AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 22, 2017
REGISTRATION
NO. 333-__________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
AYTU
BIOSCIENCE, INC.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of incorporation or organization)
47-0883144
I.R.S.
Employer Identification Number
373
Inverness Parkway
Suite
206
Englewood,
Colorado 80112
Telephone:
(720) 437-6580
(Address,
including zip code, and telephone number, including area code of registrant’s principal executive offices)
Joshua
R. Disbrow
Chief
Executive Officer
Aytu
BioScience, Inc.
373
Inverness Parkway
Suite
206
Englewood,
Colorado 80112
Telephone:
(720) 437-6580
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Gregory
Sichenzia, Esq.
Marcelle
S. Balcombe, Esq.
Sichenzia
Ross Ference Kesner LLP
61
Broadway, 32
nd
Floor
New
York, NY 10006
(212)
930-9700
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box: ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plants, check
the following box: ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ☐
Indicate
by check mark 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. (Check one):
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☐
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Large
accelerated filer
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☐
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Accelerated
filer
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☐
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Non-accelerated
filer (Do not check if a smaller reporting company)
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☒
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Smaller
reporting company
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☐
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Emerging
growth company
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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 Securities Act. ☐
CALCULATION
OF REGISTRATION FEE
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Title of each class of Securities to be registered
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Amount
to be
registered
(1)
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Proposed
maximum
offering price
per unit
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Proposed
maximum
aggregate
offering
price
(2)
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Amount of
registration
fee
(3)
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Common stock, par value $0.001 per share
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—
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—
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—
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—
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Preferred stock, par value $0.001 per share
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—
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—
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—
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—
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Warrants(4)
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—
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—
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—
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—
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Units(5)
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—
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—
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—
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—
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Total
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$
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100,000,000
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$
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12,450
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(1)
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There
are being registered hereunder such indeterminate number of shares of common stock, preferred stock, and warrants to purchase
common stock or preferred stock, as shall have an aggregate initial offering price not to exceed $100,000,000. The securities
registered also include such indeterminate amounts and numbers of common stock and preferred stock as may be issued upon conversion
of or exchange for preferred stock that provide for conversion or exchange, upon exercise of warrants, or pursuant to the
anti-dilution provisions of any such securities.
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(2)
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In
no event will the aggregate offering price of all securities issued from time to time pursuant to this registration statement
exceed $100,000,000.
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(3)
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Calculated
pursuant to Rule 457(o) under the Securities Act. The total amount is being paid herewith.
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(4)
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Includes
warrants to purchase common stock and warrants to purchase preferred stock.
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(5)
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Any
of the securities registered hereunder may be sold separately, or as units with other securities registered hereby. We will
determine the proposed maximum offering price per unit when we issue the above listed securities. The proposed maximum per
unit and aggregate offering prices per class of securities will be determined from time to time by the registrant in connection
with the issuance by the registrant of the securities registered under this registration statement and is not specified as
to each class of security pursuant to General Instruction II.D of Form S-3 under the Securities Act.
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The
registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
relating to these securities that has been filed with the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
(Subject
to Completion, Dated November 22, 2017)
PROSPECTUS
$100,000,000
Common
Stock
Preferred
Stock
Warrants
Units
We
may from time to time, in one or more offerings at prices and on terms that we will determine at the time of each offering, sell
common stock, preferred stock, warrants, or a combination of these securities, or units, for an aggregate initial offering price
of up to $100,000,000. This prospectus describes the general manner in which our securities may be offered using this prospectus.
Each time we offer and sell securities, we will provide you with a prospectus supplement that will contain specific information
about the terms of that offering. Any prospectus supplement may also add, update, or change information contained in this prospectus.
You should carefully read this prospectus and the applicable prospectus supplement as well as the documents incorporated or deemed
to be incorporated by reference in this prospectus before you purchase any of the securities offered hereby.
This
prospectus may not be used to offer and sell securities unless accompanied by a prospectus supplement.
Our
common stock is currently traded on the NASDAQ Capital Market under the symbol “AYTU.” On November 21, 2017, the last
reported sales price for our common stock was $2.60 per share. We will apply to list any shares of common stock sold by us under
this prospectus and any prospectus supplement on the NASDAQ Capital Market. The prospectus supplement will contain information,
where applicable, as to any other listing of the securities on the NASDAQ Capital Market or any other securities market or exchange
covered by the prospectus supplement.
The
securities offered by this prospectus involve a high degree of risk. See “Risk Factors” beginning on page 6, in addition
to Risk Factors contained in the applicable prospectus supplement.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
We
may offer the securities directly or through agents or to or through underwriters or dealers. If any agents or underwriters are
involved in the sale of the securities their names, and any applicable purchase price, fee, commission or discount arrangement
between or among them, will be set forth, or will be calculable from the information set forth, in an accompanying prospectus
supplement. We can sell the securities through agents, underwriters or dealers only with delivery of a prospectus supplement describing
the method and terms of the offering of such securities. See “Plan of Distribution.”
