UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE
TO
(Rule 14d-100)
Tender Offer Statement
under Section 14(d)(1) or 13(e)(1)
of the Securities
Exchange Act of 1934
AMENDMENT NO. 1
FLEXSHOPPER,
INC.
(Name of Subject
Company (Issuer) and Name of Filing Person (Issuer))
Warrants exercisable
for Common Stock at an exercise price of $1.25 per share
(Title of Class of
Securities)
33939J113
(CUSIP Number
of Warrants)
Richard House
Jr.
Chief Executive
Officer
FlexShopper, Inc.
901 Yamato Road,
Suite 260
Boca Raton, Florida
33431
(855) 353-9289
(Name, Address
and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
with a copy
to:
Spencer G. Feldman,
Esq.
Olshan Frome Wolosky
LLP
1325 Avenue of
the Americas, 15th Floor
New York, New
York 10019
Tel: (212) 451-2300
CALCULATION OF
FILING FEE
Transaction valuation*
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Amount of filing fee
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$8,058,009
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$1,045.93
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*
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Estimated for purposes of calculating the amount of the filing fee
only. FlexShopper, Inc. (the “Company”) is offering holders of all of the Company’s outstanding
$1.25 per share warrants (the “Public Warrants”) the opportunity to exchange the Public Warrants
for shares of the Company’s common stock, par value $0.0001 per share (the “Shares”), by tendering
one Public Warrant in exchange for 0.62 Shares. The Public Warrants were issued by the Company in a registered public offering
made pursuant to the Company’s prospectus filed with the Securities and Exchange Commission (the “SEC”)
pursuant to Rule 424(b)(5), dated September 25, 2018, as amended by post-effective amendment No. 1 filed with the SEC on May
7, 2019. The amount of the filing fee assumes that all of the outstanding Public Warrants 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 Public Warrants as reported on the Nasdaq Capital Market on January
3, 2020, which was $1.41.
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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: $1,045.93
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Filing Party: the Company
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Form or Registration No.: Schedule TO
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Date Filed: January 6, 2020
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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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☒
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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: ☐
If applicable check the appropriate box(es) below to designate the
appropriate rule provision(s) relied upon:
☐ Rule
13e-4(i) (Cross-Border Issuer Tender Offer)
☐ Rule
14d-1(d) (Cross-Border Third-Party Tender Offer)
Amendment No. 1 to Schedule TO
This Amendment No. 1 (the “Amendment”)
amends and supplements the Tender Offer Statement on Schedule TO (as amended and, together with any subsequent amendments and supplements
thereto, including this Amendment, the “Schedule TO”) filed by FlexShopper, Inc., a Delaware corporation (the
“Company”). The Schedule TO relates to the tender offer by the Company to all holders of the Company’s
outstanding warrants that were issued by the Company in its registered public offering of units consisting of common stock and
warrants made pursuant to the Company’s prospectus filed with the Securities and Exchange Commission (the “SEC”)
pursuant to Rule 424(b)(5), dated September 25, 2018, and as amended by post-effective amendment No. 1 filed with the SEC on May
7, 2019 (the “Prospectus”), exercisable for shares of the Company’s common stock, par value $0.0001
per share (the “Shares”), which have an exercise price of $1.25 per share (the “Public Warrants”),
to receive 0.62 Shares in exchange for each Public Warrant tendered by the holders thereof (fractional Shares to be rounded up
to the nearest whole Share to be issued). The tender offer is subject to the conditions set forth in the Offer to Exchange, dated
January 6, 2020 (as amended to date, the “Offer to Exchange”), and in the related Letter of Transmittal
(as amended to date, the “Letter of Transmittal”), which together, as they may be amended or supplemented
from time to time, constitute and are referred to as the “Offer.”
The Offer commenced on January 6, 2020 by
mailing the Offer to Exchange and the Letter of Transmittal to each holder of Public Warrants at their respective addresses as
they appear on the books and records of the warrant agent for the Public Warrants.
