Current Report Filing (8-k)
22 February 2023 - 8:07AM
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2023-02-21
2023-02-21
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
February 21, 2023
AYTU BIOPHARMA, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-38247 |
|
47-0883144 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification
No.) |
373 Inverness Parkway, Suite 206
Englewood, CO 80112
(Address of principal executive offices, including
Zip Code)
Registrant’s telephone number, including
area code: (720) 437-6580
N/A
(Former name or former address, if changed
since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
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Name
of each exchange on which
registered |
Common Stock, par value $0.0001 per share |
|
AYTU |
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The NASDAQ Stock Market LLC |
Indicate by check mark whether the registrant is
an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 4.02. Non-Reliance on Previously Issued Financial Statements
or a Related Audit Report or Completed Interim Review.
On February 21, 2023, the Audit Committee (the “Audit Committee”)
of the Board of Directors of Aytu BioPharma, Inc. (“Aytu”), in consultation with Aytu’s management, concluded that Aytu’s
interim unaudited consolidated financial statements as of and for the fiscal quarter ended September 30, 2022 (the “Affected Financial
Statements”) should be restated for the reasons described below and, accordingly, that such previously issued financial statements
should no longer be relied upon due to the misclassification of certain of Aytu’s outstanding warrants as components of equity
instead of as liabilities. As a result of the misclassification an adjustment to increase total liabilities by $5.6 million and decrease shareholder's equity by
$3.4 million as well as a reduction of the net loss for the three months ended September 30, 2022 by approximately $2.2 million as the
result of a gain from the fair value adjustment of the derivative warrant liabilities. Aytu concluded that the impact
of this misclassification of outstanding warrants was not material to the Form 10-Q for the three months ended March 31, 2022 nor to the
Form 10-K for the fiscal year ended June 30, 2022.
Aytu’s management expects to file an amendment on Form 10-Q/A
to Aytu’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2022 (the “Amendment”), to restate the Affected
Financial Statements to reflect the classification of the warrants as liabilities and revise related information. Under this approach,
Aytu’s financial statements issued before the Affected Financial Statements would not be amended, but financial statements presented
in future filings would be adjusted to correct the error identified and be consistent with the presentation for the unaudited interim
financial statements reflected in the Amendment. Promptly after the filing of the Amendment, Aytu’s management expects to file Aytu’s
Form 10-Q for the quarter ended December 31, 2022 (the “Second Quarter 10-Q).
Aytu’s management is seeking to file the
Amendment and the Second Quarter Form 10-Q as soon as practicable. Going forward, unless Aytu amends the terms of its warrant agreement,
Aytu expects to continue to classify the warrants as liabilities, which would require Aytu to incur the cost of measuring the fair
value of the warrant liabilities, and which may have an adverse effect on Aytu’s results of operations. Additionally, as a result
of the identification of this error, Aytu has concluded that a material weakness exists in its internal control over financial reporting.
Aytu is actively working to remediate the material weakness.
Aytu’s management and its
Board of Directors have discussed the matters disclosed in this Current Report on Form 8-K pursuant to this Item 4.02 with its former
independent registered public accounting firm and Plante & Moran, PLLC, who were the auditors at the time the Form 10-Q was originally
filed on November 14, 2022. Management has also discussed the matters disclosed in this Current Report with the current independent registered
accounting firm who were appointed on December 12, 2022, and who has not performed any procedures on the condensed consolidated financial
statements referred to above for the three months ending September 30, 2022.
Forward-Looking Statements; Risks and Uncertainties
Cautionary Note Regarding Forward Looking Statements: This Current
Report on Form 8-K contains “forward-looking statements,” as that term is defined in U.S. Federal and certain foreign securities
regulations, including Aytu’s expectations regarding the anticipated restatement of Aytu’s Affected Financial Statements.
Although Aytu’s management believes that its expectations are based on reasonable assumptions, these assumptions are subject to
various risks and uncertainties and thus Aytu can give no assurance that its expectations will be attained or that actual developments
and results will not materially differ from those express or implied by the forward-looking statements. These risks and uncertainties
include, but are not limited to: (1) the effects of any potential inquiry by the United States Securities and Exchange Commission (“SEC”)
with respect to the proposed restatements or Aytu’s accounting practices; (2) the timing of Aytu’s restatement of its previously
issued financial statements and the filing of Aytu’s Second Quarter Form 10-Q; and (3) the additional risks and uncertainties detailed
from time to time in Aytu’s Annual Report on Form 10-K and quarterly reports on Form 10-Q, which include a list of factors that
could cause actual operational and financial results to differ from those expected, and in Aytu’s press releases and other filings
under the Securities Exchange Act of 1934. This communication should be read in conjunction with all the other information included in
our most current Annual Report on Form 10-K, in Quarterly Reports filed on Form 10-Q, and in the other reports and documents it files
with the SEC. All documents required to be filed with the SEC are available via on the SEC’s website at www.sec.gov.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Aytu BioPharma, Inc. |
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Date: February 21, 2023 |
By: |
/s/ Mark K. Oki |
|
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Mark K. Oki |
|
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Chief Financial Officer |
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