UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K/A

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

 

Date of report (Date of earliest event reported): May 3, 2017

 

AYTU BIOSCIENCE, INC.
(Exact Name of Registrant as Specified in Charter)

 

Delaware   000-53121   47-0883144
(State or Other Jurisdiction
of Incorporation)
  (Commission
File Number)
  (IRS Employer
Identification No.)

 

373 Inverness Parkway, Suite 206, Englewood, Colorado   80112
(Address of Principal Executive Offices)   (Zip Code)

 

Registrant’s Telephone Number, Including Area Code: (720) 437-6580

 

 

 

 

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):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company   ¨    

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.   ¨

 

 

 

 

Explanatory Note

 

On May 9, 2017, we filed a Current Report on Form 8-K (the “Original Form 8-K”) disclosing that we had consummated our acquisition of Nuelle, Inc. as our wholly owned subsidiary pursuant to the merger agreement dated May 3, 2017. This amendment to the Original Form 8-K is being filed for the purpose of satisfying our undertaking to file the financial statements and pro forma financial statements required by Item 9.01 of Form 8-K, and this amendment should be read in conjunction with the Original Form 8-K.

 

Item 9.01. Financial Statements and Exhibits

 

(a) Financial Statements of Business Acquired.

 

The audited financial statements of Nuelle, Inc. as of June 30, 2016 and the related statements of operations, changes in stockholders’ deficit and cash flows for the year ended June 30, 2016, and the related independent auditors’ report of EKS&H LLLP together with the unaudited financial statements as of March 31, 2017 and the related statements of operations, changes in stockholders’ deficit and cash flows for the nine month period ended March 31, 2017 are filed as Exhibit 99.1 to this report and incorporated herein by reference.

 

(b) Pro Forma Financial Information.

 

The unaudited pro forma combined statement of operations of Aytu BioScience, Inc. for the year ended June 30, 2016 and the nine months ended March 31, 2017, unaudited pro forma combined balance sheet as of March 31, 2017, and the notes related thereto, are filed as Exhibit 99.2 to this report and incorporated herein by reference.

 

(d) Exhibits.

 

Exhibit No.

Description of Exhibit 

23.1   Consent of EKS&H LLLP.
     
99.1   Audited financial statements of Nuelle, Inc.
     
99.2   Unaudited pro forma combined financial statements of Aytu BioScience, Inc.

 

 

 

 

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.

 

 

Date: July 20, 2017 AYTU BIOSCIENCE, INC.
   
  /s/ Gregory A. Gould  
  Name:   Gregory A. Gould  
  Title: Chief Financial Officer  

 

 

 

Exhibit 23.1

 

Consent of Independent Auditors

 

We hereby consent to the incorporation by reference on Form 8-K/A (No. 000-53121) of Aytu BioScience, Inc. of our report dated July 20, 2017, with respect to the balance sheet of Nuelle, Inc. as of June 30, 2016 and the related statements of operations, changes in stockholders’ deficit, and cash flows for the year then ended.

 

  /s/ EKS&H LLLP

 

Denver, Colorado

July 20, 2017

 

 

 

 

Exhibit 99.1

 

Nuelle, Inc.

Financial Statements

As of and for the Year Ended June 30, 2016

(With Independent Auditor’s Report Thereon)

And

As of March 31, 2017, and for the Nine Month Period Ended March 31, 2017

(Unaudited)

 

 

 

 

NUELLE, INC.

 

Table of Contents

 

  Page
   
Independent Auditors' Report 1
   
Financial Statements  
   
Balance Sheets 3
   
Statements of Operations 4
   
Statement of Changes in Stockholders' Deficit 5
   
Statements of Cash Flows 6
   
Notes to Financial Statements 7

 

 

 

 

INDEPENDENT AUDITORS' REPORT

 

The Directors

Nuelle, Inc.

Englewood, Colorado

 

We have audited the accompanying financial statements of Nuelle, Inc. (the "Company"), which are comprised of the balance sheet as of June 30, 2016, and the related statements of operations, changes in stockholders' deficit, and cash flows for the year then ended, and the related notes to the financial statements.

 

MANAGEMENT'S RESPONSIBILITY FOR THE FINANCIAL STATEMENTS

 

Management is responsible for the preparation and fair presentation of these financial statements in accordance with accounting principles generally accepted in the United States of America; this includes the design, implementation, and maintenance of internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error.

 

AUDITORS' RESPONSIBILITY

 

Our responsibility is to express an opinion on these financial statements based on our audit. We conducted our audit in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement.

 

An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditors' judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error. In making those risk assessments, the auditors consider internal control relevant to the entity's preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity's internal control. Accordingly, we express no such opinion. An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements.

 

 

 

 

The Directors

Nuelle, Inc.

Page Two

 

We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion.

 

OPINION

 

In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of Nuelle, Inc. as of June 30, 2016, and the results of its operations and its cash flows for the year then ended in accordance with accounting principles generally accepted in the United States of America.

 

EKS&H LLLP

 

July 20, 2017

Denver, Colorado

 

 

 

 

NUELLE, INC.

 

Balance Sheets

 

    March 31,2017     June 30, 2016  
    (Unaudited)        
Assets                
                 
Current assets                
Cash   $ 745,324     $ 5,897,861  
Accounts receivable     3,894       43,214  
Inventories     1,127,204       1,089,197  
Other current assets     4,105       104,567  
Total current assets     1,880,527       7,134,839  
                 
Non-current assets                
Property and equipment, net     457,308       640,884  
Software development costs, net     50,419       83,247  
Total non-current assets     507,727       724,131  
                 
Total assets   $ 2,388,254     $ 7,858,970  
                 
Liabilities and Stockholders' Deficit                
                 
Current liabilities                
Accounts payable and accrued liabilities   $ 226,229     $ 263,829  
Other current liabilities     554,161       407,271  
Notes payable, net of deferred financing costs     1,116,687       3,098,011  
Convertible notes payable     6,441,695       6,420,866  
Total current liabilities     8,338,772       10,189,977  
Total liabilities     8,338,772       10,189,977  
                 
Stockholders' deficit                
Series A preferred stock, Note 4     28,080       28,080  
Series A-1 preferred stock, Note 4     13,599       13,599  
Common stock, Note 4     11,518       11,518  
Additional paid-in capital     22,864,196       22,829,420  
Accumulated deficit     (28,867,911 )     (25,213,624 )
Total stockholders' deficit     (5,950,518 )     (2,331,007 )
                 
Total liabilities and stockholders' deficit   $ 2,388,254     $ 7,858,970  

 

See notes to financial statements.

