Amended Tender Offer Statement by Issuer (sc To-i/a)
January 29 2020 - 2:03PM
Edgar (US Regulatory)
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. 2
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*
|
|
Amount
of filing fee
|
$8,058,009
|
|
$1,045.93
|
|
*
|
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.
|
|
☒
|
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: $1,045.93
|
|
Filing
Party: the Company
|
Form
or Registration No.: Schedule TO
|
|
Date
Filed: January 6, 2020
|
|
☐
|
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 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)
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Amendment
No. 2 to Schedule TO
This
Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO originally
filed with the Securities and Exchange Commission (the “SEC”) on January 6, 2020 and amended on January
15, 2020 (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 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 being made upon the
terms and subject to the conditions in the Offer to Exchange dated January 6, 2020 (the “Original Offer to Exchange”),
as supplemented and amended by Amendment No. 1 to the Schedule TO dated January 15, 2020 (the “1st Amendment”
and, together with the Original Offer to Exchange, the “Offer to Exchange”), and in the related Letter
of Transmittal (as amended to date, the “Letter of Transmittal”). The Offer to Exchange and Letter of
Transmittal were filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
The
information in the Offer to Exchange and the related Letter of Transmittal is incorporated herein by reference in response to
all of the items of Schedule TO, except that such information is hereby amended and supplemented to the extent specifically provided
herein.
Item
11. Additional Information
“Item
11. Additional Information” to the Schedule TO is hereby amended and supplemented by adding the following information to
the end thereof:
On
January 28, 2020, the Company issued a press release reminding holders of the Public Warrants that the Offer will expire at 5:00
p.m., Eastern time, on Tuesday, February 4, 2020. A copy of such press release is filed as Exhibit (a)(5)(D) to this Schedule
TO and is incorporated herein by reference.
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.
Date:
January 29, 2020
|
FLEXSHOPPER,
INC.
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|
|
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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:
|
Chief
Executive Officer
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Exhibit
Index
The
following are attached as exhibits to this Schedule TO:
Exhibit
Number
|
|
Description
|
|
|
(a)(1)(A)*
|
|
Offer to Exchange Letter dated January 6, 2020.
|
|
|
(a)(1)(B)*
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|
Letter of Transmittal (including Guidelines of the Internal Revenue Service for Certification of Taxpayer Identification Number on Substitute Form W-9).
|
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(a)(1)(C)*
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Form of Notice of Guaranteed Delivery.
|
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(a)(1)(D)*
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Form of letter to brokers, dealers, commercial banks, trust companies and other nominees.
|
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(a)(1)(E)*
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Form of letter to be used by brokers, dealers, commercial banks, trust companies and other nominees for their clients.
|
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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 March 11, 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 September 30, 2019 (incorporated herein by reference to the Company’s filing with the SEC on November 4, 2019).
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(a)(5)(C)*
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Press release dated January 6, 2020.
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(a)(5)(D)
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Press release dated January 28, 2020.
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(d)(1)
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Restated Certificate of Incorporation of FlexShopper, Inc. (previously filed as Exhibit 3.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2017 and incorporated herein by reference).
|
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(d)(2)
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|
Certificate of Amendment to the Certificate of Incorporation of the Company (previously filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on September 21, 2018 and incorporated herein by reference).
|
|
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(d)(3)
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Certificate of Amendment to the Certificate of Incorporation of the Company (previously filed as Exhibit 3.4 to the Company’s Quarterly Report on Form 10-Q filed on November 5, 2018 and incorporated herein by reference).
|
|
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(d)(4)
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Amended and Restated Bylaws (previously filed as Exhibit 3.2 to the Company’s Annual Report on Form 10-K filed on March 11, 2019 and incorporated herein by reference).
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(d)(5)
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Form of Warrant Agent Agreement by and between the Company and Continental Stock Transfer & Trust and Form of Warrant (incorporated by reference to Exhibit 4.4 to the Registration Statement on Form S-1 (File No. 333-226823), filed with the SEC on September 24, 2018).
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(d)(6)
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Warrant Amendment and Exchange Agreement (previously filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 30, 2019 and incorporated herein by reference).
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*
|
Filed
with Schedule TO dated January 6, 2020.
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3
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