UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
DYNACQ HEALTHCARE, INC.
(Name of Subject Company)
DYNACQ HEALTHCARE, INC.
(Name of Person Filing Statement)
Common Stock, par value $0.001 per share
(Title of Class of Securities)
26779V105
(CUSIP Number of Class of Securities)
Hemant Khemka
Chief Financial Officer
Dynacq Healthcare, Inc.
4301 Vista Road
Pasadena, Texas 77504
Telephone: (713) 378-2000
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and
Communications on Behalf of the Person Filing Statement)
With copies to:
Robert D. Axelrod, Esq.
Axelrod, Smith & Kirshbaum
5300 Memorial Drive, Suite 1000
Houston, Texas 77007
Telephone: (713) 861-1996
o Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
Item 1. Subject Company Information
(a) Name and Address
The name of the subject company is Dynacq Healthcare, Inc., a Nevada corporation. In this Schedule, unless the context otherwise requires, “Dynacq,” “we,” “us” and “our” refer to Dynacq Healthcare, Inc. Dynacq’s principal executive offices are located at 4301 Vista Road, Pasadena, Texas 77504, and its telephone number at that address is (713) 378-2000.
(b) Securities
The class of equity securities to which this Schedule 14D-9 relates is Dynacq’s common stock, par value $0.001 per share (“Dynacq Common Stock”). As of February 20, 2014, there were 14,418,626 shares of Dynacq Common Stock outstanding.
Item 2. Identity and Background of Filing Person
(a) Name and Address
This Schedule is being filed by Dynacq. Dynacq’s name, business address and business telephone number are set forth in Item 1 above.
(b) Tender Offer
This Schedule relates to the tender offer by Furlong Fund LLC, a Delaware limited liability company (the “Offeror”). The tender offer, as amended, is disclosed in Amendment No. 1 to a Tender Offer Statement filed under cover of Schedule TO by the Offeror with the United States Securities and Exchange Commission (the “SEC”) on February 28, 2014 (the “Schedule TO”). According to the Schedule TO, the Offeror is managed by Furlong Financial, LLC, and Daniel Rudewicz is the sole managing member of Furlong Financial, LLC. Neither the Offeror, Furlong Financial, LLC, nor Mr. Rudewicz is affiliated with Dynacq or its management.
The Offeror is seeking to acquire 1,356,200 of the issued and outstanding shares of Dynacq Common Stock for $0.03 per share, net to the seller in cash, without interest, less any applicable withholding taxes (the “Offer Price”), upon the terms and subject to the conditions set forth in the Amended and Restated Offer to Purchase and related Letter of Transmittal (both of which are included in the Schedule TO), which, collectively with any amendments or supplements thereto, we refer to as the “Offer.” On February 19, 2014, the Offeror originally issued an offer to purchase 6,020,306 shares of Dynacq Common Stock at a price of $0.03 per share, but reduced the maximum number of shares it was tendering for to 1,356,200 pursuant to its amended Schedule TO on February 28, 2014.
The Schedule TO states that the principal executive office of Furlong Financial, LLC are located at 5425 Wisconsin Avenue, Suite 600, Chevy Chase, Maryland 20815 and the telephone number at that location is (202) 999-8854.
Dynacq takes no responsibility for the accuracy or completeness of any information contained in the Amended and Restated Offer to Purchase, Letter of Transmittal and/or Schedule TO, including information concerning the Offeror or its respective affiliates, officers, or directors, or actions or events with respect to any of them. Dynacq also takes no responsibility for the accuracy or completeness of such information or for any failure by the Offeror to disclose events or circumstances that may have occurred and may affect the significance, completeness, or accuracy of any such information.
Item 3. Past Contacts, Transactions, Negotiations and Agreements
Prior to the Offeror filing its pre-amended Schedule TO on February 19, 2014, Dynacq had no contact or communications with the Offeror or any of its affiliates. Since that date, Dynacq and the Offeror and its affiliates have been in communication, and on March 17, 2014, Dynacq, Furlong Financial, LLC and Mr. Rudewicz entered into a Standstill Agreement, a copy of which is attached to this Schedule as Exhibit (e)(1).