 

  - 3 -  

 

 

NUELLE, INC.

 

Statements of Operations

 

    For the Nine-Month
Period Ended
    For the Year
Ended
 
    March 31, 2017     June 30, 2016  
    (Unaudited)        
             
Revenues   $ 227,618     $ 793,548  
                 
Cost of goods sold     115,646       384,810  
                 
Gross profit     111,972       408,738  
                 
Operating expenses                
Research and development     176,966       2,511,124  
Sales, general and administrative     2,611,008       6,104,669  
Operations     197,586       911,371  
Other     329,905       1,164,590  
Total operating expenses     3,315,465       10,691,754  
                 
Loss from operations     (3,203,493 )     (10,283,016 )
                 
Other (expense) income                
Interest expense     (453,226 )     (176,677 )
Interest income     2,432       870  
Total other expense     (450,794 )     (175,807 )
                 
Net loss   $ (3,654,287 )   $ (10,458,823 )

 

See notes to financial statements.

 

  - 4 -  

 

 

NUELLE, INC.

 

Statement of Changes in Stockholders' Deficit

For the Nine-Month Period Ended March 31, 2017 (Unaudited) and the Year Ended June 30, 2016

 

                      Additional           Total  
    Series A Preferred Stock     Series A-1 Preferred Stock     Common Stock     Paid-In     Accumulated     Stockholders'  
    Shares     Amount     Shares     Amount     Shares     Amount     Capital     Deficit     Deficit  
                                                       
Balance - June 30, 2015     29,313,757     $ 29,314       13,790,766     $ 13,791       10,002,500     $ 10,003     $ 22,727,113     $ (14,754,801 )   $ 8,025,420  
                                                                         
Preferred stock  converted to common stock     (1,233,950 )     (1,234 )     (1,919,603 )     (192 )     1,425,553       1,426       (59,692 )     -       (59,692 )
                                                                         
Options exercised, net     -       -       -       -       177,300       177       28,191       -       28,368  
                                                                         
Common stock repurchased     -       -       -       -       (87,500 )     (88 )     -       -       (88 )
                                                                         
Stock-based compensation     -       -       -       -       -       -       133,808       -       133,808  
                                                                         
Net loss     -       -       -       -       -       -       -       (10,458,823 )     (10,458,823 )
                                                                         
Balance - June 30, 2016     28,079,807       28,080       11,871,163       13,599       11,517,853       11,518       22,829,420       (25,213,624 )     (2,331,007 )
                                                                         
Issuance costs     -       -       -       -       -       -       20,004       -       20,004  
                                                                         
Stock-based compensation     -       -       -       -       -       -       14,772       -       14,772  
                                                                         
Net loss     -       -       -       -       -       -       -       (3,654,287 )     (3,654,287 )
                                                                         
Balance - March 31, 2017 (unaudited)     28,079,807     $ 28,080       11,871,163     $ 13,599       11,517,853     $ 11,518     $ 22,864,196     $ (28,867,911 )   $ (5,950,518 )

 

  - 5 -  

 

 

NUELLE, INC.

 

Statements of Cash Flows

 

    For the Nine-Month
Period Ended
    For the Year
Ended
 
    March 31, 2017     June 30, 2016  
    (Unaudited)        
Cash flows from operating activities                
Net loss   $ (3,654,287 )   $ (10,458,823 )
Adjustments to reconcile net loss to net cash used in operating activities                
Depreciation and amortization     227,420       237,936  
Loss on disposal of property and equipment     7,660       313,762  
Stock-based compensation     14,772       133,808  
Changes in operating assets and liabilities                
Accounts receivable     39,320       (43,214 )
Other current assets     100,462       (5,611 )
Inventories     (38,007 )     (1,077,197 )
Accounts payable and accrued liabilities     (37,600 )     (809,739 )
Other current liabilities     146,890       16,438  
      460,917       (1,233,817 )
Net cash used in operating activities     (3,193,370 )     (11,692,640 )
                 
Cash flows from investing activities                
Purchase of property and equipment     -       (268,993 )
Purchase of software     -       (102,422 )
Net cash used in investing activities     -       (371,415 )
                 
Cash flows from financing activities                
Convertible notes payable     20,829       6,420,866  
Notes payable     (2,000,000 )     2,000,000  
Debt issuance costs     -       (24,348 )
Proceeds from option exercise     -       28,368  
Cost related to issuance of preferred shares     20,004       (59,692 )
Common stock repurchase     -       (88 )
Net cash (used in) provided by financing activities     (1,959,167 )     8,365,106  
                 
Net decrease in cash     (5,152,537 )     (3,698,949 )
                 
Cash - beginning of period     5,897,861       9,596,810  
                 
Cash - end of period   $ 745,324     $ 5,897,861  

 

Supplemental disclosure of cash flow information:

 

Cash paid for interest for the nine-month period ended March 31, 2017 (unaudited) and the year ended June 30, 2016 was $55,984 and $39,264, respectively.

 

See notes to financial statements.

 

  - 6 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 1 - Description of Business and Summary of Significant Accounting Policies

 

Nuelle, Inc. (the "Company") is a sexual wellness and intimate care company focused on delivering groundbreaking solutions made specifically for women. The Company's newest category in women's sexual wellness is Fiera, the first scientifically proven arousal technology and sexual enhancement accessory for consumers.

 

The Company was originally formed in Delaware on September 27, 2012 as ExploraMed NC6, L.L.C. On October 29, 2013, the Company formally amended its certificate of incorporation, changing the name to ExploraMed NC6, Inc. The name was formally changed to Nuelle, Inc. on June 13, 2014.

 

Use of Estimates

 

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

 

The financial statements include some amounts that are based on management's best estimates and judgments. The most significant estimates relate to allowance for inventory obsolescence, useful lives of long-lived assets, valuation allowance for deferred taxes, stock-based compensation, and going concern. These estimates may be adjusted as more current information becomes available, and any adjustment could be significant.

 

Cash

 

Cash includes highly liquid instruments with an original maturity of three months or less. Periodically throughout the year, and at March 31, 2017 (unaudited) and June 30, 2016, the Company has maintained balances in excess of the federally insured limits. The Company has not experienced any losses on such accounts as of the date of this report. As of March 31, 2017, (unaudited) and June 30, 2016, the entire balance was in cash deposit accounts, and there was no balance in cash equivalents.

