Amended Statement of Beneficial Ownership (sc 13d/a)
23 April 2019 - 8:05PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
SCHEDULE
13D
THE SECURITIES
EXCHANGE ACT OF 1934
(Amendment No.
1)*
Aytu
Bioscience, Inc.
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(Name
of Issuer)
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Common
Stock, par value $.0001
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(Title
of Class of Securities)
|
Anthony
Cordone
c/o Armistice
Capital LLC
510 Madison
Avenue
7
th
Floor
New York,
NY 10022
Telephone
Number: 212-231-4930
|
(Name,
Address and Telephone Number of Person Authorized to Receive
Notices
and Communications)
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April
18, 2019
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(Date
of Event Which Requires Filing of this Statement)
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If
the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [_].
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* The
remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided
in a prior cover page.
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1.
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NAME
OF REPORTING PERSONS
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|
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I.R.S.
IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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Armistice
Capital, LLC
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2.
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CHECK THE APPROPRIATE BOX
IF A MEMBER OF A GROUP
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(a)
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[_]
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(b)
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[_]
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5.
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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[_]
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
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Delaware
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NUMBER OF SHARES BENEFICIALLY
OWNED BY EACH REPORTING PERSON
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8.
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SHARED VOTING POWER
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|
|
|
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5,120,064
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9.
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SOLE DISPOSITIVE POWER
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0
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10.
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SHARED DISPOSITIVE POWER
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5,120,064
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11.
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
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5,120,064
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12.
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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[_]
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13.
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PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
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41.1%
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14.
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TYPE OF REPORTING PERSON
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IA, OO
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1.
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NAME OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
(ENTITIES ONLY)
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Armistice Capital Master Fund Ltd.
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2.
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CHECK THE APPROPRIATE BOX
IF A MEMBER OF A GROUP
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(a)
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[_]
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(b)
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[_]
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5.
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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[_]
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
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Cayman Islands
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NUMBER OF SHARES BENEFICIALLY
OWNED BY EACH REPORTING PERSON
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8.
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SHARED VOTING POWER
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|
|
|
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5,120,064
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9.
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SOLE DISPOSITIVE POWER
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0
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10.
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SHARED DISPOSITIVE POWER
|
|
|
|
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5,120,064
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11.
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AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
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|
|
|
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5,120,064
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12.
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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[_]
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13.
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PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
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|
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41.1%
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14.
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TYPE OF REPORTING PERSON
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CO
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1.
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NAME OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
(ENTITIES ONLY)
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Steven Boyd
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2.
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CHECK THE APPROPRIATE BOX
IF A MEMBER OF A GROUP
|
(a)
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[_]
|
|
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(b)
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[_]
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5.
|
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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[_]
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6.
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CITIZENSHIP OR PLACE OF ORGANIZATION
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United States of America
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NUMBER OF SHARES BENEFICIALLY
OWNED BY EACH REPORTING PERSON
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8.
|
SHARED VOTING POWER
|
|
|
|
|
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5,120,064
|
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9.
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SOLE DISPOSITIVE POWER
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|
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0
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10.
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SHARED DISPOSITIVE POWER
|
|
|
|
|
|
5,120,064
|
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11.
|
AGGREGATE AMOUNT BENEFICIALLY
OWNED BY EACH REPORTING PERSON
|
|
|
|
|
|
5,120,064
|
|
12.
|
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
[_]
|
13.
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PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
|
|
|
|
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41.1%
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14.
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TYPE OF REPORTING PERSON
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IN, HC
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Item 1.
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Security and Issuer.
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The
name of the issuer is Aytu Bioscience, Inc., a Delaware corporation (the "Issuer"). The address of the Issuer's
principal executive offices is 373 Inverness Parkway, Suite 206, Englewood, Colorado 80112. This Amendment No. 1 to Schedule
13D relates to the Issuer's Common Stock, par value $.0001 (the "Shares").
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Item 2.
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Identity and Background.
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(a),
(f)
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The persons
filing this statement are: (i) Armistice Capital, LLC, a Delaware limited liability company (“Armistice Capital”);
(ii) Armistice Capital Master Fund Ltd., a Cayman Islands corporation (the “Master Fund”); and (iii) Steven Boyd,
a United States citizen (“Mr. Boyd”, and collectively with Armistice Capital and the Master Fund, the “Reporting
Persons”).
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(b), (c)
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Armistice
Capital is an investment adviser registered with the Securities and Exchange Commission (the “SEC”) that is
principally engaged in the business of providing investment management services to private investment vehicles, including
the Master Fund. The principal business address of Armistice Capital is 510 Madison Avenue, 7
th
Floor, New
York, New York 10022.
