EXHIBIT 99.1

 

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SIDLEY AUSTIN LLP

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AMERICA • ASIA PACIFIC • EUROPE

 

July 30, 2021

Via E-Mail and FedEx

Paul A. Rosenbaum

2945 NW Luray Terrace

Portland, Oregon 97210

exitpoll@aol.com

 

Re:

Purported Nomination Notice for the 2021 Annual Meeting of Stockholders of CytoDyn Inc.

Ladies and Gentlemen:

On behalf of our client, CytoDyn Inc., a Delaware corporation (“CYDY” or the “Company”), I am writing in response to the letter to the Company from Messrs. Rosenbaum, Wilmes and Beaty (the “Proposing Persons”), which was dated June 30, 2021, but was actually received by the Secretary at the principal executive offices of the Company in the manner prescribed by the Company’s Amended and Restated Bylaws (the “Bylaws”) on July 1, 2021 (the “Notice Letter”). The Notice Letter states that the Proposing Persons intend to nominate five candidates for election as directors at CYDY’s 2021 annual meeting of stockholders (the “2021 Annual Meeting”). Capitalized terms used but not defined in this letter shall have the meanings given to such terms in the Bylaws.

The Notice Letter requests that the Company notify Mr. Rosenbaum, as a representative of the Proposing Persons, if the Company determines that the Notice Letter is incomplete or otherwise deficient in any respect. This letter is a response to that request. The Company reserves all rights with respect to the Notice Letter and the failure of the Notice Letter to comply with the applicable requirements.

For the protection of the Company and its stockholders, the Bylaws include an “advance notice provision,” set forth in Section 2 of the Bylaws. Section 2(a)(1)(iii) of the Bylaws, which is the “exclusive means for a stockholder to bring nominations before the annual meeting,” provides that “[n]ominations of persons for election to the Board of Directors and the proposal of other business to be considered by the stockholders may be brought before an Annual Meeting only . . . by any stockholder of the Corporation…who complies with the notice procedures set forth

 

Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships.


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in this By-law. . . .” (emphasis added). The Notice Letter does not constitute valid notice of nominations for the 2021 Annual Meeting because the Notice Letter fails to satisfy the requirements set forth in Section 2 of the Bylaws in numerous ways, including (but not limited to) the following:

 

1.

Section 2(a)(1) of the Bylaws states that “[n]ominations of persons for election to the Board of Directors and the proposal of other business to be considered by the stockholders may be brought before an Annual Meeting only . . . by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice ” (emphasis added). The Notice Letter asserts that all three of the Proposing Persons were stockholders of record as of June 30, 2021. However, the Company’s records indicate that Messrs. Wilmes and Beaty were not stockholders of record at such time, and therefore, the Proposing Persons, as a group, were not eligible to make any nominations pursuant to the Bylaws.

 

2.

Section 2(a)(2)(D) of the Bylaws requires the Proposing Persons to provide a “ description of all agreements, arrangements or understandings by and among any of the Proposing Persons, or by and among any Proposing Persons and any other person pertaining to the nomination(s) or other business proposed to be brought before the meeting of stockholders” and “identification of the names and addresses of other stockholders (including beneficial owners) known by any of the Proposing Persons to support such nominations or other business proposal(s), and to the extent known the class and number of all shares of the Corporation’s capital stock owned beneficially or of record by such other stockholder(s) or other beneficial owner(s).” The Notice Letter fails to state that the Proposing Persons are party to at least one agreement of which we are aware—a joint filing agreement, dated as of May 24, 2021. It also fails to identify any stockholders who are known to support the nominations of the Proposing Persons.

 

3.

Section 2(a)(2)(A) of the Bylaws requires each person nominated by the Proposing Persons to give “written consent to being named in the proxy statement as a nominee and to serving as a director if elected.” However, in the consents of the nominees that are provided in Exhibit A to the Notice Letter, the nominees consent only to being named as nominees in any proxy statement filed by the Proposing Persons or their affiliates. The nominees do not consent to being named as nominees in the Company’s proxy statement and form of proxy, as required by the Bylaws.

 

4.