This
prospectus is dated ___________, 2017
Table
of Contents
You
should rely only on the information contained or incorporated by reference in this prospectus or any prospectus supplement. We
have not authorized anyone to provide you with information different from that contained or incorporated by reference into this
prospectus. If any person does provide you with information that differs from what is contained or incorporated by reference in
this prospectus, you should not rely on it. No dealer, salesperson or other person is authorized to give any information or to
represent anything not contained in this prospectus. You should assume that the information contained in this prospectus or any
prospectus supplement is accurate only as of the date on the front of the document and that any information contained in any document
we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the
time of delivery of this prospectus or any prospectus supplement or any sale of a security. These documents are not an offer to
sell or a solicitation of an offer to buy these securities in any circumstances under which the offer or solicitation is unlawful.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf”
registration process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus
in one or more offerings up to a total dollar amount of proceeds of $100,000,000. This prospectus describes the general manner
in which our securities may be offered by this prospectus. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change
information contained in this prospectus or in documents incorporated by reference in this prospectus. The prospectus supplement
that contains specific information about the terms of the securities being offered may also include a discussion of certain U.S.
Federal income tax consequences and any risk factors or other special considerations applicable to those securities. To the extent
that any statement that we make in a prospectus supplement is inconsistent with statements made in this prospectus or in documents
incorporated by reference in this prospectus, you should rely on the information in the prospectus supplement. You should carefully
read both this prospectus and any prospectus supplement together with the additional information described under “Where
You Can Find More Information” before buying any securities in this offering.
Unless
the context otherwise requires, references to “we,” “our,” “us,” “Aytu BioScience”
or the “Company” in this prospectus mean Aytu BioScience, Inc., a Delaware corporation.
We
own or have rights to various U.S. federal trademark registrations and applications, and unregistered trademarks and servicemarks,
including Fiera, Natesto, ProstaScint, MiOXSYS, RedoxSYS, Luoxis, Vyrix and Nuelle. All other trade names, trademarks and service
marks appearing in this prospectus are the property of their respective owners. We have assumed that the reader understands that
all such terms are source-indicating. Accordingly, such terms, when first mentioned in this prospectus, appear with the trade
name, trademark or service mark notice and then throughout the remainder of this prospectus without trade name, trademark or service
mark notices for convenience only and should not be construed as being used in a descriptive or generic sense.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents and information incorporated by reference in this prospectus include forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities
Exchange Act of 1934, as amended, or the Exchange Act. These statements are based on our management’s beliefs and assumptions
and on information currently available to our management. Such forward-looking statements include those that express plans, anticipation,
intent, contingency, goals, targets or future development and/or otherwise are not statements of historical fact.
All
statements in this prospectus and the documents and information incorporated by reference in this prospectus that are not historical
facts are forward-looking statements. We may, in some cases, use terms such as “anticipates,” “believes,”
“could,” “estimates,” “expects,” “intends,” “may,” “plans,”
“potential,” “predicts,” “projects,” “should,” “will,” “would”
or similar expressions or the negative of such items that convey uncertainty of future events or outcomes to identify forward-looking
statements.
Forward-looking
statements are made based on management’s beliefs, estimates and opinions on the date the statements are made and we undertake
no obligation to update forward-looking statements if these beliefs, estimates and opinions or other circumstances should change,
except as may be required by applicable law. Although we believe that the expectations reflected in the forward-looking statements
are reasonable, we cannot guarantee future results, levels of activity, performance or achievements.
PROSPECTUS
SUMMARY
This
summary highlights certain information about us and this offering contained elsewhere in this prospectus. Because it is only a
summary, it does not contain all of the information that you should consider before investing in shares of our common stock and
it is qualified in its entirety by, and should be read in conjunction with, the more detailed information appearing elsewhere
in this prospectus. Before you decide to invest in our common stock, you should read the entire prospectus carefully, including
“Risk Factors” beginning on page 6, and the financial statements and related notes included in this prospectus.
ABOUT
AYTU BIOSCIENCE, INC.
Overview
We
are a commercial-stage specialty healthcare company focused on acquiring, developing and commercializing novel products in the
field of urology. We have multiple urology-focused products on the market, and we seek to build a portfolio of novel therapeutics
that serve large medical needs in the field of urology. We are concentrating on hypogonadism, prostate cancer, male infertility
and, recently, female sexual wellbeing and intimacy and plan to expand into other urological indications for which we believe
there are significant medical needs.
We
acquired exclusive U.S. rights to Natesto
®
(testosterone) nasal gel, a novel formulation of testosterone delivered
via a discreet, easy-to-use nasal gel, and we launched Natesto in the United States with our direct sales force in late summer
2016. Natesto is approved by the U.S. Food and Drug Administration, or FDA, for the treatment of hypogonadism (low testosterone)
in men and is the only testosterone replacement therapy, or TRT, delivered via a nasal gel. Natesto offers multiple advantages
over currently available TRTs and competes in a $2.0 billion market. Importantly, as Natesto is delivered via the nasal mucosa
and not the skin, there is no risk of testosterone transference to others, a known potential side effect and black box warning
associated with all other topically applied TRTs, including the market leader AndroGel
®
.