 

Accounts Receivable

 

The Company provides an allowance for doubtful accounts equal to the estimated uncollectible amounts. The Company's estimate is based on historical collection experience and a review of the current status of trade accounts receivable. It is reasonably possible that the Company's estimate of the allowance for doubtful accounts will change and that losses ultimately incurred could differ materially from the amounts estimated in determining the allowance. At March 31, 2017 (unaudited) and June 30, 2016, the Company estimated that all accounts receivable is collectible, and therefore no allowance has been provided.

 

  - 7 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 1 - Description of Business and Summary of Significant Accounting Policies (continued)

 

Concentrations of Credit Risk

 

The Company grants credit in the normal course of business to customers in the United States. The Company periodically performs credit analysis and monitors the financial condition of its customers to reduce credit risk. The Company performs ongoing credit evaluations of its customers but generally does not require collateral to support accounts receivable.

 

At March 31, 2017 (unaudited), one customer accounted for 100% of total accounts receivable and three customers accounted for 88% of total accounts receivable at June 30,2016.

 

Inventories

 

Inventories consist of raw materials and finished goods and are stated at the lower of cost or net realizable value, determined using the first-in, first-out method. Inventories are adjusted for estimated obsolescence and excess quantities and charged against the reserve based upon management's estimates of expected usage. At March 31, 2017 (unaudited) and June 30, 2016, no reserve was warranted.

 

Other Assets

 

Other assets consist primarily of prepaid expenses, and miscellaneous receivables.

 

Property and Equipment

 

Property and equipment is stated at cost. Depreciation is provided utilizing the straight-line method over the estimated useful lives for owned assets, ranging from three to four years.

 

Software Development Costs

 

The Company accounts for costs incurred in the development of computer software as software research and development costs until the preliminary project stage is completed. Direct costs incurred in the development of software are capitalized once the preliminary project stage is completed, management has committed to funding the project and completion and use of the software for its intended purpose are probable. The Company ceases capitalization of development costs once the software has been substantially completed and is ready for its intended use. Software development costs are amortized over their estimated useful lives of three years. Costs associated with upgrades and enhancements that result in additional functionality are capitalized.

 

Long-Lived Assets

 

The Company reviews its long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of the asset may not be recovered. The Company looks primarily to the estimated undiscounted future cash flows in its assessment of whether or not long-lived assets have been impaired. The Company has not recorded impairment expense for the nine months ended March 31, 2017 (unaudited) and the year ended June 30, 2016.

 

  - 8 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 1 - Description of Business and Summary of Significant Accounting Policies (continued)

 

Deferred Financing Costs

 

Costs associated with obtaining debt financing are deferred and amortized to interest expense using the effective interest method over the term of the related financing.

 

Income Taxes

 

The Company accounts for income taxes using an asset and liability approach. Such approach results in the recognition of deferred tax assets and liabilities for the expected future tax consequences of temporary differences between the book carrying amounts and the tax basis of assets and liabilities. The Company assesses a valuation allowance on the deferred tax assets if it is more likely than not that a portion of the available deferred tax assets will not be realized. The Company records the deferred tax assets net of valuation allowances.

 

The Company also accounts for uncertainty in income taxes in that the Company recognizes the tax benefits of tax positions only if it is more likely than not that the tax positions will be sustained by the applicable taxing authorities based on the technical merits of the positions. No reserve for uncertain tax positions has been recorded as of March 31, 2017, (unaudited) and June 30, 2016. As required, the Company records potential interest and penalties associated with its tax positions. The Company records interest and penalties, if any, as a component of interest expense.

 

Revenue Recognition

 

The Company recognizes revenue only when all of the following criteria have been met:

 

· Persuasive evidence of an arrangement exists,
· Delivery has occurred or services have been performed,
· The fee for the arrangement is fixed or determinable, and
· Collectability is reasonably assured.

 

Persuasive Evidence of an Arrangement Exists - The Company documents all terms of an arrangement in a written contract signed by the customer prior to recognizing revenue.

 

Delivery Has Occurred or Services Have Been Performed - The Company performs all services or delivers all products prior to recognizing revenue. Equipment is considered delivered upon delivery to a customer's designated location.

 

The Fee for the Arrangement Is Fixed or Determinable - Prior to recognizing revenue, a customer's fee is either fixed or determinable under the terms of the written contract.

 

Sales are recorded when products are shipped to customers. Provisions for discounts and rebates to customers, estimated returns and allowances, and other adjustments are provided for in the same period the related sales are recorded and are estimated at the time of sale.

 

  - 9 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 1 - Description of Business and Summary of Significant Accounting Policies (continued)

 

Revenue Recognition (continued)

 

Collectability is Reasonably Assured - The Company determines that collectability is reasonably assured prior to recognizing revenue. Collectability is assessed on a customer-by-customer basis based on criteria outlined by management. New customers are subject to a credit review process, which evaluates the customer's financial position and ultimately its ability to pay. The Company does not enter into arrangements unless collectability is reasonably assured at the outset. Existing customers are subject to ongoing credit evaluations based on payment history and other factors. If it is determined during the arrangement that collectability is not reasonably assured, revenue is recognized on a cash basis.

 

Shipping and Handling

 

The Company's shipping and handling costs are included in cost of goods sold for all periods presented.

 

Advertising Costs

 

The Company expenses advertising costs as incurred. Advertising expense for the nine months ended March 31, 2017 (unaudited) and the year ended June 30, 2016 was $742,654 and $2,714,935, respectively.

 

Stock-Based Compensation

 

The Company has granted stock option awards to key employees of the Company that will enable them to purchase shares of common stock. The Company recognized all stock-based payments in the statements of operations based on the estimated fair value of the awards on the date of grant. The Company determines the estimated fair value of the stock option awards using Black-Scholes option pricing model. The Company recognizes compensation costs for stock option awards ratably over the requisite service period, which generally equals the vesting period, using the straight-line method.

 

Subsequent Events

 

The Company has evaluated all subsequent events through the auditors' report date, which is the date these financial statements available to be issued. With the exception of those matters discussed in Note 6, there were no material subsequent events that required recognition or additional disclosure in these financial statements.

 

  - 10 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 2 - Balance Sheet Disclosures

 

Inventories are summarized as follows:

 

    March 31, 2017     June 30, 2016  
    (Unaudited)        
             
Raw materials   $ 992,743     $ 1,002,683  
Finished goods     134,461       86,514  
                 
    $ 1,127,204     $ 1,089,197  

 

Property and equipment are summarized as follows:

 

    March 31, 2017     June 30, 2016  
    (Unaudited)        
             
Manufacturing equipment   $ 640,341     $ 640,341  
Computer equipment     99,862       110,431  
Laboratory equipment     108,512       108,512  
Furniture     17,608       17,608  
      866,323       876,892  
Less accumulated depreciation     (409,015 )     (236,008 )
                 
    $ 457,308     $ 640,884  

 

Depreciation expense for the nine-month period ended March 31, 2017 (unaudited) and the year ended June 30, 2016 was $175,916 and $196,487, respectively.

