- Amended tender offer statement by Third Party (SC TO-T/A)
November 08 2010 - 6:04AM
Edgar (US Regulatory)
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. 4)
RES-CARE, INC.
(Name
of Subject Company)
ONEX RESCARE ACQUISITION, LLC
(Name
of Filing Persons - (Offeror))
ONEX PARTNERS III LP
(Name
of Filing Persons - (Offeror))
The
persons listed on Schedule I hereto
(Name
of Filing Persons - (Other Persons))
COMMON STOCK, NO PAR VALUE
(Title
of Class of Securities)
760943100
(CUSIP
Number of Class of Securities)
Joel I. Greenberg, Esq.
Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
(212) 836-8000
(Name,
address, and telephone numbers of person authorized to receive
notices and communications on behalf of filing persons)
Calculation of Filing Fee
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Transaction Valuation*
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Amount of Filing Fee**
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$340,732,402
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$24,294.22
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*
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Estimated
for purposes of calculating the filing fee only. Calculated by multiplying
(i) 25,715,653, which is the difference between 29,415,653, the number
of shares of common stock, no par value (“Shares”), of Res-Care, Inc.
(the “Company”) outstanding as of September 30, 2010, and 3,700,000,
which is the number of Shares beneficially owned by Onex Corporation and its
affiliates by (ii) $13.25, which is the per Share tender offer
price. The number of outstanding
Shares was obtained by the Company.
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**
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The
filing fee, calculated in accordance with Rule 0-11 of the Securities
Exchange Act of 1934, as amended, and Fee Rate Advisory #4 for fiscal year
2010, issued December 17, 2009, is calculated by multiplying the
Transaction Valuation by .0000713.
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x
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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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$24,294.22
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Form or
Registration No.:
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Schedule
TO-T
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Filing
Party:
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Onex
Rescare Acquisition, LLC
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Date
Filed:
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October 7,
2010
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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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x
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third-party
tender offer subject to Rule 14d-1.
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o
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issuer
tender offer subject to Rule 13e-4.
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x
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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:
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Schedule I
Onex Partners LP
Onex American Holdings II LLC
Onex US Principals LP
Rescare Executive Investco LLC
Onex Partners III GP LP
Onex Corporation
Onex American Holdings GP LLC
Onex Partners GP LP
Onex Partners GP Inc.
2
This
Amendment No. 4 (this “Amendment No. 4”) to the Tender Offer
Statement and Rule 13e-3 Transaction Statement on Schedule TO originally
filed with the Securities and Exchange Commission on October 7, 2010, as
amended by Amendment No. 1 thereto filed on October 13, 2010, by
Amendment No. 2 thereto filed on October 25, 2010 and by Amendment No. 3
thereto filed on November 2, 2010 (as amended, the “Schedule TO”) by Onex
Rescare Acquisition, LLC, a Delaware limited liability company (the “Purchaser”),
is filed by Purchaser and Onex Partners III LP and amends the Schedule TO
relating to the offer by Purchaser to purchase all of the outstanding shares of
common stock, no par value (the “Shares”) of Res-Care, Inc., a Kentucky
corporation (the “Company”), other than Shares owned by the Purchaser and its
affiliates, at a purchase price of $13.25 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 Amended and Restated Offer to
Purchase, dated October 25, 2010 (the “Offer to Purchase”) (which as
amended or supplemented from time to time, together constitute the “Offer”).
As
permitted by General Instruction F to Schedule TO, the information set forth by
this Amendment No. 4, including all appendices, schedules, exhibits and
annexes hereto and thereto, is hereby expressly incorporated by reference
herein in response to Items 1 through 13 of the Schedule TO. You should read this Amendment No. 4 to
Schedule TO together with the Schedule TO.
Item 1.
Terms of the Transaction
.
(1)
The information incorporated
by reference into Item 1 of the Schedule TO is amended by adding the following
thereto:
On
November 5, 2010, the Purchaser extended the expiration of the Offer until
5:00 P.M., New York City time, on November 15, 2010, unless further
extended. The Offer was previously
scheduled to expire at 5:00 PM., New York City time, on November 5,
2010. The tender offer is being extended
because a required regulatory approval has not yet been obtained. Based on information provided by
Computershare Trust Company, N.A., the depositary for the tender offer, as of November 5,
2010, a total of 19,296,795 shares of common stock, representing approximately 76%
of the outstanding shares of common stock not owned by Onex, its affiliates or
certain members of ResCare’s management who have agreed to “roll-over” their
current equity ownership position, had been tendered and not withdrawn,
including 2,076,334 shares tendered by guaranteed delivery. Shareholders who have already tendered their
shares of ResCare common stock do not have to re-tender their shares or take
any other action as a result of the extension of the expiration date of the
tender offer.
The
full text of the press release announcing the extension of the Offer is
attached as Exhibit (a)(5)(iii) hereto and is incorporated herein by
reference.
Item 4.
Terms of the Transaction
.
(1)
The information incorporated
by reference into Item 4 of the Schedule TO is amended by adding the amendment
contained in Item 1, which is hereby incorporated by reference into this Item 4
of the Schedule TO.
Item 12.
Exhibits
Item
12 of the Schedule TO is hereby amended and supplemented with the following:
(a)(5)(iii)
Text of Press
Release issued by Onex Corporation on November 5, 2010 announcing the
extension of the Offer.
3
SIGNATURES
After
due inquiry and to the best of its knowledge and belief, the undersigned
certifies that the information set forth in this statement is true, complete
and correct.