Outside
the U.S. we market MiOXSYS
®
, a novel
in vitro
diagnostic device that is currently CE marked (which generally
enables it to be sold within the European Economic Area) and for which we intend to initiate a final clinical study to enable
FDA clearance in the U.S. Our MiOXSYS system is a novel, point-of-care semen analysis system with the potential to become a standard
of care in the diagnosis and management of male infertility. Male infertility is a prevalent and underserved condition and oxidative
stress is widely implicated in its pathophysiology. MiOXSYS was developed from our core oxidation-reduction potential research
platform known as RedoxSYS
®
. We are advancing MiOXSYS toward FDA clearance.
We
currently market ProstaScint
®
(capromab pendetide), the only radioimaging agent indicated to detect the prostate
specific membrane antigen, or PSMA, in the assessment and staging of prostate cancer. ProstaScint is approved by the FDA for use
in both newly diagnosed, high-risk prostate cancer patients and patients with recurrent prostate cancer.
On
May 5, 2017, we acquired Nuelle, Inc, or Nuelle, a women’s sexual health company. This transaction expanded our product
portfolio with the addition of the Fiera
®
personal care device for women. Fiera was recently launched in the U.S.
and is a proprietary, revenue-generating product scientifically proven to enhance physical arousal and sexual desire in the millions
of adult women around the world impacted by changes in sexual desire. This acquisition adds a novel, commercial-stage product
in a complementary adjacency readily accessible by our U.S.-based commercial infrastructure. Nuelle was previously a portfolio
company of leading venture capital firm New Enterprise Associates.
In
the future we will look to acquire additional urology products, including existing products we believe can offer distinct commercial
advantages. Our management team’s prior experience has involved identifying clinical assets that can be re-launched to increase
value, with a focused commercial infrastructure specializing in urology.
Natesto®
(testosterone) nasal gel.
On
April 22, 2016, we entered into an agreement to acquire the exclusive U.S. rights to Natesto (testosterone) nasal gel from Acerus
Pharmaceuticals Corporation, or Acerus, which rights we acquired on July 1, 2016. Natesto is a patented, FDA-approved testosterone
replacement therapy, or TRT, and is the only nasally-administered formulation of testosterone available in the United States.
Natesto is a discreet, easy-to-administer nasal gel that may be appropriate for men with active lifestyles as Natesto is small,
portable, Transportation Security Administration, or TSA-compliant, and easy to use. Importantly, Natesto is not applied directly
to the patient’s skin as other topically applied TRTs are. Rather, it is delivered directly into the nasal mucosa via a
proprietary nasal applicator. Thus, Natesto does not carry a black box warning related to testosterone transference to a man’s
female partner or children — as other topically (primarily gels and solutions) administered TRTs do by virtue of their delivery
directly onto the skin. We launched Natesto in the U.S. in late summer 2016 with our direct sales force, and we are positioning
Natesto as the ideal treatment solution for men with active, busy lifestyles who suffer from hypogonadism.
MiOXSYS®.
MiOXSYS
is a rapid
in vitro
diagnostic semen analysis test used in the quantitative measurement of static oxidation-reduction potential,
or sORP, in human semen. MiOXSYS is a CE marked system and is an accurate, easy to use, and fast infertility assessment tool.
It is estimated that 72.4 million couples worldwide experience infertility problems. In the United States, approximately 10% of
couples are defined as infertile. Male infertility is responsible for between 40 – 50% of all infertility cases and affects
approximately 7% of all men. Male infertility is often unexplained (idiopathic), and this idiopathic infertility is frequently
associated with increased levels of oxidative stress in the semen. As such, having a rapid, easy-to-use diagnostic platform to
measure oxidative stress should provide a practical way for male infertility specialists to improve semen analysis and infertility
assessments without having to refer patients to outside clinical laboratories.
Male
infertility is prevalent and underserved, and oxidative stress is widely implicated in its pathophysiology. The global male infertility
market is expected to grow to over $300 million by 2020 with a CAGR of nearly 5% from 2014 to 2020. Oxidative stress is broadly
implicated in the pathophysiology of idiopathic male infertility, yet very few diagnostic tools exist to effectively measure oxidative
stress levels in men. However, antioxidants are widely available and recommended to infertile men. With the introduction of the
MiOXSYS System, we believe for the first time there will be an easy and effective diagnostic tool to assess the degree of oxidative
stress and potentially enable the monitoring of patients’ responses to antioxidant therapy as a treatment regimen for infertility.
The MiOXSYS System received CE marking in Europe in January 2016 and obtained Health Canada Class II Medical Device approval in
March 2016. We expect to advance MiOXSYS into clinical trials in the United States in order to enable 510k clearance.
ProstaScint®
(capromab pendetide).
