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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the fiscal year ended May 31, 2015
or
¨ TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For the transition period from to
Commission file number 000-49908
CYTODYN INC.
(Exact name of registrant as specified in its charter)
Colorado
(State or other jurisdiction of
incorporation or organization)
1111 Main Street, Suite 660
Vancouver, Washington
(Address of principal executive offices)
75-3056237
(I.R.S. Employer
Identification No.)
98660
(Zip Code)
Registrant’s Telephone Number, including area code: (360) 980-8524
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Title of class
Common Stock, no par value
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities
Act. ¨ Yes x No
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the
Act. ¨ Yes x No
Indicate by 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. x Yes ¨ No
Indicate by checkmark 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). x Yes ¨ 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 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 checkmark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in rule 12b-2 of the
Exchange Act.
Large accelerated filer ¨
Non-accelerated filer ¨
Accelerated filer
¨
Smaller reporting company x
Indicate by check mark whether the registrant is a shell company (as defined in rule 12b-2 of the Act). ¨ Yes x No
State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the
price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of
the registrant’s most recently completed second fiscal quarter: $64,183,157 (as of November 30, 2014).
Indicate the number of shares outstanding of each of the registrant’s classes of common stock, as of the latest practicable date. As of
June 30, 2015, the registrant had 70,142,332 shares of common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Document
Portions of the Proxy Statement for the 2015 Annual Meeting of Shareholders
Parts Into Which
Incorporated
Part III
Table of Contents
CYTODYN INC.
FORM 10-K FOR THE YEAR ENDED MAY 31, 2015
Table of Contents
PART I
ITEM 1.
BUSINESS
ITEM 1A.
RISK FACTORS
ITEM 1B.
UNRESOLVED STAFF COMMENTS
ITEM 2.
PROPERTIES
ITEM 3.
LEGAL PROCEEDINGS
ITEM 4.
MINE SAFETY DISCLOSURES
PART II
ITEM 5.
MARKET FOR REGISTRANT’S COMMON EQUITY , RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES
OF EQUITY SECURITIES
ITEM 6.
SELECTED FINANCIAL DATA
ITEM 7.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
ITEM 7A.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
ITEM 8.
FINANCIAL STATEMENTS
ITEM 9.
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
ITEM 9A.
CONTROLS AND PROCEDURES
ITEM 9B.
OTHER INFORMATION
PART III
ITEM 10.
DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
ITEM 11.
EXECUTIVE COMPENSATION
ITEM 12.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER
MATTERS
ITEM 13.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE
ITEM 14.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
PART IV
ITEM 15.
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
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FORWARD-LOOKING STATEMENTS
This annual report contains certain forward-looking statements that involve risks, uncertainties and assumptions that are difficult to
predict. Words and expressions reflecting optimism, satisfaction or disappointment with current prospects, as well as words such as
“believes,” “hopes,” “intends,” “estimates,” “expects,” “projects,” “plans,” “anticipates” and variations thereof, or the use of future tense,
identify forward-looking statements, but their absence does not mean that a statement is not forward-looking. Our forward-looking
statements are not guarantees of performance and actual results could differ materially from those contained in or expressed by such
statements. In evaluating all such statements we urge you to specifically consider various risk factors identified in this prospectus, including
the matters set forth under the heading “Risk Factors,” any of which could cause actual results to differ materially from those indicated by
our forward-looking statements.
Our forward-looking statements reflect our current views with respect to future events and are based on currently available financial,
economic, scientific, and competitive data and information on current business plans. You should not place undue reliance on our forward-
looking statements, which are subject to risks and uncertainties relating to, among other things: (i) the sufficiency of our cash position,
(ii) our ability to meet our debt obligations, (iii) our ability to achieve approval of a marketable product, (iv) design, implementation and
conduct of clinical trials, (v) the results of our clinical trials, including the possibility of unfavorable clinical trial results, (vi) the market for,
and marketability of, any product that is approved, (vii) the existence or development of vaccines, drugs, or other treatments for infection
with the Human Immunodeficiency Virus that are viewed by medical professionals or patients as superior to our products, (viii) regulatory
initiatives, compliance with governmental regulations and the regulatory approval process, (ix) general economic and business conditions,
(x) changes in foreign, political, and social conditions, (xi) the specific risk factors discussed under the heading “Risk Factors” below, and
(xii) various other matters, many of which are beyond our control. Should one or more of these risks or uncertainties develop, or should
underlying assumptions prove to be incorrect, actual results may vary materially and adversely from those anticipated, believed, estimated,
or otherwise indicated by our forward-looking statements.
We intend that all forward-looking statements made in this prospectus will be subject to the safe harbor protection of the federal
securities laws pursuant to Section 27A of the Securities Act of 1933, as amended, to the extent applicable. Except as required by law, we
do not undertake any responsibility to update these forward-looking statements to take into account events or circumstances that occur after
the date of this prospectus. Additionally, we do not undertake any responsibility to update you on the occurrence of any unanticipated
events which may cause actual results to differ from those expressed or implied by these forward-looking statements.
Item 1.
Business.
Overview / Corporate History
PART I
CytoDyn Inc. is a Colorado corporation with its principal business office at 1111 Main Street, Suite 660, Vancouver, Washington
98660. Our website can be found at www.cytodyn.com. We do not intend to incorporate any contents from our website into this annual
report.
We are a publicly traded biotechnology company focused on the clinical development and potential commercialization of humanized
monoclonal antibodies to treat Human Immunodeficiency Virus (“HIV”) infection. Our lead product candidate, PRO 140, belongs to a class
of HIV therapies known as entry inhibitors. These therapies block HIV from entering into and infecting certain cells. Although CytoDyn
intends to focus its efforts on PRO 140, we also hold certain rights in two proprietary platform technologies: Cytolin®, a humanized
monoclonal antibody targeting HIV with a mechanism of action which may prove to be synergistic to that of PRO 140 and other treatments,
and CytoFeline™, a felinized-monoclonal antibody targeting Feline Immunodeficiency Virus (“FIV”).
PRO 140
We believe the PRO 140 antibody shows promise as a powerful anti-viral agent while not being a chemically synthesized drug, which
means fewer side effects, lower toxicity and less frequent dosing requirements, as compared to daily drug therapies currently in use. The
PRO 140 antibody belongs to a class of HIV therapies known as entry inhibitors that block HIV from entering into and infecting certain
cells. PRO 140 blocks HIV from entering a cell by binding to a molecule called CCR5, a normal cell surface co-receptor protein to which
HIV attaches as part of HIV’s entry into a cell.
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PRO 140 is an antibody and not a chemically synthesized drug, and through preliminary, short-term trials it has demonstrated efficacy
without issues relating to toxicity and autoimmune resistance. Moreover, these trials suggested that PRO 140 does not affect the normal
function of the CCR5 co-receptor for HIV. Instead, PRO 140 binds to a precise site on CCR5 that HIV uses to enter the cell and, in doing
so, inhibits the ability of HIV to infect the cell without affecting the cell’s normal function.
PRO 140 was originally developed by Progenics Pharmaceuticals, Inc. (“Progenics”), which led, and contributed to funding of,
PRO 140 development and trials through 2011. We acquired the asset from Progenics in October 2012. Jeffrey M. Jacobson, M.D.,
Professor of Medicine, Microbiology and Immunology, Chief, Drexel University College of Medicine (“Drexel”), has conducted prior
research relating to PRO 140, and is continuing to pursue one clinical trial partially funded through one grant awarded to Dr. Jacobson by
the National Institutes of Health (“NIH”). We have also recently completed a successful Phase 2b clinical trial exploring PRO 140 as a
short-term treatment substitution (as a monotherapy of PRO 140) for existing drug regimens.
To facilitate our self-funded and sponsored clinical research plans, we have engaged Amarex Clinical Research, LLC (“Amarex”), our
principal contract research organization, to provide comprehensive clinical trial services, including managing our chemistry, manufacturing
and controls (“CMC”) activities.
In furtherance of our business strategy, in mid-2014 we entered into a manufacturing agreement with a contract manufacturing
organization to initiate preparations for the future manufacturing of additional PRO 140.
To date, PRO 140 has only been tested and administered to test subjects either intravenously or as a subcutaneous injection. We
believe that, if PRO 140 is approved for use as an injectable by the FDA, it may nonetheless be an attractive and marketable therapeutic
option for patients with healthy CCR5, particularly in the following scenarios:
•
•
•
•
•
•
Patients desiring a break from existing treatment regimens, whether due to side-effects or personal reasons;
Patients with difficulty adhering to daily drug regimens;
Patients who poorly tolerate existing therapies;
Patients with compromised organ function, such as HCV (hepatitis C) co-infection;
Patients with complex concomitant medical requirements; and
Patients who choose not to start their highly active antiretroviral therapy (“HAART”) regimen immediately after being infected
with HIV.
We believe PRO 140 has demonstrated potent (as compared to existing treatments) antiretroviral activity and an encouraging safety
profile in prior clinical testing, that PRO 140 has the potential to be the first long-acting (weekly or every other week), self-administered
HIV therapy, and that PRO 140 inhibit CCR5-tropic HIV while preserving CCR5’s natural activity. PRO 140 also appears to broadly
inhibit drug-resistant CCR5-tropic HIV viruses, including one resistant to small-molecule anti-CCR5 HIV therapies. PRO 140 has no effect
on strains of HIV called X4 exclusive virus. Overall, we believe PRO 140 represents a distinct class of CCR5 inhibitors with unique
virological and immunological properties and may provide another distinct tool to treat HIV-infected subjects.
Current Clinical Trials
PRO 140 is currently being studied in two clinical trials. One study is led by Dr. Jeffrey Jacobson. This study is funded directly
through grants from NIH. Pursuant to a clinical trial agreement with us, Drexel is now carrying the investigational new drug (“IND”)
application. As such, we are precluded from commenting on the NIH sponsored study. A second clinical trial of PRO 140 commenced in
May 2014 and is sponsored and funded by CytoDyn. This Phase 2b trial is known as “treatment substitution.” This Phase 2b trial was
completed in January 2015 and several patients are continuing in extension studies of this monotherapy of a weekly injection of PRO 140.
Results from these extension studies thus far indicate some patients are now reaching eight months of suppressed viral load achieved
through a successful monotherapy of PRO 140.
Our ongoing treatment substitution extension study has two objectives: (1) to assess the efficacy of PRO 140 monotherapy for the
maintenance of viral suppression after being used in substitution of a patient’s HAART regimen and (2) to assess the clinical safety and
tolerability parameters for PRO 140 following use in substitution of HAART. The study protocol requires patients to be stable on HAART
with an undetectable viral load. The trial design provided that patients will be shifted from HAART regimen to PRO 140 monotherapy for
12 weeks. PRO 140 is being administered as a 350mg subcutaneous dosage weekly and participants are monitored for viral rebound on a
weekly basis. Total treatment duration with PRO 140 in the initial study was up to 14 weeks with one week overlap of existing retroviral
regimen and PRO 140 at the beginning of the study period and also one week of overlap at the end in subjects who did not experience
virologic failure, which is defined as a viral load above 400 two weeks in a row. An independent Data Safety Monitoring Board (“DSMB”)
is required to monitor the study to ensure patient safety and to assess efficacy. The DSMB operates in conformance with the FDA
guidelines for its independence, management and oversight.
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The Company’s Phase 2b treatment substitution clinical trial results through May 31, 2015, (excluding patients who failed due to
having the Dual/Mix[II1] virus, therefore were screening failures) are as follows:
•
98% of the patients passed 4 weeks of monotherapy
•
91% of the patients passed 6 weeks of monotherapy
•
82% of the patients passed 8 weeks of monotherapy
•
70% of the patients passed 11 weeks of monotherapy (maximum allowable monotherapy without an extension study)
•
14 patients, who were offered to continue in an extension study with this monotherapy, most are approaching 8 months without
experiencing a virologic failure.
As only HIV patients who have CCR5 virus exclusively can benefit from PRO 140, each patient is required to take a DNA Trofile test
prior to enrollment in the study. However, this test is not very accurate in patients with an undetectable viral load. Therefore, the occurrence
of a number of viral rebounds due to inaccurate trofile screening was not unexpected. CytoDyn believes its clinical trial data demonstrates
that patients with either R5 exclusive virus or Dual/Mix virus have all successfully passed four weeks of monotherapy, thus there would be
no need for a trofile test, if this therapy were to be used for a three to four week treatment substitution. Furthermore, we believe if patients
continue to remain on this monotherapy (as 14 patients are currently participating in an extension study, with some as long as eight months),
then their viral load should only be tested periodically.
On May 4, 2015, the Company announced that it has reached an agreement with the FDA on the Company’s previously submitted
Phase 3 protocol synopsis for PRO 140 and submitted the full Phase 3 protocol to the FDA. The Company’s Phase 3 protocol provides for a
25-week study with 300 HIV patients.
The Company believes that upon successful completion of this Phase 3 study, CytoDyn will have the opportunity to seek accelerated
approval for PRO 140 based on previously granted FDA fast-track candidate designation. Additionally, the Company may apply for a
breakthrough designation for PRO 140, as the first self-injectable antibody for HIV therapy.
The Company announced on June 9, 2015, the FDA’s approval of the Company’s Phase 3 protocol for an additional indication for
PRO 140 and expects to commence its first Phase 3 clinical trial in mid-2015. The Company also plans to request a meeting with the FDA
to discuss potential additional indications for HIV therapy following the submission of the “top-line report” of the recently completed
Phase 2b treatment substitution study.
The Company’s first Phase 3 study is designed to allow PRO 140 as a component of a HAART regimen for treatment experienced
patients. HAART is the current standard of medical care for individuals with HIV. Management believes the market size for a HAART
therapy, which includes the PRO 140 antibody, along with other PRO 140 indications, could exceed a billion dollars. CytoDyn believes that
its PRO 140 antibody has compelling advantages over Maraviroc, the only other CCR5 antagonist for HIV therapy (Maraviroc is a pill
taken orally twice a day. PRO 140 is currently being tested as a once-a-week subcutaneous injection of 350mg dose). These advantages
include less toxicity, fewer side effects and once-a-week versus daily administration which together may improve patient compliance.
Other Product Candidates
Our second product candidate, Cytolin, is also a humanized monoclonal antibody for the treatment of HIV infection. It targets a
normal cell molecule called CD11a, part of the heterodimer that makes up the cell adhesion molecule lymphocyte function cell associated
antigen. Published reports have suggested that blocking or engaging CD11a might limit or prevent HIV infection of CD4 cells and
monocytes.
We acquired rights to Cytolin in October 2003 pursuant to an agreement with CytoDyn of New Mexico, Inc. (“CytoDyn NM”). As
part of the transaction, we acquired the drug candidate Cytolin and were assigned rights under the patent license agreement dated July 1,
1994, between CytoDyn NM and Allen D. Allen, covering United States Patent No. 5,651,970 (which describes a method for treating HIV
disease with the use of monoclonal antibodies), including the worldwide, exclusive right to develop, market and sell compounds disclosed
by the patent, to practice methods taught by the patent, and to exploit specified technology related to the patent. This patent is for a murine
(mouse) version of the drug. The license agreement expired on the original expiration date of the patent in July 2014. On September 23,
2011, we filed a provisional patent application (Serial No. 61/534,942) in the United States for its humanized version of Cytolin. On
September 13, 2012, we filed an international patent application (Serial No. PCT/US2012/055132) claiming priority to a United States
provisional patent application for our humanized version of Cytolin. We now refer to Cytolin as the humanized version of the old Cytolin,
which was the murine monoclonal antibody.
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In May 2011, we formed CytoDyn Veterinary Medicine LLC (“CVM”) to explore the possible application of feline reactive
monoclonal antibodies for the treatment of Feline Immunodeficiency Virus (“FIV”). On June 17, 2011, we filed a provisional patent
application in the United States (Serial No. 61/498,029) for the use of these antibodies, as well as selected small molecule antagonists and
agonists for the treatment of FIV. On June 15, 2012, we filed an international patent application (Serial No. PCT/US2012/042693) and
claimed priority to this provisional patent application. This international patent application has since entered European regional and U.S.
and Canadian national stage examinations. CytoFeline is our felinized proprietary product targeted to treat FIV.
Until the clinical trials for PRO 140 have advanced further, we do not plan to devote any resources towards the development,
research, testing, approval, or commercialization of Cytolin or CytoFeline.
PRO 140 Acquisition
We acquired PRO 140, as well as certain other related assets, including the existing inventory of PRO 140 bulk drug substance,
intellectual property, and FDA regulatory filings, pursuant to an Asset Purchase Agreement, dated as of July 25, 2012 (the “Progenics
Agreement”), between CytoDyn and Progenics. The terms of the Progenics Agreement provided for an initial cash payment of $3,500,000,
which was paid at closing in October 2012, as well as the following milestone payments and royalties to be paid to Progenics in the future:
(i) $1,500,000 at the time of the first dosing in a U.S. Phase 3 trial or non-US equivalent; (ii) $5,000,000 at the time of the first U.S. new
drug application approval by the FDA or other non-U.S. approval for the sale of PRO 140; and (iii) royalty payments of 5% of net sales
during the period beginning on the date of the first commercial sale of PRO 140 until the later of (a) the expiration of the last to expire
patent included in the acquired assets, and (b) 10 years following the first commercialization sale of PRO 140, in each case determined on a
country-by-country basis. The Progenics Agreement is filed as an exhibit to this annual report on Form 10-K.
Payments to Progenics are in addition to payments due under a Development and License Agreement, dated April 30, 1999 (the “PDL
License”), between Protein Design Labs (now AbbVie Inc.) and Progenics, which was assigned to us in the PRO 140 transaction, pursuant
to which we must pay additional milestone payments and royalties as follows: (i) $1,000,000 upon initiation of a Phase 3 clinical trial;
(ii) $500,000 upon filing a Biologic License Application with the FDA or non-U.S. equivalent regulatory body; (iii) $500,000 upon FDA
approval or approval by another non-U.S. equivalent regulatory body; and (iv) royalties of up to 7.5% of net sales for the longer of 10 years
and the date of expiration of the last to expire licensed patent. Additionally, the PDL License provides for an annual maintenance fee of
$150,000 until royalties paid exceed that amount. As of the date of this filing, management has reasonably estimated the likelihood of
paying the first milestone payments, as probable, and accordingly, as of May 31, 2015, the Company has accrued $2,500,000 for the initial
milestone associated with the first dosing in a Phase 3 trial. See Note 7 to the financial statements included herein under Item 8.
As part of our acquisition of PRO 140, we entered into a collaboration agreement with Drexel, under which CytoDyn has provided
Drexel with the necessary quantity of PRO 140 to conduct certain clinical trials. CytoDyn will have access to all clinical trial data and the
right to use such data. During fiscal 2014, CytoDyn fulfilled its obligation to Drexel to deliver finished drug product for use in its clinical
trials.
Patents, Proprietary Technology, and Data Exclusivity
Protection of our intellectual property rights is important to our business. We may file patent applications in the U.S., Canada, China,
Japan, European countries that are party to the European Patent Convention and other countries on a selective basis in order to protect
inventions we consider to be important to the development of our business.
Generally, patents issued in the U.S. are effective for either (i) 20 years from the earliest asserted filing date, if the application was
filed on or after June 8, 1995, or (ii) the longer of 17 years from the date of issue or 20 years from the earliest asserted filing date, if the
application was filed prior to that date. A U.S. patent, to be selected by the company upon receipt of FDA regulatory approval, may be
subject to up to a five-year patent term extension in certain instances. While the duration of foreign patents varies in accordance with the
provisions of applicable local law, most countries provide for a patent term of 20 years measured from the application filing date and some
may also allow for patent term extension to compensate for regulatory approval delay. We pursue opportunities for seeking new
meaningful patent protection on an ongoing basis. We currently anticipate that, absent patent term extension, patent protection relating to
the PRO 140 antibody itself will start to expire in 2023, certain methods of using PRO 140 will start to expire in 2026, and certain
formulations comprising PRO 140 will start to expire in 2031.
Patents do not enable us to preclude competitors from commercializing drugs in direct competition with our products that are not
covered by granted and enforceable patent claims. Consequently, patents may not provide us with any meaningful competitive advantage.
See related risk factors under the heading “Risk Factors” above. We may also rely on data exclusivity, trade secrets and proprietary know-
how to develop and attempt to achieve a competitive position with our product candidates. We generally require our employees,
consultants and partners who have access to our proprietary information to sign confidentiality agreements in an effort to protect our
intellectual property.
Separate from and in addition to the patent rights noted above, we expect that PRO 140 will be subject to at least a 12-year data
exclusivity period measured from the first date of FDA licensure, during which period no other applications referencing PRO 140 will be
approved by FDA. Further, no other applications referencing PRO 140 will be accepted by FDA for a 4-year period measured from the first
date of FDA licensure. Accordingly, this period of data exclusivity is expected to provide at least a 12-year term of protection against
competing products shown to be biosimilar or interchangeable with PRO 140. Similar data exclusivity or data protection periods of up to
about 5-years or more are provided in at least Australia, Canada, Europe, Japan, and New Zealand.
We note that data exclusivity is not an extension of patent rights, and it does not prevent the introduction of generic versions of the
innovative drug during the data exclusivity period, as long as the marketing approval of the generic version does not use or rely upon the
innovator’s test data. Patents and data exclusivity are different concepts, protect different subject matter, arise from different efforts, and
have different legal effects over different time periods.
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Information with respect to our current patent portfolio as of May 31, 2015, is set forth below.
Product Candidates
PRO 140
Cytolin
CytoFeline
Number of Patents
U.S.
16
—
—
International
27
—
—
Expiration
Dates(1)
2015-2031
—
—
Number of Patent
Applications
U.S.
7
1
2
International
15
—
3
(1) Patent term extensions and pending patent applications may extend periods of patent protection.
Research, development and commercialization of a biopharmaceutical product often require choosing between alternative
development and optimization routes at various stages in the development process. Preferred routes depend upon current—and may be
affected by subsequent—discoveries and test results, availability of financial resources, and other factors, and cannot be identified with
certainty. There are numerous third-party patents in fields in which we work, and we may need to obtain licenses under patents of others in
order to pursue a preferred development route of one or more of our product candidates. The need to obtain a license would decrease the
ultimate value and profitability of an affected product. If we cannot negotiate such a license, we might have to pursue a less desirable
development route or terminate the program altogether. See “Risk Factors” below.
Government Regulation
Regulation of Health Care Industry
The health care industry is highly regulated, and state and federal health care laws and regulations are applicable to certain aspects of
our business. For example, there are federal and state health care laws and regulations that apply to the operation of clinical laboratories,
the business relationships between health care providers and suppliers, the privacy and security of health information and the conduct of
clinical research.
Regulation of Products
The design, testing, manufacture, safety, effectiveness, labeling, storage, record keeping, approval, advertising and promotion of our
products is regulated by numerous third parties, including the FDA, foreign governments, independent standards auditors and our
customers.
In the United States, biological products have long been subject to regulation by various federal and state agencies, primarily as to
product safety, efficacy, manufacturing, advertising, labeling, import, export and safety reporting. The exercise of broad regulatory powers
by the FDA through its Center for Devices and Radiological Health and its Center for Biological Evaluation and Research continues to
result in increases in the amounts of testing and documentation for FDA clearance of current and new biologic products. The FDA can ban
certain biological products; detain or seize adulterated or misbranded biological products; order repair, replacement or refund of these
products; and require notification of health professionals and others with regard to biological products that present unreasonable risks of
substantial harm to the public health. The FDA may also enjoin and restrain certain violations of the Federal Food, Drug and Cosmetic Act,
as amended, or the Public Health Service Act pertaining to certain biological products or initiate action for criminal prosecution of such
violations.
The lengthy process of seeking drug approvals, and the subsequent compliance with applicable statutes and regulations, require the
expenditure of substantial resources. Failure to comply with applicable regulations can result in refusal by the FDA to approve product
license applications. The FDA also has the authority to revoke previously granted product approvals.
Regulation of Laboratory Operations
Clinical laboratories that perform laboratory testing (except for research purposes only) on human subjects are subject to regulation
under Clinical Laboratory Improvement Amendments (“CLIA”). CLIA regulates clinical laboratories by requiring that the laboratory be
certified by the federal government, licensed by the state and comply with various operational, personnel and quality requirements intended
to ensure that clinical laboratory test results are accurate, reliable and timely. State law and regulations also apply to the operation of clinical
laboratories.
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State Governments
Most states in which we operate have regulations that parallel federal regulations. Most states conduct periodic unannounced
inspections and require licensing under such state’s procedures. Our research and development activities and the manufacture and
marketing of our products are and will be subject to rigorous regulations relating to product safety and efficacy by numerous governmental
authorities in the United States and other countries.
