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
ADHERA
THERAPEUTICS, INC.
(Name
of Subject Company (Issuer) and Name of Filing Person (Issuer))
Warrants
exercisable for Common Stock at an exercise price of $0.55 per share
Warrants
exercisable for Common Stock at an exercise price of $0.50 per share
(Title
of Class of Securities)
00687E
109
(CUSIP
Number of Common Stock Underlying Warrants)
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
|
Transaction
valuation*
|
|
Amount
of filing fee
|
|
$6,387,612
|
|
$774.18
|
|
*
|
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 warrants that were issued in connection with the Company’s private
placements of its Series E Convertible Preferred Stock and Series F Convertible Preferred Stock during the 2018 calendar year
(the “
Warrants
”) the opportunity to exchange such Warrants for shares of the Company’s common
stock, par value $0.006 per share (the “
Shares
”), by tendering one Warrant in exchange for two (2)
Shares. The amount of the filing fee assumes that all of the outstanding 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 Company’s common stock as reported by the OTCQB on May 22, 2019, which was
$0.22.
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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.
|
|
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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[ ]
|
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.
|
|
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[X]
|
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.
|
Check
the following box if the filing is a final amendment reporting the results of the tender offer: [ ]
SCHEDULE
TO
This
Tender Offer Statement on Schedule TO (this “
Schedule TO
”) is filed by Adhera Therapeutics, Inc., a
Delaware corporation (the “
Company
”). This Schedule TO relates to the offer by the Company to all holders
of the Company’s outstanding warrants that were issued to investors in connection with the Company’s private placement
of its Series E Convertible Preferred Stock and Series F Convertible Preferred Stock during 2018 (the “
Private Placements
”),
which warrants are exercisable for shares of the Company’s common stock, par value $0.006 per share (the “
Shares
”),
which have an exercise price of $0.50 per share (subject to adjustment) with respect to the warrants that were issued in
connection with the Company’s private placement of its Series E Convertible Preferred Stock (the “
Series E Warrants
”)
and $0.55 per share (subject to adjustment) with respect to the warrants that were issued in connection with the Company’s
private placement of its Series F Convertible Preferred Stock (the “
Series F Warrants
”, and together
with the Series E Warrants, the “
Warrants
”), to receive two (2) Shares in exchange for every Warrant
tendered by the holders thereof. The offer is subject to the terms and conditions set forth in the Offer to Exchange Letter, dated
May 28, 2019 (the “
Offer Letter
”), a copy of which is filed herewith as Exhibit (a)(1)(A), and
in the related Letter of Transmittal, a copy of which is filed herewith as Exhibit (a)(1)(B) (which, together with any amendments
or supplements thereto, collectively constitute the “
Offer
”).
This
Schedule TO is intended to satisfy the reporting requirements of Rule 13e-4 under the Securities Exchange Act of 1934, as amended.
The information in the Offer Letter and the related Letter of Transmittal is incorporated herein by reference as set forth below.
All share and per share information included in this Schedule TO shall be appropriately adjusted to give effect to any split or
combination of the Shares that may become effective prior to the completion of the Offer, including the one-for-two reverse split
of the Shares that the Company intends to effect prior to, and as a condition of, the closing of the Offer.
Item
1. Summary Term Sheet.
The
information set forth in the section of the Offer Letter titled “Summary” is incorporated herein by reference.
Item
2. Subject Company Information.
(a)
Name and Address.
The name of the subject company and the filing person is Adhera Therapeutics, Inc., a Delaware corporation.
The address of the Company’s principal executive offices is 4721 Emperor Boulevard, Suite 350, Durham, North Carolina 27703.
The Company’s telephone number is (919) 578-5901.
(b)
Securities.
The subject class of securities consists of the Company’s outstanding Warrants. As of May 24,
2019, there were 26,177,078 Series E Warrants outstanding and 2,857,500 Series F Warrants outstanding, each of which is exercisable
for one share of the Company’s common stock, at an exercise price of $0.50 per share with respect to the Series E Warrants
and $0.55 per share with respect to the Series F Warrants. The actual number of Shares that will be issued will depend on the
number of Warrants tendered and accepted for exchange and subsequently cancelled. If all of the outstanding Warrants are
tendered and accepted for exchange, an aggregate of approximately 58,069,156 Shares will be issued in connection with the Offer.
Warrants that are validly tendered and accepted for exchange will be cancelled.
The
Offer relates to the Warrants that were issued by the Company to investors in connection with the Private Placements. The Warrants
were issued in private transactions, and do not trade on any exchange or trading platform. The Offer does not relate to any of
the other outstanding warrants that have been issued from time to time by the Company. Any and all outstanding Warrants are eligible
to be tendered pursuant to, and in accordance with the conditions applicable to, the Offer.