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The Standstill Agreement provides, among other terms and conditions, that the Offeror must make a “summary publication” in either the Houston Chronicle, the Houston Press or the Houston Business Journal to comply with the SEC’s tender offer rules. In addition, the Offeror will indemnify, defend and hold harmless Dynacq and its representatives against and in respect of any losses, liabilities, obligations, damages, demands, claims, actions, fines, costs or expenses incurred by Dynacq or any of its representatives based upon, resulting from or arising out of any violations of the SEC’s tender offer rules by the Offeror or any of its representatives. The Standstill Agreement also provides that the Offeror and its affiliates are prohibited from, among other things, directly or indirectly, (i) acquiring or otherwise obtaining any ownership interest in more than 10.0% of the outstanding shares of Dynacq Common Stock; (ii) engaging in any solicitation of proxies or consents in any election contest with respect to Dynacq’s directors or otherwise seeking to influence others with respect to the voting for directors; (iii) pursuing any lawsuits, claims or other proceedings against Dynacq or its representatives; or (iv) publicly disparaging or criticizing Dynacq, its business or any current or former directors, officers or employees of Dynacq. Moreover, the Standstill Agreement provides that Dynacq must file with the SEC and disseminate to its stockholders a Solicitation/Recommendation Statement on Schedule 14D-9, in which the Board of Directors of Dynacq will state that it expresses no opinion and remains neutral toward the Offer of the Offeror. Further, Dynacq is prohibited from, among other things, directly or indirectly, (i) pursuing any lawsuits, claims or other proceedings against the Offeror or its representatives; (ii) interfering in any way with the Offer, including influencing or attempting to influence any shareholder of Dynacq that may tender shares in the Offer against tendering his or her shares; or (iii) publicly disparaging or criticizing the Offeror, its business or any current or former directors, officers or employees of the Offeror.
The foregoing description of the Standstill Agreement does not purport to be complete and is subject to and qualified in its entirety by the full text of the Standstill Agreement attached hereto as Exhibit (e)(1) and incorporated herein by reference.
Item 4. The Solicitation or Recommendation
(a) Solicitation or Recommendation
The Board of Directors of Dynacq is expressing no opinion to Dynacq’s stockholders and is remaining neutral with respect to the Offer. Accordingly, Dynacq has not made a determination as to whether the Offer is fair to, or in the best interests of, its stockholders and is not making a recommendation regarding whether Dynacq’s stockholders should participate in the Offer. Dynacq urges each stockholder to make his, her or its own decision regarding the Offer, including, among other things, the adequacy of the Offer Price, based on all of the available information and in light of the stockholder’s own investment objectives, the stockholder’s view with respect to Dynacq’s prospects and outlook, the matters considered by Board of Directors, as noted below, and any other factors that the stockholder deems relevant to his, her or its investment decision.
(b) Background of the Offer and Reasons for Recommendation
Background of the Offer
The information disclosed in Item 3 of this Schedule is incorporated by reference herein. As described in Item 3, in connection with the Standstill Agreement, Dynacq and its Board of Directors have agreed to express no opinion and remain neutral toward the Offer of the Offeror. Prior to entry into the Standstill Agreement, however, the Board of Directors had already determined to express no opinion and remain neutral toward the Offer, and accordingly the Board would make this recommendation had the Standstill Agreement not been entered into.
Reasons for the Recommendation
In determining not to express an opinion and to remain neutral with respect to the Offer, the Board of Directors considered a number of factors relating specifically to the Offer, including the following:
| · | that there is no obligation on behalf of any stockholder to tender; |
| · | that each stockholder can make an independent judgment of whether to maintain his, her or its interest in Dynacq or to reduce or possibly eliminate such interest in Dynacq by participating in the Offer; |
| · | that Dynacq has not performed a financial analysis or formal appraisal of the fair market value of its common stock nor has Dynacq engaged any outside financial advisor or other third parties to conduct such an analysis, and therefore is not in a position to evaluate the adequacy of the Offer Price from a financial point of view; |
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| · | that while it is up to individual stockholders to consider the factors relevant to them, the Board of Directors expects that among such factors some stockholders might consider the following: |
| · | the stockholder’s determination of the adequacy of the Offer Price based on the stockholder’s own assessment of the value of Dynacq Common Stock and the stockholder’s own investment objectives including, but not limited, to such shareholder’s risk profile and investment time horizon; |
| · | the Offeror’s financial condition; |
| · | the terms and conditions of the Standstill Agreement; |
| · | the tax and accounting consequences for each stockholder of participating in the Offer; |
| · | the fact that a stockholder whose shares are tendered into the Offer and accepted for purchase by the Offeror will cease to participate in any benefits, or be exposed to the risks, of an investment in Dynacq following the closing with respect to the shares tendered and accepted. |
The Dynacq Board did not find it practicable to provide specific assessments of, quantify, or otherwise assign any relative weight to, the specific factors considered in determining their recommendation. The Dynacq Board’s determination was, rather, made after consideration of the factors taken as a whole.
