CBLI Cytocom Inc

On October 11, 2022, the Company received notice from the Listing Qualifications Staff (the “Staff”) of The Nasdaq Stock Market LLC (“Nasdaq”) indicating that, based upon information set forth in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 (the “Form 10-K”), the Company does not satisfy the $2.5 million stockholders’ equity requirement for continued listing on The Nasdaq Capital Market, as required by Nasdaq Listing Rule 5550(b)(1), which could serve as an additional basis for the delisting of the Company’s securities from Nasdaq. The Company addressed the stockholders’ equity deficiency and its plan to regain compliance with that requirement at its recent hearing before the Nasdaq Hearings Panel (the “Panel”) along with its plan to evidence full compliance with Nasdaq’s filing and bid price requirements, as set forth in Nasdaq Listing Rules 5250(c)(1) and 5550(a)(2), respectively. The Panel has not yet issued a determination as a result of the hearing.

 

The Staff also determined that the Company’s failure to submit a “listing of additional shares” notification form (“LAS Form”) to Nasdaq at least 15 days in advance of the issuance of shares totaling 10% or more of the Company’s pre-issuance shares outstanding in September 2022 constituted a violation of Nasdaq Listing Rule 5250(c)(2)(D) (the “LAS Rule”), which could also serve as a basis for delisting from Nasdaq. The Staff’s determination was based upon the Company’s disclosure under the “Subsequent Events” section of the “Notes to Consolidated Financial Statements” set forth in the Form 10-K (note 19), which indicated that:

 

 

The above disclosure included in the Form 10-K was made in error. Although the Company has received multiple subscription agreements from potential investors for the financing as described, the Company has not yet executed the relevant subscription agreements and has not issued any shares or warrants in connection with those agreements. Given the plain language of Nasdaq Listing Rule 5250(c)(2)(D) and because no shares have yet been issued, the Company does not believe it violated the LAS Rule. In the event the Company determines to move forward with the financing, the Company intends to promptly file an LAS Form with Nasdaq and to promptly announce the completion of the offering.

 

In addition to the above-referenced financing, the Company is also pursuing additional fundraising activities to address the stockholders’ equity issue. The Company is committed to the timely submission of all necessary notifications to Nasdaq and the timely and accurate disclosure of its financing activities to the public.

 

 

This Current Report on Form 8-K contains forward-looking statements that are based on management’s beliefs and assumptions and on information currently available to the Company’s management. Forward-looking statements include statements regarding the Company’s expectations regarding the submission of a compliance plan to Nasdaq. Forward-looking statements include statements that are not historical facts and can be identified by terms such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “seek,” “should,” “will,” “would” or similar expressions and the negatives of those terms. The Company’s actual results and the timing of events could materially differ from those anticipated in such forward-looking statements as a result of certain risks and uncertainties including those described in more detail in the Company’s most recent Annual Report on Form 10-K and other documents on file with the SEC, each of which can be found on the SEC’s website, www.sec.gov, or the investor relations portion of the Company’s website, https://ir.staterabiopharma.com/financial-information/sec-filings. Except as required by law, the Company assumes no obligation to update these forward-looking statements, or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future.