Other Laws and Regulations
We are subject to various laws and regulations relating to safe working conditions, clinical, laboratory and manufacturing practices,
the experimental use of animals and the use and disposal of hazardous or potentially hazardous substances, including radioactive
compounds and infectious disease agents, used in connection with our research. The extent of government regulation applying to our
business that might result from any legislative or administrative action cannot be accurately predicted.
Environmental
We are subject to a variety of federal, state and local environmental protection measures. We believe that our operations comply in all
material respects with applicable environmental laws and regulations. Our compliance with these regulations did not have during the past
year and is not expected to have a material effect upon our capital expenditures, cash flows, earnings or competitive position.
Registrational Clinical Trials Process
Described below is the traditional registrational drug development track. Our current business strategy is to focus primarily on the
PRO 140 Phase 3 trial, seeking additional indications in Phase 3 trials, which we will sponsor and fund (subject to the availability of
sufficient capital to pursue additional paths), and to continue to evaluate and leverage the clinical data from our recently completed Phase
2b treatment substitution trial. Additional clinical studies of our lead product candidate, PRO 140, are being sponsored by Drexel and
funded at least in part by the NIH but are less critical to the viability of our business.
Phase 1
Phase 1 includes the initial introduction of an investigational new drug or biologic into humans. These studies are closely monitored
and may be conducted in patients, but are usually conducted in a small number of healthy volunteer subjects. These studies are designed to
determine the metabolic and pharmacologic actions of the investigational product in humans, the side effects associated with increasing
doses, and, if possible, to gain early evidence on effectiveness. During Phase 1, sufficient information about the investigational product’s
pharmacokinetics and pharmacological effects are obtained to permit the design of well-controlled, scientifically valid, Phase 2 studies.
Phase 1 studies of PRO 140 have been conducted and completed by or on behalf of Progenics by Dr. Jacobson and others prior to our
acquisition of PRO 140.
Phase 2
Phase 2 includes the early controlled clinical studies conducted to obtain some preliminary data on the effectiveness of the drug for a
particular indication or indications in patients with the disease or condition. This phase of testing also helps determine the common short-
term side effects and risks associated with the drug. Phase 2 studies are typically well-controlled, closely monitored, and conducted in a
relatively small number of patients, often involving several hundred people. In some cases, depending upon the need for a new drug, a
particular drug candidate may be licensed for sale in interstate commerce after a “pivotal” Phase 2 trial.
Phase 2 is often broken into Phase 2a, which can be used to refer to “pilot trials,” or more limited trials evaluating exposure response
in patients, and Phase 2b trials that are designed to evaluate dosing efficacy and ranges. We believe studies conducted under the direction of
Dr. Jacobson at Drexel will collectively constitute a Phase 2b trial. Our treatment substitution clinical trial is a Phase 2b trial.
Phase 3
Phase 3 studies are expanded controlled clinical studies. They are performed after preliminary evidence suggesting effectiveness of
the drug has been obtained in Phase 2, and are intended to gather the additional information about effectiveness and safety that is needed to
evaluate the overall benefit/risk relationship of the drug. Phase 3 studies also provide an adequate basis for extrapolating the results to the
general population and transmitting that information in the physician labeling. Phase 3 studies usually involve significantly larger groups of
patients, and considerable additional expense. We are required to pay significant fees to third parties upon the first patient dosing in a
Phase 3 trial of PRO 140. See the discussion under the subheading “PRO 140 Acquisition” above.
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Competition
The pharmaceutical and biotechnology industries are characterized by rapidly evolving technology and intense competition. Our
development efforts may compete with more established biotechnology companies that have significantly greater financial and managerial
resources than we do.
Advancing PRO 140 is our highest priority. PRO 140 blocks a cell receptor called CCR5, which is the entry point for most strains of
HIV virus. Pfizer’s maraviroc (Selzentry®) is the only currently approved CCR5 blocking agent. Another recent entry into the HIV
treatment space is Truvada, an HIV drug produced by Gilead Sciences, Inc. Both of these drugs must be taken daily and are believed to
have significant side effects. For these reasons, we believe that our lead product, PRO 140, a monoclonal antibody may prove to be useful
in patients that cannot tolerate existing HIV therapies or desire a respite from those therapies. Nonetheless, manufacturers of current
therapies, such as Pfizer and Gilead Sciences, are very large, multi-national corporations with significant resources. We expect that these
companies will compete fiercely to defend and expand their market share.
Our potential competitors include entities that develop and produce therapeutic agents. These include numerous public and private
academic and research organizations and pharmaceutical and biotechnology companies pursuing production of, among other things,
biologics from cell cultures, genetically engineered drugs and natural and chemically synthesized drugs. All of these potential competitors
have substantially greater capital resources, management expertise, research and development capabilities, manufacturing and marketing
resources and experience than we do.
Our competitors may succeed in developing potential drugs or processes that are more effective or less costly than any that may be
developed by us or that gain regulatory approval prior to our potential drug candidates. Worldwide, there are many antiviral drugs for
treating HIV. In seeking to manufacture, distribute and market the potential drugs we hope to have approved, we face competition from
established pharmaceutical companies. All of our potential competitors have considerably greater financial and management resources than
we possess. We also expect that the number of our competitors and potential competitors will increase as more potential drugs receive
commercial marketing approvals from the FDA or analogous foreign regulatory agencies. Any of these competitors may be more
successful than us in manufacturing, marketing and distributing HIV treatments.
Research and Development Costs
Our research and development expenses totaled approximately $15.2 million and $4.0 million for the fiscal years ended May 31, 2015
and May 31, 2014, respectively. We expect that research and development expenses will continue to be a significant expense as we seek to
develop our current and future product pipeline.
Employees and Consultants
We have three full-time employees, our CEO, CFO and Director of Accounting, as well as several independent consultants assisting
us with our clinical trials of PRO 140 and manufacturing activities. There can be no assurances, however, that we will be able to identify or
hire and retain additional employees or consultants on acceptable terms in the future.
Item 1A. Risk Factors
The risks enumerated below are not the only risks we face, and the listed risk factors are not intended to be an all-inclusive discussion
of all of the potential risks relating to our business. Any of the risk factors described below could significantly and adversely affect our
business, prospects, financial condition and results of operations. Additional risks and uncertainties not currently known or that are
currently considered to be immaterial may also materially and adversely affect our business.
Risks Related to Our Business
We are a biotechnology company and have a history of significant operating losses; we expect to continue to incur operating losses, and
we may never achieve or maintain profitability.
We have not generated any revenue from product sales, licensing, or other potential sales to date. Since our inception, we have
incurred operating losses in each year due to costs incurred in connection with research and development activities and general and
administrative expenses associated with our operations. Our current drug candidate is in the later stages of clinical trials, and we expect to
commence significant additional clinical trials before we can seek the regulatory approvals necessary to begin commercial
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sales. During the fiscal years ended May 31, 2015, 2014 and 2013, we have incurred net losses of approximately $25.1 million,
$12.4 million and $9.6 million and at May 31, 2015, we had an accumulated deficit of approximately $71.5 million. We expect to incur
losses for the foreseeable future as we continue development of, and seek regulatory approvals for, our drug candidate and commercialize
any approved product usages. If our current drug candidate fails to gain regulatory approval, or if it or other candidates we own do not
achieve approval and market acceptance, we will not be able to generate any revenue, or explore other opportunities to enhance shareholder
value, such as through a sale. If we fail to generate revenue and eventually become and remain profitable, or if we are unable to fund our
continuing losses, our shareholders could lose all or part of their investments.
We will need substantial additional funding to complete our Phase 3 clinical trial for PRO 140 and to operate our business and such
funding may not be available or, if it is available, such financing is likely to substantially dilute our existing shareholders.
The discovery, development, and commercialization of new treatments, such as our PRO 140 product candidate, entail significant
costs. We expect the total estimated expenses for our first Phase 3 trial may range from approximately $13 million to $15 million. In
addition, to the extent further development and clinical trials of PRO 140 and other products continue to appear promising and we elect to
fund its development and commercialization, we will need to raise substantial additional capital, or enter into strategic partnerships, to
enable us to:
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fund clinical trials and seek regulatory approvals;
build or access manufacturing and commercialization capabilities;
pay required license fees, milestone payments, and maintenance fees to Progenics Pharmaceuticals, Inc. (from which we acquired
our PRO 140 product candidate) (“Progenics”) and other third parties;
develop, test, and, if approved, market our product candidate;
acquire or license additional internal systems and other infrastructure; and
hire and support additional management and scientific personnel.
Until we can generate a sufficient amount of product revenue to finance our cash requirements, which we may never achieve, we
expect to finance our cash needs primarily through public or private equity offerings, debt financings or through strategic alliances. We
cannot be certain that additional funding will be available on acceptable terms or at all. If we are not able to secure additional funding when
needed, we may have to delay, reduce the scope of, or eliminate one or more of our clinical trials, collaborative development programs or
future commercialization initiatives. In addition, any additional funding that we do obtain will dilute the ownership held by our existing
security holders. The amount of this dilution may be substantially increased if the trading price of our common stock is lower at the time of
any financing. Regardless, the economic dilution to shareholders will be significant if our stock price does not increase significantly, or if
the effective price of any sale is below the price paid by a particular shareholder. Any debt financing could involve substantial restrictions
on activities and creditors could seek a pledge of some or all of our assets. We have not identified potential sources for the additional
financing that we will require, and we do not have commitments from any third parties to provide any future financing. If we fail to obtain
additional funding as needed, we may be forced to cease or scale back operations, and our results, financial condition and stock price would
be adversely affected.
The amount of financing we require will depend on a number of factors, many of which are beyond our control. Our results of
operations, financial condition and stock price are likely to be adversely affected if our funding requirements increase or are otherwise
greater than we expect.
Our future funding requirements will depend on many factors, including, but not limited to:
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our stock price, which, if it declines, would serve as a disincentive to holders of our convertible promissory notes, totaling
approximately $4.0 million in face amount at June 30, 2015, to exercise their conversion rights, thereby prolonging our interest
expense burden and increasing the probability that repayment of all of the outstanding principal of $4.0 million will be required in
fiscal 2016;
the costs of our Phase 3 clinical trial for PRO 140 and other clinical trials and development activities conducted by us directly, and
our ability to successfully conclude the studies and achieve favorable results;
the rate of progress and commercial benefits to us, if any, related to clinical trials of PRO 140 being conducted at Drexel
University College of Medicine (“Drexel”);
our ability to attract strategic partners to pay for or share costs related to our product development efforts;
the costs and timing of seeking and obtaining regulatory approvals and making related milestone payments due to Progenics and
other third parties.
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the costs of filing, prosecuting, maintaining and enforcing patents and other intellectual property rights and defending against
potential claims of infringement;
decisions to hire additional scientific or administrative personnel or consultants;
our ability to manage administrative and other costs of our operations; and
the presence or absence of adverse developments in our research program.
If any of these factors cause our funding needs to be greater than expected, our operations, financial condition, ability to continue
operations and stock price may be adversely affected.
Our future cash requirements may differ significantly from our current estimates.
Our cash requirements may differ significantly from our estimates from time to time, depending on a number of factors, including:
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the costs and results of our Phase 3 clinical trial and other clinical trials we are undertaking or may in the future pursue with
PRO 140;
the time and costs involved in obtaining regulatory approvals;
whether our outstanding convertible notes are converted into equity or we receive additional cash upon the exercise of our
outstanding common stock warrants;
whether we are able to obtain funding under future licensing agreements, strategic partnerships, or other collaborative
relationships, if any;
the costs of compliance with laws, regulations, or judicial decisions applicable to us;
the costs of general and administrative infrastructure required to manage our business and protect corporate assets and shareholder
interests; and
the ability to maintain and benefit from our clinical trial agreement with Drexel.
If we fail to raise additional funds on a timely basis we will need to scale back our business plans, which would adversely affect our
business, financial condition, and stock price, and we may even be forced to discontinue our operations and liquidate our assets.
We have significant debt as a result of prior financings, all of which is scheduled to mature at various dates over the next two years. Our
substantial indebtedness could adversely affect our business, financial condition and results of operations.
Our level of debt, which includes convertible promissory notes totaling approximately $4.0 million in face amount at June 30, 2015,
could have significant consequences for our future operations, including, among others:
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making it more difficult for us to meet our other obligations or raise additional capital;
resulting in an event of default, if we fail to comply with our payment obligations;
reducing the availability of any financing proceeds to fund operating expenses, other debt repayment, and working capital
requirements; and
limiting our financial flexibility and hindering our ability to obtain additional financing.
Any of the above-listed factors could have a material adverse effect on our business, financial condition, results of operations, and
ability to continue as a going concern.
Our ability to make interest and principal payments on our outstanding promissory notes will depend entirely on our ability to raise
sufficient funds to satisfy our debt service obligations and our note holders’ willingness to convert their notes to common shares, which will
likely depend on our stock price from time to time. If note holders do not elect to convert, it is likely that we will need to borrow or raise
additional funds to make required principal and interest payments, as such payments become due and payable, or undertake alternative
financing plans, such as refinancing or restructuring our debt, selling additional shares of capital stock, selling assets or reducing or
delaying investments in our business. Any inability to obtain additional funds or alternative financing on acceptable terms would likely
cause us to be unable to meet our payment obligations, which could have a material adverse effect on our business, financial condition and
results of operations and our ability to continue to operate.
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Certain agreements and related license agreements require us to make significant milestone, royalty, and other payments, which will
require additional financing and, in the event we do commercialize our PRO 140 product, decrease the revenues we may ultimately
receive on sales.
Under the Progenics Agreement (see “Our Business—PRO 140” for a description), we must pay to Progenics and third-party licensors
significant milestone payments, license fees for “system know-how” technology and royalties. For more information, see “Business – PRO
140 Acquisition and the Progenics Agreement, which is attached as Exhibit 10.1 to our Current Report on Form 8-K filed with the
Securities and Exchange Commission (the “SEC”) on July 30, 2012, and the PDL License Agreement, which is filed as Exhibit 10.21 to our
Annual Report on Form 10-K for the fiscal year ended May 31, 2013, filed with the SEC on August 29, 2013.
In order to make the various milestone and license payments that are required, we will need to raise additional funds. In addition, our
royalty obligations will reduce the economic benefits to us of any future sales if we do receive regulatory approval and seek to
commercialize PRO 140.
Subsequent to year end, the Company reached agreement in principle with a third-party licensor to enter into a licensing agreement
covering the licensor’s “system know-how” technology with respect to the Company’s use of proprietary cell lines to manufacture new
PRO 140 material. The license will require payment of £600,000 (approximately US$930,000) by December 31, 2015, and a contingent
payment of up to an additional £600,000 (approximately US$930,000) on June 30, 2016. The amount of the contingent payment depends on
the outcome of pending litigation between the licensor and the company that sold PRO 140 to CytoDyn. The Company has accrued an
expense for the payment of US$930,000, as of May 31, 2015, for the amount due by December 31, 2015, but has not accrued the contingent
payment due on June 30, 2016, as of May 31, 2015, as the amount and probability of payment cannot be reasonably estimated. Future
annual license fees and royalty rate will vary depending on whether CytoDyn manufactures PRO 140 itself, utilizes the third-party licensor
as a contract manufacturer, or utilizes an independent party as a contract manufacturer. The licensor does not charge an annual license fee
of £300,000 when it serves as the manufacturer.
Certain proposed clinical trials of PRO 140 depend on funding from National Institute of Health (“NIH”) grants awarded to Drexel and
its principal investigator, Dr. Jeffrey M. Jacobson.
Prior to our acquisition of PRO 140, Progenics and Drexel and its principal investigator, Dr. Jeffrey M. Jacobson, were awarded
various grants from the NIH to fund clinical trials of PRO 140, including two grants that remain open. Our ability to benefit commercially
from this continued funding will depend on whether Dr. Jacobson’s protocols are structured in a manner that facilitates efforts to maintain
PRO 140’s “fast track” drug candidate designation by the United States Food and Drug Administration (“FDA”) and obtain regulatory
approval of commercially viable uses of PRO 140 in HIV-infected patients. We believe these clinical trials may constitute a Phase 2 study
of PRO 140, but there can be no assurance that will be the case. If study protocols are not designed in a manner that provides commercial
and regulatory benefits for us or if NIH funding is not maintained, is withdrawn, or proves insufficient, we may not derive any benefit from
these clinical trials.
Clinical trials are expensive, time-consuming and subject to delay.
Clinical trials are subject to rigorous regulatory requirements and are expensive and time-consuming to design and implement. The
length of time and number of trial sites and patients required for clinical trials vary substantially based on the type, complexity, novelty,
intended use and any safety concerns relating to a drug candidate. We estimate that it may take at least two years to complete the necessary
clinical trials, obtain regulatory approval from the FDA or other non-U.S. regulatory agency, and begin to commercialize PRO 140, even if
trials are successful, of which there can be no assurance. Clinical trials for our other drug candidates, including Cytolin, may take
significantly longer to complete, if they are pursued at all.
The commencement and completion of clinical trials which we are undertaking ourselves or are being conducted by Drexel could be
delayed or prevented by many factors, including, but not limited to:
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our ability to obtain regulatory or other approvals to commence and conduct clinical trials in the manner we or our partners
consider appropriate for timely development;
our ability to identify and reach agreement on acceptable terms with prospective clinical trial sites and entities involved in the
conduct of our clinical trials;
slower than expected rates of patient recruitment and enrollment, including as a result of competition with other clinical trials for
patients, limited numbers of patients that meet the enrollment criteria, or the introduction of alternative therapies or drugs by
others;
unforeseen issues with our relationship with our contract clinical management services provider;
delays in paying third-party vendors of biopharmaceutical services;
lack of effectiveness of our drug candidates during clinical trials; or
unforeseen safety issues.
Testing of our primary product candidate, PRO 140, is ongoing and our clinical trial results may not ultimately confirm initial positive
indications, which would materially and adversely affect our business, financial condition and stock price.
Our efforts to commercialize PRO 140 are dependent on obtaining FDA or other non-U.S. regulatory agency approval of its use in
HIV-infected patients. Although test results have been positive thus far, the process of obtaining approval of a drug product for use
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in humans is extremely lengthy and time-consuming, and numerous factors may prevent our successful development of PRO 140, including
negative results in future clinical trials, the development by competitors of other products with equal or better results, or inability to obtain
sufficient additional funding to continue to pursue development. Failure to successfully develop PRO 140 would have a material and
adverse effect on our business, financial condition and stock price, and would threaten our ability to continue to operate our business,
particularly since PRO 140 is the only product candidate we are actively pursuing at this time.
Although PRO 140 has been designated as a candidate for fast track approval by the FDA, our ability to obtain accelerated approval
may be lost.
The FDA designated PRO 140 as a candidate for fast track consideration in 2006. The letter ascribing this designation stated that, if
the clinical development program pursued for PRO 140 did not continue to meet the criteria for fast track designation, the Investigational
New Drug (“IND”) application would not be reviewed under the fast track program. There is no assurance that the FDA will ultimately
consider PRO 140 for approval on an accelerated basis. Failure to maintain eligibility for fast track review will likely result in requirements
for longer or additional clinical trials and a slower approval process, resulting in additional costs and further delay in the potential
realization of revenues from commercialization of PRO 140.
Any failure to attract and retain skilled directors, executives, employees and consultants could impair our drug development and
commercialization activities.
Our business depends on the skills, performance, and dedication of our directors, executive officers and key scientific and technical
advisors. All of our current scientific advisors are independent contractors and are either self-employed or employed by other organizations.
As a result, they may have conflicts of interest or other commitments, such as consulting or advisory contracts with other organizations,
which may affect their ability to provide services to us in a timely manner. We may need to recruit additional directors, executive
management employees, and advisers, particularly scientific and technical personnel, which will require additional financial resources. In
addition, there is currently intense competition for skilled directors, executives and employees with relevant scientific and technical
expertise, and this competition is likely to continue. If we are unable to attract and retain persons with sufficient scientific, technical and
managerial experience, we may be forced to limit or delay our product development activities or may experience difficulties in successfully
conducting our business, which would adversely affect our operations and financial condition.
We do not have internal research and development personnel, making us dependent on consulting relationships and strategic alliances
with industry partners.
We currently have no research and development staff or coordinators. We rely and intend to continue to rely on third parties for many
of these functions. We engaged Amarex Clinical Research, LLC (“Amarex”), a full service clinical research organization, to manage our
clinical trials and chemistry and manufacturing control (“CMC”) endeavors. As a result, we will be dependent on consultants and strategic
partners in our development and commercialization activities, and it may be administratively challenging to monitor and coordinate these
relationships. If we do not appropriately manage our relationships with third parties, we may not be able to successfully manage
development, testing, and approval of our PRO 140 drug candidate or other products or commercialize any products that are approved,
which would have a material and adverse effect on our business, financial condition and stock price.
We will need to outsource and rely on third parties for the clinical development and manufacture, sales and marketing of product
candidates, and our future success will be dependent on the timeliness and effectiveness of the efforts of these third parties.
We are dependent on third parties for important aspects of our product development strategy. We do not have the required financial
and human resources to carry out independently the pre-clinical and clinical development for our product candidate, and do not have the
capability or resources to manufacture, market or sell our current product candidate. As a result, we contract with and rely on third parties
for important functions, including testing, storing, and manufacturing our products and managing and conducting clinical trials from which
we may obtain a benefit. We have recently entered into several agreements with third parties for such services. If problems develop in our
relationships with third parties, or if such parties fail to perform as expected, it could lead to delays or lack of progress, significant cost
increases, changes in our strategies, and even failure of our product initiatives.
We may not be able to identify, negotiate and maintain the strategic alliances necessary to develop and commercialize our products and
technologies, and we will be dependent on our corporate partners if we do.
We may seek to enter into a strategic alliance with a pharmaceutical company for the further development and approval of one or
more of our product candidates. Strategic alliances potentially provide us with additional funds, expertise, access, and other resources in
exchange for exclusive or non-exclusive licenses or other rights to the technologies and products that we are currently developing or may
explore in the future. We cannot give any assurance that we will be able to enter into additional strategic relationships with a
pharmaceutical company or others in the near future or at all, or maintain our current relationships. In addition, we
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cannot assure you that any agreements we do reach will achieve our goals or be on terms that prove to be economically beneficial to us.
When we do enter into strategic or contractual relationships, we become dependent on the successful performance of our partners or
counter-parties. If they fail to perform as expected, such failure could adversely affect our financial condition, lead to increases in our
capital needs, or hinder or delay our development efforts.
Clinical trials may fail to demonstrate the desired safety and efficacy of our product candidates, which could prevent or significantly
delay completion of clinical development and regulatory approval.
Prior to receiving approval to commercialize PRO 140 or any other product candidates, we must adequately demonstrate to the FDA
and any foreign regulatory authorities in jurisdictions in which we seek approval that it or any other product candidate is sufficiently safe
and effective with substantial evidence from well-controlled clinical trials. In clinical trials, we will need to demonstrate efficacy for the
treatment of specific indications and monitor safety throughout the clinical development process and following approval. If clinical work
by us or others leads to undesirable adverse effects in patients, it could delay or prevent us from furthering the regulatory approval process
or cause us to cease clinical trials with respect to any drug candidate. If our current or future preclinical studies or clinical trials are
unsuccessful, our business will be significantly harmed and our stock price would be negatively affected.
Our product candidates are subject to the risks of failure inherent in drug-related product development. Preclinical studies may not
yield results that adequately support our regulatory applications. Even if these applications are filed with respect to our product candidates,
the results of preclinical studies do not necessarily predict the results of clinical trials. In addition, even if we believe the data collected from
clinical trials of our product candidates are promising, these data may not be sufficient to support approval by the FDA or foreign
regulatory authorities. If regulatory authorities do not approve our products or if we fail to maintain regulatory compliance, we would be
unable to commercialize our products, and our business, results of operations and financial condition would be harmed.
Our competitors may develop drugs that are more effective, safer and less expensive than ours.
We are engaged in the HIV treatment sector of the biopharmaceutical industry, which is intensely competitive. There are current
treatments that are quite effective at controlling the effects of HIV, and we expect that new developments by other companies and academic
institutions in the areas of HIV treatment will continue. If approved for marketing by the FDA, depending on the approved clinical
indication, our product candidates may be competing with existing and future antiviral treatments for HIV.