We
became a commercial stage company by virtue of our acquisition of ProstaScint in May 2015 and are generating sales of this FDA-approved
prostate cancer imaging agent. As prostate cancer is a condition commonly diagnosed and treated by urologists, ProstaScint complements
our urology-focused product portfolio and pipeline. Prostate cancer is the most common cancer among men in the United States,
with an estimated 241,000 annual cases (as of 2012). Further, more than 2.2 million men were alive in 2006 with some history of
prostate cancer, and over 30,000 U.S. men die each year from the disease. The effect of prostate cancer on healthcare economics
is substantial, which makes the need for accurate disease staging critical for treatment and management strategies. The U.S. market
for the diagnosis and screening of prostate cancer is expected to total $17.4 billion by 2017, a compound annual growth rate,
or CAGR, of 7.5% since 2012. At June 30, 2017, the ProstaScint asset was impaired based upon sales projections that we intend
to only sell this product through mid-fiscal 2019, when this product expires.
Fiera
®
Personal Care Device
The
Fiera Personal Care Device is the first hands-free wearable product for women, specifically designed to increase interest in,
and physical readiness for sex, naturally. The product does so by creating a physically aroused state via the genitals. Co-created
with healthcare professionals, Fiera is a small, discreet, fast-acting, and hands-free product that is designed to be used in
advance of physical intimacy to help women feel ready and in the mood for sex. Fiera uses gentle suction coupled with stimulation
to enhance blood flow to the genitals, increase lubrication, and ultimately get a woman ready for partnered intimacy in as little
as 5 minutes.
With
the acquisition of Nuelle, Inc., Aytu is expanding into the women’s sexual health and wellness market. Sexual wellness is
inclusive of female sexual dysfunction which is a term that describes various sexual problems, such as low desire or interest,
diminished arousal, orgasmic difficulties, and dyspareunia. Female sexual dysfunction is considered common, with an estimated
prevalence of 43% from the U.S. National Health and Social Life Survey and similar estimates from other large, population-based
surveys in the United States and the United Kingdom. In a study of over 31,000 women in the United States it was determined that
44% of women report a sexual problem. Specifically, the most common sexual problem is low desire, with a prevalence of 39%; followed
by low arousal (26%) and orgasm difficulties (21%). Additionally, the incidence of sexual dysfunction is expected to increase
through 2020 to effect more than 124 million women worldwide.
Fiera
has been well studied and tested by health care professionals, and consumers and is scientifically proven to enhance arousal and
interest in women of all ages, including pre- and post-menopausal women. Recent consumer study results in women ages 25 –
75 showed that after 4 weeks of using Fiera:
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97%
of women felt physically aroused;
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96%
looked forward to being intimate with their partner;
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93%
felt excited and ready for sex;
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89%
of women felt more “in the mood”;
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87%
felt as ready for sex as their partner did;
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86%
of women felt a stronger emotional connection with their partner;
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85%
reported their orgasm felt pleasurable and intense;
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85%
thought about sex more often; and
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85%
engaged in sexual activity more often and felt satisfied in her relationship.
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Previous
studies also showed that 87% of women felt increased desire and 67% felt increased lubrication.
Key
elements of our business strategy include:
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Expand
the commercialization of Natesto in the U.S. for the treatment of hypogonadism with our direct sales force. We launched Natesto
in late summer 2016 and are targeting high prescribing TRT prescribers with a primary emphasis on urologists and male health
practitioners.
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Expand
the commercialization in the U.S. of Fiera, through professional promotion using our existing sales force.
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Establish
MiOXSYS as a leading in vitro diagnostic device in the assessment of male infertility.
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Continue
the commercialization of FDA-approved ProstaScint for the staging of both newly diagnosed high-risk and recurrent prostate
cancer patients.
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Acquire
additional marketed products and late-stage development assets within our core urology focus that can be efficiently marketed
through our growing commercial organization.
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Develop
a pipeline of urology products, with a focus on identifying novel products with sufficient clinical proof of concept that
require modest internal R&D expense.
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We
plan to augment our core in-development and commercial assets through efficient identification of complementary therapeutics,
devices, and diagnostics related to urological disorders. We intend to seek assets that are near commercial stage or already generating
revenues. Further, we intend to seek to acquire products through asset purchases, licensing, co-development, or collaborative
commercial arrangements (co-promotions, co-marketing, etc.).
Our
management team has extensive experience across a wide range of business development activities and have in-licensed or acquired
products from large, mid-sized, and small enterprises in the United States and abroad. Through an assertive product and business
development approach, we expect that we will build a substantial portfolio of complementary urology products.
Corporate
Information
We
were incorporated as Rosewind Corporation on August 9, 2002 in the State of Colorado.
Vyrix
Pharmaceuticals, Inc., or Vyrix, was incorporated under the laws of the State of Delaware on November 18, 2013 and was wholly
owned by Ampio Pharmaceuticals, Inc. (NYSE American: AMPE), or Ampio, immediately prior to the completion of the Merger (defined
below). Vyrix was previously a carve-out of the sexual dysfunction therapeutics business, including the late-stage men’s
health product candidates, Zertane and Zertane-ED, from Ampio, that carve-out was announced in December 2013. Luoxis Diagnostics,
Inc., or Luoxis, was incorporated under the laws of the State of Delaware on January 24, 2013 and was majority owned by Ampio
immediately prior to the completion of the Merger. Luoxis was initially focused on developing and advancing the RedoxSYS System.
The MiOXSYS System was developed following the completed development of the RedoxSYS System.
