UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Amendment No. 3)
TENDER OFFER STATEMENT UNDER SECTION
14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
Enumeral Biomedical Holdings, Inc.
(Name of Subject Company (Issuer) and
Filing Person (Offeror))
WARRANTS TO PURCHASE COMMON STOCK
(Title of Class of Securities)
294017108
(CUSIP Number of Common Stock Underlying
Warrants)
Wael Fayad, Chairman and Chief Executive
Officer
Enumeral Biomedical Holdings, Inc.
200 CambridgePark Drive, Suite 2000
Cambridge, MA 02140
(617) 945-9146
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications on Behalf of Filing Person)
Copies to:
Matthew Ebert, Esq.
General Counsel
Enumeral Biomedical Holdings, Inc.
200 CambridgePark Drive, Suite 2000
Cambridge, MA 02140
(617) 945-9146
|
|
Michael D. Schwamm, Esq.
Duane Morris LLP
1540 Broadway
New York, NY 10036-4086
(212) 692-1000
|
CALCULATION OF FILING FEE:
Transaction valuation
(1)
|
|
|
Amount of filing fee
(1)(2)
|
|
$
|
15,170,855.04
|
|
|
$
|
1,758.30
|
|
(1) Estimated for purposes of calculating the
amount of the filing fee only. The transaction is an offer to amend and exercise 21,549,510 warrants, each, as amended, to purchase
four (4) shares of common stock or an aggregate of 86,198,040 shares (the “Offer to Amend and Exercise”), at an exercise
price, as amended, of $0.50 per warrant ($0.125 per share), issued to investors participating in the Company’s private placement
financing with respect to which a closing occurred on July 31, 2014 (the “Original Warrants”). The transaction value
is calculated pursuant to Rule 0-11 using $0.176 per share, which represents the average of the high and low sales price of the
common stock on October 25, 2016.
(2) Calculated by multiplying the transaction
value by .0001159.
x
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.
Amount Previously Paid: $1,755.81 Filing Party: Enumeral Biomedical Holdings, Inc.
|
Filing Party: N/A
|
Form or Registration Number: 005-88781 Dated Filed: October 28, 2016
|
Date Filed: N/A
|
|
¨
|
Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
|
Check the appropriate boxes below to designate any transactions
to which the statement relates:
|
¨
|
third party tender offer subject to Rule 14d-1.
|
|
x
|
issuer tender offer subject to Rule 13e-4.
|
|
¨
|
going private transaction subject to Rule 13e-3.
|
|
¨
|
amendment to Schedule 13D under Rule 13d-2.
|
Check the following box if the filing is a final amendment reporting
the results of a tender offer:
o
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):
|
¨
|
Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
|
|
¨
|
Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
|
EXPLANATORY NOTE
This Amendment No. 3 (this “Amendment
No. 3”) amends and supplements the tender offer statement on Schedule TO and the related exhibits included therein (the “Offering
Materials”) originally filed by Enumeral Biomedical Holdings, Inc., a Delaware corporation (the “Company”), with
the U.S. Securities and Exchange Commission (the “SEC”) on October 28, 2016, as amended and supplemented by Amendment
Nos. 1 and 2 to the tender offer statement on Schedule TO filed with the SEC on November 10, 2016 and November 22, 2016, respectively
(as so amended and supplemented, the “Schedule TO”), pursuant to Rule 13e-4 under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), relating to the Company’s offer to amend, upon the terms and subject to the
conditions set forth in the Offering Materials, outstanding warrants to purchase an aggregate of 21,549,510 shares of common stock
of the Company (the “Offer to Amend and Exercise”) at an exercise price of $2.00 per share (the “Original Warrants”),
issued to investors participating in the Company’s private placement financing that closed on July 31, 2014 (the “PPO
Unit Offering”). The Original Warrants of holders who elect to participate in the Offer to Amend and Exercise will be amended
(the “Amended Warrants”) to: (i) receive four shares of common stock for each warrant exercised rather than one, (ii)
reduce the exercise price to $0.50 per warrant in cash (or $0.125 per share); (iii) shorten the exercise period so that it expires
concurrently with the expiration of the Offer to Amend and Exercise at 5:00 p.m. (Eastern Time) on November 29, 2016, as such expiration
date may be extended by the Company in its sole discretion, or as required by applicable law (the “Expiration Date”),
(iv) delete any price-based anti-dilution provisions; (v) restrict the ability of the holder of shares issuable upon exercise of
the Amended Warrants to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any of
such shares without the prior written consent of the Company for a period of one hundred eighty (180) days after the Expiration
Date (the “Lock-Up Period”); and (vi) provide that a holder, acting alone or with others, will agree not to effect
any purchases or sales of any securities of the Company in any “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Exchange Act, or any type of direct and indirect stock pledges, forward sale contracts, options, puts,
calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) or similar
arrangements, or sales or other transactions through non-U.S. broker dealers or foreign regulated brokers through the expiration
of the Lock-Up Period.