 

Software development costs are summarized as follows:

 

    March 31, 2017     June 30, 2016  
    (Unaudited)        
             
Capitalized website development   $ 98,869     $ 98,869  
Capitalized software     34,363       34,363  
      133,232       133,232  
Less accumulated amortization     (82,813 )     (49,985 )
                 
    $ 50,419     $ 83,247  

 

Amortization expense for the nine-month period ended March 31, 2017 (unaudited) and the year ended June 30, 2016 was $32,828 and $41,449, respectively.

 

  - 11 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 2 - Balance Sheet Disclosures (continued)

 

Other current liabilities consist of the following:

 

    March 31, 2017     June 30, 2016  
    (Unaudited)        
             
Accrued interest   $ 553,792     $ 161,725  
Accrued vacation expense     -       140,345  
Accrued other     369       105,201  
                 
    $ 554,161     $ 407,271  

 

Note 3 - Notes Payable

 

Notes payable are as follows:

 

    March 31, 2017     June 30, 2016  
    (Unaudited)        
             
Note payable to a bank with interest at 3.11% and was paid off in February 2017. Collateralized by substantially all assets of the Company. In conjunction with the note payable, 230,000 warrants were issued, however, the warrants had a de minimis value at March 31, 2017 (unaudited), June 30, 2016, and at issuance.   $ -     $ 2,000,000  
                 
Note payable with annual interest at 1.2% and matures February 2018.     1,116,687       1,116,687  
                 
Convertible notes payable ("Notes") bear interest at 8%. The Notes matured March 30, 2017 and are in default at March 31, 2017.     6,441,695       6,420,866  
      7,558,382       9,537,553  
Less unamortized debt issuance costs     -       (18,676 )
                 
    $ 7,558,382     $ 9,518,877  

 

The Notes are convertible at the option of the holder upon a non-qualified transaction or any time prior to maturity date. There is an automatic conversion upon Qualified Financing. A Qualified Financing is defined as a transaction or series of transactions pursuant to which the Company issues and sells shares of its preferred stock for an aggregate gross proceeds of at least $5,000,000 (excluding all proceeds from the incurrence of indebtedness that is converted into such preferred stock, or otherwise cancelled in consideration for issuance of such preferred stock) with the principal purpose of raising capital.

 

In regards to the voluntary conversion upon a non-qualified transaction, the outstanding principal amount of the Notes and all accrued and unpaid interest shall convert into preferred stock at a price per share equal to 80% of the lowest price per share paid by other purchasers in the non-qualified financing.

 

  - 12 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 3 - Notes Payable (continued)

 

In regards to the voluntary conversion at any time prior to maturity, the outstanding principal and all accrued and unpaid interest shall convert into preferred stock at price per share of $0.53. The related beneficial conversion feature is de minimis.

 

The automatic conversion upon Qualified Financing, the outstanding principal and accrued and unpaid interest shall convert into preferred stock at a price per share equal to 80% of the lowest price per share paid by other purchasers in the Qualified Financing.

 

Note 4 - Stockholders' Deficit

 

On March 28, 2016, the Company increased the number of authorized shares of common stock from 65,000,000 to 70,000,000. At the nine-month period ended March 31, 2017 (unaudited) and the year ended June 30, 2016 there were 11,517,853 and 11,517,853 shares of common stock, respectively, issued and outstanding. The par value of each share of common stock is $0.001.

 

2016 Conversion

 

In 2016, investors with preferred shares were asked to participate in the Notes. Those preferred shareholders that did not participate in the Notes had their preferred shares converted to common stock. A total of 1,425,553 of common stock were issued to convert 1,233,950 shares of Series A and 1,919,603 shares of Series A-1.

 

Common Stock Repurchased

 

During 2016, the Company authorized the purchase of 87,500 shares of the Company's common stock. Subject to applicable security laws, repurchases may be made at such times, and in such amounts, as the Company deems appropriate. As of June 30, 2016, the Company had repurchased 87,500 shares at a price of $0.001.

 

Preferred Stock

 

On March 28, 2016, the Company increased the number of authorized shares of preferred stock from 44,000,000 to 55,413,755. The Company has designated 29,313,755 shares as Series A Preferred Stock ("Series A Preferred") and 26,100,000 as Series A-1 Preferred Stock ("Series A-1 Preferred") (collectively, "Preferred Stock"). At March 31, 2017 (unaudited) and June 30, 2016, there were 28,079,807 and 11,871,163 of Series A Preferred and Series A-1 Preferred issued and outstanding, respectively.

 

  - 13 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 4 - Stockholders' Equity (continued)

 

Preferred Stock (continued)

 

Voting Rights

 

The holders of the common stock are entitled to one vote for each share of common stock held at all meetings of stockholders. Each holder of Preferred Stock shares is entitled to the number of votes equal to the number of shares of voting common stock into which the Preferred Stock shares held could be converted as of the record date. The holders of Preferred Stock shares will vote together with the holders of common stock as a single class.

 

Dividend Rights

 

The holders of Preferred Stock are entitled to receive, when and if declared by the Board of Directors of the Company, a dividend at a rate of $0.0424 per share per annum, which is subject to adjustment, as provided in the Amended and Restated Certificate of Incorporation (the "Agreement"). Dividends are payable prior and in preference to any payment of any dividend on the common stock of the Company. The right to such dividends are not cumulative. The Board of Directors has not declared any dividends since inception; therefore, as of March 31, 2017, (unaudited) and June 30, 2016, no dividends payable have been recorded.

 

Liquidation Rights

 

Proceeds from the sale, liquidation, or similar event, after settlement of debts and obligations, including liquidation and dissolution expenses, will be distributed in accordance with the following order and priority:

 

First, to the holders of Preferred Stock, pro rata, with equal priority between Series A Preferred and Series A-1 Preferred, in an amount equal to $0.53 per share, which is subject to adjustment, as provided in the Agreement, plus any dividends declared but unpaid on such shares or an amount per share that would have been payable had all shares of Preferred Stock been converted into common stock immediately prior to such liquidation, dissolution, winding up, or deemed liquidation event. At March 31, 2017 (unaudited) and June 30, 2016, Series A Preferred and Series A-1 Preferred had liquidation preference of 14,882,298 and 7,207,556, respectively.