On
March 20, 2015, Rosewind formed Rosewind Merger Sub V, Inc. and Rosewind Merger Sub L, Inc., each a wholly-owned subsidiary formed
for the purpose of the Merger, and on April 16, 2015, Rosewind Merger Sub V, Inc. merged with and into Vyrix and Rosewind Merger
Sub L, Inc. merged with and into Luoxis, and Vyrix and Luoxis became subsidiaries of Rosewind. Immediately thereafter, Vyrix and
Luoxis merged with and into Rosewind with Rosewind as the surviving corporation (herein referred to as the Merger). Concurrent
with the closing of the Merger, Rosewind abandoned its pre-merger business plans, and we now solely pursue the specialty healthcare
market, focusing on urological related conditions, including the business of Vyrix and Luoxis. When we discuss our business in
this prospectus, we include the pre-Merger business of Luoxis and Vyrix.
On
June 8, 2015, we (i) reincorporated as a domestic Delaware corporation under Delaware General Corporate Law and changed our name
from Rosewind Corporation to Aytu BioScience, Inc., and (ii) effected a reverse stock split in which each common stock holder
received one share of common stock for each 12.174 shares outstanding. At our annual meeting of shareholders held on May 24, 2016,
our shareholders approved (1) an amendment to our Certificate of Incorporation to reduce the number of authorized shares of common
stock from 300.0 million to 100.0 million, which amendment was effective on June 1, 2016, and (2) an amendment to our Certificate
of Incorporation to affect a reverse stock split at a ratio of 1-for-12 which became effective on June 30, 2016. At our special
meeting of shareholders held on July 26, 2017, our shareholders approved an amendment to our Certificate of Incorporation to affect
a reverse stock split at a ratio of 1-for-20 which became effective on August 25, 2017. All share and per share amounts in this
prospectus have been adjusted to reflect the effect of these three reverse stock splits (hereafter referred to collectively as
the “Reverse Stock Splits”).
Our
principal executive offices are located at 373 Inverness Parkway, Suite 206, Englewood, Colorado 80112, and our phone number is
(720) 437-6580. Our corporate website address is http://aytubio.com. The information contained on, connected to or that can be
accessed via our website is not part of this prospectus. We have included our website address in this prospectus as an inactive
textual reference only and not as an active hyperlink.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Before making an investment decision, you should consider carefully the risks,
uncertainties and other factors described in our most recent Annual Report on Form 10-K, as supplemented and updated by subsequent
quarterly reports on Form 10-Q and current reports on Form 8-K that we have filed or will file with the SEC, which are incorporated
by reference into this prospectus.
Our
business, affairs, prospects, assets, financial condition, results of operations and cash flows could be materially and adversely
affected by these risks. For more information about our SEC filings, please see “Where You Can Find More Information.”
USE
OF PROCEEDS
Unless
otherwise indicated in a prospectus supplement, we intend to use the net proceeds from the sale of the securities under this prospectus
for general corporate purposes, including and for general working capital purposes. We may also use a portion of the net proceeds
to acquire or invest in businesses and products that are complementary to our own, although we have no current plans, commitments
or agreements with respect to any acquisitions as of the date of this prospectus.
DESCRIPTION
OF CAPITAL STOCK
General
We
are authorized to issue up to 100.0 million shares of common stock, par value $0.0001 per share, and 50.0 million shares of preferred
stock, par value $0.0001 per share.
As
of November 21, 2017, a total of 4,897,638 shares of our common stock were issued and outstanding, and a total of 1,900
shares of our Series A Convertible Preferred Stock were issued and outstanding.
Common
Stock
The
holders of common stock are entitled to one vote per share. Our Certificate of Incorporation does not expressly prohibit cumulative
voting. The holders of our common stock are entitled to receive ratably such dividends, if any, as may be declared by the Board
of Directors out of legally available funds. Upon liquidation, dissolution or winding-up, the holders of our common stock are
entitled to share ratably in all assets that are legally available for distribution. The holders of our common stock have no preemptive,
subscription, redemption or conversion rights.
The
rights, preferences and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights
of the holders of any series of preferred stock, which may be designated solely by action of the Board of Directors and issued
in the future.
Preferred
Stock
Our
Certificate of Incorporation provides our Board of Directors with the authority to divide the preferred stock into series and
to fix and determine the rights and preferences of the shares of any series of preferred stock established to the full extent
permitted by the laws of the State of Delaware and the Certificate of Incorporation.
On
August 11, 2017, we filed a Certificate of Designation of Series A Convertible Preferred Stock with the Delaware Secretary of
State classifying and designating the rights, preferences and privileges of the Series A Preferred Stock, of which there are 10,000
shares authorized. As of August 15, 2017, a total of 2,250 shares of Series A Convertible Preferred Stock were issued and outstanding.
At any time, at the option of the holder, Series A Preferred Stock may be converted into a number of shares of common stock equal
to $1,000.00 divided by the conversion price, which is $3.00, subject to adjustment for stock splits, stock dividends and similar
corporate events. A holder will be prohibited from converting any Series A Preferred Stock if, as a result of such conversion,
the holder, together with its affiliates, would own more than 9.99% of the total number of shares of our common stock then issued
and outstanding. Except as otherwise expressly provided by law, the holders of shares of Series A Preferred Stock are entitled
to vote with the common stock, as if converted into shares of common stock, provided, however, that in no event will a holder
of shares of Series A Preferred Stock be entitled to vote a number of shares in excess of such holder’s Beneficial Ownership
Limitation.
