Attached files
file | filename |
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EX-5.1 - Statera Biopharma, Inc. | v206740_ex5-1.htm |
EX-10.1 - Statera Biopharma, Inc. | v206740_ex10-1.htm |
EX-10.2 - Statera Biopharma, Inc. | v206740_ex10-2.htm |
EX-10.3 - Statera Biopharma, Inc. | v206740_ex10-3.htm |
EX-99.1 - Statera Biopharma, Inc. | v206740_ex99-1.htm |
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): December 23,
2010
CLEVELAND
BIOLABS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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001-32954
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20-0077155
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(State
or other jurisdiction
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(Commission
File Number)
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(IRS
Employer
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||
of
incorporation)
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Identification
No.)
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73
High Street
Buffalo, New York
14203
(Address
of principal executive offices and zip code)
Registrant’s
telephone number, including area code: (716) 849-6810
(Former
Name or Former Address, if Changed Since Last
Report)
|
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):
¨
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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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Item
1.01
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Entry
into a Material Definitive
Agreement
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Completion
of Registered Direct Offering
On December 23, 2010, Cleveland
BioLabs, Inc. (the “Company”) entered into a
Placement Agent Agreement (the “Placement Agent Agreement”)
with HFP Capital Markets, LLC (“HFP”) relating to the sale by
the Company to a single institutional accredited
investor of 1,400,000 shares of the Company’s common stock, par value
$0.005 par value, in a “registered direct”
offering (the “Offering”). The Offering
closed on December 29, 2010.
The
shares were sold at a purchase price of $5.99 per share. The
sale of the shares were made pursuant to a Subscription Agreement, dated
December 23, 2010 (the “Subscription Agreement”), with
the investor. HFP and Rodman & Renshaw, LLC (“Rodman”) acted as co-placement
agents in connection with the Offering.
The net proceeds to the Company from
the sale of the shares, after deducting for the placement agents’ fees and
offering expenses, will be approximately $7.73 million. The Company intends to
use the net proceeds from the Offering for general corporate purposes,
including, but not limited to, the funding of the continued development of the
Company’s existing drug portfolio and general working capital. Pending
application of such proceeds, the Company expects to invest the proceeds in
short-term, interest-bearing, investment-grade marketable securities or money
market obligations.
The Placement Agent Agreement and a
form of the Subscription Agreement are filed as Exhibits 10.1 and 10.2,
respectively, to this Current Report on Form 8-K, and such documents are
incorporated herein by reference. The opinion of Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., counsel to the Company, relating to the validity of the
shares offered in the Offering, is filed as Exhibit 5.1 to this Current Report
on Form 8-K.
The
shares were offered and sold pursuant to a prospectus supplement dated December
23, 2010 and an accompanying prospectus dated June 17, 2010, pursuant to the
Company’s shelf registration statement on Form S-3 (Registration No.
333-167258),
which was declared effective on June 17, 2010.
Effect
of Offering on Series C Warrants
As a result of the completion of the
Offering, the aggregate number of shares of common stock issuable to the holders
of the Company’s Series C warrants will increase from 462,654 shares to 464,852
shares and the exercise price of the Series C warrants will decrease from $6.35
per share to $6.32 per share.
Amendments
Relating to the February 2010 Private Placement
In connection with the Offering, on
December 23, 2010, the investors (the “February 2010 Investors”)
party to the Securities Purchase Agreement, dated February 25, 2010 (the “Securities Purchase
Agreement”), who purchased at least 75% of the aggregate original
subscription amount, entered into an amendment to the Securities Purchase
Agreement (the “SPA
Amendment”) with the Company. Pursuant to the SPA Amendment, which became
effective upon the completion of the Offering, the February 2010 Investors were
granted the right to participate in certain of the Company’s future financing
transactions (“Subsequent
Financings”) on or prior to the earlier of (i) the first trading day
immediately following the date on which the Company completes Subsequent
Financings resulting in aggregate gross proceeds in excess of $15 million, or
(ii) December 31, 2011.
The February 2010 Investors will have
the right to participate in an amount of the Subsequent Financing equal to 100%
of the Subsequent Financing amount, on the same terms, conditions and price
provided for in the Subsequent Financing.
The Company is required to provide
certain notices to the February 2010 Investors in respect of any contemplated
Subsequent Financing. In order for the February 2010 Investors to participate in
such financing transactions, such investors must respond to the Company’s
notices in accordance with the provisions of the Securities Purchase Agreement,
as amended by the SPA Amendment.
Also in connection with the Offering,
on December 17, 2010, the Company entered into a new engagement letter with
Rodman. Pursuant to the new engagement letter, if during the 12 month period
following the completion of the Offering, the Company or any of its subsidiaries
decides to finance or refinance any indebtedness using a manager or agent,
Rodman (or an affiliate) will have the right to participate with respect to such
financing or refinancing as a co-manager, co-placement agent or co-agent.
Furthermore, during the same period, if the Company or any of its subsidiaries
decides to raise funds by means of a public offering or a private placement of
equity or debt securities using an underwriter or placement agent, Rodman (or an
affiliate) will have the right to participate in such financing as a
co-underwriter or co-placement agent.
On and after the closing date of the
Offering and until December 31, 2011, Rodman will also be entitled to certain
fees in respect of any public or private offering or other financing or
capital-raising transaction to the extent that such financing or capital is
provided to the Company by investors introduced by Rodman in connection with the
transactions pursuant to the Securities Purchase Agreement.
A form of the SPA Amendment is filed as
Exhibit 10.3 to this Current Report on Form 8-K, and such document is
incorporated herein by reference.
Item
8.01
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Other
Events.
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On December 23, 2010, the Company
issued a press release announcing the Offering. A copy of the press
release is attached hereto as Exhibit 99.1, and incorporated herein by
reference.
Neither
the filing of the press release as an exhibit to this Current Report on Form 8-K
nor the inclusion in the press release of a reference to the Company’s internet
address shall, under any circumstances, be deemed to incorporate the information
available at or accessible from the Company’s internet address into this Current
Report on Form 8-K. The information available at or accessible from the
Company’s internet address is not part of this Current Report on Form 8-K or any
other report filed the Company with the SEC.
The disclosure in Item 1.01 under the
heading “Effect of Offering on Series C Warrants” is incorporated herein by
reference.
Item
9.01
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Financial
Statements and Exhibits
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(d)
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The
following exhibits are furnished with this
Report:
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Exhibit No.
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Description
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5.1
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Opinion
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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10.1
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Placement
Agent Agreement, dated December 23, 2010, between Cleveland BioLabs, Inc.
and HFP Capital Markets, LLC.
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10.2
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Form
of Subscription Agreement, dated December 23, 2010, between the Company
and the investor signatory thereto.
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10.3
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Form
of Amendment to Securities Purchase Agreement, dated December 23, 2010,
among the Company and the amending purchasers identified on the signature
pages thereto.
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99.1
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Press
Release dated December 23,
2010.
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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 thereunto duly
authorized.
CLEVELAND
BIOLABS, INC.
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By:
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/s/ John A. Marhofer,
Jr.
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Name:
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John
A. Marhofer, Jr.
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Title:
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Chief
Financial
Officer
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Date:
December 29, 2010