- Tender offer statement by Third Party (SC TO-T)
22 Avril 2010 - 3:47PM
Edgar (US Regulatory)
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE TO
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER
SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT
OF 1934
DIALYSIS CORPORATION OF
AMERICA
(Name of Subject Company
(Issuer))
URCHIN MERGER SUB,
INC.
a wholly owned subsidiary of
U.S. RENAL CARE, INC.
(Name of Filing Persons
(Offerors))
Common Stock, par value $0.01 per share
(Title of Class of
Securities)
252529102
(CUSIP Number of Class of
Securities)
Thomas L. Weinberg, Esq.
Senior Vice President and General Counsel
U.S. Renal Care, Inc.
2400 Dallas Parkway, Suite 350
Plano, Texas 75093
(214) 736-2700
(Name, address, and telephone
number of person authorized to receive notices and
communications on behalf of Filing Persons)
Copy to:
James R. Griffin, Esq.
Fulbright & Jaworski L.L.P.
2200 Ross Avenue, Suite 2800
Dallas, Texas
75201-2784
(214) 855-8000
CALCULATION OF FILING FEE
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Transaction Valuation*
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Amount of Filing Fee
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$111,378,634
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$7,942
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*
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Calculated solely for purposes of determining the filing fee.
The calculation assumes the purchase of 9,610,373 shares of
common stock, par value $0.01 per share, at $11.25 per share.
The transaction valuation also includes (i) the offer price
of $11.25 multiplied by 100,000, the estimated number of options
to purchase shares that are currently outstanding and
exercisable upon expiration of the offer and (ii) the offer
price of $11.25 multiplied by 189,950, the number derivative
securities in the form of shares of restricted stock and
restricted stock units that are currently outstanding.
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**
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The filing fee was calculated in accordance with
Rule 0-11
under the Exchange Act and Fee Rate Advisory #4 for fiscal year
2010, issued by the Securities and Exchange Commission on
December 17, 2009, by multiplying the transaction value by
.00007130.
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o
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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.
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Amount Previously Paid:
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Not applicable
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Form or Registration Number:
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Not applicable
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Filing party:
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Not applicable
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Date filed:
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Not applicable
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o
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Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions
to which the statement relates:
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þ
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Third-Party Tender Offer Subject to
Rule 14d-1
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Issuer Tender Offer Subject to
Rule 13e-4
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Going Private Transaction Subject to
Rule 13e-3
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o
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Amendment to Schedule 13D Under
Rule 13d-2
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Check the following box if the filing is a final amendment
reporting the results of the tender
offer:
o
INTRODUCTORY
STATEMENT
This Tender Offer Statement on Schedule TO (this
“Schedule TO”) relates to the offer by Urchin
Merger Sub, Inc., a Florida corporation (“Offeror”)
and a wholly owned subsidiary of U.S. Renal Care, Inc., a
Delaware corporation (“USRC”), to purchase all of the
outstanding shares of common stock, $0.01 par value per
share, of Dialysis Corporation of America, a Florida corporation
(“DCA”), at a purchase price of $11.25 per share, net
to the seller in cash, without interest thereon and less any
required withholding taxes, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated
April 22, 2010, and in the related Letter of Transmittal,
copies of which are filed with this Schedule TO as Exhibits
(a)(1) and (a)(2) hereto, respectively. This Schedule TO is
being filed on behalf of Offeror and USRC. The information set
forth in the Offer to Purchase, including the Annexes thereto,
and the related Letter of Transmittal, is hereby expressly
incorporated by reference in answer to Items 1 through 9
and 11 of this Schedule TO, and is supplemented by the
information specifically provided herein.
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ITEM 1.
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SUMMARY
TERM SHEET
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The information set forth under the heading “Summary Term
Sheet” of the Offer to Purchase is incorporated herein by
reference.
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ITEM 2.
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SUBJECT
COMPANY INFORMATION
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(a) The name of the subject company and the issuer of the
securities to which this Schedule TO relates is Dialysis
Corporation of America, a Florida corporation (“DCA”).
DCA’s principal executive offices are located at 1302
Concourse Drive, Suite 204, Linthicum, Maryland 21090.
DCA’s telephone number at that address is
(410) 694-0500.
(b) The information set forth under the heading
“Introduction” of this Offer to Purchase is
incorporated by reference.
(c) The information set forth under Section 6 (Price
Range of Shares of DCA Common Stock; Dividends on Shares of DCA
Common Stock) of the Offer to Purchase is incorporated herein by
reference.
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ITEM 3.
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IDENTITY
AND BACKGROUND OF FILING PERSON
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This Schedule TO is filed by Offeror and USRC. The
information set forth under Section 9 (Certain Information
Concerning USRC and Offeror) and Annex I of the Offer to
Purchase is incorporated herein by reference.