Transfer
Agent and Registrar
The
transfer agent of our common stock is VStock Transfer. Their address is 18 Lafayette Place, Woodmere, NY 11598.
Listing
Our
common stock is currently traded on the NASDAQ Capital Market under the symbol “AYTU”.
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of preferred stock or common stock. Warrants may be issued independently or together with
any preferred stock or common stock, and may be attached to or separate from any offered securities. Each series of warrants will
be issued under a separate warrant agreement to be entered into between a warrant agent specified in the agreement and us. The
warrant agent will act solely as our agent in connection with the warrants of that series and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial owners of warrants. This summary of some provisions of the
securities warrants is not complete. You should refer to the securities warrant agreement, including the forms of securities warrant
certificate representing the securities warrants, relating to the specific securities warrants being offered for the complete
terms of the securities warrant agreement and the securities warrants. The securities warrant agreement, together with the terms
of the securities warrant certificate and securities warrants, will be filed with the Securities and Exchange Commission in connection
with the offering of the specific warrants.
The
applicable prospectus supplement will describe the following terms, where applicable, of the warrants in respect of which this
prospectus is being delivered:
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the
title of the warrants;
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the
aggregate number of the warrants;
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the
price or prices at which the warrants will be issued;
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the
designation, amount and terms of the offered securities purchasable upon exercise of the warrants;
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if
applicable, the date on and after which the warrants and the offered securities purchasable upon exercise of the warrants
will be separately transferable;
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the
terms of the securities purchasable upon exercise of such warrants and the procedures and conditions relating to the exercise
of such warrants;
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any
provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price
of the warrants;
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the
price or prices at which and currency or currencies in which the offered securities purchasable upon exercise of the warrants
may be purchased;
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the
date on which the right to exercise the warrants shall commence and the date on which the right shall expire;
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the
minimum or maximum amount of the warrants that may be exercised at any one time;
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information
with respect to book-entry procedures, if any;
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if
appropriate, a discussion of Federal income tax consequences; and
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any
other material terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of
the warrants.
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Warrants
for the purchase of common stock or preferred stock will be offered and exercisable for U.S. dollars only. Warrants will be issued
in registered form only.
Upon
receipt of payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant
agent or any other office indicated in the applicable prospectus supplement, we will, as soon as practicable, forward the purchased
securities. If less than all of the warrants represented by the warrant certificate are exercised, a new warrant certificate will
be issued for the remaining warrants.
Prior
to the exercise of any securities warrants to purchase preferred stock or common stock, holders of the warrants will not have
any of the rights of holders of the common stock or preferred stock purchasable upon exercise, including in the case of securities
warrants for the purchase of common stock or preferred stock, the right to vote or to receive any payments of dividends on the
preferred stock or common stock purchasable upon exercise.
DESCRIPTION
OF UNITS
As
specified in the applicable prospectus supplement, we may issue units consisting of shares of common stock, shares of preferred
stock or warrants or any combination of such securities.
The
applicable prospectus supplement will specify the following terms of any units in respect of which this prospectus is being delivered:
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the
terms of the units and of any of the common stock, preferred stock and warrants comprising the units, including whether and
under what circumstances the securities comprising the units may be traded separately;
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a
description of the terms of any unit agreement governing the units; and
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a
description of the provisions for the payment, settlement, transfer or exchange of the units.
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PLAN
OF DISTRIBUTION
We
may sell the securities offered through this prospectus (i) to or through underwriters or dealers, (ii) directly to purchasers,
including our affiliates, (iii) through agents, or (iv) through a combination of any these methods. The securities may be distributed
at a fixed price or prices, which may be changed, market prices prevailing at the time of sale, prices related to the prevailing
market prices, or negotiated prices. The prospectus supplement will include the following information:
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the
terms of the offering;
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the
names of any underwriters or agents;
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the
name or names of any managing underwriter or underwriters;
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the
purchase price of the securities;
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any
over-allotment options under which underwriters may purchase additional securities from us;
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the
net proceeds from the sale of the securities
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any
delayed delivery arrangements
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any
underwriting discounts, commissions and other items constituting underwriters’ compensation;
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any
initial public offering price;
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any
discounts or concessions allowed or reallowed or paid to dealers;
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any
commissions paid to agents; and
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any
securities exchange or market on which the securities may be listed.
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Sale
Through Underwriters or Dealers
Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in the sale, the underwriters will acquire the securities for their own account, including through underwriting,
purchase, security lending or repurchase agreements with us. The underwriters may resell the securities from time to time in one
or more transactions, including negotiated transactions. Underwriters may sell the securities in order to facilitate transactions
in any of our other securities (described in this prospectus or otherwise), including other public or private transactions and
short sales. Underwriters may offer securities to the public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more firms acting as underwriters. Unless otherwise indicated in the prospectus supplement,
the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will
be obligated to purchase all the offered securities if they purchase any of them. The underwriters may change from time to time
any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
If
dealers are used in the sale of securities offered through this prospectus, we will sell the securities to them as principals.