Our competitors may:
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develop drug candidates and market drugs that increase the levels of safety or efficacy that our product candidates will need to
show in order to obtain regulatory approval;
develop drug candidates and market drugs that are less expensive or more effective than ours;
commercialize competing drugs before we or our partners can launch any products we are working to develop;
hold or obtain proprietary rights that could prevent us from commercializing our products; or
introduce therapies or market drugs that render our potential product candidates obsolete.
We expect to compete against large pharmaceutical and biotechnology companies and smaller companies that are collaborating with
larger pharmaceutical companies, new companies, academic institutions, government agencies and other public and private research
organizations. These competitors, in nearly all cases, operate research and development programs that have substantially greater financial
resources than we do. Our competitors also have significantly greater experience in:
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developing drug and other product candidates;
undertaking preclinical testing and clinical trials;
building relationships with key customers and opinion-leading physicians;
obtaining and maintaining FDA and other regulatory approvals;
formulating and manufacturing drugs;
launching, marketing and selling drugs; and
providing management oversight for all of the above-listed operational functions.
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If we fail to achieve superiority over other existing or newly developed treatments, we may be unable to obtain regulatory approval. If
our competitors market drugs that are less expensive, safer or more effective than our potential product candidates, or that gain or maintain
greater market acceptance, we may not be able to compete effectively.
We expect to rely on third party manufacturers and will be dependent on their quality and effectiveness.
Our primary product candidate and potential drug candidates require precise, high-quality manufacturing. The failure to achieve and
maintain high manufacturing standards, including failure to detect or control anticipated or unanticipated manufacturing errors or the
frequent occurrence of such errors, could result in patient injury or death, discontinuance or delay of ongoing or planned clinical trials,
delays or failures in product testing or delivery, cost overruns, product recalls or withdrawals and other problems that could seriously hurt
our business. Contract drug manufacturers often encounter difficulties involving production yields, quality control and quality assurance
and shortages of qualified personnel. These manufacturers are subject to stringent regulatory requirements, including the FDA’s current
good-manufacturing-practices regulations and similar foreign laws and standards. If our contract manufacturers fail to maintain ongoing
compliance at any time, the production of our product candidates could be interrupted, resulting in delays or discontinuance of our clinical
trials, additional costs and loss of potential revenues.
We may not be able to successfully scale-up manufacturing of our product candidates in sufficient quality and quantity, which would
delay or prevent us from developing our product candidates and commercializing approved products, if any.
In order to conduct larger-scale or late-stage clinical trials and for commercialization of any resulting product, if that candidate is
approved for sale, we will need to manufacture it in larger quantities. We may not be able to successfully increase the manufacturing
capacity for any of our product candidates in a timely or cost-effective manner, or at all. In addition, quality issues may arise during scale-
up activities. If we are unable to successfully scale up the manufacture of our product candidates in sufficient quality and quantity, the
development and testing of that product candidate and regulatory approval or commercial launch of any resulting product may be delayed,
which could significantly harm our business.
There is uncertainty relating to our product candidate Cytolin, and our business may be adversely affected if it later proves not to have
the novel and beneficial characteristics we currently believe it to possess.
Until late 2012, the primary focus of our business was on the development of Cytolin, a monoclonal antibody that has, what we
believe are, novel mechanisms of action directed against the replication of HIV. We do not understand all of the biomechanical
mechanisms of Cytolin and we are not actively pursuing its development and review at this time. If we cannot determine how Cytolin acts
to reduce the viral load of HIV infection, we may not seek or be able to obtain regulatory approval of its use in human patients.
We may be subject to potential product liability and other claims that could materially impact our business and financial condition.
The development and sale of medical products exposes us to the risk of significant damages from product liability and other claims,
and the use of our product candidates in clinical trials may result in adverse effects. We cannot predict all the possible harms or adverse
effects that may result. We maintain a modest amount of product liability insurance to provide some protections from claims. Nonetheless,
we may not have sufficient resources to pay for any liabilities resulting from a personal injury or other claim, even if it is partially covered
by insurance. In addition to the possibility of direct claims, we may be required to indemnify third parties against damages and other
liabilities arising out of our development, commercialization and other business activities, which would increase our liability exposure. If
third parties that have agreed to indemnify us fail to do so, we may be held responsible for those damages and other liabilities as well.
Legislative, regulatory, or medical cost reimbursement changes may adversely impact our business.
New laws, regulations and judicial decisions, or new interpretations of existing laws, regulations and decisions, that relate to the
health care system in the U.S. and in other jurisdictions may change the nature of and regulatory requirements relating to drug discovery,
clinical testing and regulatory approvals, limit or eliminate payments for medical procedures and treatments, or subject the pricing of
pharmaceuticals to government control. Outside the U.S., and particularly in the European Union, the pricing of prescription
pharmaceuticals is subject to governmental control. In addition, third-party payers in the U.S. are increasingly attempting to contain health
care costs by limiting both coverage and the level of reimbursement of new drug products. Consequently, significant uncertainty exists as to
the reimbursement status of newly approved health care products. Significant changes in the health care system in the U.S. or elsewhere,
including changes resulting from adverse trends in third-party reimbursement programs, could have a material adverse effect on our
projected future operating results and our ability to raise capital, commercialize products, and remain in business.
If we are unable to effectively implement or maintain a system of internal control over financial reporting, we may not be able to
accurately or timely report our financial results and our stock price could be adversely affected.
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Section 404 of the Sarbanes-Oxley Act of 2002 and related regulations require us to evaluate the effectiveness of our internal control
over financial reporting as of the end of each fiscal year, and to include a management report assessing the effectiveness of our internal
control over financial reporting in our Annual Report on Form 10-K for that fiscal year. Management determined that as of both May 31,
2015, and May 31, 2014, our disclosure controls and procedures and internal control over financial reporting were not effective due to
material weaknesses in our internal control over financial reporting related to inadequate segregation of duties over authorization, review
and recording of transactions, as well as the financial reporting of such transactions. Any failure to implement new or improved controls
necessary to remedy the material weaknesses described above, or difficulties encountered in the implementation or operation of these
controls, could harm our operations, decrease the reliability of our financial reporting, and cause us to fail to meet our financial reporting
obligations, which could adversely affect our business and reduce our stock price.
Our success depends substantially upon our ability to obtain and maintain intellectual property protection relating to our product
candidates and research technologies.
Due to evolving legal standards relating to the patentability, validity and enforceability of patents covering pharmaceutical inventions
and the claim scope of patents, our ability to enforce our existing patents and to obtain and enforce patents that may issue from any pending
or future patent applications is uncertain and involves complex legal, scientific and factual questions. To date, no consistent policy has
emerged regarding the breadth of claims allowed in biotechnology and pharmaceutical patents. Thus, we cannot be sure that any patents
will issue from any pending or future patent applications owned by or licensed to us. Even if patents do issue, we cannot be sure that the
claims of these patents will be held valid or enforceable by a court of law, will provide us with any significant protection against competing
products, or will afford us a commercial advantage over competitive products. If one or more products resulting from our product
candidates is approved for sale by the FDA and we do not have adequate intellectual property protection for those products, competitors
could duplicate them for approval and sale in the United States without repeating the extensive testing required of us or our partners to
obtain FDA approval.
Known third party patent rights could delay or otherwise adversely affect our planned development and sale of PRO 140. We have
identified but not exhaustively analyzed other patents that could relate to our proposed products.
We are aware of patent rights held by a third party that may cover certain compositions within our PRO 140 candidate. The patent
holder has the right to prevent others from making, using, or selling a drug that incorporates the patented compositions, while the patent
remains in force. While we believe that the third party’s patent rights will not affect our planned development, regulatory clearance, and
eventual marketing, commercial production, and sale of PRO 140, there can be no assurance that this will be the case. The relevant patent
expires before we expect to commercially introduce PRO 140. In addition, the Hatch-Waxman exemption to U.S. patent law permits all
uses of compounds in clinical trials and for other purposes reasonably related to obtaining FDA clearance of drugs that will be sold only
after patent expiration, so our use of PRO 140 in those FDA-related activities does not infringe the patent holder’s rights. However, were
the patent holder to assert its rights against us before expiration of the patent for activities unrelated to FDA clearance, the development and
ultimate sale of a PRO 140 product could be significantly delayed, and we could incur the expense of defending a patent infringement suit
and potential liability for damages for periods prior to the patent’s expiration.
In connection with our acquisition of rights to PRO 140, our patent counsel conducted a freedom-to-operate search that identified
other patents that could relate to our proposed PRO 140 candidate. Sufficient research and analysis was conducted to enable us to reach the
conclusion that PRO 140 likely does not infringe those patent rights. However, we did not have an exhaustive analysis conducted as to the
identified patent rights, because doing so would have been more costly than appeared to be justified. If any of the holders of the identified
patents were to assert patent rights against us, the development and sale of PRO 140 could be delayed, we could be required to spend time
and money defending patent litigation, and we could incur liability for infringement or be enjoined from producing our products if the
patent holders prevailed in an infringement suit.
If we are sued for infringing on third-party intellectual property rights, it will be costly and time-consuming, and an unfavorable
outcome would have a significant adverse effect on our business.
Our ability to commercialize our product candidates depends on our ability to use, manufacture and sell those products without
infringing the patents or other proprietary rights of third parties. Numerous U.S. and foreign issued patents and pending patent applications
owned by third parties exist in the monoclonal antibody therapeutic area in which we are developing product candidates and seeking new
potential product candidates. There may be existing patents, unknown to us, on which our activities with our product candidates could
infringe.
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If a third party claims that our actions infringe on its patents or other proprietary rights, we could face a number of issues that could
seriously harm our competitive position, including, but not limited to:
•
•
•
•
infringement and other intellectual property claims that, even if meritless, can be costly and time-consuming, delay the regulatory
approval process and divert management’s attention from our core business operations;
substantial damages for infringement, if a court determines that our products or technologies infringe a third party’s patent or
other proprietary rights;
a court prohibiting us from selling or licensing our products or technologies unless the holder licenses the patent or other
proprietary rights to us, which it is not required to do; and
even if a license is available from a holder, we may have to pay substantial royalties or grant cross-licenses to our patents or other
proprietary rights.
If any of these events occur, it could significantly harm our operations and financial condition and negatively affect our stock price.
We may undertake infringement or other legal proceedings against third parties, causing us to spend substantial resources on litigation
and exposing our own intellectual property portfolio to challenge.
We may come to believe that third parties are infringing on our patents or other proprietary rights. To prevent infringement or
unauthorized use, we may need to file infringement and/or misappropriation suits, which are very expensive and time-consuming and
would distract management’s attention. Also, in an infringement or misappropriation proceeding a court may decide that one or more of our
patents is invalid, unenforceable, or both, in which case third parties may be able to use our technology without paying license fees or
royalties. Even if the validity of our patents is upheld, a court may refuse to stop the other party from using the technology at issue on the
ground that the other party’s activities are not covered by our patents.
We may become involved in disputes with our present or future contract partners over intellectual property ownership or other matters,
which would have a significant effect on our business.
Inventions discovered in the course of performance of contracts with third parties may become jointly owned by our strategic partners
and us, in some cases, and the exclusive property of one of us, in other cases. Under some circumstances, it may be difficult to determine
who owns a particular invention or whether it is jointly owned, and disputes could arise regarding ownership or use of those inventions.
Other disputes may also arise relating to the performance or alleged breach of our agreements with third parties. Any disputes could be
costly and time-consuming, and an unfavorable outcome could have a significant adverse effect on our business.
We are subject to the oversight of the SEC and other regulatory agencies. Investigations by those agencies could divert management’s
focus and could have a material adverse effect on our reputation and financial condition.
We are subject to the regulation and oversight of the SEC and state regulatory agencies, in addition to the FDA. As a result, we may
face legal or administrative proceedings by these agencies. We are unable to predict the effect of any investigations on our business,
financial condition or reputation. In addition, publicity surrounding any investigation, even if ultimately resolved in our favor, could have a
material adverse effect on our business.
Our auditors have issued a going concern opinion, and we will not be able to achieve our objectives and will have to cease operations if
we cannot adequately fund our operations.
Our auditors issued a going concern opinion in connection with the audit of our annual financial statements for the fiscal year ended
May 31, 2015. A going concern opinion means that there is substantial doubt that the company can continue as an ongoing business for the
next 12 months. If we are unable to continue as a going concern, we might have to liquidate our assets and the values we receive for our
assets in liquidation or dissolution could be significantly lower than the values reflected in our financial statements. In addition, the
inclusion of an explanatory paragraph regarding substantial doubt about our ability to continue as a going concern and our lack of cash
resources may materially adversely affect our share price and our ability to raise new capital or to enter into critical contractual relations
with third parties. There is no assurance that we will be able to adequately fund our operations in the future.
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Risks Relating to Our Common Stock
The significant number of common shares issuable upon conversion of outstanding notes and exercise of outstanding common stock
options and warrants could adversely affect the trading price of our common shares.
If our existing stockholders sell, or indicate an intent to sell, substantial amounts of our common stock in the public market, the
trading price of our common stock could decline significantly. In addition, we have 5,981,158 shares subject to outstanding options under
our stock option plans, 1,754,930 shares reserved for future issuance under our equity compensation plan, 28,178,551 shares issuable upon
exercise of outstanding warrants and 5,374,706 shares issuable upon conversion of our outstanding notes. If our existing stockholders sell
substantial amounts of our common stock in the public market, or if the public perceives that such sales could occur, this could have an
adverse impact on the market price of our common stock, even if there is no relationship between such sales and the performance of our
business.
The market price for our common shares has been and is likely to continue to be volatile.
The market price for our common shares has been and is likely to continue to be volatile. The volatile nature of our common share
price may cause investment losses for our shareholders. In addition, the market price of stock in small capitalization biotech companies is
often driven by investor sentiment, expectation and perception, all of which may be independent of fundamental valuation metrics or
traditional financial performance metrics, thereby exacerbating volatility. In addition, our common shares are quoted on the OTCQB of the
OTC Markets marketplace, which may increase price quotation volatility and could limit liquidity, all of which may adversely affect the
market price of our shares.
We do not expect any cash dividends to be paid on our shares in the foreseeable future.
We have never declared or paid a cash dividend and we do not anticipate declaring or paying dividends for the foreseeable future.
We expect to use future financing proceeds and earnings, if any, to fund operating expenses. Consequently, shareholders’ only opportunity
to achieve a return on their investment is if the price of our stock appreciates and they sell their shares at a profit. We cannot assure
shareholders of a positive return on their investment when they sell their shares or that shareholders will not lose the entire amount of their
investment.
If the beneficial ownership of our stock continues to be highly concentrated, it may prevent you and other shareholders from
influencing significant corporate decisions.
Our significant shareholders may exercise substantial influence over the outcome of corporate actions requiring shareholder approval,
including the election of directors, any merger, consolidation or sale of all or substantially all of our assets, or any other significant
corporate transactions. These shareholders may also vote against a change of control, even if such a change of control would benefit our
other shareholders. See “Stock Ownership by Principal Shareholders and Management” below.
Our common shares are classified as “penny stock” and trading of our shares may be restricted by the SEC’s penny stock regulations.
Rules 15g-1 through 15g-9 promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”) impose sales practice and
disclosure requirements on certain brokers-dealers who engage in transactions involving a “penny stock.” The SEC has adopted regulations
which generally define “penny stock” to be any equity security that has a market price of less than $5.00 per share or an exercise price of
less than $5.00 per share, subject to certain exceptions. Our common shares are covered by the penny stock rules, which impose additional
sales practice requirements on broker-dealers who sell to persons other than established customers and “accredited investors.” The penny
stock rules require a broker-dealer, prior to a transaction in a penny stock not otherwise exempt from the rules, to deliver a standardized risk
disclosure document in a form prepared by the SEC which provides information about penny stocks and the nature and level of risks in the
penny stock market. The broker-dealer also must provide the customer with current bid and offer quotations for the penny stock, the
compensation of the broker-dealer and its salesperson in the transaction, and monthly account statements showing the market value of each
penny stock held in the customer’s account. In addition, the penny stock rules require that, prior to a transaction in a penny stock that is not
otherwise exempt, the broker-dealer must make a special written determination that the penny stock is a suitable investment for the
purchaser and receive the purchaser’s written agreement to the transaction. These disclosure requirements may have the effect of reducing
the level of trading activity in the secondary market for stock that is subject to these penny stock rules. Consequently, these penny stock
rules may affect the ability of broker-dealers to trade our securities. We believe that the penny stock rules may discourage investor interest
in and limit the marketability of our common shares.
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Future sales of our securities could adversely affect the market price of our common stock and our future capital-raising activities
could involve the issuance of equity securities, which would dilute your investment and could result in a decline in the trading price of
our common stock.
We may sell securities in the public or private equity markets if and when conditions are favorable, or at prices per share below the
current market price of our common stock, even if we do not have an immediate need for additional capital at that time. Sales of substantial
amounts of shares of our common stock, or the perception that such sales could occur, could adversely affect the prevailing market price of
our shares and our ability to raise capital. We may issue additional shares of common stock in future financing transactions or as incentive
compensation for our executive management and other key personnel, consultants and advisors. Issuing any equity securities would be
dilutive to the equity interests represented by our then-outstanding shares of common stock. Moreover, sales of substantial amounts of
shares in the public market, or the perception that such sales could occur, may adversely affect the prevailing market price of our common
stock and make it more difficult for us to raise additional capital.
Item 1B. Unresolved Staff Comments.
None.
Item 2.
Properties.
We relocated our principal office to our current address at 1111 Main Street, Suite 660, Vancouver, Washington 98660 effective as of
October 1, 2013. We lease 1,383 square feet in a commercial office building pursuant to a lease that expires on September 30, 2016, at a
cost of $2,478 per month, plus modest annual increases. The lease also provides for early termination after 12 and 24 months.
Item 3.
Legal Proceedings.
From time to time, we are involved in claims and suits that arise in the ordinary course of the Company’s business. Management
currently believes that the resolution of any such claims against us, if any, will not have a material adverse effect on our business, financial
condition or results of operations.
Item 4. Mine Safety Disclosures.
Not applicable.
PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Market Information
Our common stock is presently quoted on the OTCQB of the OTC Markets marketplace under the trading symbol CYDY.
Historically, trading in our stock has been very limited and the trades that have occurred cannot be characterized as amounting to an
established public trading market. As a result, the trading prices of our common stock may not reflect the price that would result if our
stock was actively traded.
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The following are high and low bid prices quoted on the OTCQB during the periods indicated. The quotations reflect inter-dealer
prices, without retail mark-up, mark-down or commission and may not represent actual transactions:
Fiscal Year Ended May 31, 2015:
First quarter ended August 31, 2014
Second quarter ended November 30, 2014
Third quarter ended February 28, 2015
Fourth quarter ended May 31, 2015
Fiscal Year Ended May 31, 2014:
First quarter ended August 31, 2013
Second quarter ended November 30, 2013
Third quarter ended February 28, 2014
Fourth quarter ended May 31, 2014
High
Low
$0.85
$1.25
$0.84
$1.09
$0.72
$1.18
$0.78
$0.63
$1.10
$1.50
$1.40
$1.00
$0.65
$0.70
$0.79
$0.54
Holders
The number of record holders of our common stock on May 31, 2015, was approximately 285.
Dividends
Holders of our common stock are entitled to receive dividends as may be declared from time to time by our Board. We have not paid
any cash dividends since inception on our common stock and do not anticipate paying any in the foreseeable future. The Company’s
current policy is to retain earnings, if any, for use in our operations.
Holders of 95,100 shares of Series B Preferred Stock are entitled to receive, in preference to the common stock, annual cumulative
dividends equal to $0.25 per share per annum from the date of issuance, which shall accrue, whether or not declared. At the time shares of
Series B Preferred Stock are converted into common shares, accrued and unpaid dividends will be paid in cash or with common shares. In
the event we elect to pay dividends with common shares, the shares issued will be valued at $0.50 per share. As of June 30, 2015, if the
Company declared a dividend and elected to pay such dividend in the form of common stock, approximately 251,000 shares of common
stock would issued in the form of dividend.
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
There were no repurchases of our equity securities during the three months ended May 31, 2015.
Item 6.
Selected Financial Data.
This item is not required for smaller reporting companies.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with the other
sections of this Annual Report, including our consolidated financial statements and related notes set forth in Item 8. This discussion and
analysis contains forward-looking statements, including information about possible or assumed results of our financial condition,
operations, plans, objectives and performance that involve risks, uncertainties and assumptions. The actual results may differ materially
from those anticipated and set forth in such forward-looking statements.
Business Highlights
Since the beginning of fiscal 2014, we commenced several initiatives to advance our lead product candidate, PRO 140. The following
is a brief summary of key accomplishments:
•
•
•
Raised $14.5 million in capital through a private equity offering;
Engaged a full service clinical research organization to manage our regulatory affairs, clinical trials and CMC activities;
Advanced PRO 140 from a frozen bulk drug substance state through “fill and finish” and delivered finished drug product to
Drexel University College of Medicine for its self-sponsored, NIH-funded clinical trials of PRO 140;
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•
•
•
•
•
•
Obtained FDA approval and successfully concluded a self-sponsored, self-funded Phase 2b clinical trial for a PRO 140
monotherapy study referred to as treatment substitution;
Prepared and delivered finished drug product of PRO 140 for our first self-sponsored Phase 2b clinical trial, our treatment
substitution study;
Raised $7.5 million in capital through three private convertible debt offerings;
Induced the conversion of approximately $4.2 million in aggregate principal amount of convertible promissory notes into
common stock;
Further advanced preparations for the manufacturing of new cGMP PRO 140 antibody material; and
Obtained FDA approval of a Phase 3 clinical trial protocol, which is anticipated to commence in mid-2015.
Results of Operations
Results of operations for the year ended May 31, 2015, compared to May 31, 2014 are as follows:
For the years ended May 31, 2015 and 2014, we had no activities that produced revenues from operations.
For the years ended May 31, 2015 and 2014, we incurred net losses of approximately $25.1 million and $12.4 million, respectively.
The increase in net loss of approximately $12.7 million for fiscal 2015 over fiscal 2014 was primarily attributable to an increase in research
and development expenses, higher non-cash inducement interest expense, the recognition of a derivative liability and higher amortization of
debt discount.
Total operating expenses for the years ended May 31, 2015 and 2014, are as follows:
General and administrative:
Salaries and other compensation
Stock-based compensation
Accounting and consulting
Other
Total general and administrative
Legal
Research and development
Amortization and depreciation
Total operating expenses
2015
2014
$ 1,330,000
631,000
134,000
1,188,000
3,283,000
797,000
15,156,000
361,000
$19,597,000
$ 900,000
928,000
216,000
1,063,000
3,107,000
672,000
3,982,000
352,000
$8,113,000
The increase in fiscal 2015 total operating expenses of approximately $11.5 million, or 142%, over fiscal 2014 was primarily related
to the increase in research and development expenditures, and accrued incentive compensation, offset slightly by the reduction in stock-
based compensation and consulting expenses.
Salaries and other compensation increased approximately $430,000, or 48%, from approximately $900,000 in fiscal year 2014 to
approximately $1,320,000 for the year ended May 31, 2015 due to accrued incentive compensation and to a lesser extent higher salary
levels.
Stock-based compensation decreased approximately $297,000, or 32%, from approximately $928,000 for the year ended May 31,
2014, to approximately $631,000 for the year ended May 31, 2015. The decrease was attributable to a reduction in stock option awards
offset in part by an increase in warrants issued to third parties for compensation of services.
Accounting and consulting expenses decreased approximately $82,000, or 37%, from $216,000 in fiscal year 2014 to approximately
$134,000 for the year ended May 31, 2015. The decrease in accounting and consulting expenses for fiscal 2015 as compared to fiscal 2014
reflects a more efficient utilization of third party resources.
Legal expenses increased approximately $125,000, or 19%, from approximately $672,000 for the year ended May 31, 2014 to
approximately $797,000 for the year ended May 31, 2015. The trend in legal expenses will continue to reflect on the Company’s capital
raising activities, complexity of certain regulatory filings, and continued effective management of its intellectual property portfolio.
Other operating expenses of approximately $1,188,000 for fiscal 2015 increased approximately $125,000, or 11.7%, over fiscal 2014
owing to increased insurance costs, travel, investor relations and professional fees, offset in part by reductions in certain other
administrative expenses.