Section 2(a)(2)(A) of the Bylaws requires the Proposing Persons to provide, as to each nominee, “all information relating to such person that is required to be disclosed in

 

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  solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act.” The Notice Letter fails to provide the information required by the following Items in Exchange Act Rule 14a-101:

 

  a.

Item 5(b)(1)(iii): The Proposing Persons fail to provide the names, principal businesses and addresses of each corporation or organization where the Proposing Persons and the nominees are employed.

 

  b.

Item 5(b)(i)(vi): The Proposing Persons are required to state, with respect to all securities of the Company purchased or sold within the past two years, the dates on which they were purchased or sold and the amount purchased or sold on each such date. Exhibit B to the Notice Letter purports to provide such information, but it contains a number of errors and omissions, including:

 

  i.

Exhibit B omits certain transactions on October 13, 2019 and December 9, 2019, through which Dr. Errico acquired additional beneficial ownership of shares of the Company’s stock.

 

  ii.

Exhibit B states that Dr. Patterson has not acquired or disposed of beneficial ownership of shares of the Company’s stock within the past two years, which is false. Dr. Patterson received Company stock options on October 7, 2019 and December 19, 2019 , and exercised an option covering 100,000 shares on February 5, 2020.

 

  iii.

Exhibit B fails to list Mr. Rosenbaum’s sale of shares of Company stock on April 19, 2021.

 

  c.

Item 6(b): The Proposing Persons fail to provide, in the necessary tabular form, the information required by Item 403 of Regulation S-K.

 

  d.

Item 7(b): The Proposing Persons fail to adequately provide, per Item 401 of Regulation S-K, the reason that Messrs. Patterson, Errico and Rosenbaum should serve on the board, in light of the Company’s specific business and structure; rather, the Proposing Persons simply cite to their broad medical industry experience.

 

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  e.

Item 7(b): The Proposing Persons fail to provide, per Item 401 of Regulation S- K, whether the nominees have had involvement in any legal proceedings that occurred during the past ten years and that are material to an evaluation of the ability or integrity of such nominees.

 

  f.

Item 7(b): The Proposing Persons fail to state whether each of the nominees has been determined to be an “independent” nominee pursuant to Item 407 of Regulation S-K.

Moreover, Exchange Act Rule 14a-9 mandates that the Proposing Persons may not omit “to state any material fact necessary in order to make the statements [in the Notice Letter] not false or misleading.” In fact, the Notice Letter omits multiple facts that make it incomplete, false and misleading. For instance, the Notice Letter fails to discuss the prior relationship between one of the nominees, Dr. Patterson, who is CEO of IncellDx, Inc. (“IncellDx”), and the Company. The Notice Letter does not state that: (i) the Company’s consulting agreement with IncellDx was terminated by Dr. Patterson, (ii) in May 2020, IncellDx made a private offer to be purchased by CYDY, which CYDY rejected because it was not in the best interest of the Company and its stockholders, and (iii) Dr. Patterson attempted to patent certain uses of the Company’s drug candidate, leronlimab, as his own, which was rejected by the U.S. Patent and Trademarks Office. These facts make Dr. Patterson highly conflicted with respect to CYDY and are therefore material, and none of these material facts have been disclosed in the Notice Letter.

In addition, the Notice Letter omits the material fact that the Proposing Persons are members of a larger group of investors that filed a Schedule 13D with respect to the Company’s stock on May 24, 2021, amended subsequently on June 4, 2021 and June 30, 2021 (the “Schedule 13D”). This larger group includes two former directors—Richard Pestell and Anthony Caracciolo—who served on the Company’s board and therefore have a potential conflict with the Company’s current leadership. In fact, Mr. Pestell is a plaintiff adverse to the Company in connection with the July 2019 termination for cause of his employment with the Company, which in turn also removed him from the Company’s Board of Directors. None of these material facts have been disclosed in the Notice Letter.

Finally, the Notice Letter omits the material fact that Mr. Rosenbaum formed an entity called CCTV Proxy Group, LLC (“CCTV”) in Delaware on May 18, 2021. CCTV is the entity through which the Proposing Persons will ostensibly be managing and funding their proxy campaign, but the Notice Letter does not disclose the existence of CCTV, nor provide any information about which individuals control CCTV or where CCTV receives its funding.

