UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE TO

 

Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934

 

(Amendment No. 7)

 

Frozen Food Express Industries, Inc.

(Name of Subject Company)

 

DUFF BROTHERS CAPITAL CORPORATION

Owned by: the Thomas Milton Duff Amended and Restated Trust Agreement and

the James Ernest Duff Amended and Restated Trust Agreement

and controlled by Thomas Milton Duff and James Ernest Duff

(Name of Filing Persons [Offerors])

 

COMMON STOCK, $1.50 PAR VALUE

(Title of Class of Securities)

 

359360104

(CUSIP Number of Class of Securities)

 

Thomas Milton Duff

529 Industrial Park Rd.

Columbia, MS 39429

(601) 424-3210

(Name, address, and telephone number of person authorized to receive notices and communications on behalf of filing persons)

 

Copies to:

Ralph S. Janvey, Esq.

Krage & Janvey, L.L.P.

2100 Ross Avenue

Suite 2600

Dallas, TX 75201

(214) 397-1912

 

Calculation of Filing Fee

 

 

*  Estimated solely for purposes of determining the amount of the filing fee. The transaction valuation was determined by multiplying (a) $2.10, the offer price per share by (b) the sum of: (i) 17,125,694, which is equal to the number of issued and outstanding shares of Frozen Food Express Industries, Inc. common stock (and unvested restricted stock) (18,175,818) minus the shares beneficially owned in the aggregate by the Filing Persons (1,050,124); and (ii) 277,000, the number of shares of Frozen Food Express Industries, Inc. common stock issuable by Frozen Food Express Industries, Inc. pursuant to the exercise of outstanding stock options under Frozen Food Express Industries, Inc.’s stock option plans.  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 2013, issued August 31, 2012, by multiplying the transaction value by 0.0001364.

 

x Check the box if any part of the fee is offset as provided by Exchange Act 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:	$4,985
Form or Registration No:	Schedule TO
Filing Party:	Duff Brothers Capital Corporation, Thomas Milton Duff Amended and Restated Trust Agreement, James Ernest Duff Amended and Restated Trust Agreement, Thomas Milton Duff, and James Ernest Duff
Date Filed:	July 22, 2013

 

o  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:

x  third-party tender offer subject to Rule 14d-1.

o  issuer tender offer subject to Rule 13e-4.

o  going-private transaction subject to Rule 13e-3.

x  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:  x

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

o  Rule 13e-4(i) (Cross-Border Issuer Tender Offer)

o  Rule 14d-1(d) (Cross-Border Third Party Tender Offer)

 

 

 

This Amendment No. 7 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO relating to Frozen Food Express Industries, Inc., a Texas corporation (“FFE”) (together with any subsequent amendments and supplements thereto, the “Schedule TO”) filed by Duff Brothers Capital Corporation, a Texas corporation (“Purchaser”).  Purchaser is owned by the Thomas Milton Duff Amended and Restated Trust Agreement and the James Ernest Duff Amended and Restated Trust Agreement.  The Purchaser’s owners are controlled by Thomas Milton Duff and James Ernest Duff as trustee of the respective trust bearing their name.  Together, the Purchaser, the Thomas Milton Duff Amended and Restated Trust Agreement, the James Ernest Duff Amended and Restated Trust Agreement, Thomas Milton Duff, and James Ernest Duff are the Filing Persons of this Schedule TO and the Bidders.  This Schedule TO relates to the offer by the Purchaser to purchase all of the shares of common stock not already owned by its control persons, $1.50 par value per share (the “Shares”), of FFE that are issued and outstanding, at a price of $2.10 per Share, net to the sellers in cash (the “Offer Price”), without interest, less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated July 22, 2013 (the “Disclosure Document”), and in the related letter of transmittal, copies of which are attached as Exhibits (a)(1)(i) and (a)(1)(ii) to the Schedule TO (which, together with any amendments or supplements thereto, collectively constitute the “Offer”).

 

All information contained in the Disclosure Document and the related letter of transmittal, including all schedules thereto, is hereby incorporated herein by reference in response to Items 1 through 9 and Item 11 in this Schedule TO.

 

As permitted by General Instruction G to Schedule TO, this Amendment is also an amendment to the joint statement on Schedule 13D filed on March 4, 2013, as amended, on behalf of Thomas Milton Duff and the James Ernest Duff Amended and Restated Trust Agreement.

 

This Amendment No. 7 is being filed to amend and supplement the Schedule TO as reflected below.

 

1

 

 

2

 

 

3

 

Items 1 through 9, and Item 11.

 

Items 1 through 9 and Item 11 of the Schedule TO are hereby amended and supplemented as follows:

 

The Offer expired at 12:00 midnight, Eastern time, at the end of the day on August 16, 2013.  Eagle Rock Proxy Advisors, LLC, the Information Agent for the Offer, has indicated that approximately 15,382,700 Shares were tendered in and not withdrawn from the Offer, representing, together with shares previously owned by the Filing Persons (1,050,124 shares), a total of approximately 90.4% of the outstanding shares of Common Stock of FFE.  An additional 131 Shares were tendered subject to guaranteed delivery procedures.  All Shares validly tendered in the tender offer and not withdrawn have been accepted for payment.

