Note 10 - Commitments and Contingencies
|3 Months Ended|
Mar. 31, 2020
|Notes to Financial Statements|
|Commitments and Contingencies Disclosure [Text Block]||
We are subject to legal proceedings and claims that arise in the ordinary course of business. In accordance with ASC Topic
Contingencies, we make a provision for a liability when it is both probable that a liability has been incurred and the amount of the loss can be reasonably estimated. Although the outcome of any litigation is uncertain, in our opinion, the amount of ultimate liability, if any, with respect to these actions, will
notmaterially affect our financial position.
As disclosed in the Company’s Annual Report on Form
10-K and other filings, the Company has been engaged in ongoing litigation with CRG, in its capacity as a lender and as control agent for other affiliated lenders party to the CRG Loan Agreement (collectively, the “Lenders”), 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
December 2017,the Texas Court ruled that the Company’s total obligation to CRG was in excess of
$66.0million, limited to
$66.0million under the Global Settlement Agreement. The Texas Court acknowledged only the
$59.0million payment made in
March 2017,concluding that the Company owed CRG another
$7.0million, however the Texas Court did
notexpressly take the Company’s
June 2016payment of
$4.1million into account and awarded, as part of the
$66.0million, amounts that had already been paid as part of the
$4.1million. The Company believes that this
$4.1million should be credited against the
$7.0million and has appealed the Texas Court’s judgment. The Court of Appeals dismissed the Company’s appeal without reaching the merits due to a contractual waiver of appeal.
April 9, 2018,CRG drew approximately
$7.1million on the Cardinal Health
414letter of credit. These were funds to which Navidea would otherwise have been entitled. This was in addition to the
$4.1million and the
$59.0million that Navidea had previously paid to CRG.
The Company has also been engaged in ongoing litigation with CRG in the Court of Common Pleas of Franklin County, Ohio related to Navidea’s claims 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
2017,pursuant to which Navidea agreed to pay up to
$66.0million to Lenders, as well as through actions and misrepresentations by CRG after the Global Settlement Agreement was executed. The claims in that suit are for breach of contract, conversion and unjust enrichment against the Lenders for their collection of more than
$66.0million, the maximum permitted under the Global Settlement Agreement, and their double recovery of amounts paid as part of the
$4.1million paid in
June 2016and recovered again as part of the
$66.0million. CRG’s double recovery and recovery of more than
$66.0million are due to CRG drawing the entire
$7.1million on the Cardinal Health
414letter of credit. The Lenders sought a Writ of Prohibition in the Ohio Supreme Court to prevent this case from moving forward, which was denied, and proceedings resumed in front of the Ohio Court. Following an unsuccessful mediation on
May 7, 2019,Navidea moved for summary judgment on
June 28, 2019.On
November 27, 2019,the Ohio Court found that when CRG collected more than
$66.0million, they took an excess recovery and breached the Global Settlement Agreement. The Ohio Court awarded approximately
$4.3million to Navidea, plus statutory interest from
April 9, 2018,the date CRG drew on the Cardinal Health
414letter of credit. The Ohio Court also found that there was
nounjust enrichment or conversion by CRG since this was a matter of contract and only contract damages were appropriate. The decision is a final appealable order and terminates the case before the Ohio Court. On
December 5, 2019,CRG filed a notice of appeal with Ohio’s
10thDistrict Court of Appeals regarding the judgment in favor of Navidea. The briefing of the appeal concluded on
March 27, 2020.Oral argument
maybe held on the appeal, but if and when the oral argument will be held is uncertain due to the disruption caused by the COVID-
19pandemic. At present, it is unknown how long the disruptions due to the pandemic emergency will last, and thus uncertain as to the timeline under which the matter will progress in the Ohio Court of Appeals.
CRG filed another lawsuit in the Texas Court in
April 2018.This suit seeks a declaratory judgment that CRG did
notbreach the Global Settlement Agreement by drawing the entire
$7.1million on the Cardinal Health
414letter of Credit. CRG also alleges that the Company breached the Global Settlement Agreement by appealing the Texas Court’s judgment and by filing the suit in Franklin County, Ohio. The Company moved to dismiss CRG’s claims under the Texas Citizens’ Participation Act. The Texas Court denied the motion to dismiss. The Company filed an interlocutory appeal of the denial of its motion to dismiss. That appeal is fully briefed, and the parties await the court of appeals’ ruling. Proceedings in the Texas Court are stayed pending resolution of that appeal. See Note
November 2017,Platinum-Montaur commenced an action against the Company in the Supreme Court of the State of New York, County of New York (the “New York Supreme Court”), seeking damages of approximately
$1.9million purportedly due as of
March 3, 2017,plus interest accruing thereafter. The claims asserted were for breach of contract and unjust enrichment in connection with funds received by the Company under the Platinum Loan Agreement. The action was subsequently removed to the United States District Court for the Southern District of New York (the “District Court”). On
October 31, 2018,the District Court granted judgment for Navidea and dismissed all claims in the case. The District Court stated that Platinum-Montaur had
nostanding to assert any contractual interest in funds that might be due under the Platinum Loan Agreement. The District Court also disagreed with Platinum-Montaur’s claim of unjust enrichment on similar grounds and found that Platinum-Montaur lacked any sufficient personal stake to maintain claims against Navidea. The claims against Navidea were dismissed without prejudice on the grounds of lack of standing to pursue the claims asserted.