 

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5.

With respect to each nominee for election to the Board of Directors, Section 2(b)(6) of the Bylaws requires the Proposing Persons to include with the Notice Letter a completed and signed questionnaire (each, a “Questionnaire”) from each Proposing Person and nominee. A list of select incomplete, incorrect or inconsistent statements and omissions (“Misstatements”) in each Questionnaire are identified below. The sheer volume of Misstatements that we have been able to identify strongly suggests that there are many additional Misstatements of which we are unaware. To state the obvious, the purpose of the Questionnaire is to obtain true and correct information that is not already known. As a result, the Questionnaires submitted do not satisfy the requirements set forth in the Bylaws.

The Questionnaire submitted from Dr. Patterson is deficient in numerous ways, including the following:

 

  a.

Dr. Patterson’s response to question A3 omits the fact that Dr. Patterson is the sole proprietor of an entity called Bywatyr LLC, and provides no information about such entity or his role therein.

 

  b.

Dr. Patterson’s response to question B1(viii) omits the fact that Dr. Patterson received stock options on October 7, 2019 and December 19, 2019, in addition to the cash payments, as compensation under IncellDx’s consulting agreement with the Company, which commenced on October 10, 2018 until he advised the Company of his decision to terminate the consulting agreement effective May 22, 2020, concurrent with his citing his interest to become an employee and the purchase proposal IncellDx sent to Cytodyn.

 

  c.

Question B6 asks whether Dr. Patterson controls any entities, either directly or indirectly. Dr. Patterson’s response is “no,” but it is clear that Dr. Patterson controls IncellDx as both its CEO and a significant stockholder (together with his wife, Dr. Patterson owns approximately 34% of IncellDx).

 

  d.

Question B7 asks whether Dr. Patterson can exert significant influence over an entity, to the extent such entity may be prevented from pursuing its own separate interests in a transaction with CYDY. Dr. Patterson’s response is “no,” but Dr. Patterson clearly exerts significant influence over IncellDx as both its

 

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  CEO and a significant stockholder. In a potential transaction between CYDY and IncellDx, Dr. Patterson would be highly conflicted if he were serving on the CYDY board.

 

  e.

Dr. Patterson’s response to question C1 cites the Company’s Form S-3/A filed on April 30, 2020. Dr. Patterson has previously been notified by the Company that such Form S-3/A inaccurately stated his holdings due to an error, so he was not entitled to rely on it in his response.

 

  f.

Dr. Patterson’s responses to questions C1, C2 and C3 are inconsistent. In response to question C2, Dr. Patterson states that 596,242 shares of the Company’s stock are beneficially held by IncellDx, and Dr. Patterson, in turn, owns 17.92% of IncellDx (which would mean that Dr. Patterson only owns a portion of the 596,242 shares). On the other hand, the responses to question C1 and C3 state that Dr. Patterson beneficially owns all 569,242 shares and that all such shares are held directly in his name.

 

  g.

Question C6 asks whether Dr. Patterson is part of a “group” for the purpose of acquiring, holding, voting or disposing of securities of the Company. He responds “no” but the correct response is “yes.” Dr. Patterson is a member of the group that filed the Schedule 13D.

 

  h.

Question C7 asks Dr. Patterson to list the persons or groups who beneficially own over 5% of the Company’s stock. He replies “[o]ur 13D group,” which is not responsive to the instructions to provide a list.

 

  i.

Dr. Patterson’s response to question F7 fails to specify that Dr. Patterson is a controlling stockholder of IncellDx. Together with his wife, Dr. Patterson owns approximately 34% of IncellDx; that substantial ownership stake, combined with his role as CEO and his relationships with IncellDx’s directors, including Mr. Beaty, leads us to conclude that Dr. Patterson is IncellDx’s controlling stockholder. This seems largely corroborated by Dr. Patterson’s beneficial ownership disclosure, in which he identifies himself as beneficially owning shares that are directly owned by IncellDx.

 

  j.

