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. 3)
____________________
DYNACQ
HEALTHCARE, INC.
(Name of Subject Company (Issuer))
____________________
ERIC K. CHAN
CEMEKC, INC.
ELLA Y. T. C. CHAN
CHIU M. CHAN FAMILY TRUST
(Name of Filing Persons (Offeror))
____________________
Common Stock, par value $0.001 per
share
(Title of Class of Securities)
26779V105
(CUSIP Number of Class of Securities)
Eric K. Chan
Chief Executive Officer
Dynacq Healthcare, Inc.
4301 Vista Road
Pasadena, Texas 77504
Telephone: (713) 378-2000
(Name, address, and telephone numbers of persons authorized to receive notices
and communications on behalf of filing persons)
With
a copy to:
Kai Haakon E. Liekefett
Vinson & Elkins LLP
1001 Fannin Street, Suite 2500
Houston, Texas 77002
Phone: (713) 758-2222
____________________
Calculation of Filing Fee:
| Transaction Valuation(1) | Amount of Filing Fee(2) |
| $500,349.30 | $50.39 |
| (1) | Estimated for purposes of calculating the amount of the filing fee only. The calculation assumes the purchase of all outstanding shares of common stock, par value $0.001 per share (the “Shares”), of Dynacq Healthcare, Inc., a Nevada corporation, other than Shares owned by Dr. Eric K. Chan, Ella Y. T. C. Chan, the Chiu M. Chan Family Trust (Dr. Chan, Ms. Chan and the Chiu M. Chan Family Trust, together, the “Chan Family”) and CEMEKC, Inc. (“CEMEKC”), at a purchase price of $0.10 per Share, net to the seller in cash. As of November 23, 2015, there were 13,601,624 Shares outstanding, of which 8,598,131 Shares are collectively owned by the Chan Family and CEMEKC. As a result, this calculation assumes the purchase of 5,003,493 Shares. |
| (2) | The filing fee was calculated in accordance with Rule 0-11 under the Exchange Act of 1934, as amended, by multiplying the transaction value by 0.0001007. |
| x | 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: $50.39
Form or Registration No.: Schedule TO-T
Filing Party: Eric K. Chan; CEMEKC, Inc.; Ella Y. T. C. Chan; Chiu M. Chan Family Trust
Date Filed: December 18, 2015
| ¨ | 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. |
| ¨ | issuer tender offer subject to Rule 13e-4. |
| x | 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: ¨
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____________________
This Amendment No. 3 amends and supplements the Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO on December 18, 2015 (as amended and supplemented, the “Schedule TO”) by Dr. Eric K. Chan, Ella Y. T. C. Chan, the Chiu M. Chan Family Trust (Dr. Chan, Ms. Chan and the Chiu M. Chan Family Trust, together, the “Chan Family”) and CEMEKC, Inc., a Texas corporation wholly owned by Dr. Chan (“Purchaser”), to purchase all the outstanding shares of common stock, par value $0.001 per share (the “Shares”), of Dynacq Healthcare, Inc., a Nevada corporation (“Dynacq”), at a purchase price of $0.10 per Share, net to the seller in cash, without interest and less any applicable withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 18, 2015 (as may be amended or supplemented from time to time, the “Offer to Purchase”) and the related Letter of Transmittal (as may be amended or supplemented from time to time, the “Letter of Transmittal”) (which, as amended or supplemented from time to time, together constitute the “Offer”).
The items of this Schedule TO set forth below are hereby further amended and supplemented as set forth below:
Items 1 through 9, 11 and 13.
(1) The Offer expired at 11:59 PM, New York City time, on January 20, 2016. According to American Stock Transfer & Trust Company, LLC, the Depositary for the Offer, a total of 551,860 Shares were validly tendered in the Offer, which includes 5,504 Shares subject to guaranteed delivery. The total of 551,860 Shares represents, in the aggregate, approximately 11% of the outstanding Shares not owned by the Purchaser or the Chan Family. The total of 551,860 Shares, together with the Shares already owned by the Purchaser and the Chan Family, represents approximately 67% of the outstanding Shares.
The Purchaser has accepted for payment all Shares that were validly tendered in the Offer, and payment for such Shares will be made promptly in accordance with the terms of the Offer.
The number of Shares tendered pursuant to the Offer satisfies neither the Majority-of-the-Minority Condition nor the 90% Condition to the Offer, both of which were waivable at Purchaser’s sole discretion. At the expiration of the Offer, the Purchaser waived both the Majority-of-the-Minority Condition and the 90% Condition. As the number of Shares validly tendered and accepted for payment in the Offer did not reach or exceed 90% of the Shares outstanding immediately prior to the expiration of the Offer, the Purchaser cannot and will not effect the Merger pursuant to the “short-form” merger provisions of Chapter 92A of the Nevada Revised Statutes. Therefore, as was discussed in the Offer to Purchase, Dynacq’s current management, under the general direction of the current Board of Dynacq, will continue to manage Dynacq as an ongoing business. The Chan Family and/or the Purchaser may engage in other transactions for the purposes of purchasing all the outstanding Shares not already owned by them in the future.
