Amended Tender Offer Statement by Issuer (sc To-i/a)
26 Septiembre 2019 - 3:25PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
TO
(Amendment
No. 1)
(Rule
14d-100)
Tender
Offer Statement under Section 14(d)(1) or 13(e)(1)
of
the Securities Exchange Act of 1934
ADHERA
THERAPEUTICS, INC.
(Name
of Subject Company (Issuer) and Name of Filing Person (Issuer))
Series
E Convertible Preferred Stock, par value $0.01 per share
Series
F Convertible Preferred Stock, par value $0.01 per share
(Title
of Class of Securities)
00687E
109
(CUSIP
Number of Common Stock Underlying Preferred Stock)
Nancy
R. Phelan
Chief
Executive Officer
Adhera
Therapeutics, Inc.
4721
Emperor Blvd., Suite 350
Durham,
NC 27703
(919)
578-5901
(Name,
Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
with
a copy to:
Lawrence
Remmel, Esq.
Pryor
Cashman LLP
7
Times Square
New
York, NY 10036
Tel:
(212) 421-4100
CALCULATION
OF FILING FEE
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Transaction
valuation*
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Amount
of filing fee
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$7,594,548.30
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$920.46 (#)
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*
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Estimated for purposes
of calculating the amount of the filing fee only. Adhera Therapeutics, Inc. (the “Company”) is offering
holders of the Company’s outstanding shares of its Series E Convertible Preferred Stock, par value $0.01 per share (the
“Series E Preferred Stock”), and Series F Convertible Preferred Stock, par value $0.01 per share
(the “Series F Preferred Stock”, and together with the Series E Preferred Stock, the “Preferred
Stock”), the opportunity to exchange each share of Preferred Stock for such number of shares of the Company’s
common stock, par value $0.006 per share (the “Shares”), as is equal to the quotient obtained by
dividing (A) the “stated value” of such share of Preferred Stock by (B) $0.50 (such shares, the “Exchange
Shares”), by tendering one share of Preferred Stock in exchange for the corresponding number of Exchange Shares.
The amount of the filing fee assumes that all of the outstanding shares of Preferred Stock will be exchanged and is calculated
pursuant to Rule 0-11(b) of the Securities Exchange Act of 1934, as amended. The transaction value was determined by using
the average of the high and low prices of the Company’s common stock as reported by the OTCQB on August 15, 2019, which
was $0.18.
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#
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Previously paid.
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[ ]
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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: N/A
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Filing
Party: N/A
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Form or Registration No.: N/A
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Date Filed: N/A
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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 the tender offer: [X]
SCHEDULE
TO
This
Amendment No. 1 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO
originally filed with the Securities and Exchange Commission on August 20, 2019 (together with any subsequent amendments and supplements
thereto, the “Schedule TO”) by Adhera Therapeutics, Inc., a Delaware corporation (the “Company”),
relating to the offer by the Company to all holders of the Company’s outstanding shares of Series E Convertible Preferred
Stock, par value $0.01 per share (the “Series E Stock”), and Series F Convertible Preferred Stock, par
value $0.01 per share (the “Series F Stock” and, together with the Series E Stock, the “Preferred
Stock”), which shares of Preferred Stock are convertible into shares of the Company’s common stock, par value
$0.006 per share (the “Shares”), at a conversion price of $0.50 per Share (subject to adjustment), to
receive, in exchange for each share of Preferred Stock tendered by the holders thereof, such number of Shares as is equal to the
quotient obtained by dividing (A) the “stated value” of such share of Preferred Stock by (B) $0.50 (subject to the
Adjustment Mechanism described in the original Schedule TO and the related Offer to Exchange). The “stated value”
of each share of Preferred Stock was originally $5,000, which amount has increased as a result of accrued and unpaid dividends
thereon.
The
offer is subject to the terms and conditions set forth in the Offer to Exchange, dated August 20, 2019 (as it may be amended,
restated or supplemented from time to time, the “Offer Letter”), and in the related Letter of Transmittal
(as it may be amended, restated or supplemented from time to time, the “Letter of Transmittal”), a copy
of which were filed as Exhibits (a)(1)(A) – (a)(1)(B) to the Schedule TO (which documents collectively constitute the “Offer”).
This
Amendment is being filed to announce the termination of the Offer and to amend and supplement Items 1 through 9 and Item 11 of
the Schedule TO as provided below.
Items
1 through Item 11.
The
disclosure in the Offer Letter and Items 1 through 11 of the Schedule TO is hereby amended and supplemented by adding the following
new paragraphs thereto:
“On
September 26, 2019, the Company announced the termination of the Offer. As a result of the termination of the Offer, no shares
of Preferred Stock were accepted for exchange or exchanged pursuant to the Offer. The Company has instructed the Depositary to
promptly return all shares of Preferred Stock tendered and not withdrawn to the tendering holders of Preferred Stock.
The
full text of the press release issued by the Company announcing the termination of the Offer is attached as Exhibit (a)(1)(C)
to this Schedule TO and is incorporated by reference herein.”
Item
12. Exhibits.
Item
12 of the Schedule TO is hereby amended and supplemented by adding the following exhibit:
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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ADHERA
THERAPEUTICS, INC.
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By:
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/s/
Nancy R. Phelan
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Name:
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Nancy
R. Phelan
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Title:
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Chief
Executive Officer
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Date:
September 26, 2019
EXHIBIT
INDEX
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Exhibit
Number
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Description
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(a)(1)(A)
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Offer to Exchange Letter dated August 20, 2019. (#)
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(a)(1)(B)
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Letter of Transmittal. (#)
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(a)(1)(C)
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Press release of Adhera Therapeutics, Inc. regarding termination of the Offer on September 26, 2019.
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(a)(5)(A)
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The Company’s Annual Report on Form 10-K for the year ended December 31, 2018 (incorporated herein by reference to the Company’s filing with the SEC on April 16, 2019).
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(a)(5)(B)
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The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2019 (incorporated herein by reference to the Company’s filing with the SEC on May 15, 2019).
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(a)(5)(C)
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The Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2019 (incorporated herein by reference to the Company’s filing with the SEC on August 14, 2019).
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(b)
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Not
applicable.
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(d)(1)
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Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K dated July 20, 2005).
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(d)(2)
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Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.7 of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2011).
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(d)(3)
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Certificate of Designation of Preferences, Rights and Limitations of the Series E Convertible Preferred Stock of Adhera Therapeutics, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated April 16, 2018).
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(d)(4)
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Certificate of Designation of Preferences, Rights and Limitations of the Series F Convertible Preferred Stock of Adhera Therapeutics, Inc. (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated July 11, 2018).
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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#
Previously filed.
Adhera Therapeutics (CE) (USOTC:ATRX)
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