In his response to question F14, Dr. Patterson states that he has no relationships that could interfere with his independent judgment in carrying out his duties as

 

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  a director. Again, Dr. Patterson fails to state that he is CEO and a significant stockholder in IncellDx, a company that has had a working relationship with CYDY in the past and has expressed interest in being purchased by CYDY in the future, as evidenced by the May 22, 2020 proposal put forth by IncellDx and their bank, Moelis & Company, wherein CYDY was to acquire IncellDx for $350 million and Dr. Patterson was to become an employee of the Company.

 

  k.

Dr. Patterson’s response to question G4 fails to disclose stock options granted to him as compensation under IncellDx’s consulting agreement with the Company.

The Questionnaire submitted from Ms. Yeager is deficient in numerous ways, including the following:

 

  a.

Ms. Yeager’s responses to questions A3 and A12 state “see attached.” However, there are no accompanying attachments that provide relevant responses to these questions.

 

  b.

Question C6 asks whether Ms. Yeager is part of a “group” for the purpose of acquiring, holding, voting or disposing of securities of the Company. She responds “no” but the correct response is “yes.” Ms. Yeager is a member of the group that filed the Schedule 13D.

 

  a.

Question C7 asks Ms. Yeager if she knows any group that beneficially owns more than 5% of the Company’s stock. She replies “no,” which is clearly false since she is a member of such a group.

The Questionnaire submitted from Mr. Beaty is deficient in numerous ways, including the following:

 

  a.

Mr. Beaty’s response to question B1(viii) omits the fact that Mr. Beaty indirectly received beneficial ownership via stock options that were paid as compensation under IncellDx’s consulting agreement with the Company.

 

  b.

Question B7 asks whether Mr. Beaty can exert significant influence over an entity, to the extent such entity may be prevented from pursuing its own

 

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  separate interests in a transaction with CYDY. Mr. Beaty response is “no,” but Mr. Beaty clearly exerts significant influence over IncellDx as chairman of its board of directors.

 

  c.

Mr. Beaty’s response to question C(1) fails to list the stock options that he indirectly owns through IncellDx’s ownership of such options.

 

  d.

Question C6 asks whether Mr. Beaty is part of a “group” for the purpose of acquiring, holding, voting or disposing of securities of the Company. He responds “no” but the correct response is “yes.” Mr. Beaty is a member of the group that filed the Schedule 13D.

 

  e.

Question C7 asks Mr. Beaty to list the persons or groups who beneficially own over 5% of the Company’s stock. He replies “[o]ur 13D group,” which is not responsive to the instructions to provide a list.

 

  f.

Mr. Beaty’s response to question G4 is inaccurate since he is an investor in IncellDx, which Dr. Patterson states in his Questionnaire (in response to question G4) received consulting fees from the Company.

The Questionnaire submitted from Mr. Rosenbaum is deficient in numerous ways, including the following:

 

  a.

Mr. Rosenbaum’s completed Questionnaire is missing page 5 of the Questionnaire form.

 

  b.

Question C6 asks whether Mr. Rosenbaum is part of a “group” for the purpose of acquiring, holding, voting or disposing of securities of the Company. He responds “no” but the correct response is “yes.” Mr. Rosenbaum is a member of the group that filed the Schedule 13D.

 

  c.

Question C7 asks Mr. Rosenbaum if he knows any group that beneficially owns more than 5% of the Company’s stock. He replies “no,” which is clearly false since he is a member of such a group.

 

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The Questionnaire submitted from Mr. Wilmes is deficient in numerous ways, including the following:

 

  a.

Mr. Wilmes’s response to question A3 omits the fact that Mr. Wilmes is the current CEO of Rising Star Racing and the current president of the Wilmes Family Charitable Foundation Inc.

 

  b.

Question C6 requires Mr. Wilmes to list the date of the most recent 13D filing referenced in his response, which he fails to do.

 

  c.

Question C7 asks Mr. Wilmes to list the persons or groups who beneficially own over 5% of the Company’s stock. He replies “[s]ee 13D filing,” which is not responsive to the instructions to provide a list.

 

  d.

Mr. Wilmes’s response to question E3 states that he is aware of a voting trust or similar agreement between holders of more than 5% of the Company’s stock, but he fails to provide any of the required information regarding such voting trust or similar agreement. His reply of “[s]ee 13D filing” is insufficient to answer the question.

