false 0001318641 0001318641 2022-01-12 2022-01-12
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): January 12, 2022
 
 
Statera Biopharma, Inc.
(Exact Name of Registrant as Specified in Charter)
 
 
Delaware
001-32954
20-0077155
(State or Other Jurisdiction of Incorporation)
(Commission File Number)
(I.R.S. Employer Identification Number)
     
 
2537 Research Boulevard, Suite 201
Fort Collins, CO 80526
 
(Address of Principal Executive Offices and zip code)
     
 
(888) 613-8802
 
(Registrant's Telephone Number, Including Area Code)
 
Securities registered or to be registered pursuant to Section 12(b) of the Act:
 
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common stock, par value $0.005
STAB
NASDAQ Capital Market
 
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:
 
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
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 8.01.
Other Events.
 
As previously disclosed, on July 27, 2021, Statera Biopharma, Inc. (the “Company”) became party to the Amended and Restated Share Purchase Agreement, dated as of July 27, 2021 (the “GEM Equity Line Agreement”), by and among GEM Global Yield LLC SCS, GEM Yield Bahamas Limited (such entities together, “GEM”) and the Company, as successor to Cytocom Inc. (“Cytocom”) following the Company’s merger with Cytocom. Under the GEM Equity Line Agreement, the Company may elect to issue and sell to GEM up to $75 million of its common stock, par value $0.005 per share. The Company previously filed a prospectus supplement, dated September 9, 2021 (the “Prospectus Supplement”), to the prospectus dated May 29, 2020 included in the Company’s Registration Statement on Form S-3 (File No. 333-238578), which was declared effective by the Securities and Exchange Commission on May 29, 2020, to register the offering of up to $7.5 million aggregate amount of shares of its common stock pursuant to the GEM Equity Line Agreement.
 
On January 12, 2022, the Company closed on the sale of 1,838,235 shares of its common stock (the “Shares”) for gross proceeds of $3,750,000 at a price of $2.04 per Share.
 
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy shares of the Company’s common stock in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
 
The legal opinion of McGuireWoods LLP relating to the legality of the issuance and sale of the Company’s common stock pursuant to the Prospectus Supplement is attached as Exhibit 5.1 to this Current Report on Form 8-K and is incorporated by reference herein.
 
Item 9.01
Financial Statements and Exhibits
 
(d)         Exhibits
 
Exhibit
Number
Description
   
5.1
   
23.1
   
104
Cover Page Interactive Data File (embedded within the Inline XBRL document).
 
 
 
 
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.
 
    Statera Biopharma, Inc.
     
  Date: January 18, 2022   By:   /s/ Cozette McAvoy                  
    Name: Cozette McAvoy
    Title: Chief Legal Officer
 
 

Exhibit 5.1

 
LOGO.JPG

 

 

January 18, 2022

 

 

Board of Directors

Statera Biopharma, Inc.

2537 Research Boulevard, Suite 201

Fort Collins, CO 80526

 

Statera Biopharma, Inc.

Registration Statement on Form S-3
(File No. 333-238578)

 

Ladies and Gentlemen:

 

We have acted as counsel to Statera Biopharma, Inc., a Delaware corporation (the “Company”), in connection with the offer and sale of up to $7,500,000 aggregate amount of common stock, $0.005 par value per share, of the Company (“Common Stock”), pursuant to an Amended and Restated Share Purchase Agreement dated July 27, 2021 (the “Share Purchase Agreement”), by and among the Company, GEM Global Yield LLC SC and GEM Yield Bahamas Limited. 1,838,235 shares of Common Stock (the “Shares”) have been issued pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-238578), which was declared effective by the Securities and Exchange Commission (“SEC”) on May 29, 2020 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), and the base prospectus filed as part of the Registration Statement, and the related prospectus supplement dated September 9, 2021 (collectively, the “Prospectus”). This opinion letter is being furnished in accordance with the requirements of Item 16 of Form S-3 and Item 601(b)(5)(i) of Regulation S-K promulgated under the Securities Act.

 

Documents Reviewed

 

In connection with this opinion letter, we have examined the following documents:

 

(a)    the Registration Statement, including the exhibits filed therewith and incorporated by reference therein from previous filings made by the Company with the SEC;

 

(b)    the Prospectus; and

 

(c)    the Share Purchase Agreement.