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Research and development (“R&D”) expenses of approximately $15.2 million for fiscal 2015 increased approximately $11.2 million
over fiscal 2014. The fiscal 2015 expenditures primarily included (1) CMC (chemistry, manufacturing and controls) activities to provide
finished PRO 140 drug product for Drexel’s clinical trials and to advance the preparations for manufacturing new PRO 140, (2) clinical trial
development and management of the recently completed Phase 2b trial and preparations for a Phase 3 trial (3) the accrual of future certain
milestone payments coincident with the Phase 3 trial and (4) an accrual of approximately $0.9 million payable by December 31, 2015 in
connection with the resolution of a third-party license agreement related to the licensor’s “system know-how” technology. The increase in
expenses associated with CMC activities in fiscal 2015 over fiscal 2014 was attributable in large part to the purchase of approximately $3.2
million of resins utilized in biologics manufacturing. While these resins will provide future economic benefit to the Company through
perhaps 10 to 12 future manufacturing batch runs, this expenditure does not meet the U.S. GAAP standards for capitalization under “pre-
launch” inventory guidelines pursuant to ASC 330. Accordingly, the Company expensed the resin purchase as a period cost under CMC
R&D expenses.
We record research and development where directly identifiable as follows:
Research and development:
Clinical
CMC
Patent and Licenses
Milestone Payments
Total research and development
Year Ended May 31,
2015
2014
4,383,000
8,111,000
162,000
2,500,000
$15,156,000
401,000
3,493,000
87,500
—
$3,981,500
The Company’s two convertible promissory notes held by Alpha Venture Capital Partners, L.P. and its affiliate (“AVCP”) in the
principal amount of approximately $3.5 million, which were issued during the fiscal year ended May 31, 2015, each contain a provision for
potential adjustment of the conversion rate of the note, commonly known as an anti-dilution or “round down” provision. Carl C. Dockery,
one of our directors, is the sole member of Alpha Advisors, LLC, the investment advisor for AVCP. Pursuant to U.S. GAAP, each of these
notes require the recognition of a derivative liability. Accordingly, the Company incurred a non-cash net charge of approximately $0.8
million during fiscal year ended May 31, 2015. In June 2015, the Company entered into a Debt Conversion and Termination Agreement,
whereby AVCP converted its promissory notes into an aggregate of 5,237,966 shares of common stock and received warrants to purchase
up to 1,000,000 shares of common stock at an exercise price of $0.675 and agreed to terminate its rights under its purchase agreements,
including future investment rights.
Interest expense for fiscal 2015 totaled approximately $4.7 million, of which all but approximately $0.4 million was non-cash.
Interest expense for fiscal 2015 was comprised of approximately (i) $2.7 million (non-cash) related to amortization of debt discounts,
(ii) $1.5 million (non-cash) arising from inducements to convert notes and the exercise of warrants, (iii) $0.4 million payable on
outstanding notes and (iv) $0.1 million related to the amortization of previously paid debt issuance costs. U.S. GAAP requires the
recognition of debt discounts when the conversion feature of a convertible note is beneficial at the commitment date. The debt discounts
represent the sum of the intrinsic value of the conversion feature and the fair value of the detachable warrants issued with the notes. The
combined discounts are limited to the note proceeds. The value of the debt discount is amortized over the term of the note as interest
expense and the amortization is accelerated upon conversion prior to maturity date. Due to the timing of note conversions in 2015, the debt
discount and convertible note interest were both reduced by approximately $1.7 million and $226,000, respectively, in fiscal 2015 as
compared to fiscal year 2014.
The future trends in all of our expenses will be driven, in part, by the future outcomes of our clinical trials and the correlative effect
on general and administrative expenses, especially FDA regulatory requirements, in addition to the possibility that all or a portion of the
holders of the Company’s outstanding convertible notes may elect to convert their notes into common stock, which would reduce future
interest expense. See, in particular, Item 1A “Risk Factors” above.
Liquidity and Capital Resources
We had cash and cash equivalents of approximately $1 million as of May 31, 2015, compared with $4.9 million as of May 31, 2014.
The net decrease in our cash and cash equivalents over a year ago was attributable to net cash used in operating activities of approximately
$12 million, offset in part by proceeds from debt issuance and the exercise of warrants, which together totaled approximately $8.6 million.
As of May 31, 2015, we had negative working capital of approximately $8.7 million, which compares to working capital of
$3.3 million at May 31, 2014.
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Cash Flows
Net cash used in operating activities was approximately $12.0 million during fiscal year 2015, which represents an increase of
approximately $4.6 million from net cash used in operating activities of approximately $7.4 million in fiscal 2014. The increase in the net
cash used in operating activities for fiscal 2015 as compared to fiscal 2014 was primarily attributable to an increase in R&D expenses of
$11.2 million, offset an increase in current liabilities of approximately $7.4 million. The effect of the higher net loss was also offset in part
by the non-cash components of interest expense, which totaled approximately $4.3 million, the change in fair value of derivative liability of
approximately $0.8 million and stock-based compensation totally approximately $0.6 million.
Net cash used in investing activities of approximately $19,000 is comparable for fiscal years 2015 and 2014.
Cash flows provided by financing activities of approximately $8.2 million during fiscal 2015 decreased approximately $3.5 million
from fiscal 2014. During fiscal year 2015, proceeds of approximately $7.5 million were received in connection with issuance of convertible
notes payable, net of $423,000 in offering costs, along with approximately $1.1 million received upon the exercise of warrants. The
decrease in cash provided by financing activities in fiscal 2015 as compared to fiscal 2014 was principally due to a private equity offering
during fiscal year 2014 that provided net cash of approximately $11.6 million, after offering costs of approximately $2.1 million. During
fiscal year 2014, the Company issued $1.2 million of convertible notes, of which $250,000 in principal amount was repaid and $950,000 in
aggregate principal converted into the equity offering. The Company also paid, at maturity, two notes in the aggregate principal amount of
$1 million.
As mentioned above, we have no activities that produced revenue in fiscal year 2015 and 2014 and have sustained operating losses
since inception. Our ability to continue as a going concern is dependent upon our ability to raise additional capital until we can commence
sales operations and achieve a level of profitability. Since inception, we have financed our activities principally from the sale of private
equity and debt securities. We intend to finance our future development activities and our working capital needs largely from the sale of
equity securities, combined with additional funding from other traditional financing sources.
The Company is current with its interest payment obligations to all note holders and is in compliance with all other terms of
outstanding promissory notes. As of May 31, 2015, the Company had a total of approximately $7.5 million outstanding in face amount of
convertible promissory notes. In the event our promissory notes are not converted into shares of common stock, the Company’s ability to
continue as a going concern will be contingent upon its ability to raise additional capital to meet these obligations, or refinance. If the
Company is unsuccessful in raising additional capital or refinancing in the future, it may be required to cease its operations. In June 2015,
the Company entered into a Debt Conversion and Termination Agreement, whereby AVCP converted its promissory notes into an aggregate
of 5,237,966 shares of common stock and received warrants to purchase up to 1,000,000 shares of common stock at an exercise price of
$0.675 and agreed to terminate its rights under its purchase agreements, including future investment rights. See Note 14 to the financial
statements included herein under Item 8. As such, the total amount of outstanding convertible promissory notes as of the date of the filing
has been reduced from approximately $7.5 million down to approximately $4 million and the earliest maturity date is October 2015 rather
than August 2015.
We have not generated revenue to date, and will not generate product revenue in the foreseeable future. We expect to continue to
incur sizable operating losses as we proceed with our clinical trials with respect to PRO 140 and continue to advance it through the product
development and regulatory process. In addition to increasing research and development expenses, we expect general and administrative
and manufacturing costs to increase, as we add personnel and other administrative expenses associated with our current efforts.
In furtherance of our business strategy, the Company entered into a manufacturing agreement with a contract manufacturing
organization to initiate preparations for the future manufacturing of additional PRO 140. The remaining costs to be incurred under this
agreement, are approximately $3.6 million, of which approximately $3.2 million represent a fixed contractual obligation pursuant to various
termination provisions. The total future estimated costs of manufacturing may vary materially depending on future decisions by
management and its technical consultants with respect to various scientific and regulatory elements of the agreement. As of the date of this
filing, all contractually incurred expenses have been recognized in the financial statements. In addition, the Company recently entered into
an agreement with its incumbent clinical research organization to begin a Phase 3 trial and paid an execution fee of approximately $0.7
million. The total estimated expenses for the Company’s first Phase 3 trial may range from approximately $13 million to $15 million, as
contracts with third-party service providers are still in negotiations. The Company will need sizable amounts of additional capital to
complete these activities.
Under the Asset Purchase Agreement (the “Asset Purchase Agreement”), dated July 22, 2012, between the Company and Progenics
Pharmaceuticals, Inc. (“Progenics”), the Company acquired from Progenics its proprietary HIV viral-entry inhibitor drug candidate PRO
140 (“PRO 140”), a humanized anti-CCR5 monoclonal antibody, as well as certain other related assets, including the existing inventory of
bulk PRO 140 drug product, intellectual property, certain related licenses and sublicenses, and U.S. Food and Drug administration (“FDA”)
regulatory filings. On October 16, 2012, the Company paid $3,500,000 in cash to Progenics to close the acquisition transaction. The
Company is also required to pay Progenics the following milestone payments and royalties: (i) $1,500,000 at the time of the first dosing in
a Phase 3 trial or non-US equivalent; (ii) $5,000,000 at the time of the first US new drug application approval by the FDA or other non-U.S.
approval for the sale of PRO 140; and (iii) royalty payments of up to five percent (5%) on net sales during the period beginning on the date
of the first commercial sale of PRO 140 until the later of (a) the expiration of the last to expire patent included in the acquired assets, and
(b) 10 years, in each case determined on a country-by country basis. Payments to Progenics are in addition to payments due under a
Development and License Agreement, dated April 30, 1999 (the “PDL
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License”), between Protein Design Labs (now AbbVie Inc.) and Progenics, which was assigned to us in the PRO 140 transaction, pursuant
to which we must pay additional milestone payments and royalties as follows: (i) $1,000,000 upon initiation of a Phase 3 clinical trial;
(ii) $500,000 upon filing a Biologic License Application with the FDA or non-U.S. equivalent regulatory body; (iii) $500,000 upon FDA
approval or approval by another non-U.S. equivalent regulatory body; and (iv) royalties of up to 7.5% of net sales for the longer of 10 years
and the date of expiration of the last to expire licensed patent. Additionally, the PDL License provides for an annual maintenance fee of
$150,000 until royalties paid exceed that amount. As noted above and in the financial statements included herein under Item 8, the
Company accrued milestone payments totaling $2.5 million as of May 31, 2015 in connection with its Phase 3 clinical trial.
Subsequent to year end, the Company reached agreement in principle with a third-party licensor to enter into a licensing agreement
covering the licensor’s “system know-how” technology with respect to the Company’s use of proprietary cell lines to manufacture new
PRO 140 material. The license will require payment of £600,000 (approximately US$930,000) by December 31, 2015, and a contingent
payment of up to an additional £600,000 (approximately US$930,000) on June 30, 2016. The amount of the contingent payment depends on
the outcome of pending litigation between the licensor and the company that sold PRO 140 to CytoDyn. The Company has accrued an
expense for the payment of US$930,000, as of May 31, 2015, for the amount due by December 31, 2015, but has not accrued the contingent
payment due on June 30, 2016, as of May 31, 2015, as the amount and probability of payment cannot be reasonably estimated. Future
annual license fees and royalty rate will vary depending on whether CytoDyn manufactures PRO 140 itself, utilizes the third-party licensor
as a contract manufacturer, or utilizes an independent party as a contract manufacturer. The licensor does not charge an annual license fee
of £300,000 when it serves as the manufacturer.
Going Concern
We will require additional funding in order to continue to operate.
The accompanying consolidated financial statements have been prepared on a going concern basis, which contemplates the
realization of assets and the satisfaction of liabilities in the normal course of business. The Company has incurred losses for all periods
presented and has a substantial accumulated deficit. As of May 31, 2015, these factors, among others, raise substantial doubt about the
Company’s ability to continue as a going concern.
The consolidated financial statements do not include any adjustments relating to the recoverability and classification of liabilities that
might be necessary should the Company be unable to continue as a going concern. The Company’s continuation as a going concern is
dependent upon its ability to obtain additional operating capital, complete development of its product candidates, obtain FDA approval,
outsource manufacturing of its products, and ultimately to attain profitability. The Company intends to seek additional funding through
equity offerings or licensing agreements or strategic alliances to implement its business plan. There are no assurances, however, that the
Company will be successful in these endeavors.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our
financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital
resources that is material to investors.
Critical Accounting Policies and 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 disclosure of
contingent assets and liabilities at the date of the financial statements and the reported amounts of expenses during the reporting period.
Actual results could differ from those estimates.
We believe that the following critical policies affect our more significant judgments and estimates used in preparation of our
consolidated financial statements.
The Company may scale-up and make commercial quantities of its product candidate prior to the date it anticipates that such product
will receive final FDA approval. The scale-up and commercial production of pre-launch inventories involves the risk that such products
may not be approved for marketing by the FDA on a timely basis, or ever. This risk notwithstanding, the Company may scale-up and build
pre-launch inventories of product that have not yet received final governmental approval when the Company believes that such action is
appropriate in relation to the commercial value of the product launch opportunity. The determination to capitalize is made once the
Company (or its third party development partners) has filed a New Drug Application (an “NDA”) that has been acknowledged by the FDA
as containing sufficient information to allow the FDA to conduct its review in an efficient and timely
22
Table of Contents
manner and management is reasonably certain that all regulatory and legal hurdles will be cleared. This determination is based on the
particular facts and circumstances relating to the expected FDA approval of the drug product being considered. As of May 31, 2014 and
2015 the Company did not have pre-launch inventory.
We use the Black-Scholes option pricing model to estimate the fair value of stock-based awards on the date of grant utilizing certain
assumptions that require judgments and estimates. These assumptions include estimates for volatility, expected term, and risk-free interest
rates in determining the fair value of the stock-based awards.
We follow the provisions of FASB ASC 815 “Derivatives and Hedging” (“ASC 815”), as instruments are recorded as a derivative
liability, at fair value, with changes in fair value reflected in income. Derivative financial instruments consist of financial instruments that
contain a notional amount and one or more underlying variables (e.g., interest rate, security price, variable conversion rate or other
variables), require no initial net investment and permit net settlement. Derivative financial instruments may be free-standing or embedded
in other financial instruments.
We issue common stock, stock options and warrants to consultants for various services. Costs for these transactions are measured at
the fair value of the consideration received or the fair value of the equity instruments issued, whichever is more readily measurable. This
determination requires judgment in terms of the consideration being measured.
We have issued convertible promissory notes with detachable warrants to purchase common stock. The conversion options are fixed,
but beneficial to the note holders at the respective commitment dates. The valuation of the beneficial conversion feature of the notes and of
the warrants gives rise to the recognition of a debt discount, which requires the use of certain assumptions inherent in the Black-Scholes
option pricing model, including various judgments and estimates.
As discussed in Notes 7 and 8 to the consolidated financial statements, we have significant contingent potential milestone and royalty
liabilities. We must estimate the likelihood of paying these contingent liabilities periodically based on the progress of our clinical trials.
Item 7A. Quantitative and Qualitative Disclosures about Market Risk.
This item is not required for smaller reporting companies.
Item 8.
Financial Statements and Supplementary Data.
CYTODYN INC.
CONTENTS
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
CONSOLIDATED BALANCE SHEETS AS OF MAY 31, 2015 AND MAY 31, 2014
CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE YEARS ENDED MAY 31, 2015 AND 2014
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ (DEFICIT) EQUITY FOR THE YEARS ENDED
MAY 31, 2015 AND 2014
CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE YEARS ENDED MAY 31, 2015 AND 2014
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
23
PAGE
24
25
26
27
31
33
Table of Contents
Board of Directors and Shareholders
CytoDyn Inc.
Vancouver, Washington
Report of Independent Registered Public Accounting Firm
We have audited the accompanying consolidated balance sheets of CytoDyn Inc. as of May 31, 2015 and 2014, and the related
consolidated statements of operations, changes in stockholders’ (deficit) equity, and cash flows for the years then ended. These
consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these
consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audits to obtain reasonable assurance about whether the consolidated financial statements
are free of material misstatement. The Company is not required at this time, to have, nor were we engaged to perform, an audit of its
internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for
designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness
of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the consolidated financial statements. An audit also includes assessing the
accounting principles used and significant estimates made by management, as well as evaluating the overall consolidated financial
statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of
CytoDyn Inc. as of May 31, 2015 and 2014 and the results of its operations and its cash flows for the years then ended in conformity with
accounting principles generally accepted in the United States of America.
The accompanying consolidated financial statements have been prepared assuming the Company will continue as a going concern. As
discussed in Note 2 to the consolidated financial statements, the Company incurred a net loss of $25,088,070 for the year ended May 31,
2015, and has an accumulated deficit of $71,522,302 through May 31, 2015, which raises a substantial doubt about its ability to continue as
a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of this
uncertainty.
/s/ Warren Averett, LLC
Warren Averett, LLC
Certified Public Accountants
Tampa, Florida
July 10, 2015
24
Table of Contents
CytoDyn Inc.
Consolidated Balance Sheets
Assets
Current assets:
Cash
Prepaid expenses
Prepaid clinical service fees
Deferred offering costs
Total current assets
Furniture and equipment, net
Intangibles, net
Total Assets
Liabilities and Shareholders’ (Deficit) Equity
Current liabilities:
Accounts payable
Accrued milestone payments
Accrued liabilities, salaries and interest payable
Accrued license fees
Convertible notes payable, net
Stock rescission liability
Total current liabilities
Long-term liabilities
Related party, convertible note payable, net
Related party, derivative liability
Convertible notes payable, net
Total liabilities
Shareholders’ (deficit) equity:
May 31,
2015
2014
$ 1,050,060
253,833
733,916
—
2,037,809
24,213
2,617,239
$ 4,679,261
$ 5,016,261
2,500,000
644,533
930,000
1,634,458
—
10,725,252
2,637,618
2,008,907
—
15,371,777
$ 4,886,122
488,821
—
68,292
5,443,235
16,797
2,967,239
$ 8,427,271
$ 1,286,715
—
501,640
—
—
378,000
2,166,355
—
—
2,338,684
4,505,039
Series B convertible preferred stock, no par value; 400,000 shares authorized, 95,100 shares
issued and outstanding at May 31, 2015 and May 31, 2014, respectively
247,556
266,251
Common stock, no par value; 200,000,000 and 100,000,000 shares authorized, 63,644,348 and
55,753,311 issued and outstanding at May 31, 2015 and May 31, 2014, respectively
Additional paid-in capital
Common and preferred stock subject to rescission
Accumulated (deficit)
Total shareholders’ (deficit) equity
Total liabilities and shareholders’ (deficit) equity
See accompanying notes to consolidated financial statements.
25
35,819,240
24,762,990
—
(71,522,302)
(10,692,516)
$ 4,679,261
30,367,779
20,100,434
(378,000)
(46,434,232)
3,922,232
$ 8,427,271
Table of Contents
CytoDyn Inc.
Consolidated Statements of Operations
Operating expenses:
General and administrative
Amortization and depreciation
Research and development
Legal fees
Total operating expenses
Operating loss
Interest income
Gain on settlement of accounts payable
Change in fair value of derivative liability
Interest expense:
Amortization of discount on convertible notes
Amortization of discount on related party convertible notes
Amortization of debt issuance costs
Inducement interest
Interest on notes payable
Total interest expense
Loss before income taxes
Provision for taxes on income
Net loss
Basic and diluted loss per share
Basic and diluted weighted average common shares outstanding
See accompanying notes to consolidated financial statements.
26
Year ended May 31,
2015
2014
$ 3,282,908 $ 3,106,678
352,429
3,981,468
672,153
8,112,728
(8,112,728)
7,767
183,944
—
360,582
15,156,365
796,671
19,596,526
(19,596,526)
2,199
—
(838,643)
(2,145,010)
(523,614)
(103,598)
(1,526,254)
(356,624)
(4,655,100)
(25,088,070)
—
$(25,088,070)
(3,807,320)
—
(120,000)
—
(583,076)
(4,510,396)
(12,431,413)
—
$(12,431,413)
$
(0.43)
$
(0.27)
58,375,637
46,900,643
Table of Contents
CytoDyn Inc.
Consolidated Statement of Changes in Shareholders’ (Deficit) Equity
Preferred Stock
Common Stock
Common
Balance May 31, 2013
Rescission expirations and exclusions
Amortization of deferred offering costs related to rescission liability
Proceeds from unit offering ($1.30/unit)
Deferred offering costs
Inducement warrants
Conversion of convertible debt to common stock ($.65/share)
Conversion of convertible debt to common stock ($.75/share)
Conversion of accrued interest on convertible debt to common stock
Stock
Payable
Shares
Amount
—
(7,840)
Shares Amount
95,100 $274,091 30,908,292 $16,144,673 $ 117,778
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
(20,796)
—
— 20,989,494 13,642,667
— (2,084,063)
—
—
—
—
— 2,046,148 1,330,000
— 1,493,333 1,120,000
($.65/share)
—
—
24,363
15,837
—
Conversion of accrued interest on convertible debt to common stock
($.75/share)
Exercise of common stock warrants ($1.00/share)
Common stock issued for accrued interest
Common stock issued for bonuses
Conversion of note payable and accrued interest to common stock
($.45/share)
Stock-based compensation
Debt discount related to warrants and beneficial conversion feature
associated with convertible debt
Net (loss) for year ended May 31, 2014
Balance at May 31, 2014
See accompanying notes to consolidated financial statements.
27
—
—
—
—
—
—
—
—
—
—
—
—
—
—
95,100 $266,251
—
—
16,117
50,000
150,000
53,601
—
12,088
—
50,000
(10,278)
75,000
72,361 (107,500)
21,963
—
10,012
—
—
—
—
—
55,753,311 $30,367,779
—
—
—
—
—
Table of Contents
CytoDyn Inc.
Consolidated Statement of Changes in Shareholders’ (Deficit) Equity
Additional
Paid-
In Capital
Rescission
Amount
Accumulated
Deficit
Balance May 31, 2013
Rescission expirations and exclusions
Amortization of deferred offering costs related to rescission liability
Proceeds from unit offering ($1.30/unit)
Deferred offering costs
Inducement warrants
Conversion of convertible debt to common stock ($.65/share)
Conversion of convertible debt to common stock ($.75/share)
Conversion of accrued interest on convertible debt to common stock
($.65/share)
Conversion of accrued interest on convertible debt to common stock
($.75/share)
Exercise of common stock warrants ($1.00/share)
Common stock issued for accrued interest
Common stock issued for bonuses
Conversion of note payable and accrued interest to common stock
($.45/share)
Stock-based compensation
Debt discount related to warrants and beneficial conversion feature
associated with convertible debt
Net (loss) for year ended May 31, 2014
Balance at May 31, 2014
See accompanying notes to consolidated financial statements.
28
17,778,861 $(536,500) $(34,002,819) $
—
—
—
—
193,160
—
—
158,500
—
—
—
—
—
—
—
—
—
—
—
928,413
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
Total
(223,916)
158,500
(28,636)
13,642,667
(2,084,063)
193,160
1,330,000
1,120,000
15,837
12,088
50,000
64,722
(35,139)
10,012
928,413
1,200,000
—
$20,100,434
—
—
$(378,000)
—
(12,431,413)
$(46,434,232)
1,200,000
(12,431,413)
$ 3,922,232
Table of Contents
CytoDyn Inc.
Consolidated Statement of Changes in Shareholders’ (Deficit) Equity
Preferred Stock
Common Stock
Additional
Balance May 31, 2014
Rescission expirations and exclusions
Amortization of deferred offering costs related to rescission liability
Common stock for interest on convertible note
OID, intrinsic value related to warrants
Conversion of convertible debt to common stock ($.75)/share
Conversion of accrued interest on convertible debt to common stock
($.75/share)
Exercise of common stock warrants ($.55/share)
Exercise of common stock warrants ($.75/share)
Stock-based compensation
Inducement interest on note conversions and warrant exercises
Inducement interest on reissued warrants
Net (loss) for year ended May 31, 2015
Balance at May 31, 2015
See accompanying notes to consolidated financial statements.
Paid-In
Capital
Shares
Amount
Shares Amount
95,100 $266,251 55,753,311 $30,367,779 $20,100,434
—
—
—
—
—
—
— (18,695)
104,153
—
—
—
— 2,505,261
—
—
—
—
— 5,628,330 4,221,250
—
—
(49,597)
52,077
—
—
—
—
—
—
—
119,580
—
86,296
— 1,938,974 1,066,435
75,000
—
—
—
—
—
—
—
—
—
—
—
—
631,302
555,626
970,367
—
63,644,348 $35,819,240 $24,762,990
100,000
—
—
—
—
95,100 $247,556
29
Table of Contents
CytoDyn Inc.
