As filed with the Securities and Exchange Commission on March 23, 2018
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THE SECURITIES ACT OF 1933
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of
incorporation or organization)
1111 Main Street, Suite 660
Vancouver, Washington 98660
(Address of principal executive offices; zip code)
CYTODYN INC. 2012 EQUITY INCENTIVE PLAN
(Full title of the plan)
Michael D. Mulholland
Chief Financial Officer
1111 Main Street, Suite 660
Vancouver, Washington 98660
(Name, address and telephone number, including area code, of agent for service)
Michael J. Lerner, Esq.
Steven M. Skolnick, Esq.
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, New York 10020
Tel: (212) 262-6700
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company, and emerging growth company in Rule 12b-2 of the Exchange Act.
|Large accelerated filer||☐||Accelerated filer||☒|
|Non-accelerated filer||☐ (Do not check if a smaller reporting company)||Smaller reporting company||☐|
|Emerging growth company||☐|
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
Offering Price (3)
Common Stock, $0.001 par value per share
|(1)||This represents shares of common stock, par value $0.001 per share (Common Stock) which may be issued under the CytoDyn Inc. 2012 Equity Incentive Plan, as amended (the 2012 Plan).|
|(2)||In accordance with Rule 416 under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement also covers such indeterminable number of additional shares of Common Stock as may be required pursuant to the 2012 Plan in the event of stock splits, stock dividends, antidilution provisions, and similar transactions.|
|(3)||Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h)(1) under the Securities Act of 1933, as amended, based on the average of the high and low sales price on the OTCQB of the OTC Markets on March 19, 2018, which is within five business days prior to the date of this registration statement. Pursuant to General Instruction E to Form S-8, the registration fee is calculated only with respect to the 10,000,000 additional securities registered under the 2012 Plan hereunder.|
CytoDyn Inc. (the Company) filed a Registration Statement on Form S-8 (File No. 333-186920) with the Securities and Exchange Commission (the SEC) on February 27, 2012 to register 3,000,000 shares of its common stock, no par value per share (the Original Registration Statement) to be issued under the CytoDyn Inc. 2012 Equity Incentive Plan (the 2012 Plan).
On September 8, 2015, the Company filed a Post-Effective Amendment to the Original Registration Statement to deregister the shares registered thereunder in connection with the Companys reincorporation into the State of Delaware, and simultaneously filed a new, currently effective Registration Statement on Form S-8 (File No. 333-206813) to register 5,000,000 shares of common stock, par value $0.001 per share, to be issued pursuant to the 2012 Plan (the Second Registration Statement).
On March 18, 2016, the Companys stockholders approved an increase in the number of shares of Common Stock available under the 2012 Plan from 5,000,000 to 7,000,000. On August 24, 2017, the Companys stockholders approved another amendment to the 2012 Plan to increase the number of shares of Common Stock available from 7,000,000 to 15,000,000.
The Company is filing this current Registration Statement on Form S-8 (the New Registration Statement) for the purpose of registering an additional 10,000,000 shares of Common Stock, par value $0.001 per share, to be issued under the 2012 Plan, as amended, pursuant to General Instruction E on Form S-8 (Registration of Additional Securities). Following the filing of the New Registration Statement, there will be an aggregate of 15,000,000 shares of Common Stock registered to be issued under the 2012 Plan.
Pursuant to General Instruction E of Form S-8, the contents of the Second Registration Statement (File No. 333-206813) are hereby incorporated by reference and made a part hereof.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
|Item 3.||Incorporation of Certain Documents by Reference|
The SEC allows us to incorporate into this registration statement information we file with other documents. This means that we may disclose important information to you by referring to other documents that contain that information. The information incorporated by reference is considered to be part of this registration statement, and information we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below, except to the extent information in those documents is different from the information contained in this registration statement:
|||Our Annual Report on Form 10-K, as amended, for the fiscal year ended May 31, 2017, filed with the SEC on July 20, 2017, as amended on July 27, 2017;|
|||Our Quarterly Reports on Form 10-Q for the fiscal periods ended August 31, 2017 and November 30, 2017, filed with the SEC on October 10, 2017 and January 8, 2018, respectively;|
|||Our Proxy Statements on Schedule 14A filed with the SEC on July 24, 2017 and October 2, 2017;|
|||Our Current Reports on Form 8-K filed with the SEC on June 2, 2017, June 22, 2017, July 7, 2017, July 14, 2017, July 31, 2017, August 9, 2017 (except as to any portion deemed furnished and not filed), August 21, 2017 (except as to any portion deemed furnished and not filed), August 25, 2017, September 6, 2017, September 8, 2017, October 5, 2017 (except as to any portion deemed furnished and not filed), October 11, 2017, October 13, 2017 (except as to any portion deemed furnished and not filed), November 2, 2017, November 8, 2017, November 27, 2017, December 6, 2017, December 7, 2017 (except as to any portion deemed furnished and not filed), December 21, 2017, December 29, 2017, January 10, 2018, January 23, 2018, January 31, 2018, February 7, 2018, February 13, 2018, February 20, 2018 (except as to any portion deemed furnished and not filed), March 14, 2018 (except as to any portion deemed furnished and not filed) and March 20, 2018; and|
|||The description of our common stock contained in our Registration Statement on Form 10-SB, filed on July 11, 2002, including any amendments thereto or reports filed for the purposes of updating this description (including the Form 8-K filed with the SEC on September 1, 2015, including Exhibit 99.1 thereto).|
All documents subsequently filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), prior to the filing of a post-effective amendment to this registration statement, which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents.
The exhibits accompanying this registration statement are listed on the accompanying exhibit index.
|5.1||Opinion of Lowenstein Sandler LLP.*|
|10.1||CytoDyn Inc. 2012 Equity Incentive Plan.*|
|23.1||Consent of Warren Averett LLC, Independent Registered Public Accounting Firm of CytoDyn Inc.*|
|23.2||Consent of Lowenstein Sandler LLP (filed as part of Exhibit 5.1).*|
|24.1||Power of Attorney (contained on signature page to this registration statement on Form S-8).*|
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Vancouver, State of Washington, on March 23, 2018.
|Nader Z. Pourhassan, Ph.D.|
|Chief Executive Officer|
|(Principal Executive Officer)|
|Michael D. Mulholland|
|Chief Financial Officer|
|(Principal Financial Officer and Principal Accounting Officer)|
KNOW ALL BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Nader Z. Pourhassan and Michael D. Mulholland, and each of them singly, as such persons true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for such person in such persons name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the SEC, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
|Nader Z. Pourhassan, Ph.D.||Chief Executive Officer (Principal Executive Officer)||March 23, 2018|
|Michael D. Mulholland||Chief Financial Officer (Principal Financial and Accounting Officer)||March 23, 2018|
|Anthony D. Caracciolo||Director||March 23, 2018|
|Denis R. Burger, Ph.D.||Director||March 23, 2018|
|Carl C. Dockery||Director||March 23, 2018|
|Gregory A. Gould||Director||March 23, 2018|
|Scott A. Kelly, M.D.||Director||March 23, 2018|
|A. Bruce Montgomery, M.D.||Director||March 23, 2018|
|Jordan G. Naydenov||Director||March 23, 2018|