(c) Intent to Tender
To Dynacq’s knowledge, after reasonable inquiry, neither Dynacq nor any of its executive officers, directors, affiliates or subsidiaries currently intends to tender its shares of Dynacq Common Stock held of record or beneficially by them under the Offer.
Item 5. Persons/Assets Retained, Employed, Compensated or Used
Neither Dynacq nor any person acting on its behalf has employed, retained, compensated or used any person to make solicitations or recommendations to security holders of Dynacq with respect to the Offer.
Item 6. Interest in Securities of the Subject Company
No transactions in Dynacq Common Stock have been effected during the past 60 days by Dynacq or any of its subsidiaries or, to the best of Dynacq’s knowledge, by any executive officer, director, or affiliate of Dynacq.
Item 7. Purposes of the Transaction and Plans or Proposals
Other than as described in this Schedule, Dynacq is not undertaking or engaged in any negotiations in response to the Offer that relate to (i) a tender offer or other acquisition of Dynacq’s securities by Dynacq, any of its subsidiaries or any other person; (ii) any extraordinary transaction, such as a merger, reorganization or liquidation, involving Dynacq or any of its subsidiaries; (iii) any purchase, sale or transfer of a material amount of assets of Dynacq or any of its subsidiaries; or (iv) any material change in the present dividend rate or policy, indebtedness or capitalization of Dynacq.
Other than as described herein, there are no transactions, Company Board resolutions, agreements in principle or signed contracts in response to the Offer that relate to or would result in one or more of the matters referred to in the first paragraph of this Item 7.
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Item 8. Additional Information
There are no agreements or understandings, whether written or unwritten, between Dynacq’s executive officers, on the one hand, and Dynacq or the Offeror, on the other, concerning any type of compensation, whether present, deferred or contingent, that is based upon or otherwise relates to the Offer.
Appraisal Rights
There are no appraisal rights available in connection with the Offer.
Forward-Looking Statements
Certain statements in this Schedule may constitute forward-looking statements. Dynacq wishes to caution its stockholders that there are some known and unknown factors that could cause actual results to differ materially from any future results, performance or achievements expressed or implied by such forward-looking statements. Dynacq refers its stockholders to the documents that Dynacq files from time to time with the SEC, specifically the section entitled “Risk Factors” of its most recent Annual Report filed on Form 10-K, as amended and as updated by its Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, each of which contains and identifies other important factors that could cause actual results to differ materially from those contained in Dynacq’s projections or forward-looking statements. Dynacq stockholders are cautioned not to place undue reliance on the forward-looking statements in this Schedule, which speak only as of the date of this Schedule. All subsequent written and oral forward-looking statements by or concerning Dynacq are expressly qualified in their entirety by the cautionary statements above. Dynacq does not undertake any obligation to publicly update or revise any forward-looking statements because of new information, future events or otherwise.
Item 9. Exhibits
The following Exhibits are filed herewith or incorporated herein by reference:
| Exhibit No. | Description | |
| (e)(1) | Standstill Agreement (filed herewith) | |
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.
