UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 3
TO
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
Monster Digital, Inc.
(Name of Subject Company (Issuer) and Filing
Person (Offeror))
WARRANTS TO PURCHASE COMMON STOCK
(Title of Class of Securities)
(CUSIP Number of Common Stock Underlying
Warrants)
Mr. David Olert, Chief Financial Officer
Monster Digital, Inc.
2655 First Street, Suite 250
Simi Valley, California 93065
(805) 915-4775
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications on Behalf of Filing Person)
Copy to:
Thomas J. Poletti, Esq.
Manatt, Phelps & Phillips, LLP
695 Town Center Drive, 14
th
Floor
Costa Mesa, CA 92626
(714) 371-2500
CALCULATION OF FILING FEE:
Transaction
valuation
(1)
|
|
Amount
of filing fee
(1)(2)
|
$1,866,052
|
|
$216.84
|
|
(1)
|
Estimated
for purposes of calculating the amount of the filing fee only. The transaction is an
offer to amend and exercise warrants to purchase an aggregate of 2,396,676 shares of
common stock, consisting of outstanding warrants held by holders of record as of September
19, 2017 to purchase (i) 1,405,007 shares of the Company’s common stock at an exercise
price of $5.625 per share issued to holders of promissory notes, Series A Convertible
Preferred stock and other indebtedness upon conversion of such indebtedness and preferred
stock in connection with the Company’s initial public offering which closing occurred
in July 2016 (the “
Conversion Warrants
”), (ii) 888,858 at an exercise
price of $2.00 per share, issued to investors participating in and brokers assisting
with certain of the Company’s private placement financings which closings occurred
from January 2017 to September 2017 (the “
$2.00 Warrants
”),(iii) 64,668
issued to the placement agent and its assignees of the Company’s private placement
financings with respect to which closings occurred from October 2012 to January 2015
(35,547 between at an exercise price of $14.85 per share and 29,121 an exercise price
of $22.28 per share (together the “
Placement Agent’s Warrants
”),
and (iv) 38,143 issued to the Company’s public relations firm (6,004 in January
2017 at an exercise price of $5.00 per share, 7,230 in January 2017 at an exercise price
of $7.00 per share, 9,986 in March 2017 at an exercise price of $9.00 per share and 14,923
in March 2017 at an exercise price of $11.00 per share) (together the “
PR Warrants
”).
The shares of common stock underlying the Conversion Warrants, the $2.00 Warrants, the
Placement Agent Warrants and the PR Warrants are known together as the “
Warrant
Shares
”. The Conversion Warrants, the $2.00 Warrants, the Placement Agent Warrants
and the PR Warrants are known together as the “
Original Warrants
”.
|
The transaction value is calculated pursuant
to Rule 0-11 using $0.7786 per share of common stock, which represents the average of the high and low sales price of the common
stock on September 19, 2017.
|
(2)
|
Calculated
by multiplying the transaction value by .0001162.
|
|
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: $231.21
Form or Registration Number: 5-90111
|
Filing Party: Monster Digital, Inc.
Date Filed: September 25, 2017
|
|
¨
|
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.
|
|
¨
|
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:
¨
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)
|
This Amendment No. 3 (this “Amendment
No. 3”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission
(the “SEC”) on September 25, 2017, Amendment No. 1 thereto filed with the SEC on October 13, 2017 and Amendment No.
2 thereto filed with the SEC on October 17, 2017 (together the “Schedule TO”), relating to an offer by Monster Digital,
Inc. (the “Company”) to amend warrants to purchase an aggregate of 2,396,676 shares of common stock issued to (i)
holders of promissory notes, Series A Convertible Preferred stock and other indebtedness upon conversion of such indebtedness
and preferred stock in connection with the Company’s initial public offering which closing occurred in July 2016, (ii) investors
participating in and brokers assisting with certain of the Company’s private placement financings which closings occurred
from January 2017 to September 2017, (iii) the placement agent and its assignees of the Company’s private placement financings
with respect to which closings occurred from October 2012 to January 2015 and (iv) the Company’s public relations firm.
