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 27, 2009
CLEVELAND
BIOLABS, INC.
(Exact
name of registrant as specified in its 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,
New York 14203
(Address
of principal executive offices)
Registrant’s
telephone number, including area code: (716) 849-6810
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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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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x
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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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¨
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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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Securities Purchase
Agreement
On March
27, 2009, Cleveland BioLabs, Inc. (the “Company”) entered into a
Securities Purchase Agreement (the “Purchase Agreement”) with
various accredited investors (the “March 27 Purchasers”),
pursuant to which the Company agreed to sell to the March 27 Purchasers 78.90
shares of Series D Convertible Preferred Stock, with a par value of $0.005 per
share and a stated value of $10,000 per share (“Series D Preferred”), and
Common Stock Purchase Warrants (the “Warrants”) to purchase
563,576 shares of
the Company’s Common Stock, par value $0.005 per share (“Common Stock”). The sale of
the Series D Preferred and the Warrants to the March 27 Purchasers (the “March 27 Transaction”) was
consummated on March 27, 2009. The offering period for the Series D
Preferred and Warrants concluded on the same date.
As
described in the Form 8-K filed with the Securities and Exchange Commission (the
“Commission”) on March
23, 2009 (the “March 23
8-K”), the Company initially sold 170.18 shares of Series D Preferred and
Warrants to certain accredited investors (the “Original Purchasers”) on
February 13, 2009 (the “Original Transaction”), and
then sold an additional 293.76 shares of Series D Preferred and Warrants to
certain accredited investors (the “March 20 Purchasers,” and
collectively with the Original Purchasers and the March 27 Purchasers, the
“Purchasers”) on March
20, 2009 (the “March 20
Transaction,” and collectively with the Original Transaction and the
March 27 Transaction, the “Transactions”). At the time of
the Original Transaction, the Series D Preferred had a conversion price of
$1.85, and the Warrants had an exercise price of $2.60. However, as set forth in
the March 23 8-K, to accommodate a reduction in the conversion price of the
Series D Preferred and in the exercise price of the Warrants, the Company (i)
entered into an Amendment and Waiver Agreement with the Original Purchasers (the
“Amendment and Waiver
Agreement”), attached hereto as Exhibit 10.4, pursuant to which the
Original Purchasers agreed to amend the Purchase Agreement to, among other
things, waive certain rights that they would otherwise have as a result of the
March 20 Transaction, including the full anti-dilution protection of their
Warrants, such that the exercise price of their Warrants was reduced to $1.60
per share (rather than to $1.40), and the number of shares of Common Stock
underlying their Warrants was increased based on the adjusted conversion price
of the Series D Preferred ($1.40), and (ii) entered into an Amendment and
Reaffirmation Agreement with the March 20 Purchasers (the “Amendment and Reaffirmation
Agreement”), the form of which is attached hereto as Exhibit 10.5,
pursuant to which the March 20 Purchasers agreed to amend certain terms of the
Purchase Agreement that they had originally executed, including to change the
conversion price of the Series D Preferred to $1.40, and a change of the
exercise price of the Warrants to $1.60. In connection with the March 27
Transaction, the March 27 Purchasers also agreed to the terms of the Amendment
and Reaffirmation Agreement. As a result of these actions, as of the date of
this Form 8-K, all outstanding shares of Series D Preferred have a conversion
price of $1.40, subject to future adjustment for various events, and all
Warrants have an exercise price of $1.60, subject to future adjustment for
various events.
At the
conversion price of $1.40, each share of Series D Preferred is convertible into
approximately 7,143 shares of Common Stock, subject to future adjustment. In the
aggregate, the 542.84 shares of Series D
Preferred issued in the Transactions are convertible into 3,877,386 shares of
Common Stock as of the date hereof, and the Warrants issued in the Transactions
are exercisable for 4,265,122 shares of Common Stock, which includes
387,736 shares of
Common Stock underlying Warrants issued to Garden State Securities, Inc. (“GSS”) and its designees in
consideration for its services as exclusive placement agent. GSS also received
gross cash compensation equal to 10% of the aggregate offering amount in the
Transactions. In the aggregate, the Series D Preferred and Warrants issued in
the Transactions are convertible into, and exercisable for, as of the date
hereof, 8,142,508 shares of Common Stock.
