Amended Tender Offer Statement by Issuer (sc To-i/a)
June 21 2018 - 8:19AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
Amendment
No 2
to
SCHEDULE
TO
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1) OF THE
SECURITIES
EXCHANGE ACT OF 1934
CARDAX,
INC.
(Name
of Subject Company (Issuer) and Filing Person (Offeror))
COMMON
STOCK
$0.001
par value per share
(Title
of Class of Securities)
14141D102
(CUSIP
Number of Class of Common Stock)
David
G. Watumull
Cardax,
Inc.
2800
Woodlawn Drive, Suite 129
Honolulu,
Hawaii 96822
(808)
457-1400
(Name,
Address, and Telephone Number of Person Authorized to Receive Notices and
Communications
on Behalf of Filing Person)
Copies
to:
Richard
M. Morris, Esq.
Herrick,
Feinstein LLP
2 Park Avenue
New
York, New York 10016
(212)
592-1400
CALCULATION
OF FILING FEE:
Transaction
Valuation:
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Amount
of Filing Fee:
|
|
|
$
8,588,792.42
(a)
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|
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$
1,069.30
(b)
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(a)
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Estimated
for purposes of calculating the amount of the filing fee only. The transaction is an offer by the Cardax, Inc. (the “
Company
”)
to holders of its $0.625 warrants (“
Original Warrants
”) to exchange up to 27,705,782 of such Original Warrants,
plus a fee of $0.15 per Original Warrant (“
Exchange Payment
”) for an equal number of shares of common stock
of the Company (“
Exchange Offer
”). The transaction valuation is calculated pursuant to Rule 0-11 of the
Securities Exchange Act of 1934, as amended. The transaction valuation assumes that 27,705,782 outstanding Original Warrants
are tendered in the Exchange Offer, and was determined using $0.31 per Original Warrant, which represents the average of the
bid and ask price of the Company’s common stock on May 1, 2018 on the OTCQB.
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(b)
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Estimated
solely for purposes of computing the amount of the registration fee pursuant to Rule 457(c) and (g) under the Securities Act
of 1933, computed based upon the average of the bid and ask price per share of the Company’s common stock on May 1,
2018 on the OTCQB.
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[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: $1,069.30
Form
or Registration Number: Registration Statement on Form S-4 (File No. 333-224619)
Filing
Party: Cardax, Inc.
Date
Filed: May 2, 2018
[ ]
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 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)
INTRODUCTORY
STATEMENT
This
Amendment No. 2 (“
Amendment No. 2
”) amends and supplements the Tender Offer Statement on Schedule TO originally
filed by Cardax, Inc., a Delaware corporation (the “
Company
”) on June 15, 2018 and amended on June 20, 2018
(as amended, the “
Schedule TO
”), in connection with the Company’s offer to exchange each issued and outstanding
warrant that provided the holder the right to purchase a share of common stock of the Company, par value $0.001 per share (“
Common
Stock
”) at $0.625 per share (each, an “
Original Warrant
”) and payment by the holder of $0.15 in cash
(the “
Exchange Payment
”), for one share of Common Stock, which constitutes the “
Exchange Offer
”.
This
Amendment No. 2 to the Schedule TO should be read in conjunction with the Schedule TO, the Offer Letter and the Letter of Transmittal,
as the same may be further amended or supplemented hereafter and filed with the SEC.
This
Amendment No. 2 amends the Schedule TO to (i) amend and restate in its entirety Item 1, (ii) amend and supplement Item 10, and
(iii) add additional exhibits. Except as amended hereby to the extent specifically provided herein, all terms of the Exchange
Offer and all other disclosures set forth in the Schedule TO and the exhibits thereto remain unchanged and are hereby expressly
incorporated into this Amendment No. 2 by reference.
Item
1. Summary Term Sheet.
Item
1 of the Schedule TO is hereby amended and restated in its entity by the Summary Term Sheet, filed as exhibit (a)(1)(f) to this
Amendment No. 2, which is incorporated herein.
