June 7, 2019
Via E-Mail
Lawrence Remmel
Pryor Cashman LLP
7 Times Square
New York, NY 10036
Re: Adhera Therapeutics, Inc.
Schedule TO-I filed on May 28, 2019
Schedule TO-I/A filed June 6, 2019
File No. 5-36676
Dear Mr. Remmel:
The Office of Mergers and Acquisitions has conducted a limited review
of the filing
listed above. Our review was limited to the issues identified in our comments
below. All
defined terms have the same meaning as in the Offer to Exchange included as
Exhibit
99(a)(1)(A) to the Schedule TO-I filed on May 28, 2019.
Please respond to this letter by revising your filing, by providing the
requested
information, or by advising us when you will provide the requested response. If
you do not
believe our comments apply to your facts and circumstances or do not believe an
amendment is
appropriate, please tell us why in your response.
After reviewing any amendment to your filing and the information you
provide in
response to these comments, we may have additional comments.
Schedule TO-I filed May 28, 2019
Item 10. Financial Statements; Offer to Exchange- Financial Information
Regarding the
Company, page 11
1. While you may incorporate by reference the financial statements required
by Item
1010(a) and (b) of Regulation M-A, the summarized financial information
specified by
Item 1010(c) must be included in the Offer to Purchase. See Instruction 6
to Item 10 of
Schedule TO and Question 7, Section I.H in the July 2001 (Third
Supplement) to the
Division of Corporation Finance's Publicly Available Telephone
Interpretations available
Lawrence Remmel, Esq.
Pryor Cashman, LLP
June 7, 2019
Page 2
on our Web site at www.sec.gov. Please revise to include summary
financial information
in the Offer to Purchase.
2. In your response letter, explain how you reached the determination that
pro forma
financial information pursuant to Item 1010(b) of Regulation M-A was not
required in
the context of this exchange offer. We note that the Offer is conditioned
on participation
in the Financing Transaction and the completion of the Reverse Stock
Split, and the
Shares issuable upon exchange of the Warrants pursuant to the Offer will
represent 84%
of the Company's outstanding Shares as of May 24, 2019. Alternatively,
include the pro
forma information in a revised filing.
3. See our comments above. This revised disclosure must be disseminated to
shareholders
in the same manner as the original Offer to Purchase. Please confirm your
understanding
in your response letter.
Exhibit 99(A)(1)(A) Offer to Exchange
General
4. You state that the Shares to be exchanged in the Offer have not been
registered and are
being issued pursuant to Rule 506(b) of Regulation D. Pursuant to Rule
13e-4(f)(8)(i),
the Offer must be open to all holders of the subject securities. In your
response letter,
describe the facts supporting your reliance on this exemption, including
how you will
ascertain whether the warrant holders to whom the Offer is made qualify
to receive
Shares pursuant to this exemption from the registration requirements of
the Securities Act
of 1933.
5. See our last comment above. Explain how this Offer will comply with the
all-holders
requirement in Rule 13e-4(f)(8)(i), given that some warrant holders may
not qualify to
participate in the Offer and the Financing Transaction, participation in
which is a
condition to participation in the Offer.
The Offer, page 4
6. Clarify when the Financing Transaction and the Reverse Stock Split will
occur in relation
to the Offer. All Offer conditions other than those related to necessary
regulatory
approvals must be satisfied or waived on or before the Expiration Date of
the Offer.
Conditions; Termination; Waivers; Extensions; Amendments, page 11
Lawrence Remmel, Esq.
Pryor Cashman, LLP
June 7, 2019
Page 3
7. In condition iv.a, explain what it meant by a "limitation on prices for,
trading in securities
in U.S. securities or financial markets."
8. In condition iv.b, revise to state the percentage change in the price of
the Shares that
would trigger this condition. Include the reference point by date or
Share price from
which such change is to be measured.
9. In the same offer condition, clarify what is meant by a material adverse
change in the
price of "U.S. securities or financial markets" and explain how such a
change would be
measured.
Forward-Looking Statements; Risk Factors, page 13
10. Please delete the reference to Section 27A of the Securities Act and
Section 21E of the
Exchange Act. The safe harbor for forward looking statements contained
in those
provisions does not apply to statements made in connection with a tender
offer.
Schedule TO-I/A Amended Offer to Exchange
11. We note that you revised the terms of the exchange offer. In your
response letter, tell us
how you disseminated the revised disclosure document.
12. We note the new disclosure that you have engaged Maxim Group LLC to
assist with the
Financing Transaction. If Maxim Group will play a role in the Offer
also, please
describe, including any fees to be paid to that entity. In this regard,
we note that
participation in the Financing Transaction is a condition to being able
to tender into the
exchange offer.
We remind you that the filing persons are responsible for the
accuracy and adequacy of
their disclosures, notwithstanding any review, comments, action or absence
of action by the
staff. Please contact me at (202) 551- 3263 with any questions about these
comments.
Sincerely,
/s/ Christina Chalk
Christina Chalk
Senior Special Counsel
Office of Mergers and
Acquisitions