As disclosed in the Company’s Annual Report on Form -K and other filings, the Company has been engaged in ongoing litigation with Capital Royalty Partners II L.P. (“CRG”) in its capacity as a lender and as control agent for other affiliated lenders party to the CRG Loan Agreement, in the District Court of Harris County, Texas (the “Texas Court”) relating to CRG’s claims of default under the terms the CRG Loan Agreement. Following a trial in the Texas Court ruled that the Company’s total obligation to CRG was in excess of million, limited to million under the parties’ Global Settlement Agreement reached in The Texas Court acknowledged only the million payment made in concluding that the Company owed CRG another million, however the Texas Court did expressly take the Company’s payment of million into account and awarded, as part of the million, amounts that had already been paid as part of the million. The Company believes that this  million should be credited against the million; CRG disagrees.

 

On the Company filed an emergency motion to set supersedeas bond and to modify judgment, describing the double recovery created by the million award without taking into account the million payment in requesting that the judgment be modified to set the supersedeas amount at million so that the Company could stay enforcement of the judgment pending appeal. The Texas Court refused to rule on this motion, and the court of appeals entered an order compelling the Texas Court to set a supersedeas amount. On the Texas Court ordered the Company to put up a supersedeas bond in the amount of  million. The Company filed for an emergency stay of the order in the appellate court in Harris County. On the appellate court denied the Company’s emergency stay motion. The Company continues to believe that the million paid to CRG in should be credited as payment toward the million total, and the Company intends to further contest the matter through the appellate court in Texas. Navidea’s brief on the merits in this appeal is due on but this deadline is subject to potential extension. Navidea does expect a ruling on this appeal until at the earliest.

 

On the Company entered into an Amendment to the Asset Purchase Agreement (the “Amendment”). Pursuant to the Amendment, Cardinal Health paid the Company approximately million and agreed to pay the Company an amount equal to the unused portion of the letter of credit ( to exceed approximately  million) promptly after the earlier of (i) the expiration of the letter of credit and (ii) the receipt by Cardinal Health of evidence of the return and cancellation of the letter of credit. In exchange, the obligation of Cardinal Health to make any further contingent payments has been eliminated. Cardinal Health is still obligated to make the milestone payments in accordance with the terms of the earnout provisions of the Purchase Agreement. On CRG drew approximately million on the letter of credit. This was in addition to the million and the million that Navidea had previously paid to CRG.

 

On Navidea filed suit in the Court of Common Pleas for Franklin County, Ohio (the “Ohio Court”) against CRG and certain of its affiliates (collectively, the “Lenders”).  The suit asserts that the Lenders fraudulently induced Navidea to enter into a settlement agreement and breached the terms of the same through certain actions taken by the Lenders in connection with the Global Settlement Agreement reached in pursuant to which Navidea agreed to pay up to million to Lenders, as well as through actions and misrepresentations by CRG after the Global Settlement Agreement was executed.  The suit also asserts claims for conversion and unjust enrichment against the Lenders for their collection of more than million, the maximum permitted under the Global Settlement Agreement, and their double recovery of amounts paid as part of the million paid in and recovered again as part of the million. CRG’s double recovery and recovery of more than million are due to CRG drawing the entire million on the Cardinal Health letter of credit. On Navidea filed an amended complaint asserting additional claims, including claims for breach of confidentiality by CRG, and on CRG filed a motion seeking to dismiss the amended complaint. CRG’s motion to dismiss has been fully briefed and a decision on the motion is expected from the Court in the near future.

 

In a related proceeding before the Ohio Court, initially filed in and under which the Global Settlement Agreement was reached in the Ohio Court has issued preliminary findings that the settlement gave rise to a million cap on amounts owed to Lenders by Navidea and that Navidea might have been properly credited for certain funds in excess of million previously swept by Lenders from a bank account owned by Navidea.  The Ohio Court also made a preliminary ruling that it possessed jurisdiction to interpret the settlement agreement at issue. The Company is pursuing recovery of the million, and other damages, in the Ohio Court.