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ITEM 4.
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TERMS
OF THE TRANSACTION
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The information set forth in the Offer to Purchase is
incorporated herein by reference.
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ITEM 5.
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PAST
CONTACTS, TRANSACTIONS, NEGOTIATIONS AND
AGREEMENTS
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The information set forth under Sections 8 (Certain
Information Concerning DCA), 9 (Certain Information Concerning
USRC and Offeror), 11 (Background of the Offer) and 12 (Purpose
of the Offer and the Merger; Plans for DCA; The Merger
Agreement; The Support Agreements) of the Offer to Purchase is
incorporated herein by reference. Except as set forth therein,
there have been no negotiations, transactions or material
contacts during the past two (2) years which would be
required to be disclosed under this Item 5 between any of
Offeror or USRC or any of their respective subsidiaries or, to
the best of knowledge of Offeror and USRC, any of those person
listed on Annex I of the Offer to Purchase, on the one
hand, and DCA or any of its affiliates, on the other, concerning
a merger, a consolidation or acquisition, a tender offer for or
other acquisition of securities, an election of directors or a
sale or transfer of a material amount of assets.
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ITEM 6.
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PURPOSES
OF THIS TRANSACTION AND PLANS OR PROPOSALS
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The information set forth under the heading
“Introduction” and Sections 6 (Price Range of
Shares of DCA Common Stock; Dividends on Shares of DCA Common
Stock), 7 (Effect of the Offer on the Market for DCA
2
Common Stock; NASDAQ Listing of DCA Common Stock; Exchange Act
Registration of DCA Common Stock; Margin Regulations), 11
(Background of the Offer), 12 (Purpose of the Offer and the
Merger; Plans for DCA; The Merger Agreement; The Support
Agreements) and 14 (Certain Legal Matters) of the Offer to
Purchase is incorporated herein by reference.
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ITEM 7.
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SOURCE
AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
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The information set forth under Section 10 (Source and
Amount of Funds) of the Offer to Purchase is incorporated herein
by reference.
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ITEM 8.
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INTEREST
IN SECURITIES OF THE SUBJECT COMPANY
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The information set forth under the heading
“Introduction” and Sections 8 (Certain
Information Concerning DCA), 9 (Certain Information Concerning
USRC and Offeror), 11 (Background of the Offer), 12 (Purpose of
the Offer and the Merger; Plans for DCA; The Merger Agreement;
The Support Agreements) and Annex I of the Offer to
Purchase is incorporated herein by reference.
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ITEM 9.
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PERSONS/ASSETS
RETAINED, EMPLOYED, COMPENSATED OR USED
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The information set forth under the heading
“Introduction” and Section 15 (Fees and Expenses)
of the Offer to Purchase is incorporated herein by reference.
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ITEM 10.
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FINANCIAL
STATEMENTS
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The information set forth under Section 10 (Source and
Amount of Funds) and Annex II of the Offer to Purchase is
incorporated herein by reference.
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ITEM 11.
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ADDITIONAL
INFORMATION
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(a)(1) The information set forth under Sections 9 (Certain
Information Concerning USRC and Offeror), 11 (Background of the
Offer) and 12 (Purpose of the Offer and the Merger; Plans for
DCA; The Merger Agreement; The Support Agreements) of the Offer
to Purchase is incorporated herein by reference.
(a)(2) The information set forth under Section 14 (Certain
Legal Matters) of the Offer to Purchase is incorporated herein
by reference.
(a)(3) The information set forth under Section 14 (Certain
Legal Matters) of the Offer to Purchase is incorporated herein
by reference.
(a)(4) The information set forth under Sections 7 (Effect
of the Offer on the Market for DCA Common Stock; NASDAQ Listing
of DCA Common Stock; Exchange Act Registration of DCA Common
Stock; Margin Regulations) and 14 (Certain Legal Matters) of the
Offer to Purchase is incorporated herein by reference.
(a)(5) The information set forth under Section 14 (Certain
Legal Matters) of the Offer to Purchase is incorporated herein
by reference.
(b) The information set forth in the Offer to Purchase is
incorporated herein by reference.