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Date:
November 5, 2010
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ONEX
RESCARE ACQUISITION, LLC
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By:
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/s/
Robert M. Le Blanc
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Name:
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Robert
M. Le Blanc
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Title:
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Sole
Director
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ONEX
PARTNERS III LP
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By:
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ONEX
PARTNERS III GP LP, its General Partner
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By:
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ONEX
PARTNERS MANAGER LP, its Agent
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By:
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ONEX
PARTNERS MANAGER GP ULC.,
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its
General Partner
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By:
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/s/
Robert M. Le Blanc
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Name:
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Robert
M. Le Blanc
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Title:
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Managing
Director
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By:
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/s/
Joshua Hausman
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Name:
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Joshua
Hausman
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Title:
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Vice
President
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ONEX
PARTNERS III GP LP
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By:
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ONEX
PARTNERS GP INC., its General Partner
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By:
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/s/
Robert M. Le Blanc
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Name:
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Robert
M. Le Blanc
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Title:
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President
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ONEX
PARTNERS GP INC.
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By:
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/s/
Robert M. Le Blanc
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Name:
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Robert
M. Le Blanc
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Title:
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President
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ONEX
PARTNERS LP
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By:
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ONEX
PARTNERS GP LP, its General Partner,
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By:
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ONEX
PARTNERS MANAGER LP, its Agent
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By:
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ONEX
PARTNERS MANAGER GP ULC.,
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its
General Partner
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By:
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/s/
Robert M. Le Blanc
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Name:
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Robert
M. Le Blanc
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Title:
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Managing
Director
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4
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By:
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/s/
Joshua Hausman
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Name:
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Joshua
Hausman
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Title:
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Vice
President
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ONEX
PARTNERS GP LP
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By:
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ONEX
PARTNERS GP INC., its General Partner
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By:
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/s/
Robert M. Le Blanc
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Name:
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Robert
M. Le Blanc
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Title:
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President
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ONEX
US PRINCIPALS LP
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By:
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ONEX
AMERICAN HOLDINGS GP LLC,
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its
General Partner
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By:
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/s/
Robert M. Le Blanc
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Name:
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Robert
M. Le Blanc
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Title:
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Director
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ONEX
AMERICAN HOLDINGS GP LLC
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By:
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/s/
Robert M. Le Blanc
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Name:
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Robert
M. Le Blanc
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Title:
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Director
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RESCARE
EXECUTIVE INVESTCO LLC
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By:
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/s/
Robert M. Le Blanc
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Name:
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Robert
M. Le Blanc
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Title:
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Director
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By:
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/s/
Donald F. West
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Name:
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Donald
F. West
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Title:
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Director
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ONEX
AMERICAN HOLDINGS II LLC
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By:
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/s/
Robert M. Le Blanc
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Name:
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Robert
M. Le Blanc
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Title:
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Director
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By:
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/s/
Donald F. West
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Name:
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Donald
F. West
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Title:
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Director
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ONEX
CORPORATION
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By:
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/s/
Andrea E. Daly
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Name:
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Andrea
E. Daly
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Title:
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Vice
President
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5
EXHIBIT INDEX
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Exhibit No.
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Description
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(a)(1)(i)
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Offer
to Purchase, dated October 7, 2010.*
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(a)(1)(ii)
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Amended
and Restated Offer to Purchase, dated October 25, 2010.*
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(a)(1)(iii)
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Letter
of Transmittal, dated October 7, 2010.*
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(a)(1)(iv)
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Notice
of Guaranteed Delivery.*
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(a)(1)(v)
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Letter
to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
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(a)(1)(vi)
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Letter
to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.*
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(a)(1)(vi)(A)
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Corrected
Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
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(a)(1)(vii)
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Text
of Press Release issued by the Purchaser on September 7, 2010
(incorporated by reference to the pre-commencement Schedule TO-C filed on
September 8, 2010).*
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(a)(5)(i)
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Complaint
filed in Jefferson Circuit Court of the Commonwealth of Kentucky, captioned
Margolis v. Gronefeld, et al., case No. 10CI06597.*
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(a)(5)(ii)
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Text
of Press Release issued by Onex Corporation on October 7, 2010
announcing the commencement of the Offer.*
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(a)(5)(iii)
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Text
of Press Release issued by Onex Corporation on November 5, 2010
announcing the extension of the Offer.
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(b)
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None.
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(d)(1)
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Agreement
and Plan of Share Exchange, dated as of September 6, 2010, between
Purchaser and the Company (incorporated by reference to Exhibit 2.01 to
the Form SC 13D/A filed by Onex Corporation on September 8, 2010).*
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(d)(2)
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Voting
Agreement, dated as of September 6, 2010, by and between certain of the
Company’s shareholders and the Company (incorporated by reference to
Exhibit 4.1 to the Form 8-K filed by the Company on
September 10, 2010).*
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(d)(3)
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Guarantee
of Onex Partners III LP dated as of September 6, 2010 (incorporated by
reference to Exhibit 10.1 to the Form 8-K filed by the Company on
September 10, 2010).*
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(d)(4)
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Form of
Commitment Letter made by certain Company management shareholders in favor of
Onex Partners III LP (incorporated by reference to Exhibit 10.2 to the
Form 8-K filed by the Company on September 10, 2010).*
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(f)
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Subtitle
13 of the Kentucky Business Corporation Act (included as Schedule D of the
Offer to Purchase filed herewith as Exhibit (a)(1)(i)).*
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(g)
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None.
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(h)
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None.
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* Previously filed.
6
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