 

Thereafter, to the holders of the shares of common stock, pro rata based on the number of shares of common stock held by each such holder.

 

Conversion Rights

 

Preferred Stock shares are convertible, at the option of the holder, at any time after the date of issuance into that number of fully paid shares of common stock determined by dividing the conversion price, as defined below, per share in effect at the time of conversion into the conversion value, as defined below, per share of such Preferred Stock. The conversion price is $0.53 for each Preferred Stock share, subject to adjustment, as defined in the Agreement. The conversion value per share of Preferred Stock is $0.53.

 

  - 14 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 4 - Stockholders' Equity (continued)

 

Preferred Stock (continued)

 

Conversion Rights (continued)

 

The Preferred Stock shares are automatically converted upon either (i) the closing of an initial public offering that results in a price of at least $2.65 per share (subject to adjustment, as defined in the Agreement) and $30,000,000 of gross proceeds or (ii) the date and time, or the occurrence of an event, specified by vote or written consent of the holders of a majority of the then outstanding Preferred Stock shares, into voting common stock at the then applicable conversion rate.

 

Stock Options

 

The Company adopted a stock incentive plan in 2014 (the "Plan"), which was effective as of January 10, 2014. The Plan allows the Company to issue stock options for the purchase of 5,000,00 shares of common stock, which was increased to 9,300,000 effective April 10, 2015. The following stock option transactions occurred during the period presented in accordance with this plan.

 

As of June 30, 2015, there were 5,259,056 options outstanding, from previous issuances. During the year ended June 30, 2016, the Company recognized approximately $102,637 of compensation expense related to these issuances. As of June 30, 2016, there is $270,615 of stock-based compensation yet to be recorded related to this issuance.

 

During the year ended June 30, 2016, the Company issued options to various employees and board members. During the year ended June 30, 2016, the Company recognized approximately $32,058 of compensation expense related to these issuances. As of June 30, 2016, there is $149,282 of stock-based compensation yet to be recorded related to this issuance.

 

During the nine-month period ended March 31, 2017 (unaudited), no options were granted and the Company recognized approximately $14,772 of compensation expense related to previously granted options. As of March 31, 2017 (unaudited), there is $134,560 of stock-based compensation yet to be recorded.

 

  - 15 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 4 - Stockholders' Equity (continued)

 

Stock Options (continued)

 

The following table presents the activity for options outstanding:

 

          Weighted  
    Stock     Average  
    Options     Exercise Price  
             
Outstanding - June 30, 2015     5,259,056     $ 0.16  
Granted     2,206,932       0.16  
Forfeited/canceled     (731,000 )     0.16  
Exercised     (177,300 )     0.16  
                 
Outstanding - June 30, 2016     6,557,688       0.16  
Granted     -       -  
Forfeited/canceled     -       -  
Exercised     -       -  
                 
Outstanding - March 31, 2017 (unaudited)     6,557,688     $ 0.16  

 

The fair value of each option grant is estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted average assumptions used:

 

    June 30, 2016  
       
Approximate risk-free rate     1.46 %
Average expected life     6 years  
Dividend yield     - %
Volatility     60.00 %
Estimated fair value of total options granted   $ 198,181  

 

Note 5 - Income Taxes

 

The Company did not provide a current or deferred U.S. federal, state, or foreign income tax provision or benefit for any of the periods presented because it has experienced recurring operating losses. The Company has provided a full valuation allowance on the deferred tax asset, consisting primarily of the net operating loss, because of uncertainty regarding its realizability.

 

At June 30, 2016, the Company had net operating losses of approximately $9.9 million, respectively, related to U.S. federal, state, and foreign jurisdictions. Utilization of the net operating losses, which expire at various times starting in 2033, may be subject to certain limitations under Section 382 of the Internal Revenue Code of 1986, as amended, and other limitations under state and foreign tax laws.

 

  - 16 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 5 - Income Taxes (continued)

 

Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Company's deferred tax assets are approximately as follows:

 

    June 30, 2016  
       
Net operating loss   $ 9,915,255  
Deferred compensation     41,463  
Intangible assets     106,771  
Tax credits     335,725  
Fixed assets     (204,022 )
Net deferred tax assets     10,195,192  
Valuation allowance for deferred tax assets     (10,195,192 )
         
Net deferred tax asset   $ -  

 

Note 6 - Subsequent Events

 

On May 3, 2017, the Company entered into a Merger Agreement with Aytu BioScience, Inc. ("Aytu") and its stockholders, pursuant to which Nuelle would become a wholly owned subsidiary of Aytu (the “Merger”). The Merger closed on May 5, 2017.

 

In the Merger, (i) each share of Nuelle common stock and each option or warrant to purchase Nuelle stock was cancelled, and (ii) each share of Nuelle preferred stock was converted into the right to receive shares of Aytu's common stock. Aytu issued to the Nuelle preferred stockholders an aggregate of 2,500,000 shares of Aytu common stock.

 

In addition, Nuelle preferred stockholders will be entitled to revenue earn-out payments equal to a designated percentage of net sales on tiers of net sales up to $100.0 million, with an average rate for all tiers in the mid-single digit range and a maximum aggregate payout of $6.9 million. Nuelle stockholders additionally will be entitled to milestone earn-out payments of up to a potential aggregate of $24 million, upon the attainment by Aytu of designated net sales thresholds over any sequential four calendar quarter period.

 

The first $1.0 million of earn-out payments will be paid in shares of Aytu common stock and all other earn-out payments will be comprised of 60% cash and 40% shares of Aytu common stock. The stock portion of any earn-out will be calculated by dividing each Nuelle stockholder’s portion of the earn-out by the average closing price of Aytu common stock for the 10 trading days prior to the earlier of the date Aytu delivers notice to the Nuelle stockholders of the earn-out or any public disclosure by Aytu of the earn-out being due and payable.

 

  - 17 -  

 

 

NUELLE, INC.

 

Notes to Financial Statements

 

Note 6 - Subsequent Events (continued)

 

In the event that Aytu does not make all of the required earn-out payments to the Nuelle stockholders before May 3, 2022, and Aytu also closes a divestiture before May 3, 2022 of any of the products acquired in the Merger, Aytu will pay the Nuelle stockholders a combination of (i) cash in an amount equal to 10% of the value of all cash, securities and other property paid to Aytu in the divestiture (cash is to be up to 60% of the total consideration), and (ii) shares of Aytu common stock equal to the Nuelle stockholders’ portion of the divestiture payment divided by the average closing price of Aytu common stock for the 10 trading days prior to the earlier of the closing date of the divestiture or the public disclosure of the divestiture (shares of common stock are to be 40% of the total consideration).

