Sec Form 13D Filing - Biosynex SA filing for CHEMBIO DIAGNOSTICS, INC. (CEMI) - 2023-05-01

Alexis Steinmetz

c/o Biosynex SA

22 Boulevard Sébastien Brant

67400 Illkirch-Graffenstaden, France

+33 (0)6 70 86 00 15

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

On January 31, 2023, the Reporting Persons entered into an Agreement and Plan of Merger (the “Merger Agreement”) with the Company. In accordance with the Merger Agreement, on February 14, 2023, Merger Sub commenced a cash tender offer (the “Offer”) to purchase all outstanding shares of Common Stock at a price of $0.45 per share (the “Offer Price”), net to the seller in cash, u pon the terms and subject to the conditions set forth in the Offer to Purchase, dated February 14, 2023 (the “Offer to Purchase”), incorporated by reference from Exhibit (a)(1)(A) of the Tender Offer Statement on Schedule TO filed by the Reporting Persons with the Securities and Exchange Commission (the “SEC”) on February 14, 2023 (as amended, the “Schedule TO”), and the related Letter of Transmittal, incorporated by reference from Exhibit (a)(1)(B) of the Schedule TO.

The information set forth in the sections of the Offer to Purchase entitled “Summary Term Sheet,” “Introduction,” “The Tender Offer – 8. Certain Information Concerning Parent and Purchaser,” “The Tender Offer – 9. Source and Amount of Funds,” “The Tender Offer – 10.  Background of the Offer; Past Contacts or Negotiations with CEMI,” “The Offer – 11.  The Merger Agreement; Other Agreements,” and “The Tender Offer – 12.  Purpose of the Offer; Plans for CEMI” is incorporated herein by reference.

The Offer expired at 6:00 p.m., New York City time, on Wednesday, April 26, 2023.  Based upon information provided by Securities Transfer Corporation, the depositary and paying agent for the Offer (“Depositary and Paying Agent”), 18,874,498 shares of Common Stock were validly tendered and not withdrawn prior to the expiration of the Offer, representing approximately 50.93% of the issued and outstanding shares of Common Stock. On April 26, 2023, Merger Sub accepted for payment all validly tendered and not withdrawn shares of Common Stock and promptly made payment for such shares in accordance with the terms of the Offer and applicable law.

Following Merger Sub’s acceptance for payment of all validly tendered and not withdrawn shares of Common Stock, on April 27, 2023, pursuant to the terms of the Merger Agreement and in accordance with Section 92A.133 of the Nevada Revised Statutes, Merger Sub merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly-owned and indirect subsidiary of Biosynex. At the effective time of the Merger, each share of Common Stock (except for shares that were validly tendered and irrevocably accepted for purchase pursuant to the Offer or held by the Company as treasury shares, owned by a wholly-owned Company subsidiary or held by Biosynex or its subsidiaries) was converted into the right to receive $0.45 per share, net to the holder in cash, without interest but subject to any applicable tax withholding. Each of the Company’s unvested restricted stock units (“RSUs”) that were outstanding immediately prior to the effective time of the Merger (including each unvested RSU that became vested at the time of acceptance of payment related to the Offer or the effective time of the Merger) was automatically cancelled and converted into the right to receive $0.45 per share, net to the holder in cash, without interest but subject to any applicable tax withholding. Each Company stock option outstanding immediately prior to the effective time of the Merger was automatically terminated for no consideration. As a result of the Merger, the registration of the shares of Common Stock under the Securities Exchange Act of 1934, as amended, was terminated and, on April 27, 2023, the shares of Common Stock ceased to be traded on The Nasdaq Stock Market.

The summary of certain provisions of the Merger Agreement in this Schedule 13D is qualified in its entirety by reference to the Merger Agreement itself, which is attached as Exhibit 1 hereto and is incorporated herein by reference.

In connection with the Merger, the officers and directors of the Company resigned, and the officers and directors of Merger Sub immediately prior to the effective time of the Merger became the officers and directors of the Company. Pursuant to the Merger Agreement, at the effective time of the Merger, the articles of incorporation of the Company and the bylaws of the Company were each amended and restated in their entirety.

Other than as described in this Scheduled 13D, the Reporting Persons currently have no plans or proposals which relate to, or may result in, any of the matters listed in Items 4(a)-(j) of the General Instructions to Schedule 13D.

(a)-(b) As a result of the purchase of the shares of Common Stock pursuant to the Offer, immediately following the acceptance of the shares on April 26, 2023, Merger Sub beneficially owned 18,874,498 shares of Common Stock, representing approximately 50.93% of the issued and outstanding shares of Common Stock.