(c)
Trading Market and Price.
The information set forth in the Offer Letter under “The Offer, Section 6. Price Range
of Shares” is incorporated herein by reference.
Item
3. Identity and Background of Filing Person.
(a)
Name and Address.
The Company is the subject company and the filing person. The business address and telephone number
of the Company are set forth under Item 2(a) above.
The
names of the executive officers and directors of the Company who are persons specified in Instruction C to Schedule TO are set
forth below. The business address for each such person is c/o Adhera therapeutics, Inc., 4721 Emperor Boulevard, Suite 350, Durham,
North Carolina 27703 and the telephone number for each such person is (919) 578-5901.
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Name
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Position
|
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Nancy
R. Phelan
|
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Chief
Executive Officer, Secretary and a Director
|
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Uli
Hacksell, Ph.D.
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Chairman
of the Board
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Isaac
Blech
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Director
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Tim
Boris
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Director
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Erik
Emerson
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Director
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Donald
A. Williams
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Director
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Item
4. Terms of the Transaction.
The
information set forth in the Offer Letter under “The Offer, Sections 1 through 15” is incorporated herein by reference.
The
information set forth in the Offer Letter under “The Offer, Section 5.D., Background and Purpose of the Offer—Interests
of Directors and Executive Officers” is incorporated herein by reference.
Item
5. Past Contracts, Transactions, Negotiations and Arrangements.
(a)
Agreements Involving the Subject Company’s Securities.
The information set forth in the Offer Letter under “The
Offer, Section 8. Transactions and Agreements Concerning the Company’s Securities” is incorporated herein by reference.
Item
6. Purposes of the Transaction and Plans or Proposals.
(a)
Purposes.
The information set forth in the Offer Letter under “The Offer, Section 5.C., Background and Purpose of
the Offer—Purpose of the Offer” is incorporated herein by reference.
(b)
Use of Securities Acquired.
The Warrants validly tendered and accepted for exchange pursuant to the Offer will be retired
and cancelled.
(c)
Plans.
No plans or proposals described in this Schedule TO or in any materials sent to the holders of the Warrants in
connection with the Offer relate to or would result in the conditions or transactions described in Regulation M-A, Items 1006(a)
through (c). The exchange of each Warrant pursuant to the Offer will result in the acquisition by the exchanging holder of two
(2) Shares.
Item
7. Source and Amount of Funds or Other Consideration.
(a)
Sources of Funds.
No funds will be used by the Company in connection with the Offer, other than funds used to pay the
expenses of the Offer.
(b)
Conditions.
Not applicable.
(d)
Borrowed funds.
Not applicable.
Item
8. Interest in Securities of the Subject Company.
(a)
Securities ownership.
The information regarding ownership of Warrants set forth in the Offer Letter under “The Offer,
Section 5.D., Background and Purpose of the Offer—Interests of Directors and Executive Officers” is incorporated herein
by reference.
(b)
Securities transactions.
The information set forth in the Offer Letter under “The Offer, Section 5.D., Background
and Purpose of the Offer—Interests of Directors and Executive Officers” is incorporated herein by reference.
Item
9. Persons/Assets, Retained, Employed, Compensated or Used.
(a)
Solicitations or Recommendations.
The information set forth in the Offer Letter under “The Offer, Section 13. The
Depositary” and “The Offer, Section 14. Fees and Expenses” is incorporated herein by reference. No persons have
been directly or indirectly employed, retained or otherwise compensated to make solicitations or recommendations in connection
with the Offer, other than certain employees of the Company, none of whom will receive any special or additional compensation
in connection with the Offer beyond their normal compensation. See the information set forth on page iv of the Offer Letter.
Item
10. Financial Statements.
(a)
Financial Information.
Incorporated herein by reference are the Company’s financial statements that were included
as Part II, Item 8 in its Annual Report on Form 10-K for the fiscal year ended December 31, 2018, filed with the Securities and
Exchange Commission (the “
SEC
”) on April 16, 2019 (the “
Form 10-K
”), and the
Company’s financial statements that were included as Part I, Item 1 in its Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2019, filed with the SEC on May 15, 2019 (the
“Form 10-Q
”). The Form 10-K and
the Form 10-Q are each available for review on the SEC’s website at www.sec.gov. In addition, the information set forth
in the Offer Letter under “The Offer, Section 9. Financial Information Regarding the Company” is incorporated herein
by reference.
(b)
Pro Forma Information.
Not applicable.
Item
11. Additional Information.
The
information set forth in the Offer Letter and the related Letter of Transmittal, copies of which are filed as Exhibits (a)(l)(A)
and (a)(l)(B) hereto, respectively, is incorporated herein by reference.
Item
12. Exhibits.
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.
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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:
May 28, 2019
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