(2) The press release announcing the expiration of the Offer and the waiver of certain conditions is attached hereto as Exhibit (a)(1)(x) and is incorporated herein by reference.
Item 12. Exhibits.
| (a)(1)(x) | Press release, dated January 21, 2016, issued by CEMEKC, Inc. |
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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.
| CEMEKC, Inc. | |||
| By: | /s/ Eric K. Chan | ||
| Name: | Eric K. Chan | ||
| Title: | President | ||
| Date: | January 21, 2016 | ||
| Eric K. Chan, an individual | |||
| By: | /s/ Eric K. Chan | ||
| Name: | Eric K. Chan | ||
| Date: | January 21, 2016 | ||
| Ella Y. T. C. Chan, an individual | |||
| By: | /s/ Ella Y. T. C. Chan | ||
| Name: | Ella Y. T. C. Chan | ||
| Date: | January 21, 2016 | ||
| Chiu M. Chan Family Trust | |||
| By: | /s/ Ella Y. T. C. Chan | ||
| Name: | Ella Y. T. C. Chan | ||
| Title: | Sole Trustee | ||
| Date: | January 21, 2016 | ||
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EXHIBIT INDEX
| Exhibit | Description | |
| (a)(1)(x) | Press release, dated January 21, 2016, issued by CEMEKC, Inc. |
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Exhibit (a)(1)(x)
CEMEKC, INC. ANNOUNCES EXPIRATION OF TENDER OFFER FOR DYNACQ HEALTHCARE, INC.
PASADENA, Texas, January 21, 2016 /PRNewswire/ -- CEMEKC, Inc. (the “Purchaser”) announced today that it will file Amendment No. 3 to its Schedule TO, originally filed on December 18, 2015, with respect to the previously announced tender offer to purchase all of the outstanding shares of Common Stock of Dynacq Healthcare, Inc. (“Dynacq”) not already owned by Dr. Eric K. Chan, Ella Y. T. C. Chan, the Chiu M. Chan Family Trust and the Purchaser for $0.10 in cash per share (the “Offer”).
In Amendment No. 3, the Purchaser announced the expiration of the Offer at 11:59 PM, New York City time, on January 20, 2016, its waiver of the Majority-of-the-Minority Condition and the 90% Condition, and that it will purchase all of the shares validly tendered in response to the Offer.
According to American Stock Transfer & Trust Company, LLC, the Depositary for the Offer, a total of 551,860 Shares were validly tendered in the Offer, which includes 5,504 Shares subject to guaranteed delivery. The total of 551,860 Shares represents, in the aggregate, approximately 11% of the outstanding Shares not owned by the Purchaser or the Chan Family. The total of 551,860 Shares, together with the Shares already owned by the Purchaser and the Chan Family, represents approximately 67% of the outstanding Shares. All shares validly tendered and not withdrawn have been accepted for purchase.
The number of Shares tendered pursuant to the Offer satisfies neither the Majority-of-the-Minority Condition nor the 90% Condition to the Offer, both of which were waivable at Purchaser’s sole discretion. At the expiration of the Offer, the Purchaser waived both the Majority-of-the-Minority Condition and the 90% Condition. As the number of Shares validly tendered and accepted for payment in the Offer did not reach or exceed 90% of the Shares outstanding immediately prior to the expiration of the Offer, the Purchaser cannot and will not effect the Merger pursuant to the “short-form” merger provisions of Chapter 92A of the Nevada Revised Statutes. Therefore, as was discussed in the Offer to Purchase, Dynacq’s current management, under the general direction of the current Board of Dynacq, will continue to manage Dynacq as an ongoing business. The Chan Family and/or the Purchaser may engage in other transactions for the purposes of purchasing all the outstanding Shares not already owned by them in the future.
ABOUT DYNACQ HEALTHCARE, INC.
Dynacq is a holding company that through its subsidiaries in the United States develops and manages one general acute care hospital that principally provides specialized surgeries. Dynacq through its United States subsidiaries owns and operates one general acute care hospital in Pasadena, Texas. Dynacq through its subsidiary in Hong Kong invests in debt and equity securities, including short-term investments in initial public offerings and pre-initial public offerings.
NOTICE TO DYNACQ STOCKHOLDERS
This press release is neither an offer to purchase nor a solicitation of an offer to sell securities. The tender offer is made solely through the Offer to Purchase and the related Letter of Transmittal, which will be mailed to stockholders of Dynacq. Purchaser is not aware of any jurisdiction in which the making of the tender offer is prohibited by administrative or judicial action pursuant to any valid state statute. If Purchaser becomes aware of any valid state statute prohibiting the making of the tender offer or the acceptance of common stock pursuant to the tender offer, it will make a good faith effort to comply with the statute or seek to have the statute declared inapplicable to the tender offer. If, after a good faith effort, Purchaser cannot comply with the statute, it will not make the tender offer to, nor will it accept tenders from or on behalf of, holders of common stock in the applicable state. In any jurisdiction where the securities, blue sky or other laws require the tender offer to be made by a licensed broker or dealer, the tender offer will be deemed to be made on our behalf by one or more registered brokers or dealers licensed under the laws of such jurisdiction.
SOURCE: CEMEKC, Inc.