The aggregate purchase price paid by
the March 27 Purchasers for the Series D Preferred and the Warrants was $789,000
(representing $10,000 for each share of Series D Preferred together with a
Warrant), and the Purchasers collectively paid an aggregate of approximately
$5,428,307 for the Series D Preferred and Warrants in the
Transactions. After related fees and expenses, the Company has
received in the Transactions net proceeds totaling approximately
$4,460,000. The Company intends to use the proceeds for working
capital purposes.
The form of the Purchase Agreement is
attached hereto as Exhibit 10.1 and the form of the Warrants is attached hereto
as Exhibit 4.1. A description of the material terms of the Transactions is set
forth below and is qualified in its entirety by reference to the documents
attached hereto as Exhibits 3.1, 4.1, 10.1, 10.2, 10.3, 10.4, and 10.5, which
are incorporated herein by reference.
Terms of the Series D
Preferred
To designate and establish the shares
of Series D Preferred, the Company’s Board of Directors (the “Board”) approved, and on
February 13, 2009, the Company filed with the Delaware Secretary of State, a
Certificate of Designation of Preferences, Rights and Limitations of Series D
Convertible Preferred Stock (the “Certificate of Designation”).
The terms of the Series D Preferred are described in more detail in the March 23
8-K and the Form 8-K filed with the Commission on February 17, 2009 (the “February 17 8-K,” and
collectively with the March 23 8-K, the “Prior 8-Ks”). The Certificate
of Designation is attached hereto as Exhibit 3.1.
Warrants
The Warrants have a seven-year term.
The initial exercise price of the Warrants in the Original Transaction was
$2.60, but, as described above, pursuant to the terms of the Amendment and
Waiver Agreement and the Amendment and Reaffirmation Agreement, the exercise
price of all of the Warrants is now $1.60. The form of Warrants is attached
hereto as Exhibit 4.1, and their terms are described in more detail in the Prior
8-Ks.
Registration Rights
Agreement
In connection with the Purchase
Agreement, the Company also entered into Registration Rights Agreements with the
Purchasers, dated as of February 13, 2009, March 20, 2009, and March 27, 2009,
respectively, the terms of which are described in more detail in the Prior 8-Ks.
The form of the Registration Rights Agreement is attached hereto as Exhibit
10.2.
Stockholder Approval and
Voting Agreements
Under The NASDAQ Marketplace Rules, the
Company may not issue more than an aggregate of 2,770,160 shares of Common Stock
(i.e., 19.99% of the issued and outstanding Common Stock on February 13, 2009)
upon the conversion of the Series D Preferred and the exercise of the Warrants
into Common Stock unless stockholder approval is obtained, and the Certificate
of Designation reflects this limitation. In addition, stockholder
approval is also required for an amendment to the Company’s charter to provide
for an increase in authorized shares of Common Stock from 40,000,000 to no less
than 60,000,000. Under the Amendment and Waiver Agreement and the
Amendment and Reaffirmation Agreement, the Company is required to seek these
approvals at a meeting of its stockholders held no later than June 26,
2009. The Board has resolved to seek these approvals and to recommend
approval of these proposals at the Company’s 2009 Annual Meeting of
Stockholders.
On February 13, 2009, the Company
entered into a Voting Agreement with Bernard L. Kasten, James J. Antal, Paul E.
DiCorleto, Michael Fonstein, Andrei Gudkov, Yakov Kogan, H. Daniel Perez, John
A. Marhofer, Jr. and The Cleveland Clinic Foundation, and subsequently, on March
20, 2009, the Company entered into a Voting Agreement with certain additional
stockholders. The parties to these Voting Agreements agreed to vote
in favor of the proposals described above. In the aggregate, the parties to the
Voting Agreements held approximately 33% of the Company’s outstanding voting
stock as of March 27, 2009.
