UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO/A
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
CYTODYN INC.
(Name of Subject Company (Issuer))
CYTODYN INC.
(Name of Filing Persons (Offeror))
Warrants to Purchase Common Stock
(Title of Class of Securities)
23283M101
(CUSIP Number of Common Stock Underlying Warrants)
Nader Z. Pourhassan, Ph.D.
President and Chief Executive Officer
CytoDyn Inc.
1111 Main Street, Suite 660
Vancouver, Washington 98660
Phone: (360) 980-8524
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
With copies to:
Michael J. Lerner, Esq.
Steven M. Skolnick, Esq.
James O’Grady, Esq.
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, New York 10020
Phone: (212) 262-6700
CALCULATION OF FILING FEE
Transaction Valuation (1) | Amount of Filing Fee(1)(2) | |
$64,890,736.28 |
$7,864.75 | |
|
1) | Estimated for purposes of calculating the amount of the filing fee only. An offer to amend and exercise warrants to purchase an aggregate of 141,066,818 shares of common stock (the “Exercise Offer”). The transaction value is calculated pursuant to Rule 0-11 using $0.46 per share of common stock, which represents the average of the high and low sales price of the common stock on June 17, 2019. |
2) | Calculated by multiplying the transaction value by 0.0001212. |
☒ | Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
Amount Previously Paid: $7,864.75 | Filing Party: CytoDyn Inc. | |
Form or Registration No.: Schedule TO | Date Filed: June 24, 2019 |
☐ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
☐ | third-party tender offer subject to Rule 14d-1. |
☒ | issuer tender offer subject to Rule 13e-4. |
☐ | going-private transaction subject to Rule 13e-3. |
☐ | amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐
The alphabetical subsections used in the Item responses below correspond to the alphabetical subsections of the applicable items of Regulation M-A promulgated under the federal securities laws. If applicable, check the appropriate box(es) below to designate the appropriate note provision(s):
☐ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
☐ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
EXPLANATORY NOTE
This Amendment No. 2 (“Amendment No. 2”) amends and supplements the Exercise Offer Statement on Schedule TO originally filed with the Securities and Exchange Commission on June 24, 2019, as amended on July 19, 2019, this “Schedule TO”), relating to an offer by CytoDyn Inc. (“CytoDyn” or the “Company”) to amend and exercise certain outstanding warrants upon the terms and subject to the conditions set forth in the Offer to Amend and Exercise Warrants to Purchase Common Stock, dated June 24, 2019 (the “Offer to Amend and Exercise”), which together with the Election to Participate and Notice of Withdrawal constitute the “Offering Materials.”
This Amendment No. 2 extends the Expiration Date of the Offer to Amend and Exercise from July 24, 2019 at 5:00 p.m. (Eastern Time) to July 31, 2019 at 5:00 p.m. (Eastern Time), unless further extended or terminated by the Company. Throughout the Schedule TO, the Offer to Amend and Exercise and the other Offering Materials, all references to the Expiration Date of the Offer to Amend and Exercise are hereby amended to refer instead to July 31, 2019 at 5:00 p.m. (Eastern Time).
As of 5:00 p.m. (Eastern Time) on July 24, 2019, 7,608,967 Original Warrants exercisable for an aggregate of 7,608,967 shares of common stock and, pursuant to the terms of the Offer to Amend and Exercise, 3,804,461 Additional Shares (as defined in the Offering Materials) have been tendered and not withdrawn.
Item 12. | EXHIBITS. |
The following are attached as exhibits to this Schedule TO:
* | Previously filed. |
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Date: July 25, 2019 | CytoDyn Inc. | |||||
By: | /s/ Michael D. Mulholland | |||||
Name: | Michael D. Mulholland | |||||
Title: | Chief Financial Officer |
[Signature Page to Schedule TO/A]