UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
TO
(Amendment
No. 1)
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF
THE SECURITIES EXCHANGE ACT OF 1934
PROPHASE
LABS, INC.
(Name
of Subject Company (Issuer))
PROPHASE
LABS, INC.
(Names
of Filing Persons (Issuer and Offeror))
Common
Stock, Par Value $0.0005 Per Share
(Title
of Class of Securities)
74345W
10 8
(CUSIP
Number of Class of Securities)
Ted
Karkus
Chairman
and Chief Executive Officer
ProPhase
Labs, Inc.
621
N. Shady Retreat Road
Doylestown,
Pennsylvania 18901
(215)
345-0919
(Name,
Address and Telephone Numbers of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Copy
to:
Herb
Kozlov, Esq.
Aron
Izower, Esq.
Reed
Smith LLP
599
Lexington Avenue
New
York, New York 10022
(212)
345-0919
CALCULATION
OF FILING FEE
| TRANSACTION
VALUATION(1) |
|
AMOUNT
OF FILING FEE(2) |
| $9,200,000 |
|
$1,066.28 |
(1)
Estimated solely for purposes of calculating the filing fee, this amount is based on the purchase of 4,000,000 shares of common
stock, par value $0.0005 per share, at the offer price of $2.30 per share.
(2)
The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities and Exchange Act of 1934, as amended,
equals $115.90 per $1,000,000 of the value of the transaction.
| [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: $1,066.28 |
|
Filing
Party: ProPhase Labs, Inc. |
| |
Form
or Registration No.: Schedule TO-I |
|
Date
Filed: August 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 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) |
SCHEDULE
TO
This
Amendment No. 1 (this “Amendment”) amends the Schedule TO filed with the Securities and Exchange Commission (the “SEC”)
on August 25, 2017 (the “Schedule TO”) by ProPhase Labs, Inc., a Delaware corporation (the “Company”),
relating to the offer by the Company to purchase up to 4,000,000 shares of its common stock, par value $0.0005 per share, at a
price of $2.30 per share, without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase dated
August 25, 2017 (the “Offer to Purchase”) and the related Letter of Transmittal (the “Letter of Transmittal”)
(together with the Offer to Purchase, the “Offer”).
The
information in the Offer, including all schedules and annexes thereto, which were previously filed with the Schedule TO, is hereby
expressly incorporated by reference into this Amendment, except that such information is hereby amended and supplemented to the
extent specifically provided herein.
Item
11. Additional Information.
Item
11 of the Schedule TO is hereby amended and supplemented by adding at the end thereof the following:
On
September 26, 2017, the Company issued a press release announcing the preliminary results of the Offer, which expired at 5:00
p.m., New York City time, on Monday, September 25, 2017. A copy of the press release is filed as Exhibit (a)(I)(G) to the Schedule
TO and is incorporated herein by reference.
Item
12. Exhibits.
Item
12 of the Schedule TO is hereby amended and supplemented as follows:
The
following reference to Exhibit (a)(1)(G) is hereby inserted immediately prior to the reference to Exhibit (b):
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:
September 26, 2017
| |
PROPHASE LABS, INC. |
| |
|
|
| |
By: |
/s/ Ted
Karkus |
| |
Name: |
Ted
Karkus |
| |
Title: |
Chairman
and Chief Executive Officer |
EXHIBIT
INDEX
| (a)(1)(A)* |
|
Offer to Purchase, dated August 25, 2017. |
| |
|
|
| (a)(1)(B)* |
|
Letter of Transmittal (including IRS Form W-9 and Guidelines for Certification of Taxpayer Identification Number on IRS Form W-9). |
| |
|
|
| (a)(1)(C)* |
|
Notice of Guaranteed Delivery. |
| |
|
|
| (a)(1)(D)* |
|
Letter to Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees. |
| |
|
|
| (a)(1)(E)* |
|
Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees. |
| |
|
|
| (a)(1)(F)* |
|
Press release announcing commencement of the Tender Offer, dated August 25, 2017. |
| |
|
|
| (a)(1)(G)** |
|
Press release announcing the preliminary results of the Tender Offer, dated September 26, 2017. |
| |
|
|
| (b) |
|
None. |
| |
|
|
| (d)(1) |
