SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 20, 2019
(Exact name of registrant as specified in its charter)
(State or other jurisdiction
|(SEC File Number)||
1111 Main Street, Suite 660
|(Address of principal executive offices)||(Zip Code)|
Registrants telephone number, including area code: (360) 980-8524
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))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Name of each exchange
on which registered
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. ☐
Entry into a Material Definitive Agreement.
On November 20, 2019, CytoDyn Inc. (the Company) entered into Subscription Agreements (the Subscription Agreements) with certain investors (the Investors) for the sale by the Company of 7,395,000 shares (the Common Shares) of the Companys common stock, par value $0.001 per share (the Common Stock), in a registered direct offering (the Offering). The Investors in the Offering also received warrants to purchase 5,546,250 shares of Common Stock (the Warrants). Each share of Common Stock was sold together with three quarters of one Warrant to purchase one share of Common Stock for a combined purchase price of $0.30. The Company did not engage any placement agent in the Offering.
The aggregate gross proceeds for the sale of the Common Shares and Warrants will be approximately $2.2 million. Subject to certain ownership limitations, the Warrants will be exercisable commencing on the issuance date at an exercise price equal to $0.45 per share of Common Stock, subject to adjustments as provided under the terms of the Warrants. The Warrants are exercisable for five years from the date of issuance. The closing of the sales of these securities under the Subscription Agreements is expected to occur on or about November 20, 2019.
The net proceeds to the Company from the transactions, after deducting the Companys estimated offering expenses (including a cash tail fee to our placement agent in connection with a prior offering, as described below), and excluding the proceeds, if any, from the exercise of the Warrants, are expected to be approximately $2.2 million. The Company intends to use the net proceeds from the transactions to fund clinical trials for its lead product candidate and for general corporate purposes.
The securities sold in the Offering were offered and sold by the Company pursuant to an effective shelf registration statement on Form S-3, which was initially filed with the Securities and Exchange Commission (the SEC) on February 23, 2018 and subsequently declared effective on March 7, 2018 (File No. 333-223195) (the Registration Statement), and the base prospectus dated as of March 7, 2018 contained therein. The Company will file a prospectus supplement with the SEC in connection with the sale of the securities.
The representations, warranties and covenants contained in the Subscription Agreements were made solely for the benefit of the parties to the Subscription Agreements. In addition, such representations, warranties and covenants (i) are intended as a way of allocating the risk between the parties to the Subscription Agreements and not as statements of fact, and (ii) may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. Accordingly, the forms of the Subscription Agreements are included with this filing only to provide investors with information regarding the terms of transaction, and not to provide investors with any other factual information regarding the Company. Stockholders should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company or any of its subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Subscription Agreements, which subsequent information may or may not be fully reflected in public disclosures.
In connection with the Offering, the Company will pay to a prior placement agent (the Prior Placement Agent), pursuant to a placement agent agreement entered into in connection with a prior offering, (i) a cash fee of approximately $3,500, or 9% of the gross proceeds, as set forth in such placement agent agreement, received from an Investor in the Offering who was first introduced to the Company by the Prior Placement Agent in a prior offering and (ii) warrants to purchase an aggregate of 11,700 shares of Common Stock (the Prior Placement Agent Warrants), or 9% of the number of shares of common stock, set forth in such placement agent agreement, issued to an Investor in the Offering who was first introduced to the Company by the Prior Placement Agent in a prior offering. The Prior Placement Agent Warrants will have an exercise price of $0.50 per share. The Prior Placement Agent Warrants and the shares issuable upon exercise of the Prior Placement Agent Warrants will be issued in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act as transactions not involving a public offering and in reliance on similar exemptions under applicable state laws.
The form of Warrant was filed as Exhibit 4.1 to the Current Report on Form 8-K filed on August 29, 2019. The form of Subscription Agreement was filed as Exhibit 10.1 to the Current Report on Form 8-K filed on November 7, 2019. The foregoing summaries of the terms of these documents are subject to, and qualified in their entirety by, such documents, which are incorporated herein by reference.
The legal opinion and consent of Lowenstein Sandler LLP relating to the securities are filed as Exhibit 5.1 to this Current Report on Form 8-K.
Unregistered Sales of Equity Securities.
See Item 1.01 with respect to the Prior Placement Agent Warrants.
Financial Statements and Exhibits.
|4.1||Form of Warrant Agreement (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed on August 29, 2019).|
|5.1||Opinion of Lowenstein Sandler LLP.|
|10.1||Form of Subscription Agreement (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on November 7, 2019).|
|23.1||Consent of Lowenstein Sandler LLP (included in the opinion of Lowenstein Sandler LLP as Exhibit 5.1).|
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.
|November 20, 2019||By:||
/s/ Craig S. Eastwood
|Name:||Craig S. Eastwood|
|Title:||Chief Financial Officer|
November 20, 2019
1111 Main Street, Suite 660
Vancouver, Washington 98660
Ladies and Gentlemen:
We have acted as counsel for CytoDyn Inc., a Delaware corporation (the Company), in connection with the sale and issuance of up to 7,395,000 shares of the Companys common stock, par value $0.001 per share (the Shares) and warrants (the Warrants) to purchase up to an aggregate of 5,546,250 shares of Common Stock (the Warrant Shares) pursuant to the Registration Statement on Form S-3 (File No. 333-223195) (the Registration Statement) filed by the Company with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Securities Act), and the rules and regulations promulgated thereunder, and declared effective by the Commission on March 7, 2018. The Shares and Warrants are to be sold to certain investors pursuant to a Subscription Agreement with each investor, each dated as of November 20, 2019 (the Subscription Agreements).
As counsel to the Company in connection with the proposed potential issuance and sale of the above-referenced Shares, we have examined: (i) the Companys Certificate of Incorporation and Bylaws, each as amended to date; (ii) certain resolutions of the Board of Directors of the Company relating to the sale of the Shares and Warrants; (iii) the Subscription Agreements and (iv) such other proceedings, documents and records as we have deemed necessary to enable us to render this opinion. In all such examinations, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates and instruments submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. We have also assumed that any certificates representing the Shares conform to the Specimen Common Stock Certificate filed as Exhibit 4.1 to the Registration Statement. We have, among other things, relied upon certificates of public officials and, as to various factual matters, certificates of officers of the Company.
Based on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that (i) the Shares, when issued, sold and paid for in accordance with the terms and conditions of the Subscription Agreements, will be validly issued, fully paid and nonassessable; (ii) the Warrants have been duly and validly authorized and when issued and sold in accordance with the terms and conditions of the Subscription Agreements, will be valid and binding obligations of the Company; and (iii) the Warrant Shares, when issued, sold and paid for in accordance with the terms of the Warrants will be validly issued, fully paid and non-assessable.
It is understood that this opinion is to be used only in connection with the offer, sale and issuance of the Shares, the Warrants and the Warrant Shares while the Registration Statement is in effect.
We hereby consent to the use of this opinion as an exhibit to the Companys Current Report on Form 8-K dated November 20, 2019. In giving this consent, we do not admit that we are experts within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
The opinions set forth in this letter are limited solely to the Delaware General Corporation Law and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or any other laws, or as to any matters of municipal law or the laws of any local agencies within any state.
|Very truly yours,|
/s/ Lowenstein Sandler LLP
|Lowenstein Sandler LLP|