November 30, 2018,Platinum-Montaur filed a notice of appeal with the United States Court of Appeals for the Second Circuit (the “Second Circuit”) claiming that the District Court erred in dismissing Platinum-Montaur’s claims for breach of contract and unjust enrichment. On
January 22, 2019,Platinum-Montaur filed its brief in the Second Circuit, asking the Second Circuit to reverse the District Court and remand the case to the District Court for further proceedings. The Second Circuit held oral argument in this matter on
September 5, 2019.On
November 25, 2019,the Second Circuit issued a decision which remanded the case to the District Court for further consideration of whether the District Court had jurisdiction over the case following removal from the New York Supreme Court. The Second Circuit did
notaddress the merits of Platinum-Montaur’s allegations against Navidea. By agreement of the parties, the case was remanded from the District Court to the New York Supreme Court. A preliminary conference was set for
April 28, 2020but was cancelled due to the COVID-
19pandemic. In addition, the New York Supreme Court stopped accepting non-emergency filings due to the pandemic emergency. At present, it is unknown how long the disruptions due to the pandemic emergency will last, and thus uncertain as to the timeline under which the matter will progress in the New York Supreme Court. See Note
Goldberg Agreement and Litigation
August 2018,Dr. Michael Goldberg resigned from his positions as an executive officer and a director of Navidea. In connection with Dr. Goldberg’s resignation, Navidea and Dr. Goldberg entered into the Goldberg Agreement, with the intent of entering into
oneor more additional definitive agreements, which set forth the terms of the separation from service. Among other things, the Goldberg Agreement provided that Dr. Goldberg would be entitled to
1,175,000shares of our Common Stock, representing in part payment of accrued bonuses and payment of the balance of the Platinum debt. A portion of the
1,175,000shares to be issued to Dr. Goldberg will be held in escrow for up to
18months in order to reimburse Navidea in the event that Navidea is obligated to pay any portion of the Platinum debt to a party other than Dr. Goldberg. Further, the Goldberg Agreement provided that the Company’s subsidiary, MT, would redeem all of Dr. Goldberg’s preferred stock and issue to Dr. Goldberg super voting common stock equal to
5%of the outstanding shares of MT. In
November 2018,the Company issued
925,000shares of our Common Stock to Dr. Goldberg,
250,000of which were placed in escrow in accordance with the Goldberg Agreement.
February 11, 2019,Dr. Goldberg represented to the MT Board that he had, without MT Board or shareholder approval, created a subsidiary of MT, transferred all of the assets of MT into the subsidiary, and then issued himself stock in the subsidiary. On
February 19, 2019,Navidea notified MT that it was terminating the sublicense in accordance with its terms, effective
March 1, 2019,due to MT’s insolvency. On
February 20, 2019,the MT Board removed Dr. Goldberg as President and Chief Executive Officer of MT and from any other office of MT to which he
mayhave been appointed or in which he was serving. Dr. Goldberg remains a member of the MT Board, together with Michael Rice and Dr. Claudine Bruck. Mr. Rice and Dr. Bruck remain members of the board of directors of Navidea. The MT Board then appointed Jed A. Latkin to serve as President and Chief Executive Officer of MT.
New York Litigation Involving Dr. Goldberg
February 20, 2019,Navidea filed a complaint against Dr. Goldberg in the United States District Court, Southern District of New York, alleging breach of the Goldberg Agreement, as well as a breach of the covenant of good faith and fair dealing and to obtain a declaratory judgment that Navidea’s performance under the Goldberg Agreement is excused and that Navidea is entitled to terminate the Goldberg Agreement as a result of Dr. Goldberg’s actions. On
April 26, 2019,Navidea filed an amended complaint against Dr. Goldberg which added a claim for breach of fiduciary duty seeking damages related to certain actions Dr. Goldberg took while CEO of Navidea. On
June 13, 2019,Dr. Goldberg answered the amended complaint and asserted counterclaims against Navidea and
third-party claims against MT for breach of the Goldberg Agreement, wrongful termination, injunctive relief, and quantum meruit.
December 26, 2019,the District Court ruled on several motions related to Navidea and MT and Dr. Goldberg that substantially limited the claims that Dr. Goldberg can pursue against Navidea and MT. Specifically, the District Court found that certain portions of Dr. Goldberg’s counterclaims against Navidea and
third-party claims against Macrophage failed to state a claim upon which relief can be granted. Specifically, the District Court ruled that actions taken by Navidea and MT, including reconstituting the MT Board, replacing Dr. Goldberg with Mr. Latkin as Chief Executive Officer of MT, terminating the sublicense between Navidea and MT, terminating certain research projects, and allowing MT intellectual property to revert back to Navidea, were
notbreaches of the Goldberg Agreement.
