UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Amendment No. 1)
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR SECTION 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
ITEX CORPORATION
(Name of Subject Company (Issuer))
ITEX CORPORATION
(Name of Filing Person (Offeror))
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
465647303
(CUSIP Number of Class of Securities)
Steven White
Chairman and Chief Executive Officer
ITEX Corporation
3326 160th Ave SE, Suite 100
Bellevue, Washington 98008-6418
(425) 463-4000
(Name, address, and telephone number of person authorized to
receive notices and communications on behalf of filing persons)
With a copy to:
Stephen Tollefsen
Tollefsen Business Law PC
2825 Colby Ave. Suite 304
Everett, WA 98201
(425) 353-8883
CALCULATION OF FILING FEE
| Transaction Valuation(1) | Amount of Filing Fee(2) | ||
| $4,200,000 | $481.32 | ||
| (1) | Estimated for purposes of calculating the amount of the filing fee only. The amount assumes the purchase of a total of 1,000,000 shares of common stock at a price of $4.20 per share in cash. | ||
| (2) | The amount of the filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, as modified by Fee Rate Advisory #3 for fiscal year 2012, and equals $114.60 per $1,000,000 of the value of the transaction. | ||
| þ | 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: $481.32 Form or Registration No.: SC TO-I Filing Party: ITEX Corporation Date Filed: March 16, 2012
| ||
| ¨ | 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. |
| þ | 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 amends and supplements the Tender Offer Statement on Schedule TO originally filed with the Securities and Exchange Commission (“SEC”) on March 16, 2012 (as amended, the “Schedule TO”) by ITEX Corporation, a Nevada corporation (“ITEX,” the “Company”). The Schedule TO relates to an offer by ITEX to purchase for cash up to 1,000,000 shares of its common stock, par value $0.01 per share, at a price of $4.20 per share, net to the seller in cash, without interest, upon and subject to the terms and conditions described in the Offer to Purchase, dated March 16, 2012 (the “Offer to Purchase”), and the related Letter of Transmittal (the “Letter of Transmittal”), which, in each case, as amended and supplemented from time to time, constitute the tender offer and which are appended to and filed with the Schedule TO as Exhibits (a)(1)(i) and (a)(1)(ii), respectively.
All information in the Offer to Purchase and the Letter of Transmittal is hereby expressly incorporated in this Amendment No. 1 by reference in response to all of the applicable items in Schedule TO, except that such information is hereby amended and supplemented to the extent provided herein.
ITEMS 1 THROUGH 9; ITEM 11.
Items 1 through 9 and 11 of the Schedule TO, which incorporate by reference the information contained in the Offer to Purchase and Letter of Transmittal, are hereby amended and supplemented as follows:
Offer to Purchase (Exhibit (a)(1)(i) to the Schedule TO)
The second sentence of the first full paragraph of the inside front cover of the Offer to Purchase is hereby amended and restated as follows:
“WESTERN SIZZLIN CORPORATION, WHICH BENEFICIALLY OWNS APPROXIMATELY 7.7% OF THE SHARES OUTSTANDING, AND THE POLONITZA GROUP, WHICH BENEFICIALLY OWNS APPROXIMATELY 5.2% OF THE SHARES OUTSTANDING, HAVE NOT INDICATED TO US WHETHER THEY INTEND TO TENDER SHARES PURSUANT TO THE TENDER OFFER.”
Letter of Transmittal (Exhibit (a)(1)(ii) to the Schedule TO)
The third sentence of the paragraph in the first text box on page 2 of the Letter of Transmittal is hereby amended and restated as follows:
“See Instruction 14.”
The sentence in the second text box beginning with the heading “LostCertificates,” on page 2 of the Letter of Transmittal, is hereby amended and restated as follows:
“My certificate(s) for ___________________ shares have been lost, stolen, destroyed or mutilated, and I require assistance in replacing the shares (See Instruction 11).”
The header in the first text box beginning with the heading “ODD LOTS,” on page 5 of the Letter of Transmittal, is hereby amended and restated as follows:
“ODD LOTS
(See Instruction 13)”
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The header in the second text box beginning with the heading “CONDITIONAL TENDER,” on page 5 of the Letter of Transmittal, is hereby amended and restated as follows:
“CONDITIONAL TENDER
(See Instruction 12)”
The fourth and fifth sentences in the first full paragraph beginning with the heading “9.Tax Identification Number and Backup Withholding,” on page 10 of the Letter of Transmittal, are hereby amended and restated as follows:
“If the tendering stockholder has not been issued a TIN and has applied for a TIN or intends to apply for a TIN in the near future, such stockholder should write “Applied For” in the space for the TIN on the IRS Form W-9, sign and date the IRS Form W-9, and sign and date the Certificate of Awaiting Taxpayer Identification Number below. If you write “Applied For” in the space for the TIN and the Depositary is not provided with a TIN prior to payment, the Depositary will withhold 28% on all such payments.”
The Letter of Transmittal is hereby amended by deleting in its entirety the first paragraph under the section of the Letter of Transmittal on page 12 titled “IMPORTANT TAX INFORMATION.”
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.
| ITEX Corporation | ||||
| By: | /s/ Steven White | |||
| Name: | Steven White | |||
| Title: | Chief Executive Officer Interim Chief Financial Officer | |||
Dated: March 29, 2012
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EXHIBIT INDEX
The following documents are filed as part of this report. Those exhibits previously filed and incorporated herein by reference are identified below. Exhibits not required for this report have been omitted. ITEX’s commission file number is 000-18275.
Exhibit Number | Description | ||
| (a)(1)(i) | Offer to Purchase, dated March 16, 2012. | ||
| (a)(1)(ii) | Letter of Transmittal (including IRS Form W-9 and Guidelines for Certification of Taxpayer Identification Number on IRS Form W-9). | ||
| (a)(1)(iii) | Notice of Guaranteed Delivery. | ||
| (a)(1)(iv) | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | ||
| (a)(1)(v) | Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | ||
| (a)(5)(i) | Press release dated March 16, 2012, announcing the commencement of the offer. | ||
| (b) | None | ||
| (d)(1) | Stockholder Rights Plan with OTR, Inc. as Rights Agent, dated March 11, 2011 (incorporated by reference to Exhibit 4.1 included with the Company’s current report on Form 8-K filed with the SEC on March 14, 2011). | ||
| (d)(2) | ITEX Corporation Amended and Restated 2004 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 included with the Company’s current report on Form 8-K filed with the SEC on February 18, 2011). | ||
| (d)(3) | Form of Employee Restricted Stock Agreement (incorporated by reference to Exhibit 10.1 included with the Company’s current report on Form 8-K filed with the SEC on February 18, 2011). | ||
| (d)(4) | Form of Executive Restricted Stock Agreement (incorporated by reference to Exhibit 10.1 included with the Company’s current report on Form 8-K filed with the SEC on February 18, 2011). | ||
| (d)(5) | Change in Control Agreement with Steven White, dated February 28, 2008 (incorporated by reference to Exhibit 10.15 included with the Company’s quarterly report on Form 10-Q filed with the SEC on March 3, 2008). | ||
| (d)(6) | Form of Employee Change in Control Agreement (incorporated by reference to Exhibit 10.15 included with the Company’s quarterly report on Form 10-Q filed with the SEC on March 3, 2008). | ||
| (d)(7) | Form of Franchisee Stock Purchase Agreement and appendices (Secured Promissory Note, Stock Pledge Agreement, and Voting Agreement) dated as of March 30, 2011 (incorporated by reference to Exhibit 10.10 included with the Company’s quarterly report on Form 10-Q filed with the SEC on March 8, 2012). |
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