Consolidated Statement of Changes in Shareholders’ (Deficit) Equity
Balance May 31, 2014
Rescission expirations and exclusions
Amortization of deferred offering costs related to rescission liability
Common stock for interest on convertible note
OID, intrinsic value related to warrants
Conversion of convertible debt to common stock ($.75)/share
Conversion of accrued interest on convertible debt to common stock ($.75/share)
Exercise of common stock warrants ($.55/share)
Exercise of common stock warrants ($.75/share)
Stock-based compensation
Inducement interest on note conversions and warrant exercises
Inducement interest on reissued warrants
Net (loss) for year ended May 31, 2015
Balance at May 31, 2015
See accompanying notes to consolidated financial statements.
30
Rescission
Amount
Accumulated
Deficit
Total
$(378,000) $(46,434,232) $ 3,922,232
—
378,000
378,000
—
(68,292)
—
—
52,077
—
—
2,505,261
—
—
4,221,250
—
—
86,296
—
—
1,066,435
—
—
75,000
—
—
631,302
—
—
555,626
—
—
970,367
—
— (25,088,070) (25,088,070)
— $(71,522,302) $(10,692,516)
$
Table of Contents
CytoDyn Inc.
Consolidated Statements of Cash Flows
Cash flows from operating activities:
Net loss
Adjustments to reconcile net loss to net cash used by operating activities:
Amortization and depreciation
Amortization of debt issuance costs
Amortization of discount on convertible notes
Amortization of discount on related party notes
Gain on settlement of accounts payable
Loss on the sale of fixed asset
Change in fair value of derivative liability
Inducement interest expense
Stock-based compensation
Changes in current assets and liabilities:
Decrease (increase) in prepaid expenses
Increase (decrease) in accounts payable, accrued salaries and severance, accrued license
fees, accrued interest and accrued liabilities
Net cash used in operating activities
Cash flows from investing activities:
Furniture and equipment purchases
Net cash used in investing activities
Cash flows from financing activities:
Payments on indebtedness to related parties
Payments on convertible notes payable
Payments of debt issuance costs
Payments of offering costs
Proceeds from sale of common stock
Proceeds from issuance of convertible notes payable
Proceeds from exercise of warrants
Net cash provided by financing activities
Net change in cash
Cash, beginning of period
Cash, end of period
See accompanying notes to consolidated financial statements.
31
Year Ended May 31,
2015
2014
$(25,088,070) $(12,431,413)
360,582
103,598
2,145,010
523,614
—
583
838,643
1,526,254
631,302
352,429
120,000
3,807,320
—
(183,944)
—
—
193,160
928,413
(498,928)
(348,972)
7,440,554
(12,016,858)
176,064
(7,386,943)
(18,585)
(18,585)
(19,220)
(19,220)
—
—
(423,104)
—
—
7,481,050
1,141,435
8,199,381
(3,836,062)
4,886,122
$ 1,050,060
(500,000)
(500,000)
(120,000)
(2,084,063)
13,642,667
1,200,000
50,000
11,688,604
4,282,441
603,681
$ 4,886,122
Table of Contents
CytoDyn Inc.
Consolidated Statements of Cash Flows
Supplemental disclosure of cash flow information:
Cash paid during the period for:
Income taxes
Interest
Non-cash investing and financing transactions:
Common stock issued upon conversion of convertible debt
Common stock issued or to be issued for accrued interest payable
Year Ended May 31,
2015
2014
$
3,142 $
—
$ 203,864
$ 311,991
$4,221,250
$2,459,000
$ 138,373
$
58,518
Original issue discount and intrinsic value of beneficial conversion feature related to debt issued with warrants
Preferred and common stock subject to rescission liability
$
—
$ 378,000
$1,200,000
$ 158,500
Amortization of deferred offering costs related to rescission liability
Accounts payable extinguished through settlements
Original issue discount related to valuation of compound embedded derivative of convertible note payable
issued with anti-dilution feature
Original issue discount related to valuation of relative fair value of warrants issued with convertible notes
payable
Warrants issued for debt discount on convertible notes payable
See accompanying notes to consolidated financial statements.
32
$
$
68,292
$
28,638
—
$ 183,944
$1,170,264
$2,220,143
$ 285,118
$
$
$
—
—
—
Table of Contents
1 – Organization
CYTODYN INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
AS OF MAY 31, 2015
CytoDyn Inc. (the “Company”) was incorporated under the laws of Colorado on May 2, 2002 under the name Rexray Corporation
(“Rexray”). In October 2003, the Company (under its previous name RexRay Corporation) entered into an Acquisition Agreement with
CytoDyn of New Mexico, Inc. Pursuant to the acquisition agreement, the Company acquired assets related to its drug candidate Cytolin,
including the assignment of the patent license agreement dated July 1, 1994 between CytoDyn of New Mexico, Inc. and Allen D. Allen
covering three United States patents along with foreign counterpart patents which describe a method for treating Human Immunodeficiency
Virus (“HIV”) disease with the use of monoclonal antibodies.
The Company is developing a class of therapeutic monoclonal antibodies to address unmet medical needs in the areas of HIV and Acquired
Immune Deficiency Syndrome (“AIDS”).
Advanced Genetic Technologies, Inc. (“AGTI”) was incorporated under the laws of Florida on December 18, 2006 pursuant to an
acquisition during 2006.
On May 16, 2011, the Company formed a wholly owned subsidiary, CytoDyn Veterinary Medicine LLC (“CVM”), to explore the possible
application of the Company’s existing proprietary monoclonal antibody technology to the treatment of Feline Immunodeficiency Virus
(“FIV”). The Company views the formation of CVM as an effort to strategically diversify the use of its proprietary monoclonal antibody
technology.
2 – Summary of Significant Accounting Policies
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and its wholly owned subsidiaries; AGTI and CVM. All
intercompany transactions and balances are eliminated in consolidation.
Reclassifications
Certain prior year amounts shown in the accompanying consolidated financial statements have been reclassified to conform to the 2015
presentation. These reclassifications did not have any effect on total current assets, total assets, total current liabilities, total liabilities, total
shareholders’ (deficit) equity or net loss.
Going Concern
The consolidated accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of
assets and the satisfaction of liabilities in the normal course of business. As shown in the accompanying consolidated financial statements,
the Company had losses for all periods presented. The Company incurred a net loss of $25,088,070 and $12,431,413 for the years ended
May 31, 2015, and May 31, 2014, respectively. Additionally, the Company has a working capital deficit of $8,687,443 as of May 31, 2015.
These factors, among others, raise substantial doubt about the Company’s ability to continue as a going concern.
The consolidated financial statements do not include any adjustments relating to the recoverability of assets and classification of liabilities
that might be necessary should the Company be unable to continue as a going concern. The Company’s continuation as a going concern is
dependent upon its ability to obtain additional operating capital, complete development of its product candidates, obtain U.S. Food & Drug
Administration (“FDA”) approval, outsource manufacturing of the product candidates, and ultimately achieve initial revenues and attain
profitability. The Company is currently engaging in significant research and development activities related to these product candidates, and
expects to incur significant research and development expenses in the future. These research and development activities are subject to
significant risks and uncertainties. We intend to finance our future development activities and our working capital needs largely from the
sale of debt and equity securities, combined with additional funding from other traditional sources. There can be no assurance, however,
that the Company will be successful in these endeavors.
Use of Estimates
The preparation of the consolidated financial statements in accordance with accounting principles generally accepted in the United States
of America (“U.S. GAAP”) requires management to make estimates and assumptions that affect the reported amounts of assets and
liabilities and the disclosure of contingent assets and liabilities at the date of consolidated financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results could differ from those estimates.
33
Table of Contents
Cash
Cash is maintained at federally insured financial institutions and, at times, balances may exceed federally insured limits. We have never
experienced any losses related to these balances. Balances in excess of federally insured limits at May 31, 2015 and 2014 approximated
$1,164,000 and $4,589,000, respectively.
Identified Intangible Assets
The Company follows the provisions of FASB ASC Topic 350 Intangibles-Goodwill and Other, which establishes accounting standards for
the impairment of long-lived assets such as intangible assets subject to amortization. The Company reviews long-lived assets to be held and
used for impairment whenever events or changes in circumstances indicate that the carrying amount of the assets may not be recoverable. If
the sum of the undiscounted expected future cash flows over the remaining useful life of a long-lived asset group is less than its carrying
value, the asset is considered impaired. Impairment losses are measured as the amount by which the carrying amount of the asset group
exceeds the fair value of the asset (See Note 12 for acquisition of patents). There were no impairment charges for the years ended May 31,
2015 and 2014. The value of the Company’s patents would be significantly impaired by any adverse developments as they relate to the
clinical trials pursuant to the patents acquired as discussed in Notes 7 and 13.
Research and Development
Research and development costs are expensed as incurred. Clinical trials costs incurred through third parties are expensed as the contracted
work is performed. Where contingent milestone payments are due to third parties under research and development collaboration
arrangements or other contractual agreements, the milestone payment obligations are expensed when the milestone conditions are probable
and the amount of payment is reasonably estimable.
Pre-launch Inventory
The Company may scale-up and make commercial quantities of its product candidate prior to the date it anticipates that such product will
receive final FDA approval. The scale-up and commercial production of pre-launch inventories involves the risk that such products may
not be approved for marketing by the FDA on a timely basis, or ever. This risk notwithstanding, the Company may scale-up and build pre-
launch inventories of product that have not yet received final governmental approval when the Company believes that such action is
appropriate in relation to the commercial value of the product launch opportunity. The determination to capitalize is made once the
Company (or its third party development partners) has filed a New Drug Application (an “NDA”) that has been acknowledged by the FDA
as containing sufficient information to allow the FDA to conduct its review in an efficient and timely manner and management is
reasonably certain that all regulatory and legal hurdles will be cleared. This determination is based on the particular facts and circumstances
relating to the expected FDA approval of the drug product being considered. As of May 31, 2014 and 2015 the Company did not have pre-
launch inventory that qualified for capitalization pursuant to U.S. GAAP ASC 330 “Inventory.”
Stock-Based Compensation
U.S. GAAP requires companies to measure the cost of employee services received in exchange for the award of equity instruments based
on the fair value of the award at the date of grant. The expense is to be recognized over the period during which an employee is required to
provide services in exchange for the award (requisite service period).
The Company accounts for common stock options and common stock warrants based on the fair market value of the instrument using the
Black-Scholes option pricing model utilizing certain weighted average assumptions such as expected stock price volatility, term of the
options and warrants, risk-free interest rates, and expected dividend yield at the grant date. The risk-free interest rate assumption is based
upon observed interest rates appropriate for the expected term of the stock options. The expected volatility is based on the historical
volatility of the Company’s common stock at consistent intervals. The Company has not paid any dividends on its common stock since its
inception and does not anticipate paying dividends on its common stock in the foreseeable future. The computation of the expected option
term is based on the “simplified method,” as the Company’s stock options are “plain vanilla” options and the Company has a limited history
of exercise data. For common stock options and warrants with periodic vesting, the Company recognizes the related compensation costs
associated with these options and warrants on a straight-line basis over the requisite service period.
U.S. GAAP requires forfeitures to be estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures
differ from those estimates. Based on limited historical experience of forfeitures, the Company estimated future unvested option forfeitures
at 0% for all periods presented.
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Preferred Stock
As of May 31, 2015, the Company’s Board of Directors is authorized to issue up to 5,000,000 shares of preferred stock without shareholder
approval. As of May 31, 2015, the Company has authorized the issuance of 400,000 shares of Series B convertible preferred stock, as to
which there are 95,100 shares outstanding at May 31, 2015 (see Note 4). The remaining preferred shares authorized have no specified
rights other than the shares are non-voting.
Deferred Offering Costs
In connection with a stock rescission liability as discussed at Note 3, the Company has recorded approximately $ -0- and $68,300 in
deferred offering costs as of May 31, 2015 and May 31, 2014, respectively. Due to the expiration of remaining rescission rights, the asset
has been reclassified as a reduction of equity at May 31, 2015.
During the year ended May 31, 2014, the Company incurred approximately $2,084,000 in direct incremental costs associated with sale of
debt and equity securities as described in Note 6. The offering costs were recorded as a component of equity when the proceeds were
received. The offering was completed on October 23, 2013.
Debt Issuance Costs
The Company has early adopted Accounting Standards Update (“ASU”) 2015-03, as described in Note 10, which requires debt issuance
costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of the debt
liability and to be amortized over the life on the debt. During the year ended May 31, 2015, the Company incurred direct costs associated
with the issuance of short-term convertible notes as described in Note 4, and recorded approximately $708,000 of debt issuance costs and
approximately $104,000 of related amortization at May 31, 2015. During the year ended May 31, 2014, the Company incurred $120,000 in
direct costs associated with the issuance of the 2014 convertible bridge notes as described in Note 4, and recorded $120,000 in amortization
expense for the year ended May 31, 2014.
Stock for Services
The Company periodically issues common stock, warrants to purchase common stock and common stock options to consultants for various
services. Costs of these transactions are measured at the fair value of the consideration received or the fair value of the equity instruments
issued, whichever is more reliably measurable. The value of the common stock is measured at the earlier of (i) the date at which a firm
commitment for performance by the counterparty to earn the equity instruments is reached or (ii) the date at which the counterparty’s
performance is complete.
Loss per Common Share
Basic loss per share is computed by dividing the net loss by the weighted average number of common shares outstanding during the period.
Diluted loss per share is computed by dividing net loss by the weighted average common shares and potentially dilutive common share
equivalents. The effects of potential common stock equivalents are not included in computations when their effect is anti-dilutive. Because
of the net losses for all periods presented, the basic and diluted weighted average shares outstanding are the same since including the
additional shares would have an anti-dilutive effect on the loss per share calculation. Common stock options and warrants to purchase
31,008,915 and 30,806,361 shares of common stock were not included in the computation of basic and diluted weighted average common
shares outstanding for the years ended May 31, 2015 and May 31, 2014, respectively, as inclusion would be anti-dilutive for these periods.
Additionally, as of May 31, 2015, shares of Series B convertible preferred stock in the aggregate of 95,100 shares can potentially convert
into 951,000 shares of common stock, and $7,531,050 in aggregate principal of convertible debt can potentially convert into 10,559,919
shares of common stock.
Fair Value of Financial Instruments
At May 31, 2015 and May 31, 2014 the carrying value of the Company’s cash, accounts payable and accrued liabilities approximate their
fair value due to the short-term maturity of the instruments. The Company carries derivative financial instruments at fair value as required
by U.S. GAAP.
Derivative financial instruments consist of financial instruments that contain a notional amount and one or more underlying variables (e.g.,
interest rate, security price, variable conversion rate or other variables), require no initial net investment and permit net settlement.
Derivative financial instruments may be free-standing or embedded in other financial instruments. The Company follows the provisions of
FASB ASC 815 “Derivatives and Hedging” (“ASC 815”), as their instruments are recorded as a derivative liability, at fair value, with
changes in fair value reflected in income.
Fair Value Hierarchy
The three levels of inputs that may be used to measure fair value are as follows:
Level 1. Quoted prices in active markets for identical assets or liabilities.
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Level 2. Observable inputs other than Level 1 prices, such as quoted prices for similar assets or liabilities, quoted prices in markets with
insufficient volume or infrequent transactions (less active markets), or model-derived valuations in which all significant inputs are
observable or can be derived principally from or corroborated with observable market data for substantially the full term of the assets or
liabilities. Level 2 inputs also include non-binding market consensus prices that can be corroborated with observable market data, as well as
quoted prices that were adjusted for security-specific restrictions.
Level 3. Unobservable inputs to the valuation methodology are significant to the measurement of the fair value of assets or liabilities.
These Level 3 inputs also include non-binding market consensus prices or non-binding broker quotes that we were unable to corroborate
with observable market data.
Liability measured at fair value on a recurring basis by level within the fair value hierarchy as of May 31, 2015 and May 31, 2014 is as
follows:
Liability:
Derivative liability
Total liability
Fair Value Measurement at
May 31, 2015 (1)
Fair Value Measurement at
May 31, 2014 (1)
Using
Level 3
Total
Using
Level 3
Total
$2,008,907
$2,008,907
$2,008,907
$2,008,907
$
$
—
—
$ —
$ —
(1) The Company did not have any assets or liabilities measured at fair value using Level 1 or 2 of the fair value hierarchy as of May 31,
2015 and 2014.
A financial instrument’s level within the fair value hierarchy is based on the lowest level of any input that is significant to the fair value
measurements. These instruments are not quoted on an active market, so the Company uses a Binomial Lattice Model to estimate the value
of the derivative liability. A Binomial Lattice Model was used because management believes it reflects all the assumptions that market
participants would likely consider in negotiating the transfer of the convertible notes including the potential for early conversion or
adjustment of the conversion price due to a future dilutive issuance. The Company’s derivative liability is classified within Level 3 of the
fair value hierarchy because certain unobservable inputs were used in the valuation model.
The following is a reconciliation of the beginning and ending balances for the liability measured at fair value on a recurring basis using
significant unobservable inputs (Level 3) during the year ended May 31, 2015:
Balance at May 31, 2014
Note issuance, September 26, 2014
Note issuance, February 6, 2015
Fair value adjustments
Balance at May 31, 2015
$
—
767,038
403,226
838,643
$2,008,907
Income Taxes
Deferred taxes are provided on the asset and liability method whereby deferred tax assets are recognized for deductible temporary
differences and operating loss and tax credit carry forwards and deferred tax liabilities are recognized for taxable temporary differences.
Temporary differences are the differences between the reported amounts of assets and liabilities and their tax bases. Future tax benefits for
net operating loss carry forwards are recognized to the extent that realization of these benefits is considered more likely than not. Deferred
tax assets are reduced by a valuation allowance when, in the opinion of management, it is more likely than not that some portion or all of
the deferred tax assets will not be realized.
The Company follows the provisions of FASB ASC 740-10 “Uncertainty in Income Taxes” (ASC 740-10). A reconciliation of the
beginning and ending amount of unrecognized tax benefits has not been provided since there are no unrecognized benefits for all periods
presented. The Company has not recognized interest expense or penalties as a result of the implementation of ASC 740-10. If there were an
unrecognized tax benefit, the Company would recognize interest accrued related to unrecognized tax benefit in interest expense and
penalties in operating expenses and penalties in operating expenses.
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Note 3 – Rescission Liabilities
The Company’s board of directors (the “Board”) was advised by outside legal counsel that compensation the Company previously paid to
an employee and certain other non-employees who were acting as unlicensed, non-exempt broker-dealers soliciting investors on behalf of
the Company from April 15, 2008 to February 18, 2011 was a violation of certain state and possibly federal securities laws. As a result,
such investors and potentially others have rescission or monetary claims (“Claims”) against the Company, and the Company’s liability for
these potential Claims is reflected in the Company’s financial statements. On March 16, 2011, the Company filed a Current Report on
Form 8-K disclosing the potential rescission liability (the “Liability Disclosure”).
Rescission rights for individual investors and subscribers vary, based upon the laws of the states in which the investors or subscribers
reside. Investments and subscriptions that are subject to rescission are recorded separately in our financial statements from shareholders’
equity in the Company’s balance sheet. As the statutory periods for pursuing such rights expire in the respective states, such amounts for
those shares have been reclassified to shareholders’ equity. Investors who have sold their shares of capital stock of the Company do not
have rescission rights, but instead have claims for damages, to the extent their shares were sold at a net loss, which is determined by
subtracting the purchase price plus statutory interest and costs, if any, from the sale price.
The Company considered methods to offer to rescind the previous investment purchase or subscription by persons who acquired or
subscribed for investments during the period April 15, 2008 to February 18, 2011, but did not pursue any such methods.
The Company estimates an amount that is a probable indicator of the rescission liability and determined that such liability was remote, as of
May 31, 2015, and accordingly, recorded rescission liabilities for May 31, 2015 and May 31, 2014 of $ 0 and $378,000, respectively. These
amounts represent the believed remaining potential rescission liability as of the dates presented to investors who pursue their rescission
rights and forfeit their shares. For the purpose of calculating and disclosing rescission liability, the Company has assumed that portions of
the state Claims are barred by the statutes of limitations of certain states based upon a literal interpretation of the applicable statute.
Although the Company has assumed that affirmative defenses based upon the application of the statutes of limitations in these states may
be generally available to bar these state Claims, it has not had legal counsel undertake a detailed analysis of case law that might apply to
defer or avoid application of a bar to such claims; thus, if rescission claims are made for those assumed to be barred by a statute of
limitations and such claims are contested by the Company, until such affirmative defenses are ruled upon in a proceeding adjudicating the
rights at issue, no assurances can be made that, if asserted, such defenses would actually bar the rescission claims in these states. Since the
issue of potential rescission liability was first disclosed by us in early 2011, no investor has asserted rescission rights and some such
investors had subsequently invested in the Company again. Accordingly, as of May 31, 2015, management has concluded that the
probability of certain investors asserting their rescission rights was remote and no longer reasonably estimable. As such, management
eliminated the previously accrued rescission liability as of May 31, 2015.
Note 4 – Convertible Instruments
Series B Convertible Preferred Stock
During fiscal 2010, the Company issued 400,000 shares of Series B Convertible Preferred Stock (“Series B”) at $5.00 per share for cash
proceeds totaling $2,009,000, of which 95,100 shares remain outstanding at May 31, 2015. Each share of the Series B is convertible into
ten shares of the Company’s common stock including any accrued dividend, with an effective fixed conversion price of $.50 per share. The
holders of the Series B can only convert their shares to common shares provided the Company has sufficient authorized common shares at
the time of conversion. Accordingly, the conversion option was contingent upon the Company increasing its authorized common shares,
which occurred in April 2010, when the Company’s shareholders approved an increase in the authorized shares of common stock to
100,000,000. At the commitment date, which occurred upon such shareholder approval, the conversion option related to the Series B was
beneficial. The intrinsic value of the conversion option at the commitment date resulted in a constructive dividend to the Series B holders
of approximately $6,000,000. The constructive dividend increased and decreased additional paid-in capital by identical amounts. The Series
B has liquidation preferences over the common shares at $5.00 per share plus any accrued dividends. Dividends are payable to the Series B
holders when declared by the board of directors at the rate of $.25 per share per annum. Such dividends are cumulative and accrue whether
or not declared and whether or not there are any profits, surplus or other funds or assets of the Company legally available. The Series B
holders have no voting rights.
2013 Convertible Notes
During the year ended May 31, 2013, the Company issued $6,588,250 in unsecured convertible notes (the “Notes”) to investors for cash.
Each Note is convertible at the election of the holder at any time into common shares at a fixed conversion price. Total principal of
$6,208,250 is convertible at $0.75 per share, and $380,000 is convertible at $0.65 per share. The Notes are payable in full between
November 30, 2013 and March 6, 2016. The Notes bear interest at rates that range from 5% to 10% per year, payable in cash semi-annually
in arrears beginning on April 1, 2013. In connection with the sale of the Notes, detachable common stock warrants with a two-year term to
purchase a total of 8,527,984 common shares at exercise prices ranging from $0.75 to $2.00 per share were issued to the investors. The
Company determined the fair value of the warrants using the Black-Scholes option pricing model utilizing certain weighted average
assumptions such as expected stock price volatility, term of the warrants, risk-free interest rates, and expected dividend yield at the grant
date. Additionally, at the commitment date, the Company determined that the conversion option related to the Notes was beneficial to the
investors. As a result, the Company determined the intrinsic value of the conversion option utilizing the fair value of the common stock at
the commitment date and the effective conversion price after discounting the Notes for the fair value of the warrants. The fair value of the
warrants and the intrinsic value of the conversion option were recorded as debt discounts to
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the Notes, and a corresponding increase to additional paid-in capital. The debt discounts are amortized over the life of the Notes. At the
time of conversion, any unamortized discounts associated with the Notes are fully amortized and recorded as interest expense. As of
May 31, 2015, the outstanding principal of these Notes is $50,000.
During fiscal year ended May 31, 2014, the holders of Notes in aggregate principal amount totaling $1,500,000 and accrued but unpaid
interest of $6,351 converted their Notes into common stock. Of these conversions, $1,120,000 and $350,000 in principal were at a
conversion price of $0.75 and $0.65 per share, respectively, resulting in the issuance of 2,087,717 shares of common stock. In addition, one
holder of a Note with a principal amount of $250,000 was paid in full upon maturity.
