Amended Current Report Filing (8-k/a)
November 07 2019 - 4:58PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date of
Report (Date of earliest event reported): November 1,
2019
AYTU BIOSCIENCE, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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001-38247
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47-0883144
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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373 Inverness Parkway, Suite 206
Englewood, CO 80112
(Address
of principal executive offices, including Zip Code)
Registrant’s
telephone number, including area code: (720) 437-6580
N/A
(Former
name or former address, if changed since last report)
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:
☐
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:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common
Stock, par value $0.0001 per share
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AYTU
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The
NASDAQ Stock Market LLC
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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 November 4,
2019, Aytu BioScience, Inc. (the “Company”), filed a
Current Report on Form 8-K (the “Original Form 8-K”)
that included Exhibit 10.6. In addition, on November 4, 2019, the
Company filed an Amended Current Report on Form 8-K (the
“First Amendment”) to refile Exhibit 10.6 to include
certain exhibits that were inadvertently omitted. The purpose of
this Amended Form 8-K (the “Second Amendment”) is to
refile Exhibit 10.6. The Second Amendment includes an appendix that
was inadvertently omitted. Exhibit 10.6 to the Second Amendment
supersedes the previous Exhibits 10.6 filed with both the Original
Form 8-K and the First Amendment. The exhibit filed with this
Second Amendment otherwise remains unchanged from the Exhibits 10.6
filed with the Original Form 8-K and First
Amendment.
This Second
Amendment should be read in conjunction with the Original Form 8-K,
the First Amendment and the Company’s other filings with the
SEC. Except as stated herein, this Amendment does not reflect
events occurring after the filing of the Original Form 8-K and
First Amendment with the SEC on November 4, 2019, and no attempt
has been made in this Amendment to modify or update other
disclosures as presented in the Original Form
8-K.
Item
1.01 Entry into a Material Definitive
Agreement.
Consent and Limited Waiver Agreement
Under the Purchase
Agreement, the Company has assumed from Seller a fixed payment
obligation to Deerfield CSF, LLC (“Deerfield”) of approximately $16.6
million (the “Deerfield
Obligation”). The Deerfield Obligation requires fixed
monthly payments equal to $86,840 from November 2019 through
January 2021 plus $15 million due in January 2021. Additionally,
monthly variable payments are due to Deerfield equal to 15% of net
revenue generated from a subset of the Product Portfolio, subject
to an aggregate monthly minimum of $100,000, except for January
2020, when a one-time minimum payment of $150,000 is due. The
variable payment obligation continues through February 2026 or
until aggregate variable payments of approximately $9.3 million
have been made. The Deerfield Obligation was previously assigned to
Seller pursuant to an asset purchase agreement between Seller and
Avadel U.S. Holdings, Inc. (“Avadel”) dated February 12, 2018.
In order to assign the Deerfield Obligation to the Company, each of
Deerfield and certain of its affiliates (collectively, the
“Deerfield
Parties”) and Avadel must consent to the assignment of
the Deerfield Obligation to the Company.
Accordingly, the
Company has entered into a Consent and Limited Waiver Agreement
among the Deerfield Parties, Avadel, Armistice Capital Master Fund,
Ltd. (“Armistice”), and Seller, dated
October 31, 2019 (the “Waiver”), pursuant to which: (i)
Armistice has agreed to enter into a guarantee of the Deerfield
Obligation (the “Armistice
Guarantee”); (ii) Seller has agreed to enter into a
guarantee of the Deerfield Obligation (the “Seller Guarantee” together with
the Armistice Guarantee, the “Guarantees”); and (iii) Armistice
has agreed to enter into an escrow agreement with the Deerfield
Parties (the “Escrow
Agreement”), pursuant to which Armistice will deposit
approximately $15 million into an escrow account. In consideration
for the Company assuming the Deerfield Obligation, the Guarantees,
and the Escrow Agreement, each of the Deerfield Parties and Avadel
have agreed to execute the Waiver and provide for assignment of the
Deerfield Obligation. Steven Boyd, a member of the Company’s
board of directors, is the founder and chief investment officer of
Armistice.
The foregoing
description of the Waiver, the Armistice Guarantee, the Seller
Guarantee, and the Escrow Agreement is qualified in its entirety by
the full text of: (i) the Waiver, a copy of which is attached
hereto as Exhibit 10.6; (ii) the Armistice Guarantee, a copy of
which is attached as Exhibit A-1 to the Waiver; (iii) the Seller
Guarantee, a copy of which is attached as Exhibit A-2 to the
Waiver; and (iv) the Escrow Agreement, a copy of which is attached
as Exhibit B to the Waiver.
Item 9.01 Financial Statements and
Exhibits.
(d)
The following exhibit is being filed herewith:
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Exhibit
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Description
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Consent
and Limited Waiver Agreement, dated November 1,
2019
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SIGNATURES
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.
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AYTU
BIOSCIENCE, INC.
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Date:
November 7, 2019
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By:
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/s/ Joshua R. Disbrow
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Joshua
R. Disbrow
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Chief
Executive Officer
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