They may then resell those securities to the public at varying prices determined by the dealers at the time of resale. The prospectus
supplement will include the names of the dealers and the terms of the transaction.
Direct
Sales and Sales Through Agents
We
may sell the securities offered through this prospectus directly. In this case, no underwriters or agents would be involved. Such
securities may also be sold through agents designated from time to time. The prospectus supplement will name any agent involved
in the offer or sale of the offered securities and will describe any commissions payable to the agent. Unless otherwise indicated
in the prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its
appointment.
We
may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning
of the Securities Act with respect to any sale of those securities. The terms of any such sales will be described in the prospectus
supplement.
Delayed
Delivery Contracts
If
the prospectus supplement indicates, we may authorize agents, underwriters or dealers to solicit offers from certain types of
institutions to purchase securities at the public offering price under delayed delivery contracts. These contracts would provide
for payment and delivery on a specified date in the future. The contracts would be subject only to those conditions described
in the prospectus supplement. The applicable prospectus supplement will describe the commission payable for solicitation of those
contracts.
Continuous
Offering Program
Without
limiting the generality of the foregoing, we may enter into a continuous offering program equity distribution agreement with a
broker-dealer, under which we may offer and sell shares of our common stock from time to time through a broker-dealer as our sales
agent. If we enter into such a program, sales of the shares of common stock, if any, will be made by means of ordinary brokers’
transactions on the NASDAQ Capital Market at market prices, block transactions and such other transactions as agreed upon by us
and the broker-dealer. Under the terms of such a program, we also may sell shares of common stock to the broker-dealer, as principal
for its own account at a price agreed upon at the time of sale. If we sell shares of common stock to such broker-dealer as principal,
we will enter into a separate terms agreement with such broker-dealer, and we will describe this agreement in a separate prospectus
supplement or pricing supplement.
Market
Making, Stabilization and Other Transactions
Unless
the applicable prospectus supplement states otherwise, other than our common stock all securities we offer under this prospectus
will be a new issue and will have no established trading market. We may elect to list offered securities on an exchange or in
the over-the-counter market. Any underwriters that we use in the sale of offered securities may make a market in such securities,
but may discontinue such market making at any time without notice. Therefore, we cannot assure you that the securities will have
a liquid trading market.
Any
underwriter may also engage in stabilizing transactions, syndicate covering transactions and penalty bids in accordance with Rule
104 under the Securities Exchange Act. Stabilizing transactions involve bids to purchase the underlying security in the open market
for the purpose of pegging, fixing or maintaining the price of the securities. Syndicate covering transactions involve purchases
of the securities in the open market after the distribution has been completed in order to cover syndicate short positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the
syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. Stabilizing transactions,
syndicate covering transactions and penalty bids may cause the price of the securities to be higher than it would be in the absence
of the transactions. The underwriters may, if they commence these transactions, discontinue them at any time.
General
Information
Agents,
underwriters, and dealers may be entitled, under agreements entered into with us, to indemnification by us against certain liabilities,
including liabilities under the Securities Act. Our agents, underwriters, and dealers, or their affiliates, may be customers of,
engage in transactions with or perform services for us, in the ordinary course of business.
LEGAL
MATTERS
The
validity of the issuance of the securities offered by this prospectus will be passed upon for us by Sichenzia Ross Ference Kesner
LLP, New York, New York.
EXPERTS
The
consolidated financial statements of Aytu BioScience, Inc. at June 30, 2017 and 2016, and for each of the two years in the period
ended June 30, 2017, included in this prospectus have been audited by EKS&H LLLP, independent registered public accounting
firm, as set forth in their report thereon appearing elsewhere herein, and are included in reliance upon such report given on
the authority of such firm as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
file annual, quarterly and special reports, along with other information with the SEC. Our SEC filings are available to the public
over the Internet at the SEC’s website at http://www.sec.gov. You may also read and copy any document we file at the SEC’s
Public Reference Room at 100 F Street, NE, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information
on the Public Reference Room.
This
prospectus is part of a registration statement on Form S-3 that we filed with the SEC to register the securities offered hereby
under the Securities Act of 1933, as amended. This prospectus does not contain all of the information included in the registration
statement, including certain exhibits and schedules. You may obtain the registration statement and exhibits to the registration
statement from the SEC at the address listed above or from the SEC’s internet site.
You
may also read and copy any document we file with the SEC at its public reference facilities at 100 F Street, N.E., Room 1580,
Washington, D.C. 20549. You may also obtain copies of these documents at prescribed rates by writing to the Public Reference Section
of the SEC at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
operation of the public reference facilities. You may also request a copy of these filings, at no cost, by writing or telephoning
us at: 373 Inverness Parkway, Suite 206, Englewood, Colorado 80112, (720) 437-6580.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
This
prospectus is part of a registration statement filed with the SEC. The SEC allows us to “incorporate by reference”
into this prospectus the information that we file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information
that we file later with the SEC will automatically update and supersede this information. The following documents are incorporated
by reference and made a part of this prospectus:
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our
Annual Report on Form 10-K for the fiscal year ended June 30, 2017, filed with the SEC on August 31, 2017.
