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. 3)
NATIONAL HOLDINGS CORPORATION
(Name of Subject Company (Issuer))
B.
Riley Principal Merger Corp. III
(Offeror)
A Wholly Owned Subsidiary of
B. RILEY FINANCIAL, INC.
(Parent of Offeror)
(Names of Filing Persons (identifying status
as offeror, issuer or other person))
COMMON STOCK, PAR VALUE $0.02 PER SHARE
(Title of Class of Securities)
636375206
(CUSIP Number of Class of Securities)
Bryant R. Riley
B. Riley Financial, Inc.
11100 Santa Monica Blvd., Suite 800
Los Angeles, CA 91206
(310) 966-1444
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Filing Persons)
with a copy to:
Patrick S. Brown
Sullivan & Cromwell LLP
1888 Century Park East, Suite 2100
Los Angeles, CA 90067
(310) 712-6603
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee**
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$
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35,442,293
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$
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3,867
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*
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Estimated
solely for purposes of calculating the amount of the filing fee. The transaction value
was determined by multiplying (a) $3.25, the tender offer price, by (b) the sum
of (i) 7,605,754 shares of common stock, par value $0.02 per share (“Common Stock”)
of National Holdings Corporation, a Delaware corporation (“NHLD”), which
represents the difference between 13,765,304 shares of Common Stock issued and outstanding
less 6,159,550 shares of Common Stock owned by B. Riley Financial, Inc. and its subsidiaries
as of the date hereof, (ii) 997,708, the number of shares of Common Stock underlying
NHLD restricted stock units and (iii) 2,301,859, the number of shares of Common Stock
underlying NHLD performance restricted stock units. This calculation excludes shares
of Common Stock subject to outstanding options to purchase Common Stock and outstanding
warrants exercisable into shares of Common Stock because such options and warrants have
an exercise price equal to or greater than the tender offer price. The foregoing figures
regarding NHLD shares have been provided by NHLD to the offeror and are as of January
26, 2021, the most recent practicable date.
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**
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The
amount of the filing fee was calculated in accordance with Rule 0-11 under the Securities
Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for Fiscal Year 2021,
issued by the Securities and Exchange Commission on August 26, 2020, by multiplying the
transaction value by 0.0001091.
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☒
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Check
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: $3,867
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Filing Party: B. Riley
Financial, Inc.
B. Riley Principal
Merger Corp. III
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Form or Registration No.: Schedule TO
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Date Filed: January 27, 2021
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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:
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☐
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Rule 13e–4(i) (Cross–Border
Issuer Tender Offer)
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☐
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Rule 14d–1(d)
(Cross–Border Third–Party Tender Offer)
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This Amendment No. 3 amends
the Tender Offer Statement on Schedule TO filed by B. Riley Financial, Inc., a Delaware corporation (“BRF”), and B.
Riley Principal Merger Corp. III, a Delaware corporation and a wholly owned subsidiary of BRF (“Merger Sub”) with the
U.S. Securities and Exchange Commission (the “SEC”) on January 27, 2021 (together with any subsequent amendments and
supplements thereto, including this Amendment No. 3, the “Schedule TO”). The Schedule TO relates to the offer by Merger
Sub to purchase all of the issued and outstanding shares of common stock, par value $0.02 per share (the “Shares”),
of National Holdings Corporation, a Delaware corporation (“NHLD”), owned by stockholders other than BRF and BRF’s
subsidiaries, at a price of $3.25 per Share, to the seller in cash, without interest, less any applicable withholding taxes, upon
the terms and subject to the conditions set forth in the Offer to Purchase, dated January 27, 2021 (the “Offer to Purchase”),
and in the related Letter of Transmittal (the “Letter of Transmittal”), copies of which are filed with the Schedule TO
as Exhibits (a)(1)(i) and (a)(1)(ii) thereto, respectively (which, together with any amendments or supplements thereto, collectively
constitute the “Offer”).
All information contained in the Offer to
Purchase and the Letter of Transmittal, including the schedules and annexes thereto, is hereby incorporated by reference in answer
to all items in the Schedule TO, and is amended and supplemented to the extent specifically provided herein. Capitalized terms
used but not otherwise defined in this Amendment shall have the meanings ascribed to such terms in the Offer to Purchase.
Item 1 through 9 and Item 11
Items 1 through 9
and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase,
are hereby amended and supplemented as follows:
The information set
forth in the Offer to Purchase is hereby amended and supplemented by adding the following disclosure after the fourth paragraph
under “The Tender Offer—Certain Legal Matters; Regulatory Approvals—Litigation”:
“On February
17, 2021, Frank Gallo, a purported stockholder of NHLD, filed a lawsuit against NHLD and the members of the NHLD Board in the United
States District Court for the Southern District of New York, captioned Gallo v. National Holdings Corporation, et al., Case
No. 1:21-cv-01372 (the “Gallo Complaint”). The Gallo Complaint alleges that NHLD and its directors violated Section 14(d)(4),
Section 14(e) and Section 20(a) of the Exchange Act by filing the Schedule 14D-9, which plaintiff alleges omits
or misrepresents material information regarding the Offer and the Merger rendering the Schedule 14D-9 false and misleading.
The Gallo Complaint seeks, among other things, (1) injunctive relief preliminarily and permanently enjoining NHLD and the NHLD
Board and all persons acting in concert with them from proceeding with or consummating the Offer and the Merger, (2) rescindment
and setting aside of the Offer and the Merger if consummated, or an award of rescissory damages and (3) an award of costs
incurred by plaintiff in bringing the lawsuit, including attorneys’ and experts’ fees. Defendants believe the complaint
is without merit.
On February 17, 2021, Alex Ciccotelli, a purported stockholder
of NHLD, filed a lawsuit against NHLD, the members of the NHLD Board, BRF and Purchaser in the United States District Court for
the Eastern District of Pennsylvania, captioned Ciccotelli v. National Holdings Corporation, et al., Case No. 2:21-cv-00720
(the “Ciccotelli Complaint”). The Ciccotelli Complaint alleges that the defendants violated Section 14(d), Section 14(e)
and Section 20(a) of the Exchange Act by filing the Schedule 14D-9, which plaintiff alleges omits material information
regarding the Offer and the Merger rendering the Schedule 14D-9 false and misleading. The Ciccotelli Complaint seeks, among
other things, (1) injunctive relief enjoining the defendants and all persons acting in concert with them from proceeding with
or consummating the Offer and the Merger, (2) rescindment and setting aside of the Offer and the Merger if consummated, or
an award of rescissory damages, (3) injunctive relief directing the members of the NHLD Board to file a corrected Solicitation/Recommendation
Statement on Schedule 14D-9, (4) a declaratory judgment that the defendants violated Section 14(d), Section 14(e)
and Section 20(a) of the Exchange Act, as well as Rule 14a-9 promulgated thereunder and (5) an award of costs incurred
by plaintiff in bringing the lawsuit, including attorneys’ and experts’ fees. Defendants believe the complaint is without
merit.”
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.
Dated: February 17, 2021
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B. RILEY FINANCIAL, INC.
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By:
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/s/ Bryant R. Riley
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Name:
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Bryant R. Riley
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Title:
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Co-Chief Executive Officer
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B. Riley Principal Merger Corp. III
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By:
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/s/ Bryant R. Riley
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Name:
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Bryant R. Riley
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Title:
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Chairman
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2
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