 

No officer or director of Nuelle will become an officer or director of Aytu as a result of the Merger.

 

In the Merger Agreement, Aytu agreed to indemnify all past and present officers and directors of Nuelle to the fullest extent under applicable law for six years for acts or omissions that occurred prior to the Merger. Aytu also agreed to indemnify each Nuelle stockholder and their respective affiliates for any fraud by the Company or a subsidiary of the Company, any breach by Aytu or a subsidiary of any covenant in the Merger Agreement, and any design, sale, manufacture or any other activities primarily associated with Aytu products in development before the Merger. Each Nuelle stockholder agreed to indemnify Aytu for any fraud by Nuelle or any of its stockholders, any breach by Nuelle of any covenant in the Merger Agreement, and any pre-Merger tax liability.

 

  - 18 -  

 

 

Exhibit 99.2

 

Aytu BioScience, Inc. Unaudited Pro Forma Combined

Financial Statements

 

On May 3, 2017 (the “Date of the Merger”), the Aytu BioScience, Inc. (“the Company”) entered into a Merger Agreement with Nuelle, Inc. (the “Seller” or “Nuelle”). The Merger closed on May 5, 2017.

 

The Company’s unaudited pro forma combined financial statements as of and for the year end June 30, 2016 and the nine months ended March 31, 2017 are based on the historical audited and unaudited combined financial statements of the Company (as filed with the Securities and Exchange Commission (the “SEC”)) in its Form 10-K filed September 1, 2016 and quarterly report on Form 10-Q filed on May 11, 2017 (“Quarterly Report”), combined with the audited financial statements of Nuelle as of and for the year ended June 30, 2016 and the unaudited financial statement as of and for the nine month period ended March 31, 2017, as filed as Exhibit 99.1 to the Company’s Amendment No. 1 to the Current Report on Form 8-K/A dated July 20, 2017 (the “Amendment No. 1 to the Current Report on Form 8-K/A”) after giving effect to the Company’s acquisition of certain operational assets and certain liabilities relating to Nuelle and includes the assumptions and adjustments as described in the accompanying notes hereto.

 

The unaudited pro forma combined balance sheet as of March 31, 2017, is presented as if the acquisition of Nuelle had occurred on March 31, 2017. The unaudited pro forma combined statement of operations for the year ended June 30, 2016 and the nine months ended March 31, 2017, gives effect to the acquisition as if it occurred on July 1, 2015. The unaudited pro forma combined financial statements are not intended to represent or be indicative of the financial condition of the combined entity that would have been reported if the acquisition had been consummated on July 1, 2015. In addition, the unaudited pro forma combined financial statements do not purport to project the future financial position of the Company as of the end of its fiscal year ended June 30, 2016, nine months ended March 31, 2017, or any other future periods.

 

The unaudited pro forma combined balance sheet has been prepared using the acquisition method of accounting. The estimated fair values of the acquired assets and assumed liabilities as of the date of acquisition, which are based on estimates and assumptions of the Company, the consideration paid and the entries to record the direct transaction costs incurred are reflected therein. As explained in more detail in the accompanying notes to the unaudited pro forma combined financial statements, the total consideration transferred of approximately $3.8 million to acquire Nuelle has been allocated to the assets acquired and assumed liabilities of Nuelle based upon preliminary estimated fair values at the date of acquisition. Independent valuation specialists have conducted analyses in order to assist management of the Company in determining the fair values of the selected assets and liabilities. The Company’s management is responsible for these internal and third party valuations and appraisals. The Company is continuing to finalize the valuations of these net assets. The fair value allocation consists of preliminary estimates and analyses and is subject to change upon the finalization of the appraisals and other valuation analyses, which will be completed prior to the Company’s filing of its Annual Report on Form 10-K with the SEC for its fiscal year ended June 30, 2017. Although the final determination may result in asset and liability fair values that are different than the preliminary estimates of these amounts included herein, it is not expected that those differences will be material to an understanding of the impact of this transaction on the financial results of the Company.

 

 

 

 

The unaudited pro forma combined financial statements of the Company and Nuelle have been provided to comply with the presentation of certain financial information relating to Nuelle in satisfaction of the requirements of Rule 8-05 of Regulation S-X, as required to be filed pursuant to Items 9.01(a) and 9.01 (b) of Form 8-K.

 

The unaudited pro forma combined financial statements of the Company and Nuelle, should be read in conjunction with the Current Report on Form 8-K filed on May 9, 2017, the historical financial statements and accompanying notes thereto of the Company contained in its Form 10-K, and Nuelle’s audited financial statements as of and for the year ended June 30, 2016 and as of and for the unaudited nine months ended March 31, 2017, included as Exhibit 99.1 in Amendment No.1 to the Current Report on Form 8-K/A.

 

 

 

 

Aytu BioScience, Inc. and Nuelle, Inc. Unaudited Pro Forma

Combined Balance Sheet

As of March 31, 2017

 

    Aytu
BioScience,
          Pro Forma       Pro Forma  
    Inc.     Nuelle, Inc.     Adjustments       Combined  
                           
Assets                    
Current assets                                  
Cash and cash equivalents   $ 3,470,158     $ 745,324     $ (128,412 ) (a)   $ 4,087,070  
Accounts receivable, net     75,107       3,894       -         79,001  
Inventory, net     342,537       1,127,204       -         1,469,741  
Prepaid expenses and other     208,197       -       -         208,197  
Prepaid research and development - related party     342,113       -       -         342,113  
Other current assets     -       4,105       -         4,105  
Total current assets     4,438,112       1,880,527       (128,412 )       6,190,227  
                                   