The
Master Fund is principally engaged in the business of investing in securities. The principal business address of the Master
Fund is c/o dms Corporate Services Ltd., 20 Genesis Close, P.O. Box 314, Grand Cayman KY1-1104, Cayman Islands. The board
of directors of the Master Fund consists of Steven Boyd, Kevin A. Phillip and Gregory S. Bennett.
Steven
Boyd is the managing member of Armistice Capital and a director of the Master Fund. Mr. Boyd’s business address
is 510 Madison Avenue, 7
th
Floor, New York, New York 10022.
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(d)
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None of the Reporting
Persons have, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
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(e)
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None
of the Reporting Persons have, during the last five years, been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
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Item 3.
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Source and Amount of Funds
or Other Consideration.
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The funds for the
purchase of the 5,120,064 Shares beneficially owned by the Reporting Persons came from the working capital of the Master Fund,
which is the direct owner of the Shares. The net investment costs (including commissions, if any) of the Shares
beneficially owned by the Reporting Persons is approximately $2,980,000.
No
borrowed funds were used to purchase the Shares, other than any borrowed funds used for working capital purposes (including
certain leverage arrangements) in the ordinary course of business.
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Item 4.
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Purpose of Transaction.
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On November
29, 2018, the Issuer issued to the Master Fund a secured promissory note in the principal amount of $5,000,000 (the “Promissory
Note”). The Promissory Note carried an annual interest rate of 8% and had a three-year term. On February 5, 2019,
the Issuer and the Master Fund entered in to an exchange agreement (the “Exchange Agreement”) pursuant to
which the Master Fund agreed to exchange the Promissory Note for: (i) 3,120,064 Shares (the “New Shares”);
(ii) 2,751,148 shares of the Issuer’s Series E Convertible Preferred Stock (the “Series E Preferred Stock”);
and (iii) a Common Stock Purchase Warrant (the “Warrant”, and collectively with the New Shares and the Series
E Preferred Stock, the “Exchange Securities”). As consideration for the Issuer’s issuance of the Exchange
Securities to the Master Fund, the Master Fund agreed to cancel the Promissory Note and all principal and interest owed
thereunder. Each share of the Series E Preferred Stock has a stated value of $0.88 (the “Stated Value”), subject
to increase pursuant to the terms of the Issuer’s Certificate of Designation of Preferences, Rights and Limitations
of Series E Preferred Stock (the “Series E COD”). The Series E Preferred Stock has no expiration date and
is convertible into Shares at the option of the holder at any time after the issue date into that number of Shares determined
by dividing the Stated Value by the conversion price of $0.88, which is subject to adjustment pursuant to the terms of
the Series E COD; provided, however, that each holder is subject to a blocker provision that prevents it from converting
its Series E Preferred Stock if it would be more than a 40% beneficial owner of the Shares following such conversion.
The Warrant permits the Master Fund to purchase 4,403,409 Shares at an exercise price of $1.00 per Share, which is subject
to adjustment pursuant to the terms of the Warrant; provided, however, that each holder is subject to a subject to a blocker
provision that prevents it from exercising the warrants if it would be more than a 40% beneficial owner of the Shares
following such exercise. The Warrant is currently exercisable and expires on the five-year anniversary of the date of
its issuance. The transactions contemplated by the Exchange Agreement (the “Armistice Transaction”) were approved
by the Issuer’s stockholders on April 12, 2019 and announced on the Form 8-K filed with the SEC by the Issuer on
April 19, 2019 (the “Announcement”). The Issuer closed the Armistice Transaction and issued the securities
to the Master Fund on April 18, 2019.
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The
foregoing was a summary of certain material terms or disclosures, as applicable, of the:
(i) Promissory Note; (ii) Exchange Agreement; (iii) Series E COD; (iv) Warrant; and (v)
Announcement. The foregoing descriptions are not, and do not purport to be,
complete and are qualified in their entirety by reference to the full text of those documents,
which have been filed as Exhibits B, C, D, E and F, respectively, and are incorporated
herein by reference.
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In addition,
the Issuer announced on April 18, 2019 that, effective April 15, 2019, its board of directors (the “Board”)
appointed Mr. Boyd to fill one of the two prior vacancies on the Board.
The
Reporting Persons purchased the Shares for investment in the ordinary course of their investment activities based on the
Reporting Persons’ belief that the Shares, when purchased, were undervalued and represented an attractive investment
opportunity. The Reporting Persons intend to review their investment in the Issuer on a continuing basis. Depending on
various factors including, without limitation, the Issuer’s financial position, the price levels of the Shares,
conditions in the securities markets and general economic and industry conditions, the Reporting Persons may in the future
take such actions with respect to their investment in the Issuer as they deem appropriate including, without limitation,
engaging in communications with management and/or the Board, engaging in discussions with stockholders of the Issuer and
others about the Issuer and the Reporting Persons’ investment, reshaping the Issuer's corporate strategy, recommending
business development transactions, proposing changes to management, operations and the structure of the Board (including
the composition of the Board), purchasing additional Shares, selling some or all of their Shares, engaging in short selling
of or any hedging or similar transaction with respect to the Shares, or changing their intention with respect to any and
all matters referred to in subparagraphs (a) - (j) of Item 4 of Schedule 13D.