Item
10. Financial Statements.
The
first paragraph in Section 3. Description of the Transaction in the Notes to Pro Forma Condensed Consolidated Financial Statements
is amended and restated as follows:
“The
Company is offering to exchange each issued and outstanding Original Warrant together with the Exchange Payment for an Exchange
Share. The Company will accept for exchange any and all Original Warrants validly tendered at any time prior to 5:00 p.m., New
York City time, during the period (the “
Exchange Period
”) beginning on the commencement date of this Exchange
Offer on , 2018 (the “
Commencement Date
”), and continuing until , 2018 (the “
Expiration Date
”),
which is 21 business days after the Commencement Date, unless extended by the Company. The Company will issue the Exchange Shares
promptly after the Expiration Date. The Company will accept for exchange any Original Warrant held by any person other than the
original holder if such Original Warrant is transferred in accordance with the terms of the Original Warrant and applicable federal
and state securities laws. Holders may elect to participate in the Exchange Offer with respect to some, all or none of their Original
Warrants. If a holder chooses not to participate in the Exchange Offer, the holder’s Original Warrants will remain in full
force and effect, as originally issued with an exercise price of $0.625 per share and will retain in all respects their original
terms and provisions.”
Item
12. Exhibits.
Item
12 of the Schedule TO is hereby amended and supplemented to include the following exhibits:
SIGNATURE
After
due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Amendment No. 2 to Schedule
TO is true, complete and correct.
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CARDAX,
INC.
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By:
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/s/
David G. Watumull
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Name:
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David
G. Watumull
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Title:
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President
& Chief Executive Officer
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Date:
June 21, 2018
INDEX
TO EXHIBITS
Exhibit
Number
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Description
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(a)(1)(a)
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Letter to Warrant Holders (incorporated herein by reference to Exhibit 99.1 to the Company’s Registration Statement on Form S-4, filed with the SEC on May 2, 2018).
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(a)(1)(b)
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Letter of Transmittal (incorporated herein by reference to Exhibit 99.2 to the Company’s Registration Statement on Form S-4, filed with the SEC on May 2, 2018).***
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(a)(1)(c)
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Summary Term Sheet (incorporated herein by reference to Exhibit (a)(1)(c) to the Company’s Schedule TO, filed with the SEC on June 15, 2018).**
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(a)(1)(d)
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Summary Term Sheet (incorporated herein by reference to Exhibit (a)(1)(d) to the Company’s Amendment No. 1 to Schedule TO, filed with the SEC on June 20, 2018).**
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(a)(1)(e)
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Letter of Transmittal (incorporated herein by reference to Exhibit 99.2 to the Company’s Amendment No. 2 to the Registration Statement on Form S-4, filed with the SEC on June 20, 2018).***
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(a)(1)(f)
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Summary Term Sheet*
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(a)(1)(g)
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Letter of Transmittal (incorporated herein by reference to Exhibit 99.2 to the Company’s Amendment No. 3 to the Registration Statement on Form S-4, filed with the SEC on June 21, 2018).
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(a)(4)(a)
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Registration Statement on Form S-4 (as filed with the SEC on May 2, 2018 and incorporated herein by reference).
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(a)(4)(b)
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Amendment No. 1 to Registration Statement on Form S-4 (as filed with the SEC on June 14, 2018 and incorporated herein by reference).
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(a)(4)(c)
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Amendment No. 2 to Registration Statement on Form S-4 (as filed with the SEC on June 20, 2018 and incorporated herein by reference).
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(a)(4)(d)
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Amendment No. 3 to Registration Statement on Form S-4 (as filed with the SEC on June 21, 2018 and incorporated herein by reference).
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(a)(5)(a)
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Current Report on Form 8-K (as filed with the SEC on May 2, 2018 and incorporated herein by reference).
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(a)(5)(b)
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Press Release (incorporated herein by reference to Exhibit 99.1 to the Company’s Current Report on Form 8-K, filed with the SEC on May 2, 2018).
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(d)(1)
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Form of Class A Warrant (incorporated herein by reference to Exhibit 4.2 to the Company’s Current Report on Form 8-K, filed with the SEC on February 10, 2014).
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(d)(2)
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Form of Noteholder Warrant (incorporated herein by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K, filed with the SEC on February 10, 2014).
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(d)(3)
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Form of Placement Agent Warrant (incorporated herein by reference to Exhibit 4.4 to the Company’s Current Report on Form 8-K, filed with the SEC on February 10, 2014).
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(d)(4)
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Form of Financial Consultant Warrant (incorporated herein by reference to Exhibit 4.5 to the Company’s Current Report on Form 8-K, filed with the SEC on February 10, 2014).
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*
Filed herein.
**
Amended and restated in its entirety by the Summary Term Sheet filed herein.
***
Amended and restated in its entirety by the Letter of Transmittal filed as an exhibit to the Company’s Amendment No. 3 to
the Registration Statement on Form S-4, filed with the SEC on June 21, 2018.
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