0001193125-15-146896.txt : 20150424 0001193125-15-146896.hdr.sgml : 20150424 20150424171634 ACCESSION NUMBER: 0001193125-15-146896 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20150424 DATE AS OF CHANGE: 20150424 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Rosewind CORP CENTRAL INDEX KEY: 0001385818 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-EDUCATIONAL SERVICES [8200] IRS NUMBER: 470883144 STATE OF INCORPORATION: CO FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-88813 FILM NUMBER: 15792604 BUSINESS ADDRESS: STREET 1: 16200 WCR 18E CITY: LOVELAND STATE: CO ZIP: 80537 BUSINESS PHONE: (970) 635-0346 MAIL ADDRESS: STREET 1: 16200 WCR 18E CITY: LOVELAND STATE: CO ZIP: 80537 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Ampio Pharmaceuticals, Inc. CENTRAL INDEX KEY: 0001411906 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 260179592 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 373 INVERNESS PARKWAY STREET 2: SUITE 200 CITY: ENGLEWOOD STATE: CO ZIP: 80112 BUSINESS PHONE: 720-437-6500 MAIL ADDRESS: STREET 1: 373 INVERNESS PARKWAY STREET 2: SUITE 200 CITY: ENGLEWOOD STATE: CO ZIP: 80112 FORMER COMPANY: FORMER CONFORMED NAME: Chay Enterprises, Inc. DATE OF NAME CHANGE: 20070910 SC 13D 1 d914029dsc13d.htm SC 13D SC 13D

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

 

 

Rosewind Corporation

(Name of Issuer)

Common Stock, no par value

(Title of Class of Securities)

77813Q107

(CUSIP Number)

Copies to:

Gregory A. Gould

Chief Financial Officer

Ampio Pharmaceuticals, Inc.

373 Inverness Parkway, Suite 200

Englewood, CO 80112

Telephone: (720) 437-6500

Copies to:

Stephen M. Davis, Esq.

Andrew H. Goodman, Esq.

Goodwin Procter LLP

620 Eighth Avenue

New York, NY 10018

Telephone: (212) 813-8800

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

April 16, 2015

(Date of Event Which Requires Filing of This Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because § 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g) check the following box.  ¨

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7(b) for other parties to whom copies are to be sent.

 

 

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


13D

 

CUSIP No. 77813Q107 Page

 

  1 

Names of reporting persons

 

AMPIO PHARMACEUTICALS, INC.

  2

Check the appropriate box if a member of a group

(a)  ¨        (b)  ¨

 

  3

SEC use only

 

  4

Source of funds

 

    OO

  5

Check box if disclosure of legal proceedings is required pursuant to Item 2(d) or 2(e):    ¨

 

  6

Citizenship or place of organization

 

    DELAWARE

Number of

shares

beneficially

owned by

each

reporting

person

with:

 

  7 

Sole voting power

 

    141,535,750

  8

Shared voting power

 

    0

  9

Sole dispositive power

 

    141,535,750

10

Shared dispositive power

 

    0

11

Aggregate amount beneficially owned by each reporting person

 

    141,535,750

12

Check if the aggregate amount in Row (11) excludes certain shares    ¨

 

13

Percent of class represented by amount in Row (11)

 

    81.5%

14

Type of reporting person

 

    CO

 


Item 1. Security and Issuer

This statement relates to the Common Stock, no par value per share (the “Shares”), issued by Rosewind Corporation, a Colorado corporation (the “Issuer”). The address of the principal executive offices of the Issuer is 373 Inverness Parkway, Suite 200, Englewood, Colorado 80112.

 

Item 2. Identity and Background

This statement is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), by Ampio Pharmaceuticals, Inc., a Delaware corporation (the “Reporting Person”). The address of the principal executive office of the Reporting Person is 373 Inverness Parkway, Suite 200, Englewood, Colorado 80112. The Reporting Person is a development stage biopharmaceutical company primarily focused on the development of therapies to treat prevalent inflammatory conditions for which there are limited treatment options.

The name, business address, present principal occupation or employment and citizenship of each director and executive officer (including a director and officer who may be a controlling person) of the Reporting Person is set forth on Schedule A.

During the last five years, neither the Reporting Person or, to the knowledge of the Reporting Person, any of the persons listed on Schedule A attached hereto have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

Item 3. Source and Amount of Funds or Other Consideration

The total amount of funds, assets and cancellation of indebtedness required by the Reporting Person to consummate the Merger (as defined below) and purchase the 141,535,750 shares of common stock of the Issuer in the Merger is approximately $53.5 million, plus related fees and expenses.

The information set forth or incorporated by reference in Item 4 is incorporated by reference in this Item 3.


Item 4. Purpose of Transaction

As described in Item 3 above, this statement is being filed in connection with the Merger Agreement.