Fixed assets, net     271,276       507,727       (28,727 ) (b)     750,276  
Developed technology, net     641,875       -       1,100,000   (c )     1,741,875  
Customer contracts, net     585,000       -       130,000   (c )     715,000  
Trade names, net     65,000       -       160,000   (c )     225,000  
Natesto asset     9,560,754       -       -         9,560,754  
Goodwill     74,000       -       174,000   (c )     248,000  
Patents, net     277,611       -       -         277,611  
Deposits     2,888       -       -         2,888  
Total long-term assets     11,478,404       507,727       1,535,273         13,521,404  
Total assets   $ 15,916,516     $ 2,388,254     $ 1,406,861       $ 19,711,631  
Liabilities and Stockholders' Equity                                  
Current liabilities                                  
Accounts payable and other   $ 1,408,953     $ 226,229     $ (183,983 ) (d)   $ 1,451,199  
Accrued liabilities     1,050,816       554,161       (553,792 ) (e )     1,051,185  
Accrued compensation     845,571       -       -         845,571  
Deferred rent     6,430       -       -         6,430  
Contingent consideration     42,667       -                 42,667  
Notes payable, net of deferred financing costs     -       1,116,687       (1,116,687 ) (e )     -  
Convertible notes payable     -       6,441,695       (6,441,695 ) (e )     -  
Total current liabilities     3,354,437       8,338,772       (8,296,157 )       3,397,052  
                                   
Contingent consideration     4,037,664       -       1,915,000   (f)     5,952,664  
Deferred rent     3,119       -       -         3,119  
Total liabilities     7,395,220       8,338,772       (6,381,157 )       9,352,835  
                                   
Commitments and contingencies                                  
                                   
Stockholders' equity                                  
Preferred Stock, par value $.0001; 50,000,000 shares authorized; none issued     -       -       -         -  
Series A preferred stock     -       28,080       (28,080 ) (g)     -  
Series A-1 preferred stock     -       13,599       (13,599 ) (g)     -  
Common Stock, par value $.0001; 100,000,000 shares authorized; shares issued and outstanding 13,836,607 in March 31 2017     1,384       11,518       (9,018 ) (g,h)     3,884  
Additional paid-in capital     70,839,253       22,864,196       (21,029,196 ) (g,h)     72,674,253  
Accumulated deficit     (62,319,341 )     (28,867,911 )     28,867,911   (g)     (62,319,341 )
Total stockholders' equity     8,521,296       (5,950,518 )     7,788,018         10,358,796  
                                   
Total liabilities and stockholders' equity   $ 15,916,516     $ 2,388,254     $ 1,406,861       $ 19,711,631  

 

 

 

 

Aytu BioScience, Inc. and Nuelle, Inc. Unaudited Pro Forma

Combined Statement of Operations

For the Nine Months Ended March 31, 2017

 

                Pro Forma     Pro Forma  
    Aytu BioScience, Inc     Nuelle, Inc.     Adjustments     Combined  
                         
Product and service revenue   $ 2,385,701     $ 227,618     $ -     $ 2,613,319  
Total revenue     2,385,701       227,618       -       2,613,319  
                                 
Operating expenses                                
Cost of sales     1,067,654       115,646       -       1,183,300  
Research and development     774,526       176,966       -       951,492  
Research and development - related party     387,960               -       387,960  
Sales, general and administrative     13,732,226       2,611,008       -       16,343,234  
Sales, general and administrative - related party     137,311       -       -       137,311  
Amortization of intangible assets     1,311,043       -       91,833 (i)     1,402,876  
Operations             197,586       -       197,586  
Other             329,905       -       329,905  
Total operating expenses     17,410,720       3,431,111       91,833       20,933,664  
                                 
Loss from operations     (15,025,019 )     (3,203,493 )     (91,833 )     (18,320,345 )
                                 
Other income (expense)                                
Interest (expense)     (884,187 )     (450,794 )     450,794 (e)     (884,187 )
Unrealized gain on investment     230,936       -       -       230,936  
(Loss) on investment     (292,455 )     -       -       (292,455 )
Derivative income (expense)     212,809       -       -       212,809  
Total other (expense)     (732,897 )     (450,794 )     450,794       (732,897 )
                                 
Net loss, before income tax                                
Deferred income tax benefit     -       -       -       -  
Net loss   $ (15,757,916 )   $ (3,654,287 )   $ 358,961     $ (19,053,242 )
                                 
Weighted average number of Aytu common shares outstanding     7,562,342       11,517,853       2,500,000       10,062,342  
                                 
Basic and diluted Aytu net loss per common share   $ (2.08 )   $ (0.07 )           $ (1.89 )

 

 

 

 

Aytu BioScience, Inc. and Nuelle Inc. Unaudited Pro Forma

Combined Statement of Operations

For the Year Ended June 30, 2016

 

                Pro Forma     Pro Forma  
    Aytu BioScience, Inc     Nuelle, Inc.     Adjustments     Combined  
                         
    $ 2,050,838     $ 793,548     $ -     $ 2,844,386  
Product and service revenue     511,607       -       -       511,607  
License revenue     2,562,445       793,548       -       3,355,993  
Total revenue                                
                                 
Operating expenses                                
Cost of sales     957,076       384,810       -       1,341,886  
Research and development     6,127,772       2,511,124       -       8,638,896  
Research and development - related party     191,991               -       191,991  
Sales, general and administrative     8,517,592       6,104,669       -       14,622,261  
Sales, general and administrative - related party     307,704       -       -       307,704  
Impairment of intangible assets     7,500,000       -       -       7,500,000  
Amortization of intangible assets     664,707       -       122,444 (i)     787,151  
Operations     -       911,371       -       911,371  
Other     -       1,164,590       -       1,164,590  
Total operating expenses     24,266,842       11,076,564       122,444       35,465,850  
                                 
Loss from operations     (21,704,397 )     (10,283,016 )     (122,444 )     (32,109,857 )
                                 
Other income (expense)                                
Interest (expense)     (5,491,486 )     (175,807 )     175,807 (e)     (5,491,486 )
Unrealized loss on investment     (971,629 )     -       -       (971,629 )
Derivative income (expense)     (12,572 )     -       -       (12,572 )
Total other (expense)     (6,475,687 )     (175,807 )     175,807       (6,475,687 )
                                 
Net loss   $ (28,180,084 )   $ (10,458,823 )   $ 53,363     $ (38,585,544 )
                                 
Weighted average number of Aytu common shares outstanding     1,741,137       10,145,489       2,500,000       4,241,137  
                                 
Basic and diluted Aytu net loss per common share   $ (16.18 )   $ (0.23 )           $ (9.10 )

 

 

 

 

Aytu BioScience, Inc. and Nuelle, Inc.

Notes to the Unaudited Pro Forma Combined Financial Statements

 

Note 1 – Description of the Transaction and Basis of Presentation

 

On May 3, 2017 (the “Date of the Merger”), the Company entered into a Merger Agreement with Nuelle, Inc. (the “Seller”). The Merger closed on May 5, 2017.