|
Asset Purchase Agreement (as amended), by and between ProPhase Labs, Inc., Meda Consumer Healthcare Inc. and Mylan Inc., as Buyer Guarantor, dated as of January 6, 2017 (incorporated by reference to Exhibit 2.1 of Form 8-K filed on March 29, 2017) |
| |
|
|
| (d)(2) |
|
Manufacturing Agreement, dated as of March 29, 2017, by and between Meda Consumer Healthcare Inc. and Pharmaloz Manufacturing, Inc. (incorporated by reference to Exhibit 2.2 of Form 8-K filed on March 29, 2017) |
| |
|
|
| (d)(3) |
|
Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.3 of Form 8-K filed on June 19, 2015). |
| |
|
|
| (d)(4) |
|
By-laws of the Company as amended and restated effective June 18, 2015 (incorporated by reference to Exhibit 3.4 of Form 8-K filed on June 19, 2015). |
| |
|
|
| (d)(5) |
|
Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 of Form 10-KSB/A filed on April 4, 1997). |
| |
|
|
| (d)(6) |
|
Amended and Restated Rights Agreement, dated June 18, 2014 between the Company and American Stock Transfer and Trust Company, LLC (incorporated by reference to Exhibit 4.1 of Form 8-K filed on June 19, 2014). |
| |
|
|
| (d)(7) |
|
Amended No. 1 to Amended and Restated Rights Agreement, dated January 6, 2017 between the Company and American Stock Transfer and Trust Company, LLC (incorporated by reference to Exhibit 4.2 of Form 8-K filed on January 9, 2017). |
| |
|
|
| (d)(8) |
|
Form of Voting Agreement, dated January 6, 2017 by and between Meda Consumer Healthcare Inc. and the undersigned stockholders of ProPhase Labs, Inc. (incorporated by reference to Exhibit 4.1 of Form 8-K filed on January 9, 2017). |
| |
|
|
| (d)(9) |
|
Exclusive Representation and Distribution Agreement dated May 4, 1992 between the Company and Godfrey Science and Design, Inc. et al (incorporated by reference to Exhibit 10.2 of Form 10-KSB/A filed on April 4, 1997). |
| |
|
|
| (d)(10) |
|
Form of Indemnification Agreement between the Company and each of its Officers and Directors dated August 19, 2009 (incorporated by reference to Exhibit 10.1 of Form 8-K filed on August 19, 2009). |
| |
|
|
| (d)(11) |
|
Limited Liability Company Agreement, dated March 22, 2010, between the Company, Phosphagenics Limited, Phosphagenics Inc., and Phusion Laboratories, LLC. (incorporated by reference to Exhibit 10.11 of Form 10-K filed on March 24, 2010). |
| |
|
|
| (d)(12) |
|
Contribution Agreement, dated March 22, 2010, between the Company, Phosphagenics Limited, Phosphagenics Inc., and Phusion Laboratories, LLC. (incorporated by reference to Exhibit 10.12 of Form 10-K filed on March 24, 2010). |
| (d)(13) |
|
License
Agreement, dated March 22, 2010, between the Company and Phosphagenics Limited. (incorporated by reference to Exhibit 10.13
of Form 10-K filed on March 24, 2010). |
| |
|
|
| (d)(14) |
|
Amended
and Restated License Agreement, dated March 22, 2010, between the Company, Phosphagenics Limited, Phosphagenics Inc., and
Phusion Laboratories, LLC. (incorporated by reference to Exhibit 10.14 of Form 10-K filed on March 24, 2010). |
| |
|
|
| (d)(15) |
|
Amended and Restated 2010 Equity Compensation Plan (incorporated by reference to Exhibit B of the Company’s Annual Proxy Statement on Schedule 14A filed on April 18, 2016). |
| |
|
|
| (d)(16) |
|
2010 Directors’ Equity Compensation Plan (incorporated by reference to Exhibit C of the Company’s Annual Proxy Statement on Schedule 14A filed on April 2, 2010). |
| |
|
|
| (d)(17) |
|
Amendment
to 2010 Directors’ Equity Compensation Plan (incorporated by reference to Exhibit 10.3 of Form 8-K filed on May 10,
2010). |
| |
|
|
| (d)(18) |
|
Form
of Option Agreement pursuant to 2010 Equity Compensation Plan (incorporated by reference to Exhibit 10.4 of Form 8-K filed
on May 10, 2010). |
| |
|
|
| (d)(19) |
|
Form
of Option Agreement pursuant to 2010 Directors’ Equity Compensation Plan (incorporated by reference to Exhibit 10.5
of Form 8-K filed on May 10, 2010). |
| |
|
|
| (d)(20) |
|
Form of Amended and Restated 2010 Equity Compensation Plan Option Award Agreement. |
| |
|
|
| (d)(21) |
|