On April 16, 2015, pursuant to an Agreement and Plan of Merger (the “Merger Agreement”) entered into among the Issuer, Luoxis Diagnostics, Inc., a Delaware corporation (“Luoxis”), Vyrix Pharmaceuticals, Inc., a Delaware corporation (“Vyrix”), and two subsidiaries of the Issuer created solely for the purposes of the Merger, and which did not survive the Merger, the Merger occurred in two stages.

In the first stage, each of Vyrix and Luoxis merged with one of the Issuer’s merger subsidiaries. Vyrix and Luoxis survived these mergers. The outstanding shares of stock of Vyrix and the outstanding shares of stock of Luoxis were converted into the right to receive shares of common stock in the Issuer. The Vyrix stock and the Luoxis stock were each converted at an exchange factor. The exchange factor for each of them was determined upon the basis of a relative value opinion obtained by the Reporting Person, the parent company of Vyrix and Luoxis. The outstanding shares of the Issuer’s merger subsidiary that merged with Vyrix were converted into shares of Vyrix as the surviving corporation. The outstanding shares of the Issuer’s merger subsidiary that merged with Luoxis were converted into shares of Luoxis as the surviving corporation. After completion of the first stage, Vyrix and Luoxis became subsidiaries of the Issuer.

In the second stage, which occurred on the same day as the first stage, each of Vyrix and Luoxis merged with the Issuer with the Issuer surviving. The first and second stage mergers are referred to collectively as the “Merger.”

Concurrently with the Merger:

 

    The board of directors of the Issuer, whose sole member was James Wiegand, increased the number of directors by one, and appointed Michael Macaluso to fill the vacancy created by that increase. James Wiegand resigned from the board immediately thereafter. The board of directors of the Issuer, whose sole member is Michael Macaluso, then appointed Joshua Disbrow as Chief Executive Officer, Jarrett Disbrow as Chief Operating Officer and Gregory A. Gould as Chief Financial Officer of the Issuer.

 

    The Reporting Person purchased 57,970,000 shares of common stock of the Issuer for (i) issuance to the Issuer of a promissory note of the Reporting Person in the principal amount of $10,000,000, maturing on the first anniversary of the Merger; (ii) cancellation of indebtedness of Luoxis to the Reporting Person in the amount of $8,000,000; and (iii) cancellation of indebtedness of Vyrix to the Reporting Person in the amount of $4,000,000.

 

    James Wiegand entered into a consulting agreement with the Issuer with a one year duration, providing for compensation of $50,000 to him.

 

    Each of James Wiegand and Michael Wiegand executed a release in favor of the Issuer.

 

    The Reporting Person entered into a lock-up agreement with the Issuer as described in Item 6.

 

    Joshua Disbrow entered into an employment agreement with the Issuer.

 

    Jarrett Disbrow entered into an employment agreement with the Issuer.

The Merger Agreement contemplates the reincorporation of the Issuer in Delaware, as a corporation, with the name Aytu Bioscience, Inc. as soon as is reasonably practicable after the closing of the Merger. The reincorporation is also expected to result in the reduction of the number of shares of stock outstanding in the Issuer equivalent to a reverse stock split at the rate of 12.174 to 1.


Because of the Reporting Person’s substantial equity ownership interest in the Issuer, the Issuer has agreed to appoint additional designees of the Reporting Person to the Issuer’s board of directors.

Except as set forth in this Schedule 13D and in connection with the Merger described above, the Reporting Person does not have any plan or proposals that relate to or would result in any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D.

The foregoing descriptions of the Merger Agreement do not purport to be complete and are qualified in their entirety by reference to such agreement. A copy of the Merger Agreement is attached as Exhibit 2.1 to the Form 8-K filed with the Securities and Exchange Commission on April 22, 2015.

 

Item  5. Interest in Securities of the Issuer

(a) and (b) The Reporting Person beneficially owns an aggregate of 141,535,750 Shares of the Issuer. All Shares beneficially owned by the Reporting Person constitute approximately 81.5% of the issued and outstanding Shares of the Issuer as of April 22, 2015. The Reporting Person has the sole power to vote and dispose 141,535,750 Shares of the Issuer. The Reporting Person does not share power to dispose of any of the Shares.

Except as set forth in this Item 5(a), neither the Reporting Person nor, to the knowledge of the Reporting Person, any of the persons named in Schedule A hereto beneficially own any Shares.

(c) Except for the Merger Agreement described above, to the knowledge of the Reporting Person, no transactions in the class of securities reported have been effected during the past 60 days by any person named in Schedule A or Item 5(a).

(d) To the knowledge of the Reporting Person, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities of the Issuer reported herein.

(e) Not applicable.

