Item 1.01 Entry into a Material Definitive Agreement
On November 7, 2022, Statera Biopharma, Inc. (the "Company") entered into the
Assignment of Promissory Note (the "Partial Assignment") with Avenue Venture
Opportunities Fund, L.P. ("Avenue Venture") and Silverback Capital Corporation
("Silverback"), pursuant to which, in consideration for a cash payment of
$400,000 by Silverback to Avenue Venture, Avenue Venture assigned to Silverback
a $400,000 portion (the "Assigned Portion") of that certain Promissory Note in
the aggregate principal amount of $15 million issued by the Company to Avenue
Venture, dated as of April 26, 2021 (the "Original Note"), pursuant to the Loan
and Security Agreement, dated as of the even date of the Original Note, by and
between the Company and Avenue Venture, as supplemented and amended (the "Loan
Agreement"). Copies of the Loan Agreement and the Supplement to the Loan and
Security Agreement (the "Supplement") are attached as Exhibits 10.1 and 10.2 to
the Company's Current Report on Form 8-K filed with the Securities and Exchange
Commission (the "SEC") on August 2, 2021. A copy of the Forbearance and Second
Amendment to Loan Documents ("Forbearance Agreement") regarding the Loan
Agreement is attached as Exhibit 1.1 to the Company's Current Report on Form 8-K
filed with the SEC on May 27, 2022.
Pursuant to the Partial Assignment, the Company issued an Amended and Restated
Convertible Note Due May 1, 2024 (the "A&R Note") in the principal amount of
$400,000.00 (the "Note Issuance") to Silverback as of November 7, 2022 (the
"Issue Date"). The A&R bears interest at a variable rate of interest per annum
equal to the sum of (i) the greater of (A) the Prime Rate (as defined in the
Supplement) and (B) 3.25% plus (ii) 7.74%. Payment of the aggregate principal
amount of the A&R Note outstanding together with all accrued interest thereon
shall be made on May 1, 2024 (the "Maturity Date"). Additionally, Silverback has
the right to convert, at any time until the Maturity Date, all or any portion of
the outstanding principal amount, accrued interest and fees due and payable
thereon into shares of common stock of the Company (the "Conversion Shares") at
a conversion price equal to 75% of the lowest trading price of the Company's
common stock during the five trading day period preceding the conversion date
inclusive of the conversion date.
The aforementioned conversion right of Silverback is subject to certain
limitations as set forth in the A&R Note, including, among others, that (i)
Silverback may not convert an amount that would be convertible into that number
of Conversion Shares which would exceed the difference between the number of
shares of common stock beneficially owned by Silverback and its affiliates and
4.99% of the outstanding shares of common stock of the Company, and (ii) so long
as the rules of the Nasdaq Stock Market so require, the sum of the number of
shares of the Company's common stock that may be issued under the A&R Note shall
be limited to 19.99% of the shares of common stock issued and outstanding
immediately prior to the Issue Date, unless stockholder approval is obtained.
The Partial Assignment and Note Issuance follows the partial assignment of the
Original Note and convertible note issuance conducted on substantially identical
terms by and among the Company, Avenue Capital and Silverback and previously
disclosed in the Company's Current Report on Form 8-K filed with the SEC on
October 24, 2022.
The foregoing descriptions of the terms of the A&R Note and the Partial
Assignment do not purport to be complete and are qualified in their entirety by
reference to the full texts of the A&R Note and the Partial Assignment attached
as Exhibits 4.1 and 10.1 to this Current Report on Form 8-K, which exhibits are
incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information contained above in Item 1.01 is hereby incorporated by reference
into this Item 2.03 in its entirety.
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Item 3.02 Unregistered Sales of Equity Securities.
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K
with respect to the A&R Note is incorporated by reference herein. The A&R Note
and the Conversion Shares are being offered and issued in reliance upon the
exemptions from the registration requirements of the Securities Act of 1933, as
amended, provided by Section 4(a)(2) and Section 3(a)(9) thereof.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibit
Exhibit No. Description
4.1 Assignment of Promissory Note, dated November 7, 2022, by and among
Avenue Venture Opportunities Fund, L.P., Silverback Capital Corporation
and Statera Biopharma, Inc.
10.1 Amended and Restated Convertible Note Due May 1, 2024, dated as of
November 7, 2022
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