This Schedule TO,
and all the information set forth in the Offer to Exchange, to the extent incorporated by reference therein, is hereby amended
and supplemented as set forth below. Every Item in the Schedule TO is automatically updated, to the extent such Item incorporates
by reference any section of the Offer to Exchange that is amended and supplemented therein. Capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Offer to Exchange. This Amendment is being filed on a voluntary basis
with the SEC.
Items 1 through 11.
Items 1 through 11 of the Schedule
TO are hereby amended and supplemented as follows:
Item 7(a) of Schedule TO is hereby amended
and restated and replaced by the following: Sources of Funds. No funds will be used by the Company in connection
with the Offer, other than cash on hand of the Company that will be used to pay the expenses of the Offer.
The second sentence of the subsection of
the “Summary” of the Offer to Exchange with the heading “The Shares” is hereby amended and restated in
its entirety and replaced by the following sentence: The Shares issuable upon exchange of the Public Warrants pursuant to the Offer
represent approximately 19.9% of our outstanding Shares as of January 6, 2020.
The second sentence formerly present on
page 10 of the Offer to Exchange is hereby amended and restated in its entirety and replaced by the following sentence: The Shares
issuable upon exchange of the Public Warrants pursuant to the Offer represent approximately 19.9% of our outstanding Shares as
of January 6, 2020.
The following sentence is hereby added to
the end of the fourth paragraph formerly present on the cover page of the Offer to Exchange: The Holders have not yet tendered
their Public Warrants to the Company’s transfer agent, and the Public Warrants of the Holders will be exchanged for Shares
simultaneously with the completion of the Offer for administrative convenience.
The first sentence of the subsection of
the “Summary” of the Offer to Exchange with the heading “Participation by Executive Officers and Directors”
is hereby amended and restated in its entirety and replaced by the following sentences: None of our directors, executive officers
or affiliates will participate in the Offer (other than Brad Bernstein), as those who own Public Warrants previously agreed to
exchange them for Shares pursuant to the Exchange Agreement. Such Holders have not yet tendered their Public Warrants to the Company’s
transfer agent, and the Public Warrants of our directors, executive officers and affiliates that are party to the Exchange Agreement
will be exchanged for Shares simultaneously with the completion of the Offer for administrative convenience.
The second paragraph formerly present on
page 10 of the Offer to Exchange is hereby amended and restated in its entirety and replaced by the following paragraph: Following
the consummation of the warrant exchange contemplated by the Exchange Agreement, none of our directors or executive officers will
beneficially own Public Warrants (other than Brad Bernstein). On December 30, 2019, the Company and holders of at least 50.1% of
the outstanding Public Warrants entered into the Exchange Agreement, pursuant to which the Holders agreed to exchange their Public
Warrants for Shares under terms of the Offer, agreed to make the Offer to all other public holders of the Public Warrants in reliance
upon the exemption from registration provided by Section 3(a)(9) of the Securities Act, and to amend the terms of the Warrant Agent
Agreement for the Public Warrants to permit the Company to require that all outstanding Public Warrants not exchanged pursuant
to the Offer be converted into Shares at a rate of 0.56 of a share of our common stock per Public Warrant, which is 10% less than
the exchange rate applicable to the Offer. The Holders have not yet tendered their Public Warrants to the Company’s transfer
agent, and the Public Warrants of the Holders will be exchanged for Shares simultaneously with the completion of the Offer for
administrative convenience.
The first paragraph formerly under the Table
of Contents on page iv of the Offer to Exchange is hereby amended and restated in its entirety and replaced by the following paragraph:
We are not making the Offer to Public Warrant holders in any jurisdiction where it would be illegal to do so. However, we may,
at our discretion, take any actions necessary for us to make the Offer to Public Warrant holders in any such jurisdiction. Validly
tendered Public Warrants will be accepted from all holders, wherever located.
Clause 4(a) of the subsection of the “Summary”
of the Offer to Exchange with the heading “Conditions of the Offer” and clause 4(a) of the subsection “THE OFFER—10.