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our
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2017, filed with the SEC on November 9, 2017.
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our
Current Reports on Form 8-K filed with the SEC on July 27, 2017, August 16, 2017, August 29, 2017, October 3, 2017, and October
27, 2017, including our amended current report on Form 8-K filed on July 20, 2017.
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the
description of our common stock contained in our Registration Statement on Form 8-A filed with the SEC on October 17, 2017
(File No. 001-38247), including any amendment or report filed for the purpose of updating such description; and
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all
reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the date of this prospectus and prior to the termination of this offering.
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Notwithstanding
the foregoing, information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including the related exhibits,
is not incorporated by reference in this prospectus.
Any
statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this
prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained
in this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as
so modified or superseded, to constitute a part of this prospectus.
We
will furnish without charge to you, on written or oral request, a copy of the Annual Report incorporated by reference, including
exhibits to the document. You should direct any requests for documents to Aytu BioScience, Inc., 373 Inverness Parkway, Suite
206, Englewood, Colorado 80112, (720) 437-6580.
$100,000,000
Common
Stock
Preferred
Stock
Warrants
Units
Prospectus
,
2017
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the costs and expenses payable by the Registrant in connection with this offering, other than underwriting
commissions and discounts, all of which are estimated except for the SEC registration fee.
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Item
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Amount
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SEC registration fee
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$
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12,450
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Printing and engraving expenses
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10,000
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Legal fees and expenses
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25,000
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Accounting fees and expenses
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5,000
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Transfer agent and registrar’s fees and expenses
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5,000
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Miscellaneous expenses
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2,550
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Total
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$
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60,000
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Item
15. Indemnification of Directors and Officers.
We
are incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law provides that a
Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right
of such corporation), by reason of the fact that such person was an officer, director, employee or agent of such corporation,
or is or was serving at the request of such person as an officer, director, employee or agent of another corporation or enterprise.
The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with
respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was illegal. A Delaware corporation
may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit
by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation
or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person
in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the corporation’s best interests except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify
him against the expenses which such officer or director has actually and reasonably incurred. Our certificate of incorporation
and bylaws provide for the indemnification of our directors and officers to the fullest extent permitted under the Delaware General
Corporation Law.
Section
102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach
of fiduciary duties as a director, except for liability for any:
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transaction
from which the director derives an improper personal benefit;
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act
or omission not in good faith or that involves intentional misconduct or a knowing violation
of law;
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unlawful
payment of dividends or redemption of shares; or
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breach
of a director’s duty of loyalty to the corporation or its stockholders.
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Our
certificate of incorporation includes such a provision. Expenses incurred by any officer or director in defending any such action,
suit or proceeding in advance of its final disposition shall be paid by us upon delivery to us of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified by us.
As
permitted by the Delaware General Corporation Law, we have entered into indemnity agreements with each of our directors and executive
officers. These agreements, among other things, require us to indemnify each director and officer to the fullest extent permitted
by law and advance expenses to each indemnitee in connection with any proceeding in which indemnification is available.
We
have an insurance policy covering our officers and directors with respect to certain liabilities, including liabilities arising
under the Securities Act of 1933, as amended, or the Securities Act, or otherwise.
Item
16. Exhibits.
*
To be filed by amendment or by a Current Report on Form 8-K and incorporated by reference herein.
Item
17. Undertakings
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided,
however
, Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on
Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
or (5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the
initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The registrant hereby undertakes that for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication of such issue.
(d)
The registrant hereby undertakes that:
(1)
For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective.
(2)
For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for fling on Form S-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Englewood, State of Colorado, on November 22, 2017.
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AYTU
BIOSCIENCE, INC.
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By:
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/s/
Joshua R. Disbrow
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Joshua
R. Disbrow
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Chief
Executive Officer,
Acting Chief Financial Officer
(Principal Executive Officer and
Principal Financial and Accounting
Officer)
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Each
person whose signature appears below constitutes and appoints Joshua R. Disbrow as his true and lawful attorney in fact and agent,
with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign
any or all amendments (including post effective amendments) to the Registration Statement, and to sign any registration statement
for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, and all post effective amendments thereto, and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, each acting alone, 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 he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities held on the dates indicated.
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/s/
Joshua R. Disbrow
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Chief
Executive Officer, Acting Chief Financial Officer and Director of the Board of Directors
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Joshua
R. Disbrow
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(Principal
Executive Officer and Principal Financial and Accounting Officer)
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November
22, 2017
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/s/
Michael Macaluso
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Michael
Macaluso
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Director
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November
22, 2017
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/s/
Gary Cantrell
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Gary
Cantrell
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Director
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November
22, 2017
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/s/
Carl C. Dockery
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Carl
C. Dockery
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Director
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November
22, 2017
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/s/
John Donofrio, Jr.
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John
Donofrio, Jr.
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Director
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November
22, 2017
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II-5
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