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): September 4, 2014
Cleveland BioLabs, Inc.
(Exact Name of Issuer as Specified in Charter)
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DELAWARE
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001-32954
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20-0077155
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(State or Other Jurisdiction of
Incorporation or Organization)
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(Commission
File Number)
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(I.R.S. Employer
Identification Number)
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73 High Street
Buffalo, NY 14203
(Address of Principal Executive Offices and zip code)
(716) 849-6810
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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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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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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Item 1.01(a): Settlement Agreement
On September 4, 2014, Cleveland BioLabs, Inc. (the “Company”) entered into a settlement agreement (the “Settlement Agreement”) with
Sabby Healthcare Volatility Master Fund, Ltd. (“Sabby Healthcare”) and Sabby Volatility Warrant Master Fund, Ltd. (“Sabby Volatility,” and collectively with Sabby Healthcare, “Sabby”) to resolve the pending claims
against each other arising from the Company’s sale of shares of its common stock, $0.005 par value per share (the “Common Stock”), and warrants to purchase shares of its Common Stock (collectively, the “Securities”). The
Securities were sold pursuant to a securities purchase agreement dated January 14, 2014.
Sabby has agreed to withdraw its claims without
compensation from the Company, and the Company has agreed to waive any claims for legal fees and expenses from Sabby. The parties have exchanged mutual releases of liability.
On September 8, 2014, the Company issued a press release announcing the Settlement Agreement. A copy of the press release is attached as Exhibit 99.1.
Item 1.01(b): Series A Warrant Amendments
On
September 4, 2014, the Company entered into an Amendment to Series A Common Stock Purchase Warrant with each of Sabby Healthcare and Sabby Volatility (collectively, the “Series A Warrant Amendments”) to amend certain terms of a
warrant (collectively, the “Series A Warrants”), each dated January 16, 2014, by and between the Company and each of Sabby Healthcare and Sabby Volatility. The Series A Warrants entitle Sabby to purchase, in the aggregate, 2,049,180
shares of the Company’s Common Stock. The Series A Warrant Amendments extend the expiration dates of the Series A Warrants from January 16, 2019 to January 16, 2021. Additionally, the Series A Warrant Amendments reduce the exercise
price of the Series A Warrants from $1.22 to $1.02.
Each of the Series A Warrant Amendments are filed as exhibits to this Current Report on Form 8-K and
are incorporated herein by reference. The foregoing is only a brief description of the material terms of the Series A Warrant Amendments and does not purport to be a complete description of the rights and obligations of the parties thereunder and is
qualified in its entirety by reference to the exhibits.
Item 1.01(c) Series B Warrant Cancellation
On September 4, 2014, the Company and Sabby entered into an agreement pursuant to which each of Sabby Healthcare and Sabby Volatility will return for
cancellation a warrant, each dated January 16, 2014, by and between the Company and each of Sabby Healthcare and Sabby Volatility (collectively, the “Series B Warrants”). The Series B Warrants entitle Sabby to purchase, in the
aggregate, 2,049,180 shares of the Company’s Common Stock.
Item 1.01(d): Securities Purchase Agreement Amendment
On September 4, 2014 the Company entered into an Amendment No. 1 to Securities Purchase Agreement (the “Purchase Agreement Amendment”) with
each of Sabby Healthcare and Sabby Volatility to amend certain terms of that certain Securities Purchase Agreement, dated as of January 14, 2014, by and among the Company and certain institutional investors named on the signature pages attached
thereto (the “Purchase Agreement”). The Purchase Agreement Amendment removes from the Purchase Agreement restrictions on the Company’s ability to effect an issuance involving a variable rate transaction.
The Purchase Agreement Amendment is filed as an exhibit to this Current Report on Form 8-K and is incorporated herein by reference. The foregoing is only a
brief description of the material terms of the Purchase Agreement Amendment and does not purport to be a complete description of the rights and obligations of the parties thereunder and is qualified in its entirety by reference to the exhibits.
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Item 3.03(a)
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Material Modification to Rights of Security Holders
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The information set forth in Item 1.01(b) and
1.01(d) of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
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Item 9.01
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Financial Statements and Exhibits.
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(d)
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Exhibit
No.