 

The Purchaser and the Merger Sub expect to effect a short-form merger under Texas law without FFE shareholder approval.  When the merger becomes effective, FFE will become a wholly owned subsidiary of the Purchaser.  In connection with the consummation of the merger, all outstanding shares (other than shares held by the Purchaser, Merger Sub, FFE or any of their affiliates or by FFE’s shareholders who are entitled to and properly exercise dissent and appraisal rights under Texas law) will be canceled and converted into the right to receive cash equal to the $2.10 offer price per share, net in cash, without interest, less any applicable withholding taxes.  In addition, following the effective date of the merger, the Shares will cease to be traded on the NASDAQ.

 

The joint press release issued by the Purchaser and FFE announcing the successful completion of the Offer is attached hereto as Exhibit (a)(1)(x).

 

Item 12. Exhibits.

 

(a)(1)(x)

Press Release

 

4

 

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 August 19, 2013

 

 

	DUFF BROTHERS CAPITAL CORPORATION
	BY:	/s/ Thomas Milton Duff
		THOMAS MILTON DUFF, CO-PRESIDENT
	BY:	/s/ James Ernest Duff
		JAMES ERNEST DUFF, CO-PRESIDENT
	THOMAS MILTON DUFF AMENDED AND RESTATED TRUST AGREEMENT
	BY:	/s/ Thomas Milton Duff
		THOMAS MILTON DUFF, TRUSTEE
	JAMES ERNEST DUFF AMENDED AND RESTATED TRUST AGREEMENT
	BY:	/s/ James Ernest Duff
		JAMES ERNEST DUFF, TRUSTEE
	/s/ Thomas Milton Duff
	THOMAS MILTON DUFF
	/s/ James Ernest Duff
	JAMES ERNEST DUFF

 

5

Exhibit (a)(1)(x)

 

Duff Brothers Capital Corporation Successfully Completes Tender Offer

for Shares of Frozen Food Express Industries, Inc.

 

DALLAS, TX and COLUMBIA, MS — August 19, 2013 — Frozen Food Express Industries, Inc. (Nasdaq: FFEX) (“FFE” or the “Company”) and Duff Brothers Capital Corporation today announced the successful completion of the cash tender offer (the “Offer”) for outstanding shares of common stock of FFE for $2.10 per share in cash, without interest and less any applicable withholding taxes.

 

The Offer and withdrawal rights expired at midnight, Eastern time, at the end of the day on Friday, August 16, 2013.  Eagle Rock Proxy Advisors, LLC, the Information Agent for the Offer, has indicated that approximately 15,382,700 Shares were tendered in and not withdrawn from the Offer, representing, together with shares beneficially owned by the control persons of Duff Brothers Capital Corporation, a total of approximately 90.4% of the outstanding shares of Common Stock of FFE.  An additional 131 Shares were tendered subject to guaranteed delivery procedures.  All Shares validly tendered in the tender offer and not withdrawn have been accepted for payment.

 

Duff Brothers Capital Corporation (the “Purchaser”) and Duff Brothers Subsidiary, Inc. (the “Merger Sub”) expect to effect a short-form merger under Texas law without the affirmative vote of any other FFE shareholder.  When the merger becomes effective, FFE will become a wholly owned subsidiary of the Purchaser.  In connection with the consummation of the merger, all outstanding shares (other than shares held by the Purchaser, Merger Sub, FFE or any of their affiliates or by FFE’s shareholders who are entitled to and properly exercise dissent and appraisal rights under Texas law) will be canceled and converted into the right to receive cash equal to the $2.10 offer price per share, net in cash, without interest, less any applicable withholding taxes.  FFE shareholders who did not tender their Shares into the Offer will not receive payment for their Shares until: (1) the merger becomes effective and (2) the shareholders properly surrender their shares, as described in the Offer to Purchase dated July 22, 2013.

 

Following the effective time of the merger, the FFE shares will be delisted and will cease to trade on the NASDAQ Stock Market.

 

About FFE

 

Frozen Food Express Industries, Inc. is one of the leading temperature-controlled truckload and less-than-truckload carriers in the United States with core operations in the transport of temperature-controlled products and perishable goods including food, health care and confectionery products. Service is offered in over-the-road and intermodal modes for temperature-controlled truckload and less-than-truckload, as well as dry truckload on a non-dedicated fleet basis. We also provide bulk tank water transportation, brokerage/logistics and dedicated services to our customers. Additional information about FFE can be found at www.ffeinc.com.

 

Forward-Looking Statements

 

This communication contains “forward-looking statements,” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, relating to the acquisition of FFE by Duff Brothers Capital Corporation. All statements relating to plans, strategies, objectives, expectations and intentions, all statements identified by words such as “will”, “could”, “should”, “believe”, “expect”, “intend”, “plan”, “schedule”, “estimate”, “project”, and similar expressions and all statements other than historical facts included in this communication are forward-looking statements. These statements are based on current expectations of future events. If underlying assumptions prove inaccurate or unknown, or unknown risks or uncertainties materialize, actual results could vary materially from expectations and projections. Risks and uncertainties include, among other things, uncertainties as to the timing of the merger, as well as other cautionary statements contained elsewhere herein and in FFE’s periodic reports filed with the SEC including current reports on Form 8-K, quarterly reports on Form 10-Q and annual reports on Form 10-K. Given these uncertainties, you should not place undue reliance on these forward-looking statements, which apply only as of the date of this

 

 

communication. FFE expressly disclaims any intent or obligation to update these forward-looking statements except as required by law. Additional information about FFE is available at www.ffeinc.com.

 

CONTACT: Frozen Food Express Industries, Inc.

Russell Stubbs, President and CEO

John Hickerson, EVP and COO

Steve Stedman, VP and Interim CFO

(214) 630-8090