| Dynacq Healthcare, Inc. | ||
| Date: March 18, 2014 | By: | /s/ Eric K. Chan |
| Name: Eric K. Chan | ||
| Title: Chief Executive Officer and President | ||
Exhibit Index
| Exhibit No. | Description | |
| (e)(1) | Standstill Agreement (filed herewith) | |
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STANDSTILL AGREEMENT
This STANDSTILL AGREEMENT (this “Agreement”) is made and entered into as of March 17, 2014, between Furlong Fund, LLC, a Delaware limited liability company, and Furlong Financial, LLC, a Delaware limited liability company, and Daniel Rudewicz (collectively, the “Bidder”), on the one hand, and Dynacq Healthcare, Inc., a Nevada corporation (the “Company”), on the other hand. In consideration of and reliance upon the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
WHEREAS, on February 19, 2014, the Bidder filed a Schedule TO, subsequently amended by Amendment No. 1 on February 28, 2014 (including all exhibit thereto, as amended, the “Schedule TO”), and commenced a tender offer (as it may be amended or supplemented, the “Tender Offer”) pursuant to the tender offer rules promulgated under Section 14 of the Securities Exchange Act of 1934 (the “Exchange Act”) and Regulation 14D promulgated thereunder (the “Tender Offer Rules”);
WHEREAS, the Bidder has assured the Company that it will be a passive investor of the Company and the Company is willing to cooperate with the Bidder on this condition.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
| 1. | Tender Offer. |
(a) Within three business days following the date of this Agreement, the Company shall perform the acts prescribed in Rule 14d-5(c) of the Tender Offer Rules by delivering a list of record holders and a list of Non-Objecting Beneficial Owners of shares of the Company (the “Stockholder Lists”) to the Bidder in one of the following formats: .doc, .dox, .xls or .xlsx. The Bidder shall, and shall cause its Representatives, to (i) keep the Stockholder Lists and their contents strictly confidential and (ii) use the Stockholder Lists solely for the limited purpose of conducting the Tender Offer and no other purpose whatsoever. Within three business days following the completion of the Tender Offer, the Bidder shall immediately either (A) return the Stockholder Lists to the Company or (B) destroy the Stockholder Lists and provide the Company with a written certification of an authorized executive officer of the Bidder that confirms such destruction.
(b) As soon as practicable after the date hereof, the Bidder shall amend its Schedule TO (the “Schedule TO Amendment”) by making a “summary publication” in either the Houston Chronicle, the Houston Press or the Houston Business Journal to comply with subsection (2) of Rule 14d-4(a), and the Company covenants not to object to this form of publication. The Bidder covenants and agrees to comply with the Tender Offer Rules in all material respects. The Company shall have no responsibility or liability whatsoever for the content of the Schedule TO and the conduct of the Tender Offer of by the Bidder or its Representatives. The Bidder shall indemnify, defend and hold harmless the Company and its Representatives against and in respect of any losses, liabilities, obligations, damages, demands, claims, actions, fines, costs or expenses incurred by the Company or any of its Representatives based upon, resulting from or arising out of any violations of the Tender Offer Rules by the Bidder or any of its Representatives.
(c) As soon as practicable after the filing of the Schedule TO Amendment, the Company shall file with the Securities and Exchange Commission (“SEC”), and disseminate to its stockholders, a Solicitation/Recommendation Statement on Schedule 14D-9 (the “Schedule 14D-9”). In the Schedule 14D-9, the board of directors of the Company (the “Board”) shall state that it expresses no opinion and remains neutral toward the Bidder's Tender Offer.
(d) Bidder, in its discretion, may amend the Schedule TO from time to time to extend the tender offer expiration date.
