UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-K/A

 (Amendment No. 2)

 

(Mark One)

x

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 For the fiscal year ended June 30, 2017

 

¨

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Commission File Number 333-146542

 

 

AYTU BIOSCIENCE, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

 

Delaware	47-0883144
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification Number)

 

373 Inverness Parkway Suite 206 Englewood, Colorado	80112
(Address of principal executive offices)	(Zip Code)

 

(720) 437-6580

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act: None

Securities registered pursuant to Section 12(g) of the Act

Common Stock, par value $.0001 per share

 

 

Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.   Yes  ¨    No  x

 

Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act.    Yes  ¨    No  x

 

Indicate by a check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.    Yes  x    No  ¨

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes  x    No  ¨

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the Registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K ¨

 

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (check one):

 

Large accelerated filer	¨	Accelerated filer	¨
Non-accelerated filer	¨  (Do not check if a smaller reporting company)	Smaller reporting company	x
		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 13a) of the Exchange Act. ¨

 

Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).     Yes  ¨    No  x

 

The aggregate market value of common stock held by non-affiliates of the Registrant as of December 31, 2016 was $10.5 million based on the closing price of $24.00 as of that date.

 

Indicate the number of shares outstanding of each of the Registrant’s classes of common stock, as of the latest practicable date:

 

As of August 15, 2017, there are 4,021,822 shares of common stock outstanding and 2,250 shares of Series A preferred stock outstanding.

 

 

  

EXPLANATORY NOTE

 

This Amendment No. 2 to Form 10-K (this “Amendment”) amends Part IV of the Annual Report on Form 10-K for the fiscal year ended June 30, 2017 of Aytu BioScience, Inc., as originally filed with the Securities and Exchange Commission (“SEC”) on August 31, 2017 and amended on October 12, 2017 (the “Original Form 10-K”). This Amendment attaches Exhibit 10.25 which is subject to a request for confidential treatment. Certain portions of the attached Exhibit 10.25 that were previously redacted are being disclosed in this Amendment.

 

Pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, as amended, this Amendment also contains current dated certifications from the Principal Executive Officer and the Principal Financial Officer.

 

Except as described above, no other changes have been made to the Original Form 10-K. This Amendment does not otherwise update information in the Original Form 10-K to reflect facts or events occurring subsequent to the filing date of the Original Form 10-K. This Amendment should be read in conjunction with the Original Form 10-K and with any of our filings made with the SEC subsequent to filing of the Original Form 10-K.

 

 

TABLE OF CONTENTS

 

		PAGE
	PART IV
Item 15	EXHIBITS AND FINANCIAL STATEMENT SCHEDULES	4
SIGNATURES		7
Exhibit 10.25
Exhibit 31.1
Exhibit 31.2
Exhibit 32.1

 

This Annual Report on Form 10-K refers to trademarks, such as Aytu, Natesto, ProstaScint, Primsol, MiOXSYS, RedoxSYS, and Fiera which are protected under applicable intellectual property laws and are our property or the property of our subsidiaries. This Form 10-K also contains trademarks, service marks, copyrights and trade names of other companies which are the property of their respective owners. Solely for convenience, our trademarks and tradenames referred to in this Form 10-K may appear without the ^® or ™ symbols, but such references are not intended to indicate in any way that we will not assert, to the fullest extent under applicable law, our rights to these trademarks and tradenames.

 

Unless otherwise indicated or unless the context otherwise requires, references in this Form 10-K to the “Company,” “Aytu,” “we,” “us,” or “our” are to Aytu BioScience, Inc.

 

 

 

PART IV

 

Item  15.     Exhibits and Consolidated Financial Statement Schedules

 

(a)(1)

Financial Statements

 

The following documents are filed as part of this Form 10-K, as set forth on the Index to Financial Statements found on page F-1.

 

•

Report of Independent Registered Public Accounting Firm

 

•

Consolidated Balance Sheets as of June 30, 2017 and 2016

 

•

Consolidated Statements of Operations for the years ended June 30, 2017 and 2016

 

•

Consolidated Statements of Stockholders’ Equity (Deficit) for the years ended June 30, 2017 and 2016

 

•

Consolidated Statements of Cash Flows for the years ended June 30, 2017 and 2016

 

•

Consolidated Notes to the Financial Statements

 

(a)(2)

Financial Statement Schedules

 

Not Applicable.