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Description
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4.1
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Sabby Healthcare Series A Warrant Amendment
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4.2
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Sabby Volatility Series A Warrant Amendment
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10.1
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Purchase Agreement Amendment
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99.1
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Press Release titled “Cleveland BioLabs and Sabby Announce Resolution of Litigation,” dated September 8, 2014.
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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
hereunto duly authorized.
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Cleveland BioLabs, Inc.
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Date: September 8, 2014
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By:
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/s/ YAKOV KOGAN
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Name: Yakov Kogan
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Title: Chief Executive Officer
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Exhibit 4.1
AMENDMENT TO SERIES A COMMON STOCK PURCHASE WARRANT
This Amendment to Series A Common Stock Purchase Warrant (this “
Amendment
”) is dated as of September 4, 2014, by and
between Cleveland BioLabs, Inc., a Delaware corporation (the “
Company
”) and Sabby Healthcare Volatility Master Fund, Ltd. or its assigns (the “
Holder
”).
R
ECITALS
W
HEREAS
, the Company issued to the Holder a Series A Common Stock Purchase Warrant, dated
January 16, 2014 (the “
Warrant
”), exercisable for the Company’s Common Stock, and such Warrant is held by the Holder as of the date hereof.
W
HEREAS
, pursuant to Section 5(l) of the Warrant, any term thereof may be modified or amended with
the written consent of the Company and the Holder.
W
HEREAS
, the Company and the Holder wish to amend
the Warrant in accordance with the terms hereof, such that the termination date of the Warrant is extended by two (2) years and the exercise price is reduced from $1.22 to $1.02.
A
MENDMENT
N
OW
, T
HEREFORE
, in consideration of the mutual covenants and promises contained herein,
and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Holder agree as follows:
1. The Termination Date of the Warrant (as defined in the first paragraph of the Warrant) is hereby amended to be “January 16,
2021.”
2. Part b) of Section 2 of the Warrant is hereby amended and restated in its entirety to read as follows:
“
Exercise Price
. The exercise price per share of the Common Stock under this Warrant shall be
$1.02
, subject to adjustment
hereunder (the “
Exercise Price
”).”
3. The Holder agrees to affix this Amendment to the Warrant. Unless otherwise
defined, all capitalized terms in this Amendment shall be as defined in the Warrant. The Warrant, as amended hereby, shall be and remain in full force and effect in accordance with its terms and hereby is ratified and confirmed in all respects.
Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of the Holder under the Warrant, as in effect prior to the date
hereof.
4. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
[SIGNATURE PAGE FOLLOWS]
I
N
W
ITNESS
W
HEREOF
,
the undersigned have
executed this Amendment as of the first date above written.
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CLEVELAND BIOLABS, INC.
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By:
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/s/ Yakov Kogan
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Name:
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Yakov Kogan
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Title:
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CEO
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SABBY HEALTHCARE VOLATILITY
MASTER FUND, LTD.
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By:
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/s/ Robert Grundstein
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Name:
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Robert Grundstein
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Title:
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COO of Investment Manager
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[
Signature Page to Amendment to Series A Common Stock Purchase Warrant
]
Exhibit 4.2
AMENDMENT TO SERIES A COMMON STOCK PURCHASE WARRANT
This Amendment to Series A Common Stock Purchase Warrant (this “
Amendment
”) is dated as of September 4, 2014, by and
between Cleveland BioLabs, Inc., a Delaware corporation (the “
Company
”) and Sabby Volatility Warrant Master Fund, Ltd. or its assigns (the “
Holder
”).
R
ECITALS
W
HEREAS
, the Company issued to the Holder a Series A Common Stock Purchase Warrant, dated
January 16, 2014 (the “
Warrant
”), exercisable for the Company’s Common Stock, and such Warrant is held by the Holder as of the date hereof.
W
HEREAS
, pursuant to Section 5(l) of the Warrant, any term thereof may be modified or amended with
the written consent of the Company and the Holder.
W
HEREAS
, the Company and the Holder wish to amend
the Warrant in accordance with the terms hereof, such that the termination date of the Warrant is extended by two (2) years and the exercise price is reduced from $1.22 to $1.02.
A
MENDMENT
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OW
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HEREFORE
, in consideration of the mutual covenants and promises contained herein,
and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Holder agree as follows:
1. The Termination Date of the Warrant (as defined in the first paragraph of the Warrant) is hereby amended to be “January 16,
2021.”