2. Standstill and Other Covenants of Bidder. Without the prior written consent of the Board, the Bidder shall not, and shall cause each of its Representatives not to, do, directly or indirectly, any of the following:
(a) (i) acquire, offer or agree to acquire, or acquire rights to acquire (except by way of stock dividends or other distributions or offerings made available to holders of voting securities of the Company generally on a pro rata basis), directly or indirectly, whether by purchase, tender or exchange offer, through the acquisition of control of another person, by joining a group, through swap or hedging transactions or otherwise, any voting securities of the Company or any voting rights decoupled from the underlying voting securities which would result in the Bidder (together with any other person or group) owning, controlling or otherwise having any ownership interest in more than 10.0% of the then-outstanding shares of common stock of the Company; or (ii) knowingly sell, offer or agree to sell, all or substantially all, directly or indirectly, through swap or hedging transactions or otherwise, the voting securities of the Company or any voting rights decoupled from the underlying voting securities held by the Bidder to any Third Party which would result in such Third Party, together with its affiliates and associates having any ownership interest in more than 10.0% of the then-outstanding shares of common stock of the Company;
(b) (i) engage, or in any way participate, directly or indirectly, in any solicitation of proxies or consents in any election contest with respect to the Company’s directors; (ii) seek to advise, encourage or influence any person or entity with respect to the voting of any voting securities of the Company in any election contest with respect to the Company’s directors (regardless of whether it involves the election or removal of directors of the Company); (iii) initiate, propose or otherwise solicit stockholders of the Company for the approval of stockholder proposals in connection with the election or removal of directors of the Company; or (iv) induce or attempt to induce any other person or entity to initiate any such stockholder proposal;
(c) form, join or in any way participate in any group with respect to any voting securities of the Company in connection with any election contest with respect to the Company’s directors (regardless of whether it involves the election or removal of directors of the Company);
(d) publicly disparage or criticize (or make any other public statement or communication that might reasonably be construed to be derogatory or critical of, or negative toward) the Company, its business or any current or former directors, officers or employees of the Company, or, except as required by the Tender Offer Rules, make any other public announcement or public statement regarding the Company, its business or any current or former director, officers or employees of the Company;
(e) deposit any Company voting securities in any voting trust or subject any Company voting securities to any arrangement or agreement with respect to the voting thereof;
(f) seek, alone or in concert with others, (i) to call a meeting of stockholders or solicit consents from stockholders or conduct a referendum of stockholders; (ii) to obtain representation on the Board; (iii) to effect the removal of any member of the Board; (iv) to make a stockholder proposal at any meeting of the stockholders of the Company; or (v) to amend any provision of the Company’s certificate of incorporation or bylaws;
(g) effect or seek to effect (including by entering into any discussions, negotiations, agreements or understandings whether or not legally enforceable with any person), offer or propose to effect, cause or participate in, or in any way assist or facilitate any other person to effect or seek, offer or propose to effect or participate in, (i) any acquisition of more than 10.0% of any securities, or any material assets or businesses, of the Company or any of its subsidiaries; (ii) any tender offer or exchange offer, merger, acquisition, share exchange or other business combination involving more than 10.0% of any of the voting securities or any of the material assets or businesses of the Company or any of its subsidiaries; or (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries or any material portion of its or their businesses;
(h) pursue, or assist any other person or entity to initiate or pursue, directly or indirectly, any Proceedings against the Company or its Representatives, excluding, however, any Proceedings initiated solely to remedy a breach of this Agreement or in the event of a merger or other extraordinary transaction which requires the Bidder to exchange its shares for consideration, the Bidder consistent with its fiduciary duty to get the best price may initiate a Proceeding against the Company if the Bidder does not believe the consideration is fair; or
(i) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing.
3. Covenants of the Company. Without the prior written consent of the Bidder, the Company shall not, and shall cause each of its Representatives not to, do, directly or indirectly, any of the following:
(a) publicly disparage or criticize (or make any other public statement or communication that might reasonably be construed to be derogatory or critical of, or negative toward) the Bidder, its business or any current or former directors, officers or employees of the Bidder, or, make any other public announcement or public statement disparaging or criticizing the Bidder, its business or any current or former director, officers or employees of the Bidder.
(b) Interfere in any way with the Tender Offer, including influencing or attempting to influence any shareholder of the Company that may tender shares in the Tender Offer against tendering his or her shares, excluding, however, the Schedule 14D-9 filed by the Company which shall not be considered an interference.
(c) pursue, or assist any other person or entity to initiate or pursue, directly or indirectly, any Proceedings against the Bidder or its Representatives, excluding, however, any Proceedings initiated solely to remedy a breach of this Agreement; or
(d) enter into any discussions, negotiations, agreements or understandings with any Third Party with respect to the foregoing, or advise, assist, encourage or seek to persuade any Third Party to take any action with respect to any of the foregoing, or otherwise take or cause any action inconsistent with any of the foregoing.
| 4. | Termination |
(a) The obligations of the Company pursuant to Section 1 and Section 3 shall terminate immediately in the event the Bidder materially breached its obligations in Section 1 or Section 2; and
(b) The obligations of the Bidder pursuant to Section 1 and Section 2 shall terminate immediately in the event the Company materially breached its obligations in Section 1 or Section 3.