Pursuant to Rule 12b-15 under the Securities
and Exchange Act of 1934, as amended (the “Exchange Act”), this Amendment No. 3 amends and restates only the
items of the Schedule TO that are being amended and restated 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 Offering Materials,
as the same may be further amended or supplemented hereafter and filed with the SEC.
Table
of Contents
Item 1.
|
SUMMARY TERM SHEET
|
The information set forth in Item 4 below is incorporated
herein by reference.
Item 4.
|
TERMS OF THE TRANSACTION
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This Amendment No. 3 amends
and supplements Items 1 and 4 of the Schedule TO as follows:
Satisfaction of condition
As described in the Offer to Amend and
Exercise, the exercise of the Original Warrants pursuant to this Offer to Amend and Exercise was expressly contingent on the approval
of Proposal No. 6 by Company stockholders at that Special Meeting of the Company’s stockholders held on November 9, 2017.
Proposal No. 6 was approved by Company stockholders at the Special Meeting and thus this condition to the exercise of the Original
Warrants has been satisfied.
Extension of
the Offer to Amend and Exercise
The Company has
extended the Offer to Amend and Exercise by seven days. The Offer to Amend and Exercise, which was previously scheduled to expire
November 17, 2017 at 5:00 p.m. Pacific time, will now remain open until November 24, 2017 at 5:00 p.m. Pacific time (midnight
Eastern time), unless further extended. Throughout the Schedule TO, the Offer to Amend and Exercise and the other Offering Materials
and Acceptance and Exercise Documents, 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. Pacific time (midnight Eastern time) on November
24, 2017.
Extension of Offer to Amend and Exercise
Period
In the event that
the Company elects to extend the Expiration Date, it will issue a notice of such extension by press release or other public announcement,
which notice will include the approximate number of Warrant Shares to be purchased pursuant to the Offer to Amend and Exercise
based upon the Offering Materials received by the Company as of such date, and will be issued no later than 6:00 a.m. Pacific
time (9:00 a.m. Eastern time) on the next business day after the scheduled Expiration Date of the Offer to Amend and Exercise.
Accordingly, Section
7 “Extension of Offer to Amend and Exercise Period; Termination; Amendments” is hereby amended by adding the immediately
preceding paragraph after the first sentence thereof.
|
Item 10.
|
FINANCIAL
STATEMENTS
|
This Amendment
No. 3 amends and supplements Item 10(a) of the Schedule TO as follows:
The Company’s unaudited financial statements as of and
for the period ended September 30, 2017 set forth in Part I of the Company’s Form 10-Q for the quarter ended September 30,
2017, as filed with the SEC on November 8, 2017, are incorporated herein by reference.
This Amendment No. 3 amends and restates
Item 12 of the Schedule TO as follows:
The following are attached as exhibits
to this Schedule TO:
|
(a)
|
(1) Letter to Holders of Original Warrants*
(A)
|
(1) Offer to Amend and Exercise*
(B)
(1) Form of Election
to Consent, Participate and Exercise Warrant
(C)
(1) Form of Notice of
Withdrawal*
(D)
(1) Form of Amendment
to Original Warrant (with respect to Conversion Warrants)*
(E)(i)
(1) Form of Amendment
to Original Warrant (with respect to $2.00 Warrants)*
(E)(ii)
(1) Form of Amendment
to Original Warrant (with respect to Placement Agent’s Warrants)*
(E)(iii)
(1) Form of Amendment
to Original Warrant (with respect to PR Warrants)*
(E)(iv)
(1) Form of Supplemental
Information letter to Holders of Original Warrants*
(F)
(1) Form of Supplemental
Information letter to Holders of Original Warrants
(G)
|
(d)
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Warrant Agent Agreement, dated September 18, 2017, by and between
the Company and Westpark Capital, Inc.*
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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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MONSTER DIGITAL, INC.
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By:
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/s/ David H. Clarke
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Name: David H. Clarke
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Title: Chief Executive Officer
|
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(Principal Executive Officer)
|
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Date: November 16, 2017
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|
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