CONDITIONS; TERMINATION; WAIVERS; EXTENSIONS; AMENDMENTS” is hereby amended and restated in its entirety and replaced by
the following clause: “any general suspension of trading in securities in U.S. securities or financial markets;”
The second to last paragraph of the subsection
of the “Summary” of the Offer to Exchange with the heading “Conditions of the Offer” is hereby amended
and restated in its entirety and replaced by the following paragraph: The foregoing conditions are solely for our benefit. We may
only terminate the Offer pursuant to objectively determinable offer conditions specified herein. We may also, in our sole and absolute
discretion, waive these conditions in whole or in part, subject to the potential requirement to disseminate additional information
and extend the Offer, as described under “The Offer, Section 10. Conditions; Termination; Waivers; Extensions; Amendments.”
The determination by us as to whether any condition has been satisfied shall be conclusive and binding on all parties. We note,
however, that Public Warrant holders are not foreclosed from challenging any of our determinations in a court of competent jurisdiction.
The last paragraph formerly present on page
14 of the Offer to Exchange is hereby amended and restated in its entirety and replaced by the following paragraph: The foregoing
conditions are solely for our benefit. We may only terminate the Offer pursuant to objectively determinable offer conditions specified
herein. We may also, in our sole and absolute discretion, waive these conditions in whole or in part, subject to the potential
requirement to disseminate additional information and extend the Offer, as described below. The determination by us as to whether
any condition has been satisfied shall be conclusive and binding on all parties. We note, however, that Public Warrant holders
are not foreclosed from challenging any of our determinations in a court of competent jurisdiction.
The table formerly present on page 12 of
the Offer to Exchange is hereby deleted and replaced in its entirety by the following table:
Price per Share
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Implied Public Warrant Value
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$
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1.00
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$
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0.62
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$
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1.20
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$
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0.74
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$
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1.40
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$
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0.87
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$
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1.60
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$
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0.99
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$
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1.80
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$
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1.12
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$
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2.00
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$
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1.24
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$
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2.20
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$
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1.36
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$
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2.40
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$
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1.49
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$
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2.60
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$
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1.61
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$
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2.80
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$
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1.74
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$
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3.00
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$
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1.86
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$
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3.20
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$
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1.98
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$
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3.40
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$
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2.11
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$
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3.60
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$
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2.23
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$
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3.80
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$
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2.36
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$
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4.00
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$
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2.48
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$
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4.20
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$
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2.60
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$
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4.40
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$
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2.73
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$
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4.60
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$
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2.85
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$
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4.80
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$
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2.98
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$
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5.00
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$
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3.10
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The following sentence is hereby added to
the end of the first paragraph formerly present on page 17 of the Offer to Exchange: We note, however, that the safe-harbor protections
for forward-looking statements in the Private Securities Litigation Reform Act do not apply to statements made in connection with
a tender offer.
The last risk factor formerly present on
page 17 of the Offer to Exchange is hereby deleted in its entirety.
Notwithstanding the last sentence of the
fourth paragraph formerly present on page 5 of the Letter of Transmittal, the Company hereby acknowledges that such sentence should
be amended and restated and replaced in its entirety with the following sentence: Subject to, and effective upon, the Company’s
acceptance of the undersigned’s election to exchange the Public Warrants described in Box 1 below, the undersigned hereby
assigns and transfers to, or upon the order of, the Company, all right, title and interest in, to, and under the Public Warrants
being exchanged hereby, waives any and all other rights with respect to such Public Warrants and releases and discharges the Company
from any and all claims the undersigned may have now, or may have in the future, arising out of, or related to, such Public Warrants;
except that no Public Warrant holder shall waive or release the Company from any law, rule or regulation arising under the Exchange
Act or any rule of a self-regulatory organization in connection therewith.
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.
FLEXSHOPPER, INC.
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By:
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/s/ Richard House Jr.
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Name:
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Richard House Jr.
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Title:
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Chief Executive Officer
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Dated: January 15, 2020
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