 

 

McGuireWoods LLP | www.mcguirewoods.com

Atlanta | Austin | Baltimore | Charlotte | Charlottesville | Chicago | Dallas | Houston | Jacksonville | London | Los Angeles - Century City

Los Angeles - Downtown | New York | Norfolk | Pittsburgh | Raleigh | Richmond | San Francisco | Tysons | Washington, D.C.

 
 

 

In addition we have examined and relied upon the following:

 

(i)    a certificate from the Chief Legal Officer of the Company certifying as to (A) true and correct copies of the Certificate of Incorporation, as amended, and Bylaws, as amended of the Company and (B) the resolutions of the Board of Directors of the Company authorizing the issuance, registration and sale of the Shares by the Company, (the “Authorizing Resolutions”);

 

(ii)    a certificate dated January 18, 2022 issued by the Secretary of State of Delaware attesting to the corporate status of the Company in Delaware; and

 

(iii)    originals, or copies identified to our satisfaction as being true copies, of such other records, documents and instruments as we have deemed necessary for the purposes of this opinion letter.

 

“Applicable Law” means the Delaware General Corporation Law.

 

Assumptions Underlying Our Opinions

 

For all purposes of the opinions expressed herein, we have assumed, without independent investigation, the following:

 

(a)    Factual Matters. To the extent that we have reviewed and relied upon (i) certificates of the Company or authorized representatives thereof, (ii) representations of the Company set forth in the Share Purchase Agreement and (iii) certificates and assurances from public officials, all of such certificates, representations and assurances are accurate with regard to factual matters and all official records (including filings with public authorities) are properly indexed and filed and are accurate and complete.

 

(b)    Authentic and Conforming Documents. All documents submitted to us as originals are authentic, complete and accurate, and all documents submitted to us as copies conform to authentic original documents.

 

(c)    Signatures; Legal Capacity. The signatures of individuals who have signed the documents we have reviewed are genuine. All individuals who have signed the documents we reviewed have the legal capacity to execute such documents.

 

(d)    Organizational Status, Power and Authority of Certain Parties. All parties to the Share Purchase Agreement are validly existing and in good standing in their respective jurisdictions of formation, except that no such assumption is made as to the Company as of the date hereof.

 

(e)    Authorization, Execution and Delivery of Share Purchase Agreement by Certain Parties. The Share Purchase Agreement and the documents required or permitted to be delivered thereunder have been duly authorized by all necessary corporate, limited liability company, business trust, partnership or other action on the part of the parties thereto and have been duly executed and delivered by such parties, except that no such assumptions are made as to the Company as of the date hereof.

 

 
 

 

(f)    Registration. The Registration Statement has been declared effective under the Securities Act and such effectiveness shall not have been terminated or rescinded.

 

(g)    No Mutual Mistake, Amendments, etc. There has not been any mutual mistake of fact, fraud, duress or undue influence in connection with the issuance of the Shares as contemplated by the Share Purchase Agreement and the Prospectus. There are and will be no oral or written statements or agreements that modify, amend or vary, or purport to modify, amend or vary, any of the terms of the Share Purchase Agreement.

 

Our Opinions

 

Based on and subject to the foregoing and the qualifications, limitations and other assumptions set forth in this opinion letter, we are of the opinion that the Shares, upon payment therefor in accordance with the terms of the Share Purchase Agreement, are validly issued, fully paid and non-assessable.

 

Qualification and Limitation Applicable to Our Opinions

 

The opinions set forth above are limited to the Applicable Law, and we do not express any opinion concerning any other law.

 

Miscellaneous

 

The foregoing opinions are being furnished only for the purpose referred to in the first paragraph of this opinion letter. Our opinions are based on statutes, regulations and administrative and judicial interpretations which are subject to change. We undertake no responsibility to update or supplement these opinions after the date hereof. Headings in this opinion letter are intended for convenience of reference only and shall not affect its interpretation. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K to be filed with the Commission on or about the date hereof, to the incorporation by reference of this opinion of counsel into the Registration Statement and to the reference to our firm in the Prospectus under the caption “Legal Matters.” In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder.

 

  Very truly yours,
   
  /s/ McGuireWoods LLP