 

On CRG filed a new suit against the Company in the Texas Court. This new suit seeks a declaratory judgment that CRG did breach the Global Settlement Agreement by drawing approximately million on the Cardinal Health letter of credit. On CRG moved the Texas Court to issue an anti-suit injunction barring the Company from litigating in the Ohio Court. The Texas Court denied that motion on The Company moved to dismiss these claims pursuant to the Texas Citizens Participation Act. This motion to dismiss will be heard by the Texas Court on

 

On CRG filed a amended petition in the new suit. This amended petition includes the prior request for declaratory judgment that CRG did breach the Global Settlement Agreement. In addition, the amended petition asserts a claim against Navidea for breach of contract. CRG alleges that Navidea breached the Global Settlement Agreement and its duty of good faith and fair dealing by seeking reconsideration in the original Texas suit, appealing the original Texas suit, and filing the Ohio suit. The Company is contesting this issue in the Ohio Court, the Texas Court, and on appeal in Texas.

 

In addition, the Company previously was a party to a Loan Agreement with Platinum-Montaur Life Sciences LLC (“Platinum-Montaur”), an affiliate of Platinum Management (NY) LLC, Platinum Partners Value Arbitrage Fund L.P. (“PPVA”), Platinum Partners Liquid Opportunity Master Fund L.P., Platinum Liquid Opportunity Management (NY) LLC, and Montsant Partners LLC (collectively, “Platinum”) (the “Platinum Loan Agreement”) and a Third Amended and Restated Promissory Note (“Platinum Note”) given by Navidea in favor of Platinum-Montaur.

 

In connection with the closing of the Asset Sale to Cardinal Health the Company repaid to Platinum Partners Capital Opportunity Fund L.P. (“PPCO”) an aggregate of approximately million in partial satisfaction of the Company’s liabilities, obligations and indebtedness under the Platinum Loan Agreement between the Company and Platinum-Montaur, which were transferred by Platinum-Montaur to PPCO. The Company was informed by PPVA that it was the owner of additional amounts owed on the Platinum-Montaur loan. PPVA claims a balance of approximately million was due upon closing of the Asset Sale. That amount is also subject to competing claims of ownership by Dr. Michael Goldberg, the Company’s President and Chief Executive Officer. The Company has yet paid any amounts to PPVA or Dr. Goldberg given the pending dispute.

 

On Platinum-Montaur commenced an action against the Company in the Supreme Court of the State of New York, County of New York, seeking damages of approximately million purportedly due as of plus interest accruing thereafter.  The claims asserted are for breach of contract and unjust enrichment in connection with funds received by the Company under the Platinum Loan Agreement.  Said action was removed to the United States District Court for the Southern District of New York on An initial pretrial conference was held on and a follow up status conference was held on during which the Court set a briefing schedule and determined that Navidea’s motion to dismiss was due on The Company filed its motion to dismiss in advance of the filing deadline and the motion has been fully briefed with a decision expected from the Court in the near future.

 

The Company has experienced recurring net losses and recent unfavorable court rulings, and has used significant cash to fund its operations, all of which are factors that raise substantial doubt about our ability to continue as a going concern.  Our projected cash burn factors in certain cost cutting initiatives that have been approved by the board of directors and implemented, including reductions in the workforce and a reduction in facilities expenses.  Additionally, we have considerable discretion over the extent of development project expenditures and have the ability to curtail the related cash flows as needed.  The Company also has funds remaining under outstanding grant awards, and continues working to establish new sources of funding, including collaborations, potential equity investments, and additional grant funding that can augment the balance sheet as the Company works to reduce spending.  However, based on our current working capital and our projected cash burn, and without definitive agreements in place for additional funding, management believes that there is substantial doubt about the Company’s ability to continue as a going concern for at least months following the issuance of this Quarterly Report on Form -Q.