2. Part b) of Section 2 of the Warrant is hereby amended and restated in its entirety to read as follows:
“
Exercise Price
. The exercise price per share of the Common Stock under this Warrant shall be
$1.02
, subject to adjustment
hereunder (the “
Exercise Price
”).”
3. The Holder agrees to affix this Amendment to the Warrant. Unless otherwise
defined, all capitalized terms in this Amendment shall be as defined in the Warrant. The Warrant, as amended hereby, shall be and remain in full force and effect in accordance with its terms and hereby is ratified and confirmed in all respects.
Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of the Holder under the Warrant, as in effect prior to the date
hereof.
4. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
[SIGNATURE PAGE FOLLOWS]
I
N
W
ITNESS
W
HEREOF
,
the undersigned have executed this
Amendment as of the first date above written.
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CLEVELAND BIOLABS, INC.
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By:
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/s/ Yakov Kogan
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Name:
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Yakov Kogan
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Title:
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CEO
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SABBY VOLATILITY WARRANT
MASTER FUND, LTD.
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By:
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/s/ Robert Grundstein
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Name:
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Robert Grundstein
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Title:
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COO of Investment Manager
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[
Signature Page to Amendment to Series A Common Stock Purchase Warrant
]
Exhibit 10.1
AMENDMENT No. 1 TO
SECURITIES PURCHASE AGREEMENT
This Amendment No. 1 to Securities Purchase Agreement (this “
Amendment
”) is made and entered into as of
September 4, 2014, and amends that certain Securities Purchase Agreement, dated as of January 14, 2014, (the “
Agreement
”), by and among Cleveland Biolabs, Inc., a Delaware corporation (the “
Company
”), and
the parties (each individually a “
Purchaser
,” and collectively the “
Purchasers
”) named on the purchaser signature pages attached thereto. Capitalized terms not otherwise defined herein shall have the meaning given
to them in the Agreement.
RECITALS
WHEREAS, the Company and the undersigned Purchasers desire to amend the Agreement to remove any and all restrictions on the Company’s
ability to effect an issuance involving a Variable Rate Transaction;
WHEREAS, Article 5.5 of the Agreement provides that the terms and
provisions of the Agreement may be amended with the written consent of the Company and the Purchasers having original Subscription Amounts totaling at least a majority of the aggregate original Subscription Amounts at the Closing (collectively, the
“
Required Purchasers
”); and
WHEREAS, the undersigned constitute the Required Purchasers.
AGREEMENT
NOW,
THEREFORE, IN CONSIDERATION of the foregoing recitals and the mutual covenants contained in this Amendment, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
AMENDMENTS
1.
Amendment to
Section 1.1.
The definition of Variable Rate Transaction is hereby deleted in its entirety from Section 1.1 of the Agreement.
2.
Amendment to Section 4.12(b).
Section 4.12(b) of the Agreement is hereby deleted in its entirety from the Agreement.
3.
Amendment to
Section 4.12(c)
. Section 4.12(c) of the Agreement is hereby amended and restated in its entirety to read as follow:
“(c) Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance.”
-1-
MISCELLANEOUS
4.
Severability.
In the event one or more of the provisions of this Amendment should, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Amendment, and this Amendment shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
5.
Counterparts.
This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same Amendment.
6.
Conflicts
. In the event of any inconsistencies between this Amendment and the Agreement, the terms of
this Amendment shall govern. Except as provided for herein, all other terms and conditions of the Agreement shall remain unchanged and the parties hereto reaffirm the terms and conditions of such Agreement. This Amendment may only be amended by a
document, in writing, of even or subsequent date hereof, executed by the Company and the Required Purchasers.
7.
Successors and Assigns.
The
provisions hereof shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors, assigns, heirs, executors and administrators and other legal representatives.
8.
Governing Law
. This Amendment shall be governed by and construed under the laws of the State of New York in all respects as such laws are applied to
agreements among New York residents entered into and performed entirely within New York, without giving effect to conflict of law principles thereof.
[R
EMAINDER
OF
P
AGE
I
NTENTIONALLY
L
EFT
B
LANK
]
-2-
I
N
W
ITNESS
W
HEREOF
,
the parties hereto have
executed this
A
MENDMENT
as of the date set forth in the first paragraph hereof.