 

 

(a)(3)

Exhibits

 

Exhibit No.		Description		Registrant’s Form		Date Filed		Exhibit Number		Filed Herewith
3.1		Certificate of Incorporation		8-K		6/09/15		3.1
3.2		Certificate of Amendment of Certificate of Incorporation effective June 1, 2016		8-K		6/02/16		3.1
3.3		Certificate of Amendment of Certificate of Incorporation, effective June 30, 2016		8-K		7/01/16		3.1
3.4		Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock, filed on August 11, 2017.		8-K		8/16/17		3.1
3.5		Certificate of Amendment of Certificate of Incorporation, effective August 25, 2017		8-K		8/29/17		3.1
3.6		Bylaws		8-K		6/09/15		3.2
4.2		Form of Placement Agent Warrant issued in 2015 Convertible Note Financing		8-K		7/24/15		4.2
4.3		Warrant Agent Agreement, dated May 6, 2016 by and between Aytu BioScience, Inc. and VStock Transfer, LLC.		8-K		5/6/16		4.1
4.4		First Amendment to May 6, 2016 Warrant Agent Agreement between Aytu BioScience, Inc. and VStock Transfer LLC.		S-1		9/21/16		4.5
4.5		Warrant Agent Agreement, dated November 2, 2016 by and between Aytu BioScience, Inc. and VStock Transfer, LLC.		8-K		11/2/16		4.1
4.6		Form of Amended and Restated Underwriters’ Warrant (May 2016 Financing)		8-K		3/1/17		4.1
4.7		Form of Amended and Restated Underwriters’ Warrant (October 2016 Financing)		8-K		3/1/17		4.2
4.8		Form of Common Stock Purchase Warrant issued on August 15, 2017.		8-K		8/16/17		4.1
10.1†		Form of Indemnification Agreement, to be entered into between the Registrant and its directors and officers		8-K		4/22/15		10.1
10.2#		Asset Purchase Agreement between the Registrant (as assigned to it by Ampio/Vyrix) and Valeant International (Barbados) SRL, effective as of December 2, 2011		8-K/A		6/08/15		10.4
10.3#		Manufacturing and Supply Agreement between the Registrant (as assigned to it by Ampio/Vyrix) and Ethypharm S.A., dated September 10, 2012		8-K/A		6/08/15		10.5
10.4		License, Development and Commercialization Agreement between the Registrant (as assigned to it by Ampio/Vyrix) and Daewoong Pharmaceuticals Co., Ltd., effective as of August 23, 2011 (incorporated by reference to Exhibit 10.1 of Ampio Pharmaceutical’s Form 8-K/A filed October 5, 2011; File No. 001-25182)
10.5#		Distribution Agreement between the Registrant (as assigned to it by Ampio/Vyrix) and FBM Industria Farmaceutica, Ltda., dated as of March 1, 2012		8-K/A		6/08/15		10.7
10.6#		Distribution and License Agreement between the Registrant (as assigned to it by Ampio/Vyrix) and Endo Ventures Limited, dated April 9, 2014		8-K/A		6/08/15		10.8
10.7#		Sponsored Research Agreement between the Registrant (as assigned to it by Ampio/Luoxis) and Trauma Research LLC, dated September 1, 2009		8-K/A		6/08/15		10.9
10.8#		Addendum No. 4 to Sponsored Research Agreement between the Registrant (as assigned to it by Ampio/Luoxis) and Trauma Research LLC, dated March 17, 2014		8-K		5/27/15		10.14
10.9		Promissory Note issued by Ampio to the Registrant on April 16, 2015		8-K		4/22/15		10.11
10.10		Subscription Agreement between the Registrant and Ampio, dated April 16, 2015		8-K		4/22/15		10.12
10.11		Voting Agreement between the Registrant and Ampio, dated April 21, 2015 (incorporated by reference to Exhibit 10.1 to Ampio’s Form 8-K filed April 22, 2015; File No. 001-35182)
10.12		Asset Purchase Agreement between Jazz Pharmaceuticals, Inc. and Rosewind Corporation, dated May 20, 2015		8-K		5/27/15		10.14
10.13		Form of Note Purchase Agreement for 2015 Convertible Note Financing		8-K		7/24/15		10.1

 

 

