised of only one
director who is independent under the NASDAQ Listing Rules.
On March 28, 2022, the Company provided formal notice to NASDAQ
disclosing the Company’s noncompliance with NASDAQ’s governance
requirements as described above. In accordance with Nasdaq Listing
Rules 5605(b)(1)(A), 5605(c)(4)(B) and 5605(d)(4), the Company is
granted a cure period to regain compliance with the rules
pertaining to the composition of the Board, the audit committee of
the Board and the compensation committee of the Board,
respectively, which cure period will expire upon the earlier of the
Company’s next annual stockholders’ meeting or March 24, 2023;
provided, however, that if the Company’s next annual stockholders’
meeting occurs no later than 180 days following the date of the
resignations, then the cure period will expire 180 days following
the date of such resignations. The Board intends to appoint new
independent directors to fill the vacancies prior to the expiration
of such cure period in order to regain compliance with such Nasdaq
Listing Rules.
Item 5.02.
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Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
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As described in Item 3.01 of this Current Report on Form 8-K, on
March 25, 2022, Randy Saluck and Lea Verny, each a member of the
Board, resigned from their positions as members of board, effective
immediately. At the time of their resignations, Mr. Saluck and Ms.
Verny each served on the audit, nominating and corporate governance
and compensation committees of the Board. On March 28, 2022, Taunia
Markvicka, a director on the Board, resigned from her position as a
member of the board, effective on such date. Ms. Markvicka
continues to serve as Chief Operating Officer of the Company.
Mr. Saluck resigned in response to the events described in Item
2.04 of this Current Report on Form 8-K, as he disagreed with the
Company’s chief executive officer (the “CEO”) in respect of
the way in which the Company’s relationship with Avenue had been
characterized to the Board by the CEO, the internal disclosure
practices of the CEO to the Board regarding matters of corporate
importance and the CEO’s alleged unliteral decision-making
processes. A copy of Mr. Saluck’s resignation letter is attached to
this Form 8-K as Exhibit 17.1 to this Current Report on Form
8-K.
The Company respectfully disagrees with the substance of the
assertions and characterizations that are contained within Mr.
Saluck’s resignation letter. The Company has provided Mr. Saluck
with a copy of the disclosures set forth herein and provided him
with an opportunity to furnish to the Company as promptly as
possible a letter stating whether he agrees with such disclosures
and, if not, stating the respects in which he does not agree.
Item 9.01.
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Financial Statements and Exhibits.
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(d) Exhibits
Exhibit No.
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Description
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17.1
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104 |
Cover Page Interactive Data File (embedded within the Inline XBRL
document)
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Forward Looking Statements
This Current Report contains forward-looking statements that
involve risks and uncertainties intended to be covered by the safe
harbor for “forward-looking statements” provided by
the Private Securities Litigation Reform Act of 1995, as amended.
All statements other than statements of current or historical fact
contained in this Current Report, including statements regarding
the Company’s expected clinical development timeline for the
Company’s product candidates, future financial position,
business strategy, new products, budgets, liquidity, cash flows,
projected costs, regulatory approvals, the impact of any laws or
regulations applicable to the Company, and plans and objectives of
management for future operations, are forward-looking statements.
The words “anticipate,” “believe,”
“continue,” “should,” “estimate,”
“expect,” “intend,” “may,” “plan,”
“project,” “will,” and similar expressions, as
they relate to us, are intended to identify forward-looking
statements. We have based these forward-looking statements on the
current expectations about future events held by management. While
we believe these expectations are reasonable, such forward-looking
statements are inherently subject to risks and uncertainties, many
of which are beyond the Company’s control. The
Company’s actual future results may differ materially from
those discussed here for various reasons. The Company discusses
many of these risks under the heading “Risk Factors”
in the Company’s Annual Report on Form 10-K filed with
the SEC on March 22, 2021, as updated by the Company’s other
filings with the SEC, including the proxy statement/prospectus
filed with the SEC on June 4, 2021.
Given these uncertainties, you should not place undue reliance
on these forward-looking statements. The forward-looking statements
included in this Current Report are made only as of the date
hereof. We do not undertake any obligation to update any such
statements or to publicly announce the results of any revisions to
any of such statements to reflect future events or
developments.
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.
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Statera Biopharma,
Inc.
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Date: March 31,
2022
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By:
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/s/ Cozette
McAvoy
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Name:
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Cozette McAvoy
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Title:
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Chief Legal
Officer
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