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COMPANY:
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CLEVELAND BIOLABS, INC.
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By:
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/s/ Yakov Kogan
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Name:
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Yakov Kogan
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Title:
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Chief Executive Officer
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Signature Page to First Amendment to Securities Purchase Agreement
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REQUIRED PURCHASERS:
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SABBY HEALTHCARE VOLATILITY MASTER FUND, LTD.
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By:
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/s/ Robert Grundstein
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Name:
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Robert Grundstein
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Title:
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COO of Investment Management
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SABBY VOLATILITY WARRANT MASTER FUND, LTD.
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By:
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/s/ Robert Grundstein
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Name:
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Robert Grundstein
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Title:
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COO of Investment Management
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Signature Page to First Amendment to Securities Purchase Agreement
Exhibit 99.1
FOR IMMEDIATE RELEASE
Cleveland BioLabs and Sabby Announce Resolution of Litigation
Buffalo, NY – September 8, 2014 – Cleveland BioLabs, Inc. (NASDAQ:CBLI)
and Sabby Healthcare Volatility Master Fund, Ltd. and Sabby
Volatility Warrant Master Fund, Ltd. (collectively, “Sabby”), today announced an agreement to resolve the pending claims against each other arising from the January 2014 sale of securities.
Based upon CBLI’s documentary evidence and representation that CBLI had no prior knowledge, information, or reasonable belief indicating that BARDA would
terminate negotiations with CBLI, Sabby Healthcare Volatility Master Fund, Ltd. and Sabby Volatility Warrant Master Fund, Ltd. have agreed to withdraw their claims without compensation from the Company. CBLI has agreed to waive any claims for legal
fees and expenses from Sabby. The parties have exchanged mutual releases.
The Parties have also agreed that Sabby will return to the Company for
cancellation the Series B warrants for 2,049,180 shares of common stock at an exercise price of $1.22 per share that it received in connection with the January 2014 transaction. Sabby will also waive its right to object to, and cancel all
restrictions to, variable rate transactions that it has in connection with the January 2014 transaction. The Company has agreed to extend the term of the Series A warrants for 2,049,180 shares of common stock that Sabby received in connection
with the January 2014 transaction by two years and reduce the exercise price from $1.22 to $1.02.
The Company and Sabby look forward to continuing a
mutually beneficial financial relationship, as demonstrated by Sabby’s recent participation in a June 2014 private placement with CBLI.
About
Cleveland BioLabs
Cleveland BioLabs, Inc. is an innovative biopharmaceutical company seeking to develop first-in-class pharmaceuticals designed to
address diseases with significant medical need. The company’s lead product candidates are entolimod, which is being developed for a biodefense indication and as a potential cancer treatment and Curaxin CBL0137, our lead oncology product
candidate. The company conducts business in the United States and in the Russian Federation through our three operating subsidiaries, Incuron, LLC, BioLabs 612, LLC and Panacela Labs, Inc. The company maintains strategic relationships with the
Cleveland Clinic, Roswell Park Cancer Institute, and the Children’s Cancer Institute Australia. To learn more about Cleveland BioLabs, Inc., please visit the Company’s website at
http://www.cbiolabs.com.
This press release contains certain forward-looking information about Cleveland BioLabs that is intended to be covered by the safe harbor for
“forward-looking statements” provided by the Private Securities Litigation Reform Act of 1995, as amended. Forward-looking statements are statements that are not historical facts. Words such as “look forward,” “will,”
and similar expressions are intended to identify forward-looking statements. These statements include, but are not limited to, statements regarding relationships and agreements with third-parties. All of such statements are subject to certain risks
and uncertainties, many of which are difficult to predict and generally beyond the control of the Company, that could cause actual results to differ materially from those expressed in, or implied or projected by, the forward-looking information and
statements.
These risks and uncertainties include, among others, subsequent changes in the relationships or agreements
with third parties. Some of these factors could cause future results to materially differ from the recent results or those projected in forward-looking statements. See also the “Risk Factors” and “Forward-Looking Statements”
described in the Company’s periodic filings with the Securities and Exchange Commission.
Contact:
Rachel Levine
Vice President, Investor Relations
Cleveland BioLabs, Inc.
T: (917) 375-2935
E: rlevine@cbiolabs.com