Exhibit No.		Description		Registrant’s Form		Date Filed		Exhibit Number		Filed Herewith
10.14		Asset Purchase Agreement, dated October 5, 2015, between Aytu BioScience, Inc. and FSC Laboratories, Inc.		8-K		10/07/15		10.18
10.15		Master Services Agreement between Biovest International, Inc. and Aytu BioScience, Inc., entered into on October 8, 2015, and effective October 5, 2015		8-K		10/13/15		10.19
10.16		Form of Subscription Agreement for January 2016 common stock purchases		8-K		1/20/16		10.1
10.17		License and Supply Agreement between the Registrant and Acerus Pharmaceuticals Corporation, dated April 22, 2016		8-K		4/25/16		10.1
10.18		Subscription Agreement between the Registrant and Acerus Pharmaceuticals Corporation, dated April 22, 2016		8-K		4/25/16		10.2
10.19		First Amendment, dated May 15, 2016, to Employment Agreement dated September 16, 2015 between Aytu BioScience, Inc. and Jonathan McGrael		8-K		5/16/16		10.1
10.20		Purchase Agreement, dated July 27, 2016, by and between Aytu BioScience, Inc. and Lincoln Park Capital Fund, LLC.		8-K		7/28/16		10.1
10.21		Registration Rights Agreement dated July 27, 2016, by and between Aytu BioScience, Inc. and Lincoln Park Capital Fund, LLC.		8-K		7/28/16		10.2
10.22†		Employment Agreement, effective as of April 16, 2017, between Aytu BioScience, Inc. and Joshua R. Disbrow.		8-K		4/18/17		10.1
10.23†		Employment Agreement, effective as of April 16, 2017, between Aytu BioScience, Inc. and Jarrett T. Disbrow.		8-K		4/18/17		10.2
10.24		Asset Purchase Agreement, dated March 31, 2017, between Allegis Holdings, LLC and Aytu BioScience, Inc.		10-Q		5/11/17		10.1
10.25^		Merger Agreement, dated May 3, 2017, between Nuelle, Inc. and Aytu BioScience, Inc.								X
10.26†		Employment Agreement, effective as of June, 2017, between Aytu BioScience, Inc. and Gregory A. Gould.		8-K		6/19/17		10.1
10.27†		2015 Stock Option and Incentive Plan, as amended on July 26, 2017.		8-K		7/27/17		10.1
10.28		Securities Purchase Agreement, dated August 11, 2017, between Aytu BioScience, Inc. and the investors named therein.		8-K		8/16/17		10.1
10.29		Registration Rights Agreement, dated August 11, 2017, between Aytu BioScience, Inc. and the investors named therein.		8-K		8/16/17		10.2
23.1		Consent of EKS&H LLLP, Independent Registered Public Accounting Firm.		10-K		8/31/17		23.1
31.1		Certificate of the Chief Executive Officer of Aytu BioScience, Inc. pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.								X
31.2		Certificate of the Chief Financial Officer of Aytu BioScience, Inc. pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.								X
32.1		Certificate of the Chief Executive Officer and the Chief Financial Officer of Aytu BioScience, Inc. pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.								X
101		XBRL (extensible Business Reporting Language). The following materials from Aytu BioScience, Inc.’s Annual Report on Form 10-K for the year ended June 30, 2017 formatted in XBRL: (i) the Balance Sheets, (ii) the Statements of Operations, (iii) the Statements of Stockholders’ Equity (Deficit), (iv) the Statements of Cash Flows, and (v) the Notes to the Financial Statements.		10-K		8/31/17		101

 

 

†		Indicates is a management contract or compensatory plan or arrangement.
#		The company has received confidential treatment of certain portions of this agreement. These portions have been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request.
^		Confidential treatment has been requested with respect to certain portions of this exhibit. Omitted portions have been filed separately with the SEC.

 

 

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

		AYTU BIOSCIENCE, INC.
Date: October 19, 2017	By:	/s/ Joshua R. Disbrow
		Joshua R. Disbrow
		Chairman and Chief Executive Officer
		(Principal Executive Officer)

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant in the capacities indicated, on October 19, 2017.

 

Signature		Title
/s/ Joshua R. Disbrow		Chairman and Chief Executive Officer
Joshua R. Disbrow		(Principal Executive Officer)
/s/ Gregory A. Gould		Chief Financial Officer
Gregory A. Gould		(Principal Financial and Accounting Officer)
/s/ Michael Macaluso
Michael Macaluso		Director
/s/ Carl Dockery
Carl Dockery		Director
/s/ John Donofrio		Director
John Donofrio
/s/ Gary Cantrell		Director
Gary Cantrell