Except
as otherwise set forth herein, the Reporting Persons do not have any present plans or proposals which would relate to,
or result in, the matters set forth in subparagraphs (a) – (j) of Item 4 of Schedule 13D. However, subject to market
conditions and in compliance with applicable securities laws, the Reporting Persons reserve the right, at a later date,
to effect one or more of such changes or transactions in the number of Shares they may be deemed to beneficially own in
open-market or privately negotiated transactions, on such terms and at such times as the Reporting Persons may deem advisable.
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Item 5.
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Interest in Securities of
the Issuer.
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(a) - (d)
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As of
the date hereof, each of the Reporting Persons may be deemed to be the beneficial owner of 5,120,064 Shares, constituting
41.1% of the Shares, based upon 12,455,435 Shares outstanding as of the date hereof. Each of the Reporting Persons has
the sole power to vote or direct the vote of 0 Shares and the shared power to vote or direct the vote of 5,120,064 Shares.
Each of the Reporting Persons has the sole power to dispose or direct the disposition of 0 Shares and the shared power
to dispose or direct the disposition of 5,120,064 Shares.
Other
than the transactions described in Item 4 above, there have been no transactions in the Shares by the Reporting Persons
during the past sixty days.
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(e)
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N/A
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Item 6.
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Contracts, Arrangements, Understandings
or Relationships with Respect to Securities of the Issuer.
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In addition
to the Shares beneficially owned by the Reporting Persons as reported herein, the Master Fund currently holds 4,229,387
currently exercisable warrants of the Issuer, subject to blocker provisions that prevent the Master Fund from exercising
the warrants if it would be more than a 4.99% beneficial owner of the Shares following any such exercise.
The
information set forth in Item 4 above is also incorporated by reference in its entirety in this Item 6. The Reporting
Persons do not have any contract, arrangement, understanding or relationship with any person with respect to securities
of the Issuer that is not described in: (i) this Item 6; (ii) Item 4 above; (iii) incorporated herein by reference; and/or
(iv) described in the prior Schedule 13D filed by the Reporting Persons in respect of the Issuer.
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Item 7.
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Material to be Filed as Exhibits.
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Exhibit A:
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Joint Filing Agreement
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Exhibit B:
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Promissory Note (incorporated
by reference to Exhibit 10.1 to the Form 8-K filed with the SEC by the Issuer on December 4, 2018)
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Exhibit C:
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Exchange Agreement
(incorporated by reference to Exhibit 10.3 to the Form 10-Q filed with the SEC by the Issuer on February 7, 2019)
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Exhibit D:
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Form of Series E
COD (incorporated by reference to Exhibit 10.4 to the Form 10-Q filed with the SEC by the Issuer on February 7, 2019)
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Exhibit E:
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Form of Warrant (incorporated
by reference to Exhibit 10.5 to the Form 10-Q filed with the SEC by the Issuer on February 7, 2019)
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Exhibit F:
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Announcement (incorporated by reference
to the Form 8-K filed with the SEC by the Issuer on April 19, 2019)
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SIGNATURE
After
reasonable 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.
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April
22, 2019
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(Date)
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Armistice Capital, LLC*
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By: /
s/ Steven
Boyd
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Name: Steven Boyd
Title: Managing Member
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Armistice Capital Master Fund
Ltd.
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By:
/s/ Steven
Boyd
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Name: Steven Boyd
Title: Director
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Steven Boyd*
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/s/ Steven Boyd
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* The Reporting
Person disclaims beneficial ownership of the reported securities except to the extent of his or its pecuniary interests therein,
and this report shall not be deemed an admission that such person is the beneficial owner of these securities for purposes of
Section 16 of the U.S. Securities Exchange Act of 1934, as amended, or for any other purpose.
Attention: Intentional misstatements
or omissions of fact constitute Federal criminal violations (see 18 U.S.C. 1001).
Exhibit A
AGREEMENT
The
undersigned agree that this Amendment No. 1 to Schedule 13D, dated April 22, 2019, relating to the Common Stock, par value $.0001,
of Aytu Bioscience, Inc. shall be filed on behalf of the undersigned.
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April
22, 2019
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(Date)
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Armistice Capital, LLC
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By: /
s/ Steven
Boyd
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Name: Steven Boyd
Title: Managing Member
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Armistice Capital Master Fund
Ltd.
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By:
/s/ Steven
Boyd
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Name: Steven Boyd
Title: Director
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Steven Boyd
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/s/ Steven Boyd
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