Amended Tender Offer Statement by Issuer (sc To-i/a)
12 Octubre 2017 - 8:02AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
TO/A
(Amendment
No. 3)
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
PURE
BIOSCIENCE, INC.
(Name
of Subject Company (Issuer) and Filing Person (Offeror))
WARRANTS
TO PURCHASE COMMON STOCK
(Title of Class of Securities)
74621T209
(CUSIP Number of Common Stock Underlying Warrants)
Henry
R. Lambert
Chief Executive Officer
1725 Gillespie Way
El Cajon, California 92020
Phone: (619) 596-8600
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing Person)
WITH
COPY TO:
Jeffrey C. Thacker, Esq.
Ryan J. Gunderson, Esq.
Gunderson
Dettmer Stough Villeneuve
Franklin & Hachigian, LLP
3570
Carmel Mountain Rd., Suite 200
San Diego, California 92130
Tel: (858) 436-8064
Fax: (877) 881-9192
CALCULATION
OF FILING FEE:
Transaction
valuation
(1)
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Amount
of filing fee
(1)(2)(3)
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$9,120,187
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$1,057.03
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(1)
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Estimated
for purposes of calculating the amount of the filing fee only. An offer to amend and exercise warrants to purchase an aggregate
of 7,664,022 shares of common stock (the “
Offer to Amend and Exercise
”), including: (i) outstanding warrants
to purchase 4,104,980 shares of the Company’s common stock issued to investors participating in the Company’s
private placement financing completed on August 29, 2014, as amended; (ii) outstanding warrants to purchase 1,986,101 shares
of the Company’s common stock issued to investors participating in the Company’s private placement financing completed
on November 23, 2015, as amended and (iii) outstanding warrants to purchase 1,572,941 shares of the Company’s common
stock issued to investors participating in the Company’s private placement financing completed on January 23, 2017.
The transaction value is calculated pursuant to Rule 0-11 using $1.19 per share of common stock, which represents the average
of the high and low sales price of the common stock on August 22, 2017, as reported by the OTCQB.
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(2)
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Calculated
by multiplying the transaction value by 0.0001159.
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(3)
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Previously
Paid
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[X]
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Check
the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting
fee was previously paid. Identify the previous filing by registration statement number or the Form or Schedule and the date
of its filing.
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Amount
Previously Paid: $1,057.03
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Form
or Registration Number: Schedule TO-I
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Filing
Party: Pure Bioscience, Inc.
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Date
Filed: August 25, 2017
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[ ]
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Check
the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check
the appropriate boxes below to designate any transactions to which the statement relates:
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[ ]
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third
party tender offer subject to Rule 14d-1.
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[X]
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issuer
tender offer subject to Rule 13e-4.
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[ ]
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going
private transaction subject to Rule 13e-3.
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[ ]
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amendment
to Schedule 13D under Rule 13d-2.
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Check
the following box if the filing is a final amendment reporting the results of a tender offer: [ ]
The
alphabetical subsections used in the Item responses below correspond to the alphabetical subsections of the applicable items of
Regulation M-A promulgated under the federal securities laws.
If
applicable, check the appropriate box(es) below to designate the appropriate note provision(s):
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[ ]
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Rule
13e-4(i) (Cross-Border Issuer Tender Offer)
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[ ]
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Rule
14d-1(d) (Cross-Border Third-Party Tender Offer)
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Explanatory
Note
This
Amendment No. 3 (this “
Amendment
”) amends and supplements the Tender Offer Statement on Schedule TO originally
filed with the Securities and Exchange Commission (the “
SEC
”) on August 25, 2017, as amended on September 6,
2017 and September 26, 2017 (collectively, the “
Schedule TO
”).