3
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Exhibit
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Number
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Description
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(a)(1)
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Offer to Purchase, dated April 22, 2010
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(a)(2)
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Form of Letter of Transmittal
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(a)(3)
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Form of Notice of Guaranteed Delivery
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(a)(4)
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Form of Letter from the Information Agent to Brokers, Dealers,
Banks, Trust Companies and Other Nominees
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(a)(5)
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Form of Letter to Clients for use by Brokers, Dealers, Banks,
Trust Companies and Other Nominees
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(a)(6)
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Internal Revenue Service
Form W-9
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(a)(7)
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Joint Press Release issued by U.S. Renal Care, Inc. and Dialysis
Corporation of America, dated April 14, 2010 (incorporated
by reference to the
Schedule TO-C
filed by U.S. Renal Care, Inc. with the Securities and Exchange
Commission on April 14, 2010)
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(a)(8)
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Summary Newspaper Advertisement published in The New York Times
on April 22, 2010
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(b)(1)
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Debt Commitment Letter, dated as of April 13, 2010, by and
between U.S. Renal Care, Inc. and Royal Bank of Canada
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(d)(1)
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Agreement and Plan of Merger, dated as of April 13, 2010,
by and among U.S. Renal Care, Inc., Urchin Merger Sub, Inc. and
Dialysis Corporation of America
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(d)(2)
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Form of Tender and Voting Agreement, dated as of April 13,
2010, by and among U.S. Renal Care, Inc., Urchin Merger Sub,
Inc., Dialysis Corporation of America and each of the following:
Robert W. Trause, Kenneth J. Bock, Joanne Zimmerman, Stephen W.
Everett, Daniel R. Ouzts, Andrew J. Jeanneret, Peter D.
Fischbein, Thomas K. Langbein, and Thomas P. Carey
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(d)(3)
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First Amendment to Employment Agreement, dated as of
April 13, 2010, by and between Dialysis Corporation of
America and Thomas K. Langbein
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(d)(4)
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First Amendment to Employment Agreement, dated as of
April 13, 2010, by and between Dialysis Corporation of
America and Thomas P. Carey
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(d)(5)
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First Amendment to Employment Agreement, dated as of
April 13, 2010, by and between Dialysis Corporation of
America and Stephen W. Everett
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(g)
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Not applicable
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(h)
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Not applicable
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ITEM 13.
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INFORMATION
REQUIRED BY
SCHEDULE 13E-3
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Not applicable.
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.
U.S. RENAL CARE, INC.
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By:
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/s/ Thomas
L. Weinberg
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Name: Thomas L. Weinberg
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Title:
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Senior Vice President and General Counsel
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URCHIN MERGER SUB, INC.
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By:
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/s/ Thomas
L. Weinberg
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Name: Thomas L. Weinberg
Dated: April 22, 2010
5
EXHIBIT INDEX
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Exhibit
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Number
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Description
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(a)(1)
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Offer to Purchase, dated April 22, 2010
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(a)(2)
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Form of Letter of Transmittal
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(a)(3)
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Form of Notice of Guaranteed Delivery
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(a)(4)
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Form of Letter from the Information Agent to Brokers, Dealers,
Banks, Trust Companies and Other Nominees
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(a)(5)
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Form of Letter to Clients for use by Brokers, Dealers, Banks,
Trust Companies and Other Nominees
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(a)(6)
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Internal Revenue Service
Form W-9
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(a)(7)
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Joint Press Release issued by U.S. Renal Care, Inc. and Dialysis
Corporation of America, dated April 14, 2010 (incorporated
by reference to the
Schedule TO-C
filed by U.S. Renal Care, Inc. with the Securities and Exchange
Commission on April 14, 2010)
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(a)(8)
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Summary Newspaper Advertisement published in The New York Times
on April 22, 2010
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(b)(1)
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Debt Commitment Letter, dated as of April 13, 2010, by and
between U.S. Renal Care, Inc. and Royal Bank of Canada
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(d)(1)
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Agreement and Plan of Merger, dated as of April 13, 2010,
by and among U.S. Renal Care, Inc., Urchin Merger Sub, Inc. and
Dialysis Corporation of America
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(d)(2)
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Form of Tender and Voting Agreement, dated as of April 13,
2010, by and among U.S. Renal Care, Inc., Urchin Merger Sub,
Inc., Dialysis Corporation of America and each of the following:
Robert W. Trause, Kenneth J. Bock, Joanne Zimmerman, Stephen W.
Everett, Daniel R. Ouzts, Andrew J. Jeanneret, Peter D.
Fischbein, Thomas K. Langbein, and Thomas P. Carey
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(d)(3)
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First Amendment to Employment Agreement, dated as of
April 13, 2010, by and between Dialysis Corporation of
America and Thomas K. Langbein
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(d)(4)
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First Amendment to Employment Agreement, dated as of
April 13, 2010, by and between Dialysis Corporation of
America and Thomas P. Carey
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(d)(5)
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First Amendment to Employment Agreement, dated as of
April 13, 2010, by and between Dialysis Corporation of
America and Stephen W. Everett
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(g)
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Not applicable
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(h)
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Not applicable
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6
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