5. Notices. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand, with written confirmation of receipt; (b) upon sending if sent by facsimile to the facsimile numbers below, with electronic confirmation of sending; (c) one day after being sent by nationally recognized overnight carrier to the addresses set forth below; or (d) when actually delivered if sent by any other method that results in delivery, with written confirmation of receipt:
| If to the Company: | with a copy (which shall not constitute notice) to: |
|
Dynacq Healthcare, Inc. 4301 Vista Road Pasadena, Texas 77504 Attention: Hemant Khemka, CFO Facsimile: (713) 378-3155 |
Axelrod, Smith & Kirshbaum 5300 Memorial Drive, Suite 1000 Houston, Texas 77007 Attention: Robert D. Axelrod Facsimile: (713) 552-0202 |
| If to the Bidder: | with a copy (which shall not constitute notice) to: |
|
Furlong Financial, LLC 5425 Wisconsin Avenue, Suite 600 Chevy Chase, Maryland 20815 Attention: Daniel Rudewicz Facsimile: ________________ |
Mark Andersen, P.A. 3513 Concord Pike, Suite 3300 Wilmington, Delaware 19803 Attention: Eric M. Andersen Facsimile:__________________ |
6. Remedies. Each party acknowledges and agrees that irreparable injury to the other party hereto would occur in the event any of the provisions of this Agreement were not performed in accordance with its specific terms or was otherwise breached and that such injury would not be adequately compensable in damages. It is accordingly agreed that a party shall be entitled to specific enforcement of, and injunctive relief to prevent any violation of, the terms hereof and the other party shall not take any action, directly or indirectly, in opposition to the party seeking relief on the grounds that any other remedy or relief is available at law or in equity.
7. Governing Law; Jurisdiction; Jury Waiver. This Agreement, and any disputes arising out of or related to this Agreement (whether for breach of contract, tortious conduct or otherwise), will be governed by, and construed in accordance with, the laws of the State of Nevada, without giving effect to its conflict of laws principles. The parties agree that exclusive jurisdiction and venue for any lawsuits, claims or other proceedings (collectively, “Proceedings”) will lie in the Courts of the State of Nevada and the Federal court of the United States sitting in the State of Nevada. Each party waives any objection it may now or hereafter have to the laying of venue of any such Proceeding, and irrevocably submits to personal jurisdiction in any such court in any such Proceeding and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any court that any such Proceeding brought in any such court has been brought in any inconvenient forum. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING.
8. Certain Definitions. As used in this Agreement: (a) the terms “affiliate,” “associate,” “beneficial ownership,” “group,” “person,” “proxy,” and “solicitation” (and any plurals thereof) have the meanings ascribed to such terms under the Exchange Act; (b) the term “Representatives” means such person’s affiliates and associates and its and their respective directors, officers, employees, agents, advisors, representatives, managers, consultants and affiliates and associates; and (c) the term “Third Party” means any person that is not a party to this Agreement, a member of the Board, a director or officer of the Company, or legal counsel to any party to this Agreement.
9. Miscellaneous. This Agreement shall not be assignable by operation of law or otherwise by a party without the consent of the other party. Subject to the foregoing sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against the permitted successors and assigns of each party to this Agreement. Neither the failure nor any delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. Any amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed to in a writing signed by each party hereto. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature. This Agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons. Except as set forth herein and in the Tender Offer Rules, all fees and expenses incurred by each of the parties hereto in connection with the matters contemplated by this Agreement shall be borne by such party. This Agreement contains the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and thereof.
(Signature Pages Follows)
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or caused the same to be executed by its duly authorized representative, as of the date first above written.
| DYNACQ HEALTHCARE, INC., | ||
| By: | /s/ Eric Chan | |
| Name: Eric Chan | ||
| Title: CEO | ||
| FURLONG FUND, LLC, | ||
| By: | /s/ Daniel Rudewicz | |
| Name: Daniel Rudewicz | ||
| Title: Managing Member of Furlong Financial | ||
| FURLONG FINANCIAL, LLC, | ||
| By: | /s/ Daniel Rudewicz | |
| Name: Daniel Rudewicz | ||
| Title: Managing Member of Furlong Financial | ||
| DANIEL RUDEWICZ, | ||
| /s/ Daniel Rudewicz | ||