Form
of Restricted Stock Award Agreement pursuant to 2010 Directors’ Equity Compensation Plan (incorporated by reference
to Exhibit 10.6 of Form 8-K filed on May 10, 2010). |
| |
|
|
| (d)(22) |
|
Redemption
Agreement with Phosphagenics Ltd. (incorporated by reference to Exhibit 10.1 of Form 8-K filed on September 23, 2011). |
| |
|
|
| (d)(23) |
|
Investment
Agreement by and between ProPhase Labs, Inc. and Dutchess Opportunity Fund II, LP, dated as of May 28, 2014 (incorporated
by reference to Exhibit 10.1 of Form 8-K filed on May 28, 2014). |
| |
|
|
| (d)(24) |
|
Registration
Rights Agreement by and between ProPhase Labs, Inc. and Dutchess Opportunity Fund II, LP, dated as of May 28, 2014 (incorporated
by reference to Exhibit 10.2 of Form 8-K filed on May 28, 2014). |
| |
|
|
| (d)(25) |
|
Settlement Agreement and Mutual Release between ProPhase Labs, Inc. f/k/a The Quigley Corporation and John C. Godfrey, the Estate of Nancy Jane Godfrey, and Godfrey Science and Design, Inc. dated December 20, 2012. (incorporated by reference to Exhibit 10.25 of Form 10-K filed on March 28, 2013). |
| |
|
|
| (d)(26) |
|
Amendment
to 2010 Directors’ Equity Compensation Plan (incorporated by reference to Appendix B of the Company’s Annual Proxy
Statement on Schedule 14A filed on April 3, 2013). |
| |
|
|
| (d)(27) |
|
Global Settlement Agreement between ProPhase Labs, Inc. and certain of the Company’s former managers and with certain shareholders dated September 4, 2014 resolving all litigation matters between the parties (incorporated by reference to Exhibit 99.3 of Form 8-K dated September 4, 2014) |
| |
|
|
| (d)(28) |
|
Employment
Agreement dated May 29, 2015 between Ted Karkus and the Company (incorporated by reference to Exhibit 99.2 of Form 8-K filed
on June 1, 2015). |
| |
|
|
| (d)(29) |
|
Employment
Agreement dated May 29, 2015 between Robert V. Cuddihy, Jr. and the Company (incorporated by reference to Exhibit 99.1 of
Form 8-K filed on June 1, 2015). |
| |
|
|
| (d)(30) |
|
Registration
Rights Agreement by and between ProPhase Labs, Inc. and Dutchess Opportunity Fund II, LP, dated as of July 30, 2015 (incorporated
by reference to Exhibit 4.2 of the registration statement on Form S-8 filed on August 5, 2015). |
| |
|
|
| (d)(31) |
|
Investment
Agreement by and between ProPhase Labs, Inc. and Dutchess Opportunity Fund II, LP, dated as of July 30, 2015 (incorporated
by reference to Exhibit 4.1 of the registration statement on Form S-8 filed on August 5, 2015). |
| (d)(32) |
|
Subscription Agreements by and between ProPhase Labs, Inc. and John Ligums and Justin Leonard dated December 11, 2015 (incorporated by reference to Exhibit 10.1 of Form 8-K filed on December 16, 2015). |
| |
|
|
| (d)(33) |
|
Employment Agreement Termination and Release Agreement, dated March 29, 2015, by and between ProPhase Labs, Inc. and Robert V. Cuddihy, Jr. (incorporated by reference to Exhibit 10.1 of Form 8-K filed on April 19, 2017) |
| |
|
|
| (d)(34) |
|
Stock Purchase Agreement, dated June 12, 2017, by and between ProPhase Labs, Inc. and Mark Leventhal (incorporated by reference to Exhibit 10.1 to the Form 8-K (File No. 000-21617) filed on June 14, 2017) |
| |
|
|
| (d)(35) |
|
Stock Purchase Agreement, dated June 12, 2017, by and between Mark S. Leventhal and Donna R. Leventhal and ProPhase Labs, Inc. (incorporated by reference to Exhibit 10.2 to the Form 8-K (File No. 000-21617) filed on June 14, 2017) |
| |
|
|
| (d)(36) |
|
Stock Purchase Agreement, dated June 12, 2017, by and between The Mark S. and Donna R. Family Foundation, Inc. and ProPhase Labs, Inc. (incorporated by reference to Exhibit 10.3 to the Form 8-K (File No. 000-21617) filed on June 14, 2017) |
| |
|
|
| (d)(37) |
|
Stock Purchase Agreement, dated June 12, 2017, by and between The Bonnybrook Trust and ProPhase Labs, Inc. (incorporated by reference to Exhibit 10.4 to the Form 8-K (File No. 000-21617) filed on June 14, 2017) |
| |
|
|
| (g) |
|
None. |
| |
|
|
| (h) |
|
None. |
*
Previously filed with the Schedule TO on August 25, 2017.
**
Filed herewith.