The Company intends to file a proxy
statement and other relevant documents concerning the transaction described
above with the SEC. The proxy statement will be distributed to the
Company’s stockholders in connection with a meeting of
stockholders. Stockholders are urged to read the proxy statement, the
documents incorporated by reference in the proxy statement, the other documents
filed with the SEC and the other relevant materials when they become available
because they will contain important information about the
transaction. Investors will be able to obtain these documents free of
charge at the SEC’s website (http://www.sec.gov). The directors,
executive officers, and certain other members of management and employees of the
Company and its subsidiaries are participants in the solicitation of proxies in
favor of approval of the transaction and related matters from the stockholders
of the Company. Information about the directors and executive
officers of the Company is set forth in its proxy statement for the 2008 annual
meeting of stockholders filed with the SEC on April 1,
2008. Additional information regarding the interests of such
participants will be included in the transaction-related proxy statement and the
other relevant documents filed with the SEC when they become
available.
Impact of the Transactions
on Series B Preferred, Series B Warrants and Series C
Warrants
Immediately after the completion of the
Transactions, pursuant to weighted-average anti-dilution provisions, (a) the
conversion price of the Company’s Series B Preferred adjusted to $4.67 (from an original
conversion price of $7.00 prior to the Original Transaction), causing the
conversion rate of the Series B Preferred into Common Stock to become
approximately 1-to-1.49893; and (b) the aggregate number of shares of Common
Stock into which the 2,863,974 shares of outstanding Series B Preferred are
convertible increased to approximately 4,292,901. In addition,
pursuant to weighted-average anti-dilution provisions, (i) the exercise prices
of the Company’s Series B Warrants and Series C Warrants adjusted, to $6.79 and $7.20, respectively,
from the exercise prices of $10.36 and $11.00, respectively, that were in effect
prior to the Original Transaction, and (ii) the aggregate number of shares
issuable upon exercise of the Series B Warrants and the Series C Warrants
increased to approximately 3,609,261 and 408,032, respectively, from
2,365,528 and
267,074, respectively, prior to the Original Transaction.
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Item 3.02.
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Unregistered
Sales of Equity
Securities
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The information contained in Item 1.01
is hereby incorporated by reference. The Series D Preferred and the Warrants
were sold in transactions exempt from registration under the Securities Act of
1933, in reliance on Section 4(2) thereof and Rule 506 of Regulation D
thereunder. Each Purchaser represented that it was an “accredited investor” as
defined in Regulation D.
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Item
5.03
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Amendments
to Articles of Incorporation or Bylaws; Changes in Fiscal
Year
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The information contained in Item 1.01
is hereby incorporated by reference. The Certificate of Designation, which
authorizes a total of 1,300 shares of Series D Preferred, was filed with the
Delaware Secretary of State on February 13, 2009 and was effective upon
filing.
On March
30, 2009, the Company issued a press release announcing the March 27 Transaction
described in Item 1.01. A copy of the press release is attached as
Exhibit 99.1.
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Item 9.01.
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Financial
Statements and Exhibits
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(d) Exhibits
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Exhibit No.
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Exhibit
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3.1
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Certificate
of Designation of Preferences, Rights and Limitations of Series D
Convertible Preferred Stock, dated February 13, 2009.
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4.1
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Form
of Common Stock Purchase Warrant.
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10.1
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Form
of Securities Purchase Agreement.
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10.2
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Form
of Registration Rights Agreement.
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10.3
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Form
of Voting Agreement.
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10.4
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Amendment
and Waiver Agreement, dated March 20, 2009.
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10.5
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Form
of Amendment and Reaffirmation Agreement.
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99.1
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Press
Release, dated March 30,
2009.
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SIGNATURE
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: March 30,
2009
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By:
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/s/
Michael Fonstein
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Michael
Fonstein
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President
and Chief Executive
Officer
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EXHIBIT
INDEX
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Exhibit No.
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Exhibit
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3.1
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Certificate
of Designation of Preferences, Rights and Limitations of Series D
Convertible Preferred Stock, dated February 13, 2009.
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4.1
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Form
of Common Stock Purchase Warrant.
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10.1
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Form
of Securities Purchase Agreement.
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10.2
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Form
of Registration Rights Agreement.
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10.3
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Form
of Voting Agreement.
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10.4
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Amendment
and Waiver Agreement, dated March 20, 2009.
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10.5
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Form
of Amendment and Reaffirmation Agreement.
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99.1
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Press
Release, dated March 30,
2009.
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