During the year ended May 31, 2015, holders of the Notes in the aggregate principal amount of $1,175,000, plus accrued but unpaid
interest of $4,703, were induced to convert their Notes into common stock, at the rate of $0.75 per share, conditioned upon their immediate
exercise of warrants at an exercise price reduced from $2.00 down to $0.55 per share, as further described in Note 6. The note conversions
resulted in the issuance of 1,556,667 shares of common stock and a cash interest payment of $3,793.
During the year ended May 31, 2015, holders of the Notes in the aggregate principal amount of $3,046,250, plus accrued but unpaid
interest of $86,296, were induced to convert their Notes into 4,181,079 shares of common stock at a conversion price of $0.75, conditioned
upon the Company issuing new warrants to replace previously expired warrants to purchase an aggregate of 6,310,677 shares of common
stock at an exercise price of $1.00 per share, with an approximate term of seven months from date of issuance and as further described in
Note 6.
In connection with the issuance of the Company’s convertible Notes in fiscal year ended 2013, detachable common stock warrants, with
terms of two or three years, were issued to the investors to purchase a total of 9,451,056 common shares at exercise prices ranging from
$.50 to $2.00 per share. During the year ended May 31, 2014, warrants covering 923,072 shares were issued to investors at an exercise price
of $.50 per share. All of the warrants are currently exercisable in full. The Company determined the fair value of the warrants using the
Black-Scholes option pricing model utilizing certain weighted-average assumptions, such as expected stock price volatility, term of the
warrants, risk-free interest rate and expected dividend yield at the commitment date.
The Company utilized the following weighted-average assumptions to value the warrants:
Expected dividend yield
Stock price volatility
Expected term
Risk-free interest rate
Grant-date fair value
2015
0%
80.68%
.50 yr
0.12%
$0.15
2014
0%
78-93%
3-5 years
.64-1.42%
$.66-$.72
Additionally, at the commitment date, the Company determined that the conversion feature related to the Notes was beneficial to the
investors. As a result, the Company determined the intrinsic value of the conversion feature utilizing the fair value of the underlying
common stock at the commitment date and the effective conversion price after discounting the Notes for the fair value of the warrants. The
fair value of the warrants and the intrinsic value of the beneficial conversion feature were recorded as a debt discount to the Notes, with a
corresponding increase to additional paid-in capital. The debt discount is amortized over the life of the Notes. During the years ended
May 31, 2015 and 2014, the Company recognized approximately $2,145,000 and $3,807,000, respectively, as interest expense related to
amortization of the debt discount. The unamortized discount is fully amortized upon any conversion of the Notes before maturity. Activity
related to the Notes was as follows:
Face amount of Notes
Unamortized discount
Repayments
Conversions
Total carrying value of Notes
Short-term portion of Notes
Long-term portion of Notes
38
May 31, 2015
$ 4,271,250
(6,529)
—
(4,221,250)
43,471
$
43,471
$
—
$
May 31, 2014
$ 7,221,250
(1,932,566)
(500,000)
(2,450,000)
$ 2,338,684
—
$
$ 2,338,684
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2014 Convertible Bridge Notes
During the year ended May 31, 2014, the Company issued in the aggregate principal amount of $1,200,000 of unsecured short-term notes
with a fixed conversion price, (the Notes) to investors for cash. The Notes bear interest of 5% per year and a maturity of six months. The
Notes could be converted on or before October 1, 2013 into the Company’s private equity offering, as further described in Note 9. During
the year ended May 31, 2014, holders of the Notes converted an aggregate principal amount of $950,000 into the private equity offering at
a conversion price of $0.65 and one holder of a Note in the principal amount of $250,000 exercised their right to receive repayment.
AVCP Convertible Notes
During the year ended May 31, 2015, the Company issued a three-month unsecured convertible promissory note in the aggregate principal
amount of $1,500,000 to Alpha Venture Capital Partners, L.P. (“AVCP”). The principal amount of the Note plus unpaid accrued interest is
convertible at the election of the holder into shares of the Company’s common stock at any time prior to maturity at an initial conversion
price of $1.00 per share. The Note bears simple interest of 1.2% per month, payable at maturity on May 5, 2015, and monthly thereafter, if
the Company exercises its one-time option to extend the maturity by an additional three months, which the Company exercised such right
on April 1, 2015. The maturity date has been extended to August 5, 2015. Prepayment is permitted without penalty subject to the
Company’s obligation to pay at least three months’ interest on the principal amount. The conversion price is subject to (i) adjustment for
stock splits and similar corporate events and (ii) reduction to a price per share that is 10% below the lowest sale price that is below $.9444
per share, for shares of CytoDyn common stock sold or deemed sold in future securities offerings, including sales to AVCP and its
designees subject to certain exempt transactions. Without AVCP’s prior written consent, the Company may not incur additional
indebtedness for borrowed money, other than up to an additional $6.0 million in convertible promissory notes that may be issued to AVCP
or related parties, unless such indebtedness is subordinated in right of payment to the Company’s obligations under the AVCP Note and any
additional notes issued to AVCP or related parties.
During the year ended May 31, 2015, the Company issued a two-year term unsecured convertible promissory note (the “AVCP Note”) in
the aggregate principal amount of $2,000,000 to Alpha Venture Capital Partners, L.P. (“AVCP”). The AVCP Note bears simple interest at
the annual rate of 5%, payable quarterly. The principal balance of the AVCP Note is due and payable in full on September 26, 2016, subject
to acceleration of payment in the event of default. Prepayment is permitted without penalty. The AVCP Note includes events of default for
nonpayment of principal or interest when due or other breaches of the AVCP Note, as well as for breach of any term of the AVCP Note and
related warrant agreement. The principal amount of the Note plus unpaid accrued interest is convertible at the election of the holder into
shares of the Company’s common stock at any time prior to maturity at an initial conversion price of $1.00 per share. The conversion price
is subject to (i) adjustment for stock splits and similar corporate events and (ii) reduction to a price per share that is 10% below the lowest
sale price that is below $.9444 per share, for shares of CytoDyn common stock sold or deemed sold in future securities offerings, including
sales to AVCP and its designees subject to certain exempt transactions. Without AVCP’s prior written consent, the Company may not incur
additional indebtedness for borrowed money, other than up to an additional $6.0 million in convertible promissory notes that may be issued
to AVCP or related parties, unless such indebtedness is subordinated in right of payment to the Company’s obligations under the AVCP
Note and any additional notes issued to AVCP or related parties.
As a result of the private placement of approximately $4 million in convertible notes during the fourth quarter of fiscal year ended
May 31, 2015, the conversion price of the existing AVCP Notes was reduced to $0.675 per share of common stock, which was 90% of the
weighted-average conversion price of $0.75 related to the approximately $4 million offering of convertible notes. The decrease in the
conversion price caused the number of shares of common stock issuable upon conversion of the AVCP Notes to increase from 3,500,000
to 5,185,185 shares of common stock.
The Company accounted for the AVCP Notes and warrants as a financing transaction, wherein the proceeds received were allocated to the
financial instruments issued. Prior to making the accounting allocation, the AVCP Notes and warrants were evaluated for proper
classification under FASB ASC 480 “Distinguishing Liabilities from Equity” (“ASC 480”) and ASC 815. ASC 815 generally requires
embedded terms and features that have characteristics of derivatives to be evaluated for bifurcation and separate accounting in instances
where their economic risks and characteristics are not clearly and closely related to the risks of the host contract. The embedded derivative
features consist of the conversion price being subject to (i) adjustment for stock splits and similar corporate events and (ii) reduction to a
conversion price per share that is 10% below the lowest sale price that is below $.9444 per share for common stock sold or deemed sold in
future securities offerings, subject to certain exempt transactions. The note conversion round down (or anti-dilution) provision terms are not
consistent with the definition for financial instruments indexed to the Company’s stock. As such, the conversion option and conversion
reset price protection in the AVCP Notes require bifurcation as a derivative liability.
In connection with the two AVCP Notes, the Company issued warrants to AVCP covering 250,000 and 75,000 shares of the Company’s
common stock exercisable at a price of $0.50 per share on September 26, 2014 and February 6, 2015, respectively. The warrants are
currently exercisable in full, include a cashless exercise feature, and will expire on December 31, 2019 and February 28, 2020, respectively.
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The aforementioned warrants have a term of five years from inception and an exercise price of $.50 per share and meet the conditions for
equity classification per ASC 815. The fair value of the warrants was determined using a Black-Scholes option model using the following
assumptions:
Risk free interest rate
Expected life
Expected volatility
Dividend yield
Warrants issued on
September 26,2014
1.82%
5 years
136%
0.00%
Warrants issued on
February 6, 2015
1.48%
5 years
119%
0.00%
Based on the previous conclusions, the Company allocated the cash proceeds first to the derivative liability at its fair value and then to the
warrants at their relative fair value, with the residual allocated to the host AVCP Notes as follows:
AVCP convertible notes payable
Compound embedded derivative
Warrants (equity allocation)
Short-Term Convertible Notes
September 26, 2014 February 6, 2015 Debt Discount
$
1,074,617 $
767,038
158,345
2,000,000
$
1,039,387 $
403,226
57,387
1,500,000
$
$
May 31,
2015
Fair Value
523,614 $ — $2,637,618
2,008,907
838,643
215,732
—
$4,862,257
—
—
$838,643
523,614
During the year ended May 31, 2015, the Company issued approximately $4.0 million of six-month unsecured convertible promissory
notes (the “Notes”) and related warrants to investors for cash. Each Note is convertible, at the election of the holder, at any time into
common shares at a $0.75 per share. The Notes bear interest of 7% per annum, payable in cash upon maturity. In connection with the
Notes, the Company issued warrants with a five-year term to purchase a total of 1,061,586 shares of common stock at an exercise price of
$0.75. The Company determined the fair value of the warrants using the Black-Scholes option pricing model utilizing certain weighted-
average assumptions, such as expected stock price volatility, term of the warrants, risk-free interest rate and expected dividend yield at the
commitment date.
The Company utilized the following weighted-average assumptions to value the above investor warrants:
Expected dividend yield
Stock price volatility
Expected term
Risk-free interest rate
Grant-date fair value
2015
0%
88.79%
5 years
1.46%-1.58%
$0.52-$0.76
Additionally, at the commitment date, the Company determined that the conversion feature related to the Notes was beneficial to the
investors. As a result, the Company determined the intrinsic value of the beneficial conversion feature utilizing the fair value of the
underlying common stock at the commitment date and the effective conversion price after discounting the Notes for the fair value of the
warrants. The fair value of the warrants and the intrinsic value of the conversion feature were recorded as a debt discounts to the Notes, and
a corresponding increase to additional paid-in capital. The debt discounts are amortized over the life of the Notes. During the year ended
May 31, 2015, the Company recognized approximately $219,000 as interest expense related to amortization of the debt
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discounts. The unamortized discounts are fully amortized upon any conversion of the Notes before maturity. Activity related to the Notes
was as follows:
Face amount of Notes
Unamortized discount
Repayments
Conversions
Total carrying value of Notes
May 31, 2015
$ 3,981,050
(2,390,063)
—
—
$ 1,590,987
Note 5 – Derivative Liability:
The following tables summarize the fair value of the derivative liability and linked common shares as of the derivative liability inception
dates (September 26, 2014 and February 6, 2015) and May 31, 2015:
Total derivative liability
Shares indexed to derivative liability
AVCP Notes Dated as of
September 26,
2014
767,038
$
February 6,
2015
$ 403,266
May 31,
2015
$2,008,907
2,000,000
1,500,000
5,185,185
Changes in the fair value of the derivative liability, carried at fair value, are reported as “Change in fair value of derivative liability” in the
Consolidated Statements of Operations. During the year ended May 31, 2015, the Company recognized a non-cash expense of
approximately $839,000 due to an increase in the derivative liability related to the embedded derivative in the AVCP Notes.
ASC 815 does not permit an issuer to account separately for individual derivative terms and features embedded in hybrid financial
instruments that require bifurcation and liability classification as derivative financial instruments. Rather, such terms and features must be
combined together and fair valued as a single, compound embedded derivative. The Company selected a Binomial Lattice Model to value
the compound embedded derivative because it believes this technique is reflective of all significant assumptions that market participants
would likely consider in negotiating the transfer of this convertible note. Such assumptions include, among other inputs, stock price
volatility, risk-free rates, credit risk assumptions, early redemption and conversion assumptions and the potential for future adjustment of
the conversion price due to a future dilutive financing.
Significant inputs and assumptions used in the Binomial Lattice Model for the derivative liability are as follows:
Quoted market price on valuation date
Contractual conversion rate
Adjusted conversion price (a)
Contractual term to maturity (years)
Expected volatility
Contractual interest rate
Risk-free rate
Risk-adjusted rate
Probability of event of default
September 26,
2014
$0.79
$1.00
$0.9759
2.00
123%
5%
0.59%
2.69%
5.00%
February 6,
2015
$0.96
$1.00
$1.0000
0.49
124%
2%
0.045%
2.78%
5.00%
May 31,
2015
$0.99
$1.00
$0.675
0.18-1.33
73% - 105%
1.2%-5.0%
0.01%-0.35%
2.80%
5.00%
(a) The adjusted conversion price input used in the Binomial Lattice Model considers both i) the reduction of the conversion price to
$0.675 on April 30, 2015, as result of the short-term convertible notes offering in which Common Stock was sold for a weighted
average price of $0.75 and ii) potential adjustment to the stated conversion price due to a future dilutive issuance. This input was
calculated using a probability-weighted approach which considered the likelihood of various scenarios occurring including (i) potential
success or failure of various phases for PRO 140, (ii) the probability the Company will enter into a future financing and (iii) and the
potential price of a future financing.
The fair value of the derivative liability is significantly influenced by the Company’s trading market price, stock price volatility, changes in
interest, assumptions regarding the adjusted conversion price and early redemption or conversion of the AVCP Notes.
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Note 6 – Stock Options and Warrants
The Company has one active stock-based equity plan at May 31, 2015, the CytoDyn Inc. 2012 Equity Incentive Plan (the “2012 Plan”),
which was approved by shareholders at the Company’s 2012 annual meeting of shareholders to replace the 2004 Stock Incentive Plan and
subsequently amended by shareholder approval in February 2015 to increase the number of shares available for issuance from 3,000,000 to
5,000,000 shares of common stock. As of May 31, 2015, the Company had 2,754,930 shares available for future stock-based grants under
the 2012 Plan.
During the year ended May 31, 2015, the Company granted options to purchase a total of 483,973 shares of common stock to directors and
an employee, with exercise prices ranging from $.66 to $.81 per share. The director option awards covering 333,973 shares, vest at 25% per
quarter over one year and an option covering 100,000 shares vest at 50% per year over two years, all with a five-year term. The grant date
fair value related to these options was $.35 per share. The employee award covering 50,000 shares of common stock vests ratably over
three years with a five-year term. The grant date fair value related to the employee award was $.43 per share.
During the year ended May 31, 2015, in connection with the two AVCP Notes (see Note 4), the Company issued warrants covering
250,000 and 75,000 shares of the Company’s common stock exercisable at a price of $0.50 per share. The warrants are currently
exercisable in full, include a cashless exercise feature and have a five-year term.
During the year ended May 31, 2015 the Company granted a warrant to purchase a total of 150,000 shares of common stock at an exercise
price of $1.15 per share to a third party consulting firm retained by the Company. The warrant, which expires on December 8, 2019, vests
and becomes exercisable cumulatively in three tranches of 50,000 shares each in March 2015, September 2015 and March 2016. In the
event the Company terminates its contract with the holder, vesting terminates immediately. The Company’s board of directors granted a
warrant to purchase a total of 100,000 shares of common stock at an exercise price of $1.15 per share to a scientific advisor retained by the
Company. The warrant, which will terminate in December 2019, will become vested and exercisable cumulatively as follows,
33,334 shares in April 2015, and 33,333 shares each in August 2015 and December 2015, respectively. In addition, a warrant covering
150,000 shares of common stock was granted to an outside third party consultant retained by the Company. The exercise price was $.83 per
share, with a five-year term expiring in March 2020 and vests 50% in March of 2016 and March of 2017. A warrant for 150,000 shares of
common stock at an exercise price of $1.05 per share was granted to a consultant. The warrant vests based on certain milestones. The
warrant expired during 2015, as the milestones were not achieved.
During the year ended May 31, 2015, in connection with an inducement to convert certain promissory notes into common stock, as
described in Note 4, the Company issued warrants to replace previously expired warrants to purchase an aggregate of 6,310,677 shares of
common stock at an exercise price of $1.00 per share. All but two of the warrants are exercisable through October 2015. One warrant, for
the purchase of 186,667 shares of common stock, is exercisable through December 2015 and one warrant, for the purchase of 160,000
shares of common stock, is exercisable until January 15, 2016. The Company agreed to register for resale the shares of common stock
issuable upon exercise of the warrants. Pursuant to U.S. GAAP, issuance of warrants to induce the conversion debt is characterized as
inducement interest expense and, as such, the Company recognized non-cash interest expense related to these replacement warrants of
approximately $970,000 during the year ended May 31, 2015, which was the Black-Scholes fair value of the warrants at the time of
issuance.
During the year ended May 31, 2015, in connection with an offer to induce the exercise of warrants initially issued with convertible debt,
the Company agreed to reduce the exercise prices, which ranged from $0.75 and $2.00 per share, down to $0.55 per share, conditioned
upon immediate exercise of the warrant. This inducement offer resulted in the issuance of 1,938,974 shares of common stock and receipt of
proceeds by the Company of $1,066,435. Pursuant to U.S. GAAP, reducing the exercise price of warrants is characterized as inducement to
convert the warrant and, as such, the Company recognized non-cash interest expense of approximately $555,000 during the year ended
May 31, 2015, which was the fair value of the warrants at the time of exercise. In addition, a warrant covering 100,000 shares of common
stock was exercised during the year ended May 31, 2015, at an exercise price of $0.75, with proceeds of $75,000 received by the Company.
As discussed in Note 4 above, in connection with the sale of approximately $4 million convertible Notes, the Company issued warrants to
purchase a total of 1,061,586 common shares to investors. These warrants have a five-year term, an exercise price of $0.75 and are fully
exercisable. In addition, the placement agent received a warrant covering 530,802 shares of common stock at $0.75 per share. The warrant
has a five-year term, immediate vesting and a cashless exercise provision and is fully exercisable. The placement agent warrants were
treated as debt issuance costs and the fair value of the warrants, which was approximately $285,000, is included in the total debt issuance
costs (see Note 4).
Compensation expense related to stock options and warrants issued as compensation was approximately $631,000 and $928,400 for the
year ended May 31, 2015 and 2014, respectively. The grant date fair value of options and warrants vested during the years ended May 31,
2015 and 2014, was approximately $886,000 and $2,274,000, respectively. As of May 31, 2015, there was approximately $527,000 of
unrecognized compensation costs related to share-based payments for unvested options, which is expected to be recognized over a
weighted-average period of 1.13 years.
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The estimated fair value of options and warrants is determined using the Black-Scholes option valuation model with the following
weighted-average assumptions for the periods ended May 31, 2015 and 2014:
Risk-free rate
Dividend yield
Volatility
Expected term
Grant date fair value
2015
0.73% - 1.10%
—
2014
0.52% - 1.85%
—
74.36% - 81.16% 78.73% - 92.92%
2.5-3.5 years
$0.33 - $0.60
2.5-3.5 years
$.40- $.67
The following table represents stock option and warrant activity for the periods ended May 31, 2015 and 2014:
Options and warrants outstanding - May 31, 2013
Granted
Exercised
Forfeited/expired/cancelled
Options and warrants outstanding - May 31, 2014
Granted
Exercised
Forfeited/expired/cancelled
Options and warrants outstanding - May 31, 2015
Number of
Shares
18,146,838
18,414,244
(50,000)
(5,704,721)
30,806,361
9,262,038
(2,038,974)
(7,020,510)
31,008,915
Outstanding exercisable - May 31, 2015
29,898,494
$
Weighted
Average
Exercise Price
1.65
$
0.74
—
1.49
1.13
0.93
0.55
1.76
0.88
0.89
Weighted
Average
Remaining
Contractual Life
in Years
1.86
—
—
—
3.29
—
—
—
2.94
2.91
Aggregate
Intrinsic Value
140,321
$
—
—
—
177,042
—
—
—
5,538,335
$ 5,334,919
Note 7 – License Agreements
Under the Asset Purchase Agreement, dated July 25, 2012, between the Company and Progenics Pharmaceuticals, Inc. (“Progenics”) (the
“Asset Purchase Agreement”), the Company acquired from Progenics its proprietary HIV viral-entry inhibitor drug candidate PRO 140
(“PRO 140”), a humanized anti-CCR5 monoclonal antibody, as well as certain other related assets, including the existing inventory of bulk
PRO 140 drug product, intellectual property, certain related licenses and sublicenses, and U.S. Food and Drug administration (“FDA”)
regulatory filings. On October 16, 2012, the Company paid to Progenics $3,500,000 in cash to close the transaction. The Company is also
required to pay Progenics the following milestone payments and royalties: (i) $1,500,000 at the time of the first dosing in a U.S. Phase 3
trial or non-US equivalent; (ii) $5,000,000 at the time of the first US new drug application approval by the FDA or other non-U.S. approval
for the sale of PRO 140; and (iii) royalty payments of up to 5% on net sales during the period beginning on the date of the first commercial
sale of PRO 140 until the later of (a) the expiration of the last to expire patent included in the acquired assets, and (b) 10 years, in each case
determined on a country-by country basis. Payments to Progenics are in addition to payments due under a Development and License
Agreement, dated April 30, 1999 (the “PDL License”), between Protein Design Labs (now AbbVie Inc.) and Progenics, which was
assigned to us in the Asset Purchase Agreement, pursuant to which we must pay additional milestone payments and royalties as follows:
(i) $1,000,000 upon initiation of a Phase 3 clinical trial; (ii) $500,000 upon filing a Biologic License Application with the FDA or non-U.S.
equivalent regulatory body; (iii) $500,000 upon FDA approval or approval by another non-U.S. equivalent regulatory body; and
(iv) royalties of up to 7.5% of net sales for the longer of 10 years and the date of expiration of the last to expire licensed patent.
Additionally, the PDL License provides for an annual maintenance fee of $150,000 until royalties paid exceed that amount. Pursuant to the
foregoing Asset Purchase Agreement and PDL License, the Company accrued an expense of $2,500,000 as of May 31, 2015, in connection
with the anticipated milestone payments related to the first patient dosing in a Phase 3 clinical trial.
Subsequent to year end, the Company reached agreement in principle with a third-party licensor to enter into a licensing agreement
covering the licensor’s “system know-how” technology with respect to the Company’s use of proprietary cell lines to manufacture new
PRO 140 material. The license will require payment of £600,000 (approximately US$930,000) by December 31, 2015, and a contingent
payment of up to an additional £600,000 (approximately US$930,000) on June 30, 2016. The amount of the contingent payment depends on
the outcome of pending litigation between the licensor and the company that sold PRO 140 to CytoDyn. The Company has accrued an
expense for the payment of US$930,000, as of May 31, 2015, for the amount due by December 31, 2015, but has not accrued the contingent
payment due on June 30, 2016, as of May 31, 2015, as the amount and probability of payment cannot be reasonably estimated. Future
annual license fees and royalty rate will vary depending on whether CytoDyn manufactures PRO 140 itself, utilizes the third-party licensor
as a contract manufacturer, or utilizes an independent party as a contract manufacturer. The licensor does not charge an annual license fee
of £300,000 when it serves as the manufacturer.
Note 8 – Commitments and Contingencies
Upon the successful completion of our Phase 2b study and in anticipation for the upcoming U.S. Phase 3 clinical trial, the Company entered
into a project work order with its current clinical research organization (“CRO”). The estimated cost for this study is approximately $13
million to $15 million, of which $4.4 million represents direct service fees payable to the CRO. Under the terms of this agreement, the
Company paid an execution fee of $733,916 toward direct service fees. These fees are reflected as a current asset and has an unamortized
balance of such amount at May 31, 2015. The balance of the estimated trial costs are provided by third parties, such as testing laboratories
and patient clinics.
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In furtherance of our business strategy and subsequent to fiscal year-end 2014, the Company entered into a manufacturing agreement with a
contract manufacturing organization to manufacture additional PRO 140. The remaining costs to be incurred under this agreement, are
approximately $3.6 million, of which approximately $3.2 million represent a fixed contractual obligation pursuant to various termination
provisions. The total future estimated costs of manufacturing may vary materially depending on future decisions by management and its
technical consultants with respect to various scientific and regulatory requirements.
In addition, from time to time, the Company is involved in claims and suits that arise in the ordinary course of business. Management
currently believes that the resolution of any such claims against the Company, if any, will not have a material adverse effect on the
Company’s business, financial condition or results of operations.