The
Schedule TO relates to the Company’s offer to amend and exercise (the “
Offer to Amend and Exercise
”)
to (i) reduce the exercise price of the warrants to purchase 4,104,980 shares of the Company’s common stock issued to investors
participating in the Company’s private placement financing completed on August 29, 2014, as amended (the “
2014
Warrants
”) from $0.75 per share to $0.60 per share of common stock in cash, (ii) reduce the exercise price of outstanding
warrants to purchase 1,986,101 shares of the Company’s common stock issued to investors participating in the Company’s
private placement financing completed on November 23, 2015 (the “
2015 Warrants
”) from $0.45 per share to $0.40
per share of common stock in cash, (iii) reduce the exercise price of the outstanding warrants to purchase 1,572,941 shares of
the Company’s common stock issued to investors participating in the Company’s private placement financing completed
on January 23, 2017 (the “
2017 Warrants
”, together with the 2014 Warrants and 2015 Warrants, the “
Original
Warrants
”) from $1.25 per share to $0.85 per share of common stock in cash, (iv) shorten the exercise period of the
Original Warrants so that they expire concurrently with the expiration of the Offer to Amend and Exercise at 5:00 p.m. (Pacific
Time) on September 25, 2017, as may be extended by the Company in its sole discretion (“
Expiration Date
”) unless
extended until the Subsequent Expiration Date (as defined below), (v) delete the cashless exercise provisions in the Original
Warrants and (vi) delete the price-based anti-dilution provisions contained in the 2015 Warrants.
Additionally,
the Company requested the holders of a majority of the shares issuable upon exercise of the 2014 Warrants (the “
2014
Requisite Majority
”), 2015 Warrants (the “
2015 Requisite Majority
”) and 2017 Warrants (the “
2017
Requisite Majority
”) to approve an amendment of all of the outstanding 2014 Warrants, 2015 Warrants and 2017 Warrants,
respectively, to amend such Original Warrants in the same manner as set forth above (the “
Aggregate Warrant Amendment
”),
except the Expiration Date would be extended until October 10, 2017 (the “
Subsequent Expiration Date
”) if such
Aggregate Warrant Amendment was approved with respect to such class of Original Warrants. The 2015 Requisite Majority approved
an amendment of all of the outstanding 2015 Warrants.
This
Amendment only amends the item of the Schedule TO that is being amended hereby and unaffected items and exhibits in the Schedule
TO are not included herein. This Amendment should be read in conjunction with the Schedule TO and all exhibits thereto.
Item
4. TERMS OF THE TRANSACTION
Item
4 of the Schedule TO is hereby amended and supplemented by adding the following text thereto:
(c)
The Offer to Amend and Exercise expired at 5:00 p.m. Pacific Time on the evening of September 25, 2017 (the “
Expiration
Date
”) with respect to the 2014 Warrants and 2017 Warrants. However, the 2015 Requisite Majority approved an amendment
of all of the outstanding 2015 Warrants and holders of 2015 Warrants that did not participate in the Offer to Amend and Exercise
as of the Expiration Date had until the Subsequent Expiration Date (the “
Subsequent Offer Period
”) to exercise
the 2015 Warrants, otherwise they would expire unexercised. The 2014 Warrants and 2017 Warrants held by holders that did not participate
in the Offer to Amend and Exercise were not amended and will remain outstanding according to their original terms. 2015 Warrants
to purchase 268,909 shares of the Company’s common stock were exercised during the Subsequent Offer Period resulting in
all of the 2015 Warrants being exercised.
Original
Warrants (including 2015 Warrants exercised during the Subsequent Offer Period) to purchase an aggregate of 4,756,163 shares of
Common Stock were tendered and exercised in the Offer to Amend and Exercise for aggregate gross proceeds to the Company of approximately
$2.83 million. Original Warrants tendered and exercised represent approximately 64% of the Original Warrants outstanding immediately
prior to the Expiration Date.
Item
12. EXHIBITS.
Item
12 of the Schedule TO is hereby amended and supplemented by adding Exhibit “(a)(5)(I)” with the following text thereto:
SIGNATURE
After
due 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.
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PURE
BIOSCIENCE, INC.
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By:
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/s/
Henry R. Lambert
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Name:
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Henry
R. Lambert
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Title:
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Chief
Executive Officer
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(Principal
Executive Officer)
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Date:
October 12, 2017
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