 

Item  6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

On April 21, 2015, the Reporting Person entered into a Voting Agreement (the “Voting Agreement”) with the Issuer, pursuant to which the Reporting Person agreed to vote all of the shares of common stock of the Issuer beneficially owned by the Reporting Person at a special meeting of the Issuer’s stockholders or by written consent in favor of the following proposals approved by the board of directors of the Issuer and authorizing the Issuer to (1) re-incorporate into the State of Delaware through a plan of conversion; (2) effectuate a reverse stock split of the Issuer’s common stock, at a ratio of one new share for every approximately 12.174 shares currently outstanding; (3) change the name of the Issuer from “Rosewind Corporation” to “Aytu Bioscience, Inc.”; and (4) approve a new stock option and incentive plan. The Voting Agreement will remain in effect until the Issuer’s stockholders approve the foregoing proposals.

On April 16, 2015, the Reporting Person entered into a lock-up agreement with the Issuer agreeing not to sell its shares of the Issuer’s stock for two years, subject to certain exceptions (the “Lock-Up Agreement”). All of the Reporting Person’s shares of the Issuer’s stock—141,535,750 held as of the Merger closing—will be locked-up, with portions of such shares being released in stages prior to the Lock-Up Agreement’s final termination on October 16, 2018. The Lock-Up Agreement terminates upon a change-in-control event of either the Issuer or the Reporting Person.

The foregoing descriptions of the Voting Agreement and the Lock-Up Agreement do not purport to be complete and are qualified in their entirety by reference to such agreement. A copy of the Voting Agreement is attached as Exhibit 10.1 to the Form 8-K filed with the Securities and Exchange Commission on April 22, 2015. A copy of the Lock-Up Agreement is attached as Exhibit 10.2 to this Schedule 13D.

Except for the Merger Agreement, the Voting Agreement and the Lock-Up Agreement described above, to the knowledge of the Reporting Person, there are no contracts, arrangements, understandings or relationships (legal or


otherwise), including, but not limited to, transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, among the persons named in Item 2 or between such persons and any other person, with respect to any securities of the Issuer, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities other than standard default and similar provisions contained in loan agreements.

 

Item  7. Material to Be Filed as Exhibits

 

  2.1 Agreement and Plan of Merger, dated as of April 16, 2015, by and among the Issuer, Luoxis, Vyrix, two major stockholders of the Issuer and two subsidiaries of the Issuer (incorporated by reference to Exhibit 2.1 to the Issuer’s Current Report on Form 8-K filed with the SEC on April 22, 2015).
10.1 Voting Agreement, dated as of April 21, 2015, by and between the Issuer and the Reporting Person (incorporated by reference to Exhibit 10.1 to the Issuer’s Current Report on Form 8-K filed with the SEC on April 22, 2015).
10.2 Lock-Up Agreement, dated as of April 16, 2015, by and between the Issuer and the Reporting Person


Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Date: April 23, 2015 AMPIO PHARMACEUTICALS, INC.

/s/ Gregory A. Gould

Name: Gregory A. Gould
Title: Chief Financial Officer


SCHEDULE A

 

1. Ampio Pharmaceuticals, Inc.

The name, business address, title, present principal occupation or employment of each of the directors and executive officers of the Reporting Person are set forth below. If no business address is given, the director’s or executive officer’s business address is 373 Inverness Parkway, Suite 200, Englewood, Colorado 80112. Unless otherwise indicated below, all of the persons listed below are citizens of the United States of America.

 

Name

  

Present Principal Occupation Including Name and Address of Employer

Michael Macaluso    Chief Executive Officer and Chairman of the Board of the Reporting Person; Director of the Issuer
David Bar-Or, M.D.    Chief Scientific Officer and Director of the Reporting Person
Philip H. Coelho    Director of the Reporting Person
Richard B. Giles    Director of the Reporting Person
David R. Stevens, Ph.D.    Director of the Reporting Person
Dr. Vaughan L. Clift    Chief Regulatory Affairs Officer of the Reporting Person
Gregory A. Gould    Chief Financial Officer, Treasurer and Secretary of the Reporting Person; Chief Financial Officer, Secretary and Treasurer of the Issuer
EX-10.2 2 d914029dex102.htm EX-10.2 EX-10.2

Exhibit 10.2

LOCKUP AGREEMENT

THIS LOCKUP AGREEMENT (this “Agreement”) is made and entered into as of April 16, 2015, by and among Rosewind Corporation, a Colorado corporation (together with any successors and assigns thereto, “Parent”), and Ampio Pharmaceuticals, Inc., a Delaware corporation (together with any successors and assigns thereto, “Seller”). Each capitalized term used, but not otherwise defined, herein has the respective meaning ascribed to such term in the Agreement and Plan of Merger, dated as of April 16, 2015, by and among certain subsidiaries of Seller, Parent, and the other parties thereto (the “Merger Agreement”).