This Amendment No. 3 is being filed solely
to extend the Expiration Date of the Offer to Amend and Exercise to 5:00 p.m. (Eastern Time), on December 9, 2016, unless further
extended by the Company. Other than the Expiration Date, the terms of the Offer to Amend and Exercise have not changed.
Pursuant to Rule 12b-15 under the Exchange
Act, this Amendment No. 3 amends and supplements only the items of the Schedule TO that are being amended and supplemented hereby,
and unaffected items and exhibits in the Schedule TO are not included herein. This Amendment No. 3 should be read in conjunction
with the Schedule TO and the related exhibits included therein, as the same may be further amended or supplemented hereafter and
filed with the SEC. Capitalized terms used herein but not otherwise defined have the meanings set forth in the Schedule TO.
Item 1. SUMMARY TERM SHEET
.
The information set forth in Item 4 below is incorporated herein
by reference.
Item 4. TERMS OF THE TRANSACTION
.
This Amendment No. 3 amends and supplements Items 1 and 4 of
the Schedule TO as follows:
Extension of the Offer
The Company is extending the Expiration Date of the Offer until
5:00 p.m., Eastern Time, on December 9, 2016, unless further extended by the Company. The Offer to Amend and Exercise had been
previously scheduled to expire at 5:00 p.m., Eastern Time, on November 29, 2016. Throughout the Schedule TO, the Offer to Amend
and Exercise and the other Offering Materials, all references to the Expiration Date of the Offer to Amend and Exercise are hereby
amended to extend the Expiration Date of the Offer to Amend and Exercise until 5:00 p.m., Eastern Time, on December 9, 2016.
On November 29, 2016, the Company advised holders of the Original
Warrants of the extension of the Offer to Amend and Exercise by filing a Current Report on Form 8-K. Such Current Report on Form
8-K is incorporated herein by reference as Exhibit (a)(5)(A).
Clarification of Withdrawal Rights
If you change your mind and do not want to participate in the
Offer to Amend and Exercise, you may withdraw any Original Warrants tendered in the Offer to Amend and Exercise at any time prior
to the Expiration Date, which is now 5:00 p.m., Eastern Time, on December 9, 2016 by following the procedure outlined in Section
4 of the Offer to Amend and Exercise.
Item 12 Exhibits to
the Schedule TO is amended and restated as follows:
|
(a)
|
(1)(A)
|
Letter to Holders of Original Warrants*
|
|
|
|
|
|
|
(1)(B)
|
Offer to Amend and Exercise*
|
|
|
|
|
|
|
(1)(C)
|
Form of Election to Consent, Participate and Exercise Warrant*
|
|
|
|
|
|
|
(1)(D)
|
Form of Notice of Withdrawal*
|
|
|
|
|
|
|
(1)(E)
|
Form of Amendment to Original Warrant (with respect to Offer to Amend and Exercise)*
|
|
|
|
|
|
|
(1)(F)
|
Form of Amendment to Original Warrant (with respect to Anti-Dilution Amendment)*
|
|
|
|
|
|
|
(5)(A)
|
Current Report on Form 8-K disclosing extension of the Expiration Date filed with the SEC on November 29, 2016, which is incorporated by reference herein.
|
|
|
|
|
|
|
(b)
|
Not applicable.
|
|
|
|
|
|
(d)
|
(1)
|
Warrant Agent Agreement, dated October 26, 2016, by and between the Company and Katalyst Securities LLC*
|
|
|
|
|
|
|
(2)
|
Form of Registration Rights Agreement to be entered into between the Company and the other parties thereto*
|
|
|
|
|
|
|
(g)
|
None.
|
|
|
|
|
|
|
(h)
|
None.
|
* Incorporated by reference to the Company’s Schedule
TO filed with the SEC on October 28, 2016.
|
Item 13.
|
INFORMATION REQUIRED BY SCHEDULE 13E-3
|
Not Applicable.
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.
|
ENUMERAL BIOMEDICAL HOLDINGS, INC.
|
|
|
|
|
By:
|
/s/ Kevin G. Sarney
|
|
Name: Kevin G. Sarney
|
|
Title: Vice President of Finance, Chief Accounting Officer, and Treasurer
|
Date: November 29, 2016