 

In the Merger, (i) each share of Nuelle common stock and each option or warrant to purchase Nuelle stock was cancelled, and (ii) each share of Nuelle preferred stock was converted into the right to receive shares of our common stock. Aytu issued to the Nuelle preferred stockholders an aggregate of 2,500,000 shares of Aytu common stock.

 

In addition, Nuelle preferred stockholders will be entitled to revenue earn-out payments equal to a designated percentage of net sales on tiers of net sales up to $100.0 million, with an average rate for all tiers in the mid-single digit range and a maximum aggregate payout of $6.9 million. Nuelle stockholders additionally will be entitled to milestone earn-out payments of up to a potential aggregate of $24 million, upon the attainment by Aytu of designated net sales thresholds over any sequential four calendar quarter period.

 

The first $1.0 million of earn-out payments will be paid in shares of Aytu common stock and all other earn-out payments will be comprised of 60% cash and 40% shares of Aytu common stock. The stock portion of any earn-out will be calculated by dividing each Nuelle stockholder’s portion of the earn-out by the average closing price of Aytu common stock for the 10 trading days prior to the earlier of the date Aytu delivers notice to the Nuelle stockholders of the earn-out or any public disclosure by Aytu of the earn-out being due and payable.

 

In the event that Aytu does not make all of the required earn-out payments to the Nuelle stockholders before May 3, 2022, and Aytu also closes a divestiture before May 3, 2022 of any of the products acquired in the Merger, Aytu will pay the Nuelle stockholders a combination of (i) cash in an amount equal to 10% of the value of all cash, securities and other property paid to Aytu in the divestiture (cash is to be up to 60% of the total consideration), and (ii) shares of Aytu common stock equal to the Nuelle stockholders’ portion of the divestiture payment divided by the average closing price of Aytu common stock for the 10 trading days prior to the earlier of the closing date of the divestiture or the public disclosure of the divestiture (shares of common stock are to be 40% of the total consideration).

 

No officer or director of Nuelle will become an officer or director of Aytu as a result of the Merger.

 

In the Merger Agreement, Aytu agreed to indemnify all past and present officers and directors of Nuelle to the fullest extent under applicable law for six years for acts or omissions that occurred prior to the Merger. Aytu also agreed to indemnify each Nuelle stockholder and their respective affiliates for any fraud by Aytu or a subsidiary of the Company, any breach by Aytu or a subsidiary of any covenant in the Merger Agreement, and any design, sale, manufacture or any other activities primarily associated with Aytu products in development before the Merger. Each Nuelle stockholder agreed to indemnify Aytu for any fraud by Nuelle or any of its stockholders, any breach by Nuelle of any covenant in the Merger Agreement, and any pre-Merger tax liability.

 

 

 

 

Note 2 – Preliminary Purchase Price Allocation

 

For purposes of the unaudited pro forma combined balance sheet, the $3.8 million consideration transferred has been allocated based upon a preliminary estimate of the fair value of assets acquired and liabilities assumed. The determination of the estimated fair value required management to make significant estimates and assumptions. These estimates and assumptions of the fair value allocation are preliminary and subject to change upon the finalization of the appraisals and other valuation analyses, which are in the process of being completed. Independent valuation specialists are conducting a valuation to assist management of the Company in determining the estimated fair values of tangible and intangible assets. The Company’s management is responsible for these internal and third party valuations and appraisals. The work performed by independent valuation specialists, while not yet completed and finalized, will be considered in management’s estimates of fair value reflected. Although the final determination may result in asset and liability fair values that are different than the preliminary estimates of these amounts included herein, it is not expected that those differences will be material to an understanding of the impact of this transaction on the financial results of the Company.

 

The preliminary estimated allocation of the fair values is as follows (amounts in thousands):

 

Fair value of consideration transferred:      
Actual and expected stock and cash payments   $ 1,838  
Contingent consideration     1,915  
Liabilities assumed     27  
    $ 3,780  
Preliminary purchase price allocation        
         
Cash     613  
Accounts Receivable     11  
Inventory     1,124  
Fixed Assets     479  
Intangible assets     1,564  
Accounts Payable     (11 )
Total purchase price   $ 3,780  

 

Note 3 – Pro Forma Adjustments

 

The pro forma adjustments within the unaudited pro forma combined financial statements represent the adjustments to the carrying amounts as of March 31, 2017, for the financial statements of Nuelle to reflect the preliminary purchase price allocation to assets and liabilities as of the date of Merger. The pro forma adjustments to the unaudited pro forma combined statement of operations for the year ended June 30, 2016 and nine months ended March 31, 2017, give effect to the acquisition as if it had been consummated on July 1, 2015.

 

Adjustments included in the column under the heading “Pro Forma Adjustments” relate to the following:

a) To record the reduction of the Company’s cash as a result of cash used related to the Merger for legal, insurance and other.
b) To record the fixed assets that were abandoned as part of the Merger.
c) To record the estimated fair value of identifiable intangible assets acquired of $1.5 million
d) To reduce the liabilities not assumed in the Merger.
e) To record the conversion of the outstanding notes to equity.
f) To record the estimated fair value of future contingent consideration related to the Merger.
g) To record the equity that was eliminated as part of the Merger.
h) To record the 2.5 million shares of Aytu common stock that were issued as part of the deal with a fair value of $1.8 million
i) To record the amortization expense related to the finite-lived intangible assets taken by the Company.

 

Note 4 – Accounting Policies

 

Inventories

Acquired inventories consists principally of finished goods and are stated at estimated fair market value. Acquired inventory is presented net of excess and obsolete provisions.

 

Intangible Assets

The identifiable intangible assets are finite-lived intangible assets. The fair value of the intangible asset is based on management’s preliminary valuation as of the date of Merger. Estimated useful lives (where relevant for the purposes of these unaudited pro forma combined financial statements) are based on the time periods during which the intangibles are expected to result in substantial incremental cash flows. Such estimates are preliminary and subject to change.

 

 

 

 

The finite-lived intangible assets represent intangible assets related to Nuelle acquired from the Seller. The estimated fair value of the intangible assets were $1.4 million on the date of Merger.

 

The table below details the Company’s estimated amortization expense for the next nine to twelve years and thereafter of the finite-lived intangible assets acquired by the Company based upon the Merger happening on July 1, 2015:

 

    Amortization  
Fiscal Year Ending June 30,   Expense  
2016     122,444  
2017     122,444  
2018     122,444  
2019     122,444  
2020     122,444  
Thereafter     777,780  
Total   $ 1,390,000  

 

Commitments and Contingencies

 

The Company did not assume any liabilities of Nuelle on the date of Merger, other than current liabilities of $11,000.