UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
August 24,
2021
By E-Mail
Kai H. E. Liekefett, Esq.
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
Re: CytoDyn Inc.
Soliciting Materials filed pursuant to Rule 14a-12 on
August 19, 2021
File No. 000-49908
Dear Mr. Liekefett:
We have reviewed the above-captioned filing, and have the following
comments. Some
of our comments may ask for additional information so that we may better
understand the
disclosure.
Please respond to this letter by amending the filing and/or by
providing the requested
information. After reviewing any amendment to the filing and any information
provided in reply
to these comments, we may have additional comments. If you do not believe our
comments
apply to your facts and circumstances, and/or do not believe an amendment is
appropriate, please
tell us why in a written response.
Soliciting Materials
1. You must avoid issuing statements that directly or indirectly impugn
the character,
integrity or personal reputation or make charges of illegal, improper
or immoral conduct
without factual foundation. Provide us supplementally, or disclose,
the factual foundation
for the statements listed below. In this regard, note that the
factual foundation for such
assertion must be reasonable. Refer to Rule 14a-9.
the continued efforts of an activist group led by
Paul Rosenbaum and Bruce
Patterson to mislead shareholders and engage in an
unlawful proxy contest to
replace a majority of the Company s Board and its
attempt to unlawfully
effectuate a hostile takeover of CytoDyn s Board. In
this respect, we note your
public statements regarding the purported deficiencies in
the dissidents
submission to the company: to the extent your reference to
an unlawful proxy
contest refers to your allegations under state law, please
clarify this in future
disclosure.
the dissidents filings continue the pattern of
selective disclosures,
Kai H. E. Liekefett, Esq.
Sidley Austin LLP
August 24, 2021
Page 2
misrepresentations and falsehoods that have characterized the
Group s efforts to
date. The Group s new disclosures were intended to
retroactively rectify certain
violations and omissions we have previously raised
indicating a tacit admission
that the Group previously willfully failed to properly disclose
material
information to shareholders.
Shareholders should be asking themselves what else the
Rosenbaum/Patterson
Group is seeking to hide, and what other critical facts they
could be withholding
that they simply haven t been forced to publicly reveal yet?
The Group indirectly admitted that its initial proxy
statement was
materially misleading to investors. As evidence of this, the
Group s proxy
filings include over a dozen pages with corrective and new
disclosures. In this
respect, please be sure to provide support for your assertion
that the dissidents
initial proxy statement filing was materially misleading.
The Group s new disclosures reveal the dark money
funding its hostile
takeover attempt.
that the Group is implicitly acknowledging that these
posts violated federal
securities laws.
that the dissidents are hiding behind the smokescreen of
misleading
communications and selective disclosures.
2. Refer to your statement about the dissidents actions being an
unlawful attempt to
effectuate a hostile takeover. Given that the only apparent way
for the dissidents to
obtain seats on the board of directors is by way of a shareholder vote,
please revise your
disclosure to explain your characterization of the proxy contest as a
hostile takeover.
3. Please provide us support for your association of dark money and
(i) a law firm called
the Greenan Law Firm and (ii) a fund named Eisenberg Investments, LLC.
Your
disclosure suggests a negative connotation without clarifying the basis
for such
suggestion.
4. On a related note, provide us support for your characterization of
Eisenberg Investments
as secretive.
5. Refer to the paragraph captioned The new filings raise further
questions about the
motivations and goals of the Rosenbaum/Patterson Group. With a view
toward
revised disclosure, please explain to us how one statement made by the
dissidents ( We
cannot be certain that the other stockholders named in the Schedule 13D
will support the
Nominees ) renders the other cited statement by dissidents ( the
Group may seek
stockholder representation on the Board, as appropriate, including but
not limited to
through the initiation of a proxy contest at the Issuer s 2021 annual
meeting of
stockholders. ) unclear. It appears that the dissidents are
clearly stating that while the
Kai H. E. Liekefett, Esq.
Sidley Austin LLP
August 24, 2021
Page 3
individuals named in the Schedule 13D may support a proxy contest, none
of such
individuals have made a commitment to ultimately support the nominees
presented by
such group at the annual meeting.
6. With a view toward revised disclosure, please tell us how you are able
to assign a
characterization to the actions allegedly taken by Mr. Beatty on Reddit
as an attempt to
[illegally solicit votes] without being identified.
7. Please provide us with support for your statement that Dr. Patterson
approached the
Company s management team on several occasions to propose that
IncellDx be acquired
by CytoDyn
We remind you that the filing persons are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the staff
Please direct any questions to me at (202) 551-3619.
Sincerely,
/s/ Daniel F.
Duchovny
Daniel F. Duchovny
Special Counsel
Office of Mergers
and Acquisitions