In connection with the consummation of the transactions contemplated by the Merger Agreement and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed, Seller and Parent hereby agree as follows:

1. The execution and delivery of this Agreement is a condition to the performance of the parties’ obligations under the Merger Agreement, including the delivery of the shares of Parent Common Stock issued to the Seller pursuant thereto (the “Shares”).

2. Seller hereby acknowledges and agrees that during the Lockup Period (as defined below), as applicable to those Shares which remain subject to the Lockup Period from time to time (as set forth below), it shall not, without the prior written consent of Parent, (A) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934 (the “Exchange Act”) with respect to any portion of such Shares or any securities convertible into or exercisable or exchangeable for Parent Common Stock now owned or hereafter acquired by the undersigned, (B) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any such Shares or securities convertible into or exercisable or exchangeable for Parent Common Stock, whether any such transaction is to be settled by delivery of such Shares or such other securities, in cash or otherwise, or (C) publicly announce any intention to effect any transaction specified in clause (A) or (B). As used herein, the term “Lockup Period” means the period beginning on the date hereof and ending on the earlier of: (a) with respect to twenty-five percent (25%) of the Shares, April 16, 2017, (b) with respect to twenty-five percent (25%) of the Shares, October 16, 2017, (c) with respect to twenty-five percent (25%) of the Shares, April 16, 2018, (d) October 16, 2018, (e) the date that Parent consummates a liquidation, merger, stock exchange or other similar transaction that results in all of the holders of Parent Common Stock having the right to exchange their shares of Parent Common Stock for cash, securities or other property, and (f) the date that a person or group of persons or entities obtains a controlling interest in Seller’s capital stock.

3. Notwithstanding the provisions of paragraph 2, above, Seller may transfer any or all of its Shares:

 

  (a) to the officers, directors or employees of Parent;


  (b) as a bona fide gift to any member of the immediate family to Seller’s immediate family members (as defined below) and trusts for estate planning purposes;

 

  (c) as a bona fide gift to a charity or educational institution;

 

  (d) by virtue of the laws of descent and distribution upon Seller’s death; or

 

  (e) transfers by operation of law, including pursuant to domestic relations or court orders; and

 

  (f) transfers consented to, in writing, by Parent;

provided, however, that in the case of any transfer described in clauses (a) through (e) above, (A) it shall be a condition to the transfer that the transferee executes and delivers to Parent not later than three (3) business days prior to such transfer, a written agreement, in substantially the form of this Agreement (it being understood that any references to “immediate family” in the agreement executed by such transferee shall expressly refer only to the immediate family of the undersigned and not to the immediate family of the transferee) and otherwise satisfactory in form and substance to Parent and (B) acceptance of Shares by any transferee shall constitute such transferee’s agreement to be bound by this Agreement. For purposes of this paragraph, “immediate family” shall mean a spouse, child, grandchild or other lineal descendant (including by adoption), father, mother, brother or sister of the undersigned.

4. In furtherance of the foregoing, Seller hereby (a) further agrees that (i) it will not, during the Lockup Period, make any demand or request for or exercise any right with respect to the registration under the Securities Act of any Shares or any securities convertible into or exercisable or exchangeable for Parent Common Stock, and (b) authorizes Parent during the Lockup Period to cause the transfer agent for the Parent Common Stock to decline to transfer any Shares or securities convertible into or exercisable or exchangeable for Parent Common Stock, and to place restrictive legends and note stop transfer restrictions on the Shares, the stock register and other records relating to the Shares.

5. Seller hereby represents and warrants to Parent that (i) it has full power and authority to enter into this Agreement and (ii) this Agreement constitutes the legal, valid and binding obligation of the undersigned, enforceable in accordance with its terms.

6. This Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Agreement may not be changed, amended, modified or waived as to any particular provision, except by a written instrument executed by all parties hereto.

7. No party hereto may assign this Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other parties. Any purported assignment in violation of this paragraph 7 shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on each party’s respective successors, heirs, personal representatives and assigns.

 

2


8. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without giving effect to conflicts of law principles that· would result in the application of the substantive laws of another jurisdiction. The parties hereto (i) agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Agreement shall be brought and enforced in the courts of the State of Delaware, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.

9. Any notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery, or by electronic or facsimile transmission, to the address, email or facsimile number indicated on the books and records of Parent or such other address as a party shall subsequently provide.

10. Upon request by Parent, Seller will execute any additional documents necessary in connection with enforcement hereof.

* * * * *

 

3


IN WITNESS WHEREOF, the parties have executed this Lockup Agreement on the date first written above.

 

ROSEWIND CORPORATION
By:

/s/ Joshua R. Disbrow

Joshua R. Disbrow
President and Chief Executive Officer
AMPIO PHARMACEUTICALS, INC.
By:

/s/ Gregory A. Gould

Gregory A. Gould
Chief Financial Officer

[SIGNATURE PAGE TO AMPIO LOCKUP AGREEMENT]