 

  e.

Mr. Wilmes’ Questionnaire is not signed by him, as is required by Section 2(b)(6) of the Bylaws.

The Questionnaire submitted from Dr. Staats is deficient in numerous ways, including the following:

 

  a.

Dr. Staats’s response to question A3 omits the fact that Dr. Staats formed Honolulu Home Help LLC, nor does it provide any information about this entity or his role therein.

 

  b.

Dr. Staats’s response to question B7 states that he does not “exert significant influence, directly or indirectly, over any entities, to the extent that the entity may be prevented from fully pursuing its own separate interests with regard to any transactions with the Company and its affiliates,” but given his role as the Chief Medical Officer and board member of electroCore and his role as a board member of Morphogenesis, this response is clearly incorrect.

 

  c.

Question C6 asks whether Dr. Staats is part of a “group” for the purpose of acquiring, holding, voting or disposing of securities of the Company. He responds “no” but the correct response is “yes.” Dr. Staats is a member of the group that filed the Schedule 13D.

 

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  d.

Question C7 asks Dr. Staats if he knows any group that beneficially owns more than 5% of the Company’s stock. He replies “no,” which is clearly false since he is a member of such a group.

 

  e.

Question I12 contains multiple sub-questions, two of which were not answered by Dr. Staats.

The Questionnaire submitted from Mr. Errico is deficient in numerous ways, including the following:

 

  a.

Mr. Errico’s response to question A3 omits the fact that Mr. Errico is on the board of directors of electroCore.

 

  b.

Mr. Errico’s response to question B7 states that he does not “exert significant influence, directly or indirectly, over any entities, to the extent that the entity may be prevented from fully pursuing its own separate interests with regard to any transactions with the Company and its affiliates,” but given his role as the chair of nominating and governance committee and member of the compensation committee on the board of directors of electroCore, this response is clearly incorrect.

 

  c.

Question D1(ix) asks Mr. Errico if he was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of…any other “self-regulatory organization,” any “registered entity” (as defined under the Commodities Exchange Act) or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons “associated” with its members. He replies “no,” which is false as he was publicly disciplined by the New Jersey Board of Medical Examiners for professional misconduct after he failed to disclose his personal financial interests in the artificial spine disc ProDisc in which he had invested at least $100,000. Mr. Errico was assessed $60,000 in civil penalties, $17,500 in cost reimbursements and ordered to complete a medical ethics course.

 

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  d.

Question C6 requires Mr. Errico to list the date of the most recent 13D filing referenced in his response, which he fails to do.

 

  e.

Question C7 asks Mr. Errico if he knows any group that beneficially owns more than 5% of the Company’s stock. He replies “no,” which is clearly false since he is a member of such a group.

* * * * *

As set forth in the Company’s proxy statement filed with the Securities and Exchange Commission on September 1, 2020, the deadline under the Bylaws for delivering notice of intention to nominate candidates for election as directors at the 2021 Annual Meeting was July 2, 2021. The Notice Letter, which was dated June 30, 2021, but was actually received by the Secretary at the principal executive offices of the Company in the manner prescribed by the Bylaws on July 1, 2021, failed to satisfy the Bylaw requirements and is thus invalid. The deadline for a timely and proper notice of intention to nominate candidates for election as directors at the 2021 Annual Meeting has passed. Therefore, the Proposing Persons do not have the right to nominate any candidates for election as directors at the 2021 Annual Meeting.

This letter is being sent on behalf of the Company while expressly reserving, and without waiving, any and all rights and defenses that the Company may have with respect to this matter. In particular, this letter should not be construed as confirmation that the Notice Letter otherwise complies with the Bylaws and applicable law.

Should you have questions regarding any of the foregoing, please contact me.

 

Sincerely,

/s/Kai Haakon E. Liekefett

Kai Haakon E. Liekefett

 

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cc:

Drew G. L. Chapman, Baker Botts L.L.P

Andrew W. Stern, Sidley Austin LLP

Derek O. Zaba, Sidley Austin, LLP

 

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