Note 9 – Private Securities Offering
On October 23, 2013, the Company completed a private equity offering (the “Equity Offering”). Pursuant to the Equity Offering, the
Company sold to investors a total of 11,153,850 Units at a price of $1.30 per Unit, for total gross proceeds of approximately $14.5 million.
Each Unit consisted of two shares of common stock and one warrant to purchase common stock at an exercise price of $.75 per share.
During the fiscal year ended May 31, 2014, the Company issued a total of 20,989,494 shares of common stock. In conjunction with the
Equity Offering, the Company also issued warrants to purchase 11,153,850 shares of common stock at the $.75 per share exercise price (see
Notes 2 and 5 for a description of the warrants and offering costs related to the Equity Offering).
During April and May 2015, the Company completed a private debt offering of convertible promissory notes in the aggregate principal
amount of $3,981,050. Each note is convertible into common stock at the rate of $0.75 per share. Each note has a term of six months and
annual interest rate of 7% payable upon maturity. The Company also issued to each note holder a warrant covering 50% of the number of
share into which the related note is convertible. Each warrants has an exercise price of $0.75 per share and a five-year term.
Note 10 – Recent Accounting Pronouncements
Recent accounting pronouncements, other than below, issued by the FASB (including its EITF), the AICPA and the SEC did not or are not
believed by management to have a material effect on the Company’s present or future financial statements.
In April 2015, the FASB issued ASU 2015-03 “Simplifying the Presentation of Debt Issuance Costs.” The standard requires that debt
issuance costs related to a recognized debt liability be presented in the balance sheet as a direct reduction from the carrying amount of that
debt liability, consistent with debt discounts. The recognition and measurement guidance for debt issuance costs are not affected by the
amendments in this standards update. The new guidance is effective for annual reporting periods beginning after December 15, 2015,
including interim periods within that reporting period and early adoption is permitted. The Company has evaluated this ASU and
determined that it will early adopt beginning with the annual period ended May 31, 2015. The adoption of this guidance is not expected to
have a material impact on our financial position, overall results of operations or cash flows.
In June 2014, the FASB issued Accounting Standards Update (“ASU”) No. 2014-12, “Compensation—Stock Compensation (Topic 718),
Accounting for Share-Based Payments When the Terms of an Award Provide That a Performance Target Could Be Achieved after the
Requisite Service Period” (ASU 2014-12). ASU 2014-12 provides special optional transitional guidance for awards with performance
targets. The guidance is effective for annual periods beginning after December 15, 2015, and interim periods within those annual periods,
with early adoption permitted. Management is currently assessing the impact the adoption of ASU 2014-12 will have on its Consolidated
Financial Statements.
In August 2014, the FASB issued Accounting Standards Update (“ASU”) No. 2014-15, “Presentation of Financial Statements—Going
Concern (Subtopic 205-40): Disclosure of Uncertainties about an Entity’s Ability to Continue as a Going Concern” (“ASU 2014-15”). ASU
2014-15 is intended to define management’s responsibility to evaluate whether there is substantial doubt about an organization’s ability to
continue as a going concern and to provide related footnote disclosures. The amendments in this ASU are effective for reporting periods
beginning after December 15, 2016, with early adoption permitted. Management is currently assessing the impact the adoption of ASU
2014-15 will have on our Consolidated Financial Statements.
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Note 11 – Related Party Transactions
During the year ended May 31, 2014, the Company paid in cash a note payable to a director of the Company for $500,000 with accrued
interest at 15%. The principal and accrued interest were paid in full at the April 11, 2014 maturity date. Interest was payable in the form of
shares of common stock not to exceed 150,000 shares at a fixed price of $.50 per share. For the years ended May 31, 2015 and May 31,
2014, the Company recorded approximately $ 0 and $64,700 in interest expense, respectively, and issued a total of 150,000 shares.
On September 26, 2014, the Company entered into a $2 million convertible promissory note with AVCP, as more fully described in Note 4
above. In October of 2014, Mr. Carl C. Dockery, the principal of AVCP was appointed a director of the Company. On February 6, 2015,
the Company entered into a second convertible promissory note in the aggregate principal amount of $1.5 million, as more fully described
in Note 4 above.
The above terms and amounts are not necessarily indicative of the terms and amounts that would have been incurred had comparable
transactions been entered into with independent parties.
Note 12 – Income Taxes
Deferred taxes are recorded for all existing temporary differences in the Company’s assets and liabilities for income tax and financial
reporting purposes. Due to the valuation allowance for deferred tax assets, as noted below, there was no net deferred tax benefit or expense
for the periods ended May 31, 2015 and 2014.
Reconciliation of the federal statutory income tax rate of 34% to the effective income tax rate is as follows for all periods presented:
Income tax provision at statutory rate
State income taxes, net
Rate change
Derivative gain/loss
Valuation allowance
2015
2014
34.0%
0.0
(0.6)
(1.2)
(32.2)
0.0%
34.0%
0.4
(9.6)
—
(24.8)
0.0%
Net deferred tax assets and liabilities are comprised of the following as of May 31, 2015 and 2014:
Deferred tax asset (liability) current:
Accrued expenses
Debt discount and amortization
Valuation allowance
Deferred tax asset (liability) non-current:
Net operating loss
Debt discount
Expense on non-qualified stock options
Other
Valuation allowance
45
2015
2014
$
$
219,100
(219,100)
—
$
$
159,300
—
(159,300)
—
$ 16,857,600
(902,700)
3,073,500
211,700
(19,240,100)
—
$
$ 9,957,400
(663,700)
2,893,300
176,200
12,363,200
—
$
Table of Contents
The tax benefit for the period presented is offset by a valuation allowance established against deferred tax assets arising from operating
losses and other temporary differences, the realization of which could not be considered more likely than not. In future periods, tax benefits
and related tax deferred assets will be recognized when management considers realization of such amounts to be more likely than not.
At May 31, 2015, the Company had available net operating loss carry forwards of approximately $49,581,217, which expire beginning in
2022.
The Company’s income tax returns remain subject to examination by all tax jurisdictions for tax years May 31, 2012 through 2014.
Note 13 – Acquisition of Patents
As discussed in Note 7 above, the Company consummated an asset purchase on October 16, 2012, and paid $3,500,000 for certain assets,
including intellectual property, certain related licenses and sublicenses, FDA filings and various forms of the PRO 140 drug substance. The
Company followed the guidance in Financial Accounting Standards Topic 805 to determine if the Company acquired a business. Based on
the prescribed accounting, the Company acquired assets and not a business. As of May 31, 2015 and 2014, the Company has recorded
$3,500,000 of intangible assets in the form of patents. The Company estimates the acquired patents have an estimated life of eight years.
Subsequent to the acquisition date, the Company has continued to expand, amend and file new patents central to its current trial strategies,
which in turn have extended the protection period for certain methods of using PRO 140 and formulations comprising PRO 140 out through
at least 2026 and 2031, respectively, in various countries.
The following presents intangible assets activity:
Gross carrying amounts
Accumulated amortization
Total amortizable intangible assets, net
Patents currently not amortized
Carrying value of intangibles, net
May 31,
2015
$3,500,000
(918,750)
2,581,250
35,989
$2,617,239
May 31,
2014
$3,500,000
(568,750)
2,931,250
35,989
$2,967,239
Amortization expense related to intangible patents was approximately $350,000 for the years ended May 31, 2015 and May 31, 2014. The
estimated aggregate future amortization expense related to the Company’s intangible assets with finite lives is estimated at approximately
$350,000 per year for the next five years.
Note 14 – Subsequent Events
On June 1, 2015, the Company, pursuant to its non-employee director compensation program, granted annual awards of stock options to its
non-employee directors covering a total of 350,000 shares, with an exercise price of $0.975 per share and a five-year term. These options
vest in equal quarterly installments over one year.
On June 11, 2015, the Company granted a stock option to the Chairman of the board of directors covering 250,000 shares with an exercise
price of $0.97 and a five-year term. This option award was fully vested on the date of grant.
Also on June 11, 2015, the Company approved the issuance of the following warrants with an exercise price of $1.02 per share and a five-
year term to: (i) a consultant covering 200,000 shares, as to which vest 50% in January of 2016 and January of 2017; (b) an advisor covering
10,000 shares and were fully vested upon issuance and (c) its clinical research organization covering 170,000 shares, as to which will be
fully vested in February 2017, conditioned upon performance against numerous specific milestone dates.
Effective June 23, 2015, the Company, Alpha Venture Capital Management, LLC and Alpha Venture Capital Partners, LP (“AVCP”)
entered into a Debt Conversion and Termination Agreement (the “Conversion and Termination Agreement”) pursuant to which (i) AVCP
agreed to convert the $3,535,627.15 in aggregate indebtedness (the “Note Debt”) owed to AVCP as of June 23, 2015 under its two
convertible notes in exchange for 5,237,966 shares of the Company’s common stock (the “Note Shares”); (ii) subject to the conversion of
the Note Debt, the Company agreed to issue AVCP an additional five-year warrant award to purchase 1,000,000 shares of Common Stock
at an exercise price of $0.675 per share (the “Inducement Warrant”); and (iii) subject to the AVCP’s receipt of the Note Shares and
Inducement Warrant, the parties agreed to (a) terminate the subscription agreements; and (b) release and discharge each other party from all
claims and obligations arising under the two convertible notes, the Note Debt and the subscription agreements.
On June 30, 2015, the Company granted annual awards of stock options to its two officers covering an aggregate of 350,000 shares with an
exercise price of $0.90 per share and a five-year term, which vest ratably over three years. The Company also granted a stock option to an
employee covering 50,000 shares with an exercise price of $0.90 per share and a five-year term, which vest ratably over three years.
46
Table of Contents
Item 9.
Changes In and Disagreements With Accountants On Accounting and Financial Disclosure.
None.
Item 9A. Controls and Procedures.
Disclosure Controls and Procedures
As of May 31, 2015, under the supervision and with the participation of the Company’s Chief Executive Officer and Chief Financial
Officer, management has evaluated the effectiveness of the design and operations of the Company’s disclosure controls and procedures.
Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the Company’s disclosure controls and
procedures were not effective as of May 31, 2015 as a result of the material weakness in internal control over financial reporting discussed
below.
Internal Control Over Financial Reporting.
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over our financial reporting. Internal
control over financial reporting is a process designed by, or under the supervision of, our Chief Executive Officer and Chief Financial
Officer to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of financial statements for
external purposes in accordance with accounting principles generally accepted in the United States. Internal control over financial reporting
includes policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the
Company’s transactions; (ii) provide reasonable assurance that transactions are recorded as necessary for preparation of our financial
statements and that receipts and expenditures of the Company’s assets are made in accordance with authorizations of our management and
directors; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of
our assets that could have a material effect on the financial statements. Because of its inherent limitations, internal control over financial
reporting is not intended to provide absolute assurance that a misstatement of the Company’s financial statements would be prevented or
detected.
Our management conducted an evaluation of the effectiveness of our internal control over financial reporting as of May 31, 2015
using the criteria set forth in the Internal Control over Financial Reporting - Guidance for Smaller Public Companies issued by the
Committee of Sponsoring Organizations of the Treadway Commission. Based upon the evaluation, our management concluded that our
internal control over financial reporting was not effective as of May 31, 2015 because of material weaknesses in our internal control over
financial reporting. A material weakness is a control deficiency or combination of deficiencies in internal control, such that there is a
reasonable possibility that a material misstatement of the entity’s financial statements will not be prevented or detected and corrected on a
timely basis. Our management concluded that the Company has several material weaknesses in our internal control over financial reporting
because of inadequate segregation of duties over authorization, review and recording of transactions, as well as the financial reporting of
such transactions. Due to the Company’s limited resources and staffing, management has not developed a plan to mitigate the above
material weaknesses. Despite the existence of these material weaknesses, the Company believes the financial information presented herein
is materially correct and in accordance with generally accepted accounting principles in the United States.
This Annual Report does not include an attestation report of the Company’s registered public accounting firm regarding internal
control over financial reporting. Management’s report is not subject to attestation by the Company’s registered public accounting firm
because the Company is not an accelerated filer under the Exchange Act.
Changes in Control Over Financial Reporting
No change in the Company’s internal control over financial reporting occurred during the year ended May 31, 2015, that materially
affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. During the fiscal year ended
May 31, 2015, management has, however, continued to strengthen internal controls and procedures through the implementation of entity-
level controls.
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Table of Contents
Item 9B. Other Information.
None.
PART III
Item 10.
Directors, Executive Officers and Corporate Governance.
The information required by Item 10 relating to our directors, executive officers and corporate governance is incorporated herein by
reference to our definitive proxy statement for the 2015 Annual Meeting of Shareholders, to be filed with the SEC within 120 days of the
end of the Company’s fiscal year, May 31, 2015 (the “2015 Proxy Statement”).
We have adopted a Code of Ethics for our Senior Executive Officers (the Chief Executive Officer, Chief Financial Officer, Treasurer,
and Secretary), as well as an Insider Trading Policy for the Company. Copies are available on our website at www.cytodyn.com.
Item 11.
Executive Compensation.
The information required by Item 11 relating to executive compensation is incorporated herein by reference to our 2015 Proxy
Statement.
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The information required by Item 12 relating to security ownership of certain beneficial owners and management and related
stockholders matters is incorporated herein by reference to our 2015 Proxy Statement.
Item 13.
Certain Relationships and Related Transactions and Director Independence.
The information required by Item 13 relating to certain relationships and related transactions and director independence is
incorporated herein by reference to our 2015 Proxy Statement.
Item 14.
Principal Accountant Fees and Services.
The information required by Item 14 relating to principal accountant fees and services is incorporated herein by reference to our 2015
Proxy Statement.
PART IV
Item 15.
Exhibits and Financial Statement Schedules.
The following are filed as part of this Annual Report on Form 10-K:
Consolidated Financial Statements
The Consolidated Financial Statements for the years ended May 31, 2015 and 2014 are included under Item 8 of this report.
Exhibits
Exhibits are listed in the Exhibit Index which appears immediately following the signature page of this report.
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Table of Contents
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report
to be signed on its behalf by the undersigned, thereunto duly authorized.
Date: July 10, 2015
CYTODYN INC.
(Registrant)
By: /s/ Nader Z. Pourhassan
Nader Z. Pourhassan, Ph.D.
President and Chief 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 and in the capacities indicated on July 10, 2015.
Principal Executive Officer and Director:
/s/ Nader Z. Pourhassan
Nader Z. Pourhassan, Ph.D.
President and Chief Executive Officer, Director
Principal Financial and Accounting Officer:
/s/ Michael D. Mulholland
Michael D. Mulholland
Chief Financial Officer, Treasurer and Corporate
Secretary
Remaining Directors:
* Anthony D. Caracciolo
* Gregory A. Gould
* Jordan G. Naydenov
* A. Bruce Montgomery, M.D.
* Denis R. Burger, Ph.D.
* S. Michael Nobel, Ph.D.
* Carl C. Dockery
* By /s/ Michael D. Mulholland
Michael D. Mulholland
Attorney-In-Fact
49
Table of Contents
Exhibit
Number
EXHIBIT INDEX [II2]
Description
Plan of Acquisition
2.1
Asset Purchase Agreement, dated as of July 25, 2012, between CytoDyn Inc. and Progenics Pharmaceuticals, Inc. (incorporated
by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed July 30, 2012).
3.1 Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Form 10SB12G filed July 11, 2002).
Articles of Incorporation and Bylaws
3.2
3.3
3.4
3.5
3.6
4.1
4.2
4.3
Amendment to Articles of Incorporation (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-
K filed November 12, 2003).
Amendment to Articles of Incorporation (incorporated by reference to Exhibit 3.4 to the Registrant’s Annual Report on Form 10-
K filed March 12, 2010).
Amendment to Articles of Incorporation (incorporated by reference to Exhibit 3.5 to the Registrant’s Current Report on Form 8-
K filed April 29, 2010).
Amendment to Articles of Incorporation (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-
K filed March 2, 2015)
Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed
November 10, 2011).
Instruments Defining Rights of Security Holders
Form of Convertible Promissory Note bearing interest at 10% per annum with related common stock warrant (incorporated by
reference to Exhibit 4.1 to the Registrant’s Quarterly Report on Form 10-Q filed April 12, 2013).
Form of Convertible Promissory Note bearing interest at 5% per annum with related common stock warrant (incorporated by
reference to Exhibit 4.2 to the Registrant’s Quarterly Report on Form 10-Q filed April 12, 2013).
Form of Convertible Promissory Note bearing interest at 5% per annum (incorporated by reference to Exhibit 4.3 to the
Registrant’s Form S-1 Registration Statement filed November 15, 2013 (the “Form S-1”)).
4.4
Form of common stock warrant (incorporated by reference to Exhibit 4.4 to the Form S-1).
4.5
4.6
4.7
4.8
4.9
4.10
4.11
4.12
10.1
10.2
10.3*
10.4*
Form of purchase warrant issued to Paulson Investment Company, Inc. (incorporated by reference to Exhibit 4.5 to the Form S-
1).
Convertible Promissory Note issued to Alpha Venture Capital Partners, L.P., by CytoDyn Inc. dated September 26, 2014
(incorporated by reference to Exhibit 4.1 to the Registrant’s Quarterly Report on Form 10-Q filed October 10, 2014).
Warrant Agreement between Alpha Venture Capital Partners, L.P., and CytoDyn Inc. dated September 26, 2014 (incorporated by
reference to Exhibit 4.2 to the Registrant’s Quarterly Report on Form 10-Q filed October 10, 2014).
Convertible Promissory Note issued to Alpha Venture Capital Partners, L.P., by CytoDyn Inc. dated February 6, 2015
(incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed February 11, 2015).
Warrant Agreement between Alpha Venture Capital Partners, L.P., and CytoDyn Inc. dated February 6, 2015 (incorporated by
reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed February 11, 2015).
Amendment dated April 30, 2015 to Convertible Promissory Note issued to Alpha Venture Capital Partners, L.P. dated
February 6, 2015
Form of Convertible Promissory Note and Warrant to Purchase Common Stock (incorporated by reference to Exhibit 4.1 to the
Registrant’s Current Report on Form 8-K filed May 5, 2015).
Form of Placement Agent Warrant to Purchase Common Stock (incorporated by reference to Exhibit 4.1 to the Registrant’s
Current Report on Form 8-K filed May 18, 2015).
Material Contracts
Patent License Agreement between Allen D. Allen and CytoDyn of New Mexico Inc. (incorporated by reference to Exhibit 10.2
to the Registrant’s Annual Report on Form 10-KSB filed September 14, 2004).
Amendment to Patent License Agreement (incorporated by reference to Exhibit 10.6.1 to the Registrant’s Form SB-2/A filed
March 21, 2005).
CytoDyn Inc. 401(k) Profit Sharing Plan (incorporated by reference to Exhibit 10.11 to the Registrant’s Amendment No. 1 to
Annual Report on Form 10-K filed August 5, 2011).
CytoDyn Inc. 2004 Stock Incentive Plan (the “2004 Plan”) (incorporated by reference to Exhibit 10.10 to the Registrant’s
Amendment No. 1 to Annual Report on Form 10-K filed August 5, 2011).
10.5*
Form of Stock Option Award for Employees under the 2004 Plan (incorporated by reference to Exhibit 10.5 to the Registrant’s
10.6*
10.7*
Annual Report on Form 10-K filed August 29, 2013 (the “2013 10-K”)).
Form of Stock Option Award for Non-Employee Directors under the 2004 Plan (incorporated by reference to Exhibit 10.6 to the
2013 10-K).
CytoDyn Inc. 2012 Equity Incentive Plan (the “2012 Plan”) (incorporated by reference to Exhibit 10.1 to the Registrant’s Current
Report on Form 8-K filed December 18, 2012).
50
Table of Contents
Exhibit
Number
10.8*
10.9*
10.10*
10.11*
10.12*
10.13*
10.14*
10.15*
10.16*
10.17*
10.18*
10.19*
10.20*
10.21
10.22
10.23
10.24
Description
Form of Stock Option Award Agreement for Employees under the 2012 Plan (incorporated by reference to Exhibit 10.8 to the
2013 10-K).
Form of Stock Option Award Agreement for Non-Employee Directors under the 2012 Plan (incorporated by reference to Exhibit
10.9 to the 2013 10-K).
Form of Stock Option Award Agreement for Employees granted under an arrangement not approved by the Registrant’s
shareholders (incorporated by reference to Exhibit 10.10 to the 2013 10-K).
Form of Stock Option Award Agreement for Non-Employee Directors granted under an arrangement not approved by the
Registrant’s shareholders (incorporated by reference to Exhibit 10.11 to the 2013 10-K).
Form of Indemnification Agreement with directors and officers of the Registrant (incorporated by reference to Exhibit 10.2 to
the Registrant’s Quarterly Report on Form 10-Q filed January 14, 2013).
Summary of Non-Employee Director Compensation Program Effective June 1, 2013 (incorporated by reference to Exhibit 10.13
to the 2013 10-K).
Transition Agreement, dated as of July 25, 2012, between CytoDyn Inc. and Kenneth J. Van Ness (incorporated by reference to
Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed July 25, 2012).
Separation Agreement and Release, dated as of May 31, 2013, between CytoDyn Inc. and Richard J. Trauger (incorporated by
reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed June 10, 2013).
Employment Agreement and Non-Compete Agreement between CytoDyn Inc. and Nader Pourhassan dated
October 17, 2011 (incorporated by reference to Exhibit 10.16 to the 2013 10-K).
Convertible Promissory Note dated October 16, 2012, in the principal amount of $1,000,000 issued to Jordan Naydenov,
together with a related common stock warrant to purchase 1,333,333 shares of the Registrant’s common stock (incorporated by
reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed April 12, 2013).
Promissory Note dated April 11, 2013, in the principal amount of $500,000 issued to Jordan Naydenov (incorporated by
reference to Exhibit 10.18 to the 2013 10-K).
Form of Common Stock Warrant Agreements for Jordan Naydenov covering a total of 303,200 shares of the Registrant’s
common stock and expiring March to May of 2014 (incorporated by reference to Exhibit 10.19 to the 2013 10-K).
Consulting Agreement between CytoDyn Inc. and S. Michael Nobel dated March 28, 2013 (incorporated by reference to Exhibit
10.20 to the 2013 10-K).
Development and License Agreement between Protein Design Labs, Inc. (to which AbbVie Biotherapeutics Inc. is successor in
interest) and Progenics Pharmaceuticals, Inc. (to which CytoDyn Inc. is successor in interest) effective as of April 30, 1999, as
amended by letter agreement dated November 24, 2003 (incorporated by reference to Exhibit 10.21 to the 2013 10-K).
Clinical Research Collaboration Agreement between CytoDyn Inc. and Philadelphia Health and Education Corporation dba
Drexel University College of Medicine effective November 15, 2012 (incorporated by reference to Exhibit 10.22 to the 2013 10-
K).
Amendment to Clinical Research Collaboration Agreement between CytoDyn Inc. and Philadelphia Health and Education
Corporation dba Drexel University College of Medicine effective February 10, 2014 (incorporated by reference to Exhibit 10.2
to the Registrant’s Quarterly Report on Form 10-Q filed April 11, 2014).
Clinical Trial Agreement between CytoDyn Inc. and Philadelphia Health and Education Corporation dba Drexel University
College of Medicine effective February 10, 2014 (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report
on Form 10-Q filed April 11, 2014).
10.25* Amendment to Consulting Agreement between CytoDyn Inc. and Denis R. Burger dated November 3, 2014.
10.26
Subscription and Investor Rights Agreement between Alpha Venture Capital Management, LLC, and CytoDyn Inc. dated
September 26, 2014 (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed October
10, 2014).
10.27
Side letter agreement Alpha Venture Capital Management, LLC, and CytoDyn Inc. (incorporated by reference to Exhibit 10.2 to
the Registrant’s Quarterly Report on Form 10-Q filed October 10, 2014).
51
Table of Contents
Exhibit
Number
10.28*
10.29*
10.30*
10.31
10.32
10.33
10.34
10.35
Description
Summary of Non-Employee Director Compensation Program Effective June 1, 2014 (incorporated by reference to Exhibit
10.3 to the Registrant’s Quarterly Report on Form 10-Q filed October 10, 2014).
Amended and Restated Employment Agreement by and between CytoDyn Inc. and Nader Pourhassan dated January 6, 2015
(incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed January 7, 2015).
Employment Agreement by and between CytoDyn Inc. and Michael D. Mulholland dated January 6, 2015 (incorporated by
reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed January 7, 2015).