The District Court also rejected Dr. Goldberg’s claim for wrongful termination as Chief Executive Officer of MT. In addition, the District Court found that Dr. Goldberg lacked standing to seek injunctive relief to force the removal of Dr. Claudine Bruck and Michael Rice from MT’s Board of Directors, to invalidate all actions taken by the MT Board on or after
November 29, 2018 (the date upon which Dr. Bruck and Mr. Rice were appointed by Navidea to the Board of MT), or to reinstate the terminated sublicense between Navidea and MT.
In addition, the District Court found Navidea’s breach of fiduciary duty claim against Dr. Goldberg for conduct occurring more than
threeyears prior to the filing of the complaint to be time-barred and that Dr. Goldberg is entitled to an advancement of attorneys’ fees solely with respect to that claim. The parties are in the process of submitting the issue to the District Court for resolution on how much in fees Dr. Goldberg is owed under the District Court’s order. On
January 27, 2020,Dr. Goldberg filed a motion seeking additional advancement from Navidea for fees in connection with the New York Action and the Delaware Action. Navidea has opposed the motion.
January 31, 2020,Dr. Goldberg filed a motion for leave to amend his complaint to add back in claims for breach of contract, breach of the implied covenant of good faith and fair dealing, quantum meruit and injunctive relief. On
April 1, 2020,the District Court denied Dr. Goldberg’s motion for leave to amend in its entirety. The discovery deadline in the New York Action is
June 15, 2020.
Delaware Litigation Involving Dr. Goldberg
February 20, 2019,MT initiated a suit against Dr. Goldberg in the Court of Chancery of the State of Delaware, alleging, among other things, breach of fiduciary duty as a director and officer of MT and conversion, and to obtain a declaratory judgment that the transactions Dr. Goldberg caused MT to effect are void. On
June 12, 2019,the Delaware Court found that Dr. Goldberg’s actions were
notauthorized in compliance with the Delaware General Corporate Law. Specifically, the Delaware Court found that Dr. Goldberg’s creation of a new subsidiary of MT and the purported assignment by Dr. Goldberg of MT’s intellectual property to that subsidiary were void. The Delaware Court’s ruling follows the order on
May 23, 2019in the case, in which it found Dr. Goldberg in contempt of its prior order holding Dr. Goldberg responsible for the payment of MT’s fees and costs to cure the damages caused by Dr. Goldberg’s contempt. MT’s claims for breach of fiduciary duty and conversion against Dr. Goldberg remain pending. As a result of the Delaware Court’s ruling and Navidea’s prior termination of the sublicense between itself and MT, all of the intellectual property related to the Manocept platform is now directly controlled by Navidea. A trial on MT’s claims against Goldberg for breach of fiduciary duty and conversion is presently scheduled for
June 2020.However, due to COVID-
19impacts on the judicial system, the Company expects that the trial date will be adjourned to a future date.
Derivative Action Involving Dr. Goldberg
July 26, 2019,Dr. Goldberg served shareholder demands on the Boards of Navidea and MT repeating many of the claims made in the lawsuits described above. On or about
November 20, 2019,Dr. Goldberg commenced a derivative action purportedly on behalf of MT in the District Court against Dr. Claudine Bruck, Y. Michael Rice, and Jed Latkin alleging a claim for breach of fiduciary duty based on the actions alleged in the demands. On
April 3, 2020,Dr. Goldberg dismissed the derivative action in New York without prejudice and retains the ability to re-file the action in Delaware. See Notes
NYSE American Continued Listing Standards
August 14, 2018,the Company received a Deficiency Letter from the NYSE American stating that Navidea was
notin compliance with certain NYSE American continued listing standards relating to stockholders’ equity. Specifically, Navidea was
notin compliance with Sections
1003(a)(i), (ii) and (iii) of the NYSE American Company Guide (the “Guide”), the highest of such standards requiring an issuer to have stockholders’ equity of
$6.0million or more if it has reported losses from continuing operations and/or net losses in its
fivemost recent fiscal years. In addition, the Deficiency Letter stated that the NYSE American staff (the “Staff”) determined that the Company’s securities had been selling for a low price per share for a substantial period of time and, pursuant to Section
1003(f)(v) of the Guide, Navidea’s continued listing was predicated on it effecting a reverse stock split of our Common Stock or otherwise demonstrating sustained price improvement within a reasonable period of time.
The Company regained compliance with the minimum trading price standard following a
twentyreverse split of its issued and outstanding Common Stock on
April 26, 2019.
February 14, 2020,the Company announced the execution of several funding transactions resulting in stockholders’ equity of
$6.0million, which brought the Company back into compliance with Sections
1003(a)(i), (ii) and (iii) of the Guide within the timeframe permitted by the NYSE American. However, much of the funding from these transactions has been delayed, due in part to the COVID-
19pandemic and its devastating impact on global financial markets. The Company is working closely with the parties to these transactions to complete the funding as soon as possible. The Company had a stockholders’ deficit of approximately
$1.8million as of
March 31, 2020.
The entire disclosure for commitments and contingencies.
Reference 1: http://fasb.org/us-gaap/role/ref/legacyRef