Subscription and Investor Rights Agreement between Alpha Venture Capital Management, LLC, and CytoDyn Inc. dated
February 6, 2015 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed February 11,
2015).
Letter of Understanding between Alpha Venture Capital Partners, L.P., and CytoDyn Inc. dated February 10, 2015
(incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed February 11, 2015).
Form of Subscription Agreement (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K
filed May 5, 2015).
Debt Conversion and Termination Agreement between CytoDyn Inc., Alpha Venture Capital Management, LLC and Alpha
Venture Capital Partners, LP dated June 23, 2015. (incorporated by reference to Exhibit 10.1 to the Registrant’s Current
Report on Form 8-K filed June 25, 2015).
Form of Inducement Warrant (incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed
June 25, 2015).
21
Subsidiaries of the Registrant (incorporated by reference to Exhibit 21 to the 2013 10-K).
Other
23.1
Consent of Warren Averett, LLP
24
Power of Attorney of executive officers and directors
Certification of Chief Executive Officer under Rule 13a-14(a)
Certification of Chief Financial Officer under Rule 13a-14(a)
Certifications
Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350
31.1
31.2
32
XBRL
101.INS XBRL Instance Document
101.SCH XBRL Taxonomy Extension Schema Document
101.CAL XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF XBRL Taxonomy Extension Definition Linkbase Document
101.LAB XBRL Taxonomy Extension Label Linkbase Document
101.PRE XBRL Taxonomy Extension Presentation Linkbase Document
* Management contract or compensatory plan or arrangement
Note: All exhibits have SEC File No. 000-49908.
52
AMENDMENT TO
CONVERTIBLE PROMISSORY NOTE
Exhibit 4.10
This AMENDMENT TO CONVERTIBLE PROMISSORY NOTE (this “Amendment”) is made as of April 30, 2015 by and
between CytoDyn Inc., a Colorado corporation (“Maker”), and Alpha Venture Capital Partners L.P. (“Holder”).
WHEREAS, Maker and Holder have, among other things, entered into that certain Subscription and Investor Rights Agreement dated
as of February 6, 2015 (the “2015 Subscription Agreement”) whereby Subscriber subscribed for the purchase of a convertible promissory
note in the principal amount of $1,500,000, dated as of February 6, 2015 (the “Note”) issued by the Maker on the terms set forth therein;
WHEREAS, Maker and Holder desire to amend the Note to correct a provision to allow for the payment of interest due thereunder
either in the form of cash or stock.
NOW, THEREFORE, in consideration of the above and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1.
2.
3.
Amendment. From and after the date of this Amendment, the Note shall be amended to provide for the making of interest payments
thereunder by the Maker to the Holder, at the discretion of the Holder, either in cash or shares of Maker’s common stock (“Shares”), the
latter of which shall be made at the price of $0.50 per Share, with respect to any interest due and payable.
No Other Amendments. Except as modified by the terms of this Amendment, the Note is hereby ratified and confirmed in its entirety,
and shall remain in full force and effect in accordance with its terms.
General. This Amendment shall be governed by the laws of the State of Florida and shall bind and inure to the benefit of the heirs,
personal representatives, executors, administrators, successors and assigns of the parties. Captions are for convenience only and are not
deemed to be part of this Amendment. This Amendment may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument. This Amendment may be executed in one or more
counterparts by facsimile or other electronic means, each of which shall be deemed one and the same original.
(Signatures on Following Page)
1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective
duly authorized officers on the date first written above.
ALPHA VENTURE CAPITAL MANAGEMENT,
LLC
/s/ Carl Dockery
By:
Name: Carl Dockery
Title: Manager
CYTODYN INC.
/s/ Nader Pourhassan
By:
Name: Nader Pourhassan
Title: President and Chief Executive Officer
2
CYTODYN INC.
AMENDMENT TO CONSULTING AGREEMENT
Exhibit 10.25
This Amendment to Consulting Agreement (this “Agreement”) is made and entered into on November __, 2014 and effective as of
November 3, 2014 (the “Effective Date”), by and between CytoDyn Inc., a Colorado corporation (the “Company”), and Denis R. Burger,
Ph.D., an individual (“Consultant”).
WHEREAS, Consultant has served as an outside director of the Company’s Board of Directors (the “Board”) since February 7, 2014;
and
WHEREAS, Consultant has over 25 years of experience managing scientific, operational, financial, and executive responsibilities in
the biotech industry; and
WHEREAS, Company and Consultant entered into a Consulting Agreement on February 14, 2014 (the “Agreement’) pursuant to
which the Company retained Consultant to advise the Company’s executive management team (the “Team”) and perform such other
services as set forth in the Agreement;
WHEREAS, Company and Consultant wish to amend certain terms of the Agreement
NOW, THEREFORE, in consideration of the material promises set forth herein and for other good and valuable consideration, the
parties agree as follows:
1. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Original Agreement.
2. Amendment to Section 4(a) Section 4(a) of the Agreement is hereby amended by deleting the existing paragraph 4(a) in its entirety
and substituting the following in lieu thereof:
4(a) Monthly Fee. Consultant will receive as compensation hereunder monthly payments of $10,000, in cash, payable on or
before the 15th day of each month, beginning on the Effective Date and for the term of this Agreement.
3. Amendment to Section 4. Section 4 of the Agreement is hereby further amended by adding a new Section 4(e) as follows:
4(e) Grant of Stock Options. Consultant shall also receive an option to purchase 100,000 shares of Common Stock of the
Company at the exercise per share of $0.70 subject to the terms and conditions of the Stock Option Award Agreement annexed
hereto as Exhibit A.
4. No Other Amendments. Except as expressly amended hereby the MSA shall continue in full force and effect.
5. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the state of Washington
without giving effect to the choice of law provisions thereof.
6. Counterparts. For the convenience of the parties hereto, this Amendment may be executed in any number of counterparts, each
such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.
7. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and each of their
successors and assigns, including, without limitation, any successors or surviving entities thereto by operation of merger.
8. Entire Agreement. The Agreement, as amended hereby, constitutes the entire agreement of all parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, among the parties hereto with respect to
the subject matter hereof. All references in the Agreement to “this Agreement”, “hereof”, “hereby” and words of similar import shall refer
to the Agreement as amended hereby.
IN WITNESS WHEREOF, the parties have set their hands as of the Effective Date.
THE COMPANY
CytoDyn Inc.
By: /s/ Anthony Caracciolo
Anthony Caracciolo
Chairman of the Board
CONSULTANT
/s/ Denis R. Burger
Denis R. Burger, Ph.D
2
Exhibit A
Stock Award Agreement
CYTODYN INC.
2012 EQUITY INCENTIVE PLAN
STOCK OPTION AWARD AGREEMENT
This STOCK OPTION AWARD AGREEMENT (this “Option Agreement”) is made effective as of November 3, 2014, by and between
CytoDyn Inc., a Colorado corporation (the “Corporation”), and Denis R. Burger, Ph. D. (the “Participant”).
1. Grant of Option.
The Corporation hereby grants to the Participant an option (the “Option”) to purchase 100,000 shares of Common Stock (the
“Shares”) as of November 3, 2014 (the “Date of Grant”) at the exercise price per Share of $0.70 (the “Exercise Price”) subject to the terms
and conditions of this Option Agreement.
2. Application of Plan Terms.
Unless otherwise defined herein, the capitalized terms in this Option Agreement will have the same defined meanings as set forth in
the Corporation’s 2012 Equity Incentive Plan (the “Plan”).
3. Term.
The Option will automatically terminate on November 3, 2019 (the “Expiration Date”), to the extent not exercised, unless terminated
earlier in accordance with this Option Agreement. After the Expiration Date or such earlier date, the Option shall be of no further force or
effect and may not be exercised.
4. Exercise of Option.
(a) Right to Exercise. The Option will become Vested and exercisable cumulatively according to the following Vesting
Schedule:
Percentage of Option Vested and Exercisable
50%
Vesting Date
November 3, 2015
50%
November 3 2016
3
(b) Acceleration of Exercisability. Notwithstanding the schedule provided in subsection (a), the Option will become fully
Vested (unless the Participant chooses to decline accelerated Vesting of all or any portion of the Option) upon the occurrence of a Change
in Control Date.
(c) Method of Exercise. The Option shall be exercisable by delivery of an exercise notice (a form of which is attached as Exhibit
A), stating the election to exercise the Option, the number of whole Shares in respect of which the Option is being exercised, the form of
payment, and such other provisions as may be required by the Committee. The exercise notice shall be delivered to the Corporation in
accordance with Section 15 below accompanied by full payment of the Exercise Price, which must be made by one or a combination of the
following:
(1) Payment in cash;
(2) Delivery of previously owned Shares having a Fair Market Value equal to the exercise price; or
(3) Delivery of an irrevocable direction to a securities broker acceptable to the Committee (subject to the provisions of
the Sarbanes-Oxley Act of 2002 and any other applicable statute or rule) to sell Shares subject to the Option and to pay a sufficient portion
of the net proceeds of the sale to the Corporation in satisfaction of the Exercise Price.
The Option shall be deemed to be exercised upon receipt by the Corporation of such notice accompanied by the Exercise Price and Tax
Payment (defined below), if required.
(d) Taxes. No portion of the Option may be exercised and no Shares will be delivered to the Participant or other person pursuant
to the exercise of the Option until the Participant or other person has made arrangements acceptable to the Committee for the satisfaction of
applicable income tax and tax withholding obligations, if any, including, without limitation, such other tax obligations of the Participant
incident to the receipt of Shares (the “Tax Payment”). Upon exercise of the Option, the Corporation may offset or withhold (from any
amount owed by the Corporation to the Participant) or collect from the Participant or other person an amount sufficient to satisfy such Tax
Payment obligation, if any.
The Participant understands that the Participant may suffer adverse tax consequences as a result of the Participant’s purchase or
disposition of the Shares. The Participant represents that the Participant has consulted with any tax consultants the Participant deems
advisable in connection with the purchase or disposition of the Shares and that the Participant is not relying on the Corporation for any tax
advice.
5. Restrictions on Exercise.
The Option may not be exercised if the issuance of the Shares subject to the Option upon such exercise would constitute a violation of
any applicable federal or state securities law. If the exercise of the Option within the time periods set forth in Sections 6, 7, or 8 of this
Option Agreement is prevented by the provisions of this Section 5, the Option shall remain exercisable
4
until one month after the date the Participant is notified by the Corporation that the Option is exercisable, but in any event no later than the
Expiration Date.
6. Termination or Change of Continuous Service.
In the event the Participant’s Continuous Service terminates, other than “for cause” (as defined in the Plan), the Participant may, but
only during the Post-Termination Exercise Period, exercise the portion of the Option that was Vested at the date of such termination (the
“Termination Date”). The “Post-Termination Exercise Period” is the period commencing on the Termination Date and continuing for three
months thereafter. In the event of termination of the Participant’s Continuous Service for cause, the Participant’s right to exercise the
Option shall, except as otherwise determined by the Committee, terminate concurrently with the termination of the Participant’s
Continuous Service (also the “Termination Date”). In no event, however, shall the Option be exercised later than the Expiration Date.
In the event of the Participant’s change in status from Non-Employee Director, employee or Consultant to any other status of Non-
Employee Director, employee or Consultant, the Option shall remain in effect. Except as provided in Sections 7 and 8 below, to the extent
that the Option was unvested on the Termination Date, or if the Participant does not exercise the Vested portion of the Option within the
Post-Termination Exercise Period, the Option shall terminate.
7. Death of Participant.
In the event of the Participant’s death, the person who acquires the right to exercise the Option pursuant to will or the laws of descent
and distribution may exercise the portion of the Option that was Vested on the date of death within 12 months commencing on the date of
death (but in no event later than the Expiration Date). To the extent that the Option was unvested on the date of death, or if the Vested
portion of the Option is not exercised within the time specified herein, the Option shall terminate.
8. Disability of Participant.
If the Participant’s Continuous Service terminates as a result of the Participant’s Disability, the Participant may exercise the portion
of the Option that was Vested on the date of such termination of Continuous Service within three months commencing on the date of
termination of Continuous Service (but in no event later than the Expiration Date). To the extent that the Option was unvested on the date
of termination of Continuous Service, or if the Vested portion of the Option is not exercised within the time specified herein, the Option
shall terminate.
9. Transferability of Option.
Subject to restrictions on transferability set forth in the Plan, this Option Agreement will be binding upon and benefit the parties, their
successors and assigns.
10. Engaging in Competition With the Corporation.
If the Participant terminates Continuous Service with the Corporation or an Affiliate for any reason whatsoever, and within 12 months
after the date thereof accepts employment with any competitor of (or otherwise engages in competition with) the Corporation, the
Committee, in
5
its sole discretion, may require such Participant to return to the Corporation the economic value of any Award that is realized or obtained
(measured at the date of exercise, Vesting, or payment) by such Participant at any time during the period beginning on the date that is one
year prior to the date of such Participant’s termination of Continuous Service with the Corporation.
11. Governing Law.
This Option Agreement will be administered, interpreted and enforced in accordance with the laws of the State of Washington,
without regard to principles of conflicts of laws.
12. Rights as Shareholder.
Until the stock certificate representing the Shares is issued, no right to vote or receive dividends or any other rights as a shareholder
shall exist with respect to the Shares, notwithstanding the exercise of the Option. The Corporation shall issue (or cause to be issued) such
stock certificate promptly after the Option is exercised. No adjustment will be made for a dividend or other right for which the record date
is prior to the date the stock certificate is issued, except as provided in Article 10 of the Plan.
13. Adjustments upon Changes in Capitalization.
The Option shall be subject to the provisions of Article 11 of the Plan relating to adjustments upon changes in capitalization and
similar corporate events.
14. Venue and Waiver of Jury Trial.
The Corporation, the Participant, and the Participant’s assignees pursuant to Section 9 (the “parties”) agree that any suit, action, or
proceeding arising out of or relating to the Notice or this Option Agreement shall be brought in the United States District Court for the
Western District of Washington (or should such court lack jurisdiction to hear such action, suit or proceeding, in a Washington state court
in Clark County) and that the parties shall submit to the jurisdiction of such court. The parties irrevocably waive, to the fullest extent
permitted by law, any objection the party may have to the laying of venue for any such suit, action or proceeding brought in such court.
THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT,
ACTION OR PROCEEDING. If any one or more provisions of this Section 14 shall for any reason be held invalid or unenforceable, it is
the specific intent of the parties that such provisions shall be modified to the minimum extent necessary to make it or its application valid
and enforceable.
6
15. Notices.
Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given (a) upon personal delivery,
(b) one business day after deposit for overnight delivery by a nationally recognized air courier service, (c) five business days after deposit
in the United States mail by certified mail (if the parties are within the United States), with postage and fees prepaid, (d) on the date of
facsimile transmission, with confirmed transmission, or (e) by email transmission, addressed to the party to be notified as follows:
If to the Corporation:
CytoDyn Inc.
1111 Main Street, Suite 660
Vancouver, Washington 98660
Facsimile: (360) 980-8549
Attn: Secretary
If to the Participant:
Denis R. Burger, Ph.D.
1534 SW Myrtle St.
Portland, OR 97207-1248
Fax:
or such other address as such party may designate by 10 days’ advance written notice to the other party.
CYTODYN INC.
PARTICIPANT
By:
Name: Nader Pourhassan
Title: President and Chief Executive Officer
Denis R. Burger, Ph.D
7
EXHIBIT A
CYTODYN INC.
2012 EQUITY INCENTIVE PLAN
EXERCISE NOTICE
CytoDyn Inc.
1111 Main Street, Suite 6600
Vancouver, Washington 98660
Telephone: (360) 980-8524
Facsimile: (360) 980-8549
Attention: Secretary
Participant:
Mailing Address:
Print Name
Telephone Number:
Option: The option evidenced by a Stock Option Award Agreement dated ___________, ____.
OPTION EXERCISE
I hereby elect to exercise the Option to purchase shares (“Shares”) of common stock of CytoDyn Inc. covered by the Option as follows:
Number of Shares Purchased (a)
Per-Share Option Price (b)
$
Aggregate Purchase Price (a times b)
$
Closing Date of Purchase
Form of Payment [Check One]:
¨ My check in the full amount of the Aggregate Purchase Price (as well as a check for any withholding taxes, if this
box ¨ is checked). See “Instructions” below.
¨ Delivery of previously owned shares of CytoDyn common stock with a fair market value equal to the Aggregate
Purchase Price. See “Instructions” below. Note that restricted shares acquired from CytoDyn under one of its stock
plans may be used for this purpose only if such shares have become vested.
¨ My irrevocable direction to my securities broker (see below) to sell Shares subject to the Option and deliver a portion
of the sales proceeds to CytoDyn Inc., in full payment of the Aggregate Purchase Price (as well as any withholding
taxes, if this box ¨ is checked). See “Instructions” below. I hereby confirm that any sale of Shares will be in
compliance with CytoDyn’s policies on insider trading and Rule 144, if applicable. I HEREBY IRREVOCABLY
AUTHORIZE ______________________ to
(name of broker)
transfer funds to CytoDyn Inc., from my account in payment of the Aggregate Purchase Price (and withholding taxes,
if applicable) and CytoDyn Inc., is hereby directed to issue the Shares for my account with such broker and to
transmit the Shares to the broker indicated above.
Instructions:
(1) If payment is to be by check, a certified or cashier’s check for the amount of the Aggregate Purchase Price payable to
CytoDyn Inc., should be submitted with this Notice. If you wish to pay by wire transfer, please contact CytoDyn Inc. for instructions.
(2) If payment is to be by surrender of previously owned shares or by attestation of ownership (see Attestation Form below),
either a certificate for the shares accompanied by a stock power endorsed in blank or the completed Attestation Form should be submitted
with this Notice. If applicable, a certificate for any shares in excess of those needed to satisfy the Aggregate Purchase Price will be returned
to you with the certificate for your option shares. Any change in registration between the payment shares and the new shares will require a
properly executed stock power that is guaranteed by an institution participating in a recognized medallion signature guarantee program.
(3) Withholding tax is due immediately upon exercise of a nonqualified stock option by an employee or former employee. Non-
employee directors are not currently subject to withholding. If withholding tax is due at the time of exercise, you will be notified of the
amount and satisfactory arrangements must be made for payment before a stock certificate for your option shares will be delivered to you
(or your broker, if applicable).
ISSUANCE INSTRUCTIONS FOR STOCK CERTIFICATES
Please register the stock certificate(s) in the following name(s):
If applicable, please check one: ¨ JT TEN ¨ TEN COM ¨ Other
Please deliver the stock certificate(s) to (check one):
¨
My brokerage account
Attn:
Account
No.:
; or
¨
My mailing address set forth above.
Date
Signature of Participant
ATTESTATION FORM
As indicated above, I have elected to use shares of CytoDyn common stock that I already own to pay the Aggregate Purchase Price of the
Option.
I attest to the ownership of the shares represented by the certificate(s) listed below or to the beneficial ownership of the shares held in the
name of my broker, as indicated in the attached copy of my brokerage statement. I will be deemed to have delivered such shares to
CytoDyn in connection with the exercise of my Option.
I understand that, because I (and any joint owner) will retain ownership of the shares (the “Payment Shares”) deemed delivered to pay the
Aggregate Purchase Price, the number of shares to be issued to me upon exercise of my Option will be reduced by the number of Payment
Shares. I represent that I have full power to deliver and convey certificates representing the Payment Shares to CytoDyn and by such
delivery and conveyance could have caused CytoDyn to become sole owner of the Payment Shares. The joint owner of the Payment
Shares, if any, by signing this Form, consents to these representations and to the exercise of the Option by this attestation.
I certify that any Payment Shares originally issued to me as restricted shares are now fully vested.
List certificate(s) and number of shares covered, or attach a copy of your brokerage statement:
Common Stock
Certificate Number
Number of
Shares Covered
Date: __________________
9
Print Name of Optionholder:
Signature of Optionholder:
Print Name of Joint Owner:
Signature of Joint Owner:
If you are attaching a copy of your brokerage statement, you must have your securities broker complete the following:
The undersigned hereby certifies that the foregoing attestation is correct.
Name of Brokerage Firm
By:
Print Name of Signing Broker
Date:
Telephone No.:
10
CONSENT OF WARREN AVERETT, LLC
Independent Registered Certified Public Accountants
Exhibit 23.1
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (No. 333-186920) of our report dated
July 10, 2015 and 2014, with respect to the consolidated financial statements of CytoDyn Inc. (the “Company”) appearing in this Annual
Report on Form 10-K for the years ended May 31, 2015 and 2014 .
/s/ Warren Averett, LLC
Warren Averett, LLC
Tampa, Florida
July 10, 2015
POWER OF ATTORNEY
EXHIBIT 24
Each person signing below designates and appoints NADER Z. POURHASSAN and MICHAEL D. MULHOLLAND, and each of them,
his true and lawful attorneys-in-fact and agents to sign the Annual Report on Form 10-K for the year ended May 31, 2015, of CytoDyn
Inc., a Colorado corporation, and to file said report, with all exhibits thereto, with the Securities and Exchange Commission under the
Securities Exchange Act of 1934. Each person whose signature appears below also grants to these attorneys-in-fact and agents full power
and authority to perform every act and execute any instruments that they deem necessary or desirable in connection with said report, as
fully as he could do in person, hereby ratifying and confirming all that the attorneys-in-fact and agents or their substitutes may lawfully do
or cause to be done.
IN WITNESS WHEREOF, this power of attorney has been executed by each of the undersigned as of the 6th day of July, 2015.
Signature
/s/ Denis R. Burger
Denis R. Burger, Ph.D.
/s/ Anthony D. Caracciolo
Anthony D. Caracciolo
/s/ Carl C. Dockery
Carl C. Dockery
/s/ Gregory A. Gould
Gregory A. Gould
/s/ A. Bruce Montgomery
A. Bruce Montgomery, M.D.
/s/ Jordan G. Naydenov
Jordan G. Naydenov
/s/ S. Michael Nobel
S. Michael Nobel, Ph.D.
/s/ Nader Z. Pourhassan
Nader Z. Pourhassan, Ph.D.
Title
Director
Chairman of the Board and Director
Director
Director
Director
Director
Director
President and Chief Executive Officer, Director
Exhibit 31.1
Certification of Chief Executive Officer
I, Nader Z. Pourhassan, certify that:
1. I have reviewed this Annual Report on Form 10-K of CytoDyn Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the Registrant and have:
a. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this annual report is being prepared;
b. designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under
our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted accounting principles;
c. evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this annual report our
conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report, based on
such evaluation; and
d. disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the registrant’s
most-recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably
likely to materially affect, the Registrant’s internal control over financial reporting; and
5. The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent
functions):
a. all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and
b. any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s
internal control over financial reporting.
Date: July 10, 2015
/s/ Nader Z. Pourhassan
Nader Z. Pourhassan, Ph.D.
President and Chief Executive Officer
Exhibit 31.2
Certification of Chief Financial Officer
I, Michael D. Mulholland, certify that:
1. I have reviewed this Annual Report on Form 10-K of CytoDyn Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the Registrant and have:
a. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which this annual report is being prepared;
b. designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under
our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted accounting principles;
c. evaluated the effectiveness of the Registrant’s disclosure controls and procedures and presented in this annual report our
conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report, based on
such evaluation; and
d. disclosed in this report any change in the Registrant’s internal control over financial reporting that occurred during the registrant’s
most-recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably
likely to materially affect, the Registrant’s internal control over financial reporting; and
5. The Registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the Registrant’s auditors and the audit committee of the Registrant’s board of directors (or persons performing the equivalent
functions):
a. all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the Registrant’s ability to record, process, summarize and report financial information; and
b. any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant’s
internal control over financial reporting.
Date: July 10, 2015
/s/ Michael D. Mulholland
Michael D. Mulholland
Chief Financial Officer
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350
Exhibit 32
In connection with the Annual Report of CytoDyn Inc. (the “Company”) on Form 10-K for the year ended May 31, 2015 as filed with the
Securities and Exchange Commission on the date hereof (the “Report”), the undersigned certify, pursuant to 18 U.S.C. § 1350, that:
(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the
Company.
/s/ Nader Z. Pourhassan
Nader Z. Pourhassan, Ph. D.
President and Chief Executive Officer
July 10, 2015
/s/ Michael D. Mulholland
Michael D. Mulholland
Chief Financial Officer
July 10, 2015
A signed original of this written statement required by Section 906 has been provided to CytoDyn Inc. and will be retained by CytoDyn Inc.
and furnished to the Securities and Exchange Commission or its staff upon request.