Following Merger Sub’s acceptance for payment of all validly tendered and not withdrawn shares of Common Stock, on April 27, 2023, pursuant to the terms of the Merger Agreement, Merger Sub merged with and into the Company.  As a result of the Merger, the Reporting Persons beneficially own 37,059,993 shares of Common Stock, representing 100.00% of the issued and outstanding shares of Common Stock.

Biosynex, Holdco and Merger Sub may be deemed to share the power to vote or direct the voting, and to dispose or direct the disposition of all of the shares of Common Stock beneficially owned by the Reporting Persons.

(c) The information set forth in Item 4 is incorporated herein by reference.

(d) To the knowledge of the Reporting Persons, no other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities of the Company reported herein.

(e) Not applicable.

Except as set forth in Item 4 of this Schedule 13D, neither the Reporting Persons nor, to the best knowledge of the Reporting Persons, any person set forth on Schedule I hereto, has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Company or its subsidiaries.

1.          Project Merci Merger Sub, Inc.

The name, current principal occupation or employment and material occupations, positions, offices or employment for the past five years of each director and executive officer of Merger Sub are set forth below. The current business address of each person is c/o Biosynex SA, 22 Boulevard Sebastien Brant, 67400 Illkirch-Graffenstaden, France and the business telephone number of each such person is +33 (0)3 88 77 57 21. Unless otherwise noted, each such person is a citizen of France.

2.          Biosynex U.S. Holdings, Inc.

The name, current principal occupation or employment and material occupations, positions, offices or employment for the past five years of each director and executive officer of Holdco are set forth below. The current business address of each person is c/o Biosynex SA, 22 Boulevard Sebastien Brant, 67400 Illkirch-Graffenstaden, France and the business telephone number of each such person is +33 (0)3 88 77 57 21. Unless otherwise noted, each such person is a citizen of France.

3.          Biosynex SA

The name, current principal occupation or employment and material occupations, positions, offices or employment for the past five years of each director and executive officer of Biosynex are set forth below. The current business address of each person is c/o Biosynex SA, 22 Boulevard Sebastien Brant, 67400 Illkirch-Graffenstaden, France and the business telephone number of each such person is +33 (0)3 88 77 57 21. Unless otherwise noted, each such person is a citizen of France.

Larry Abensur

Larry Abensur co-founded Biosynex with Thierry Paper and Thomas Lamy in 2005. From 2005 to October 2010, Mr. Abensur was a co-manager of Biosynex. Since June 2015, Mr. Abensur has overseen the launch of Biosynex, a medtech leader in rapid diagnostic tests (RDTs). Mr. Abensur currently serves as Chief Executive Officer of Biosynex and also serves on the board of directors of Biosynex Swiss SA, Biosynex Premier SA, Theradiag SA, Biosynex, Laboratoire SBH SAS, and Gie Lab Otc. Mr. Abensur received an engineering degree from the Ecole Nationale Supérieure de Chimie de Paris (ENSCP). Mr. Abensur also holds an MBA from INSEAD.

Thierry Paper

Thierry Paper co-founded Biosynex with Larry Abensur and Thomas Lamy in 2005. From 2005 to June 2015, Mr. Paper was general and operational director of Biosynex. In June 2015, Mr. Paper became a Deputy Managing Director of Biosynex. After a first and a second cycle in pharmaceutical studies at the University of Paris V, Mr. Paper completed a MBA at the Ecole Nationale des Ponts et Chaussées. He also holds a D.E.S (Diplôme d’Etudes Spécialisées) in medical biology from the University of Paris V.

Thomas Lamy

Thomas Lamy co-founded Biosynex with Larry Abensur and Thierry Paper in 2005. In June 2015, Mr. Lamy became Deputy Managing Director and from August 2022 he held the position of Vice-President of Biosynex. Mr. Lamy is a graduate from an Agricultural Engineering program. Mr. Lamy also holds a PhD in Engineering from the National Polytechnic Institute of Lorraine. He also completed an MBA at the Ecole des Hautes Etudes Commerciales (HEC) in Paris.

Elie Fraenckel

Elie Fraenckel joined Biosynex in 2005, when the company was founded. Mr. Fraenckel was the Chief Financial & Human Resources Officer of Biosynex from 2005 to 2022, supporting Biosynex during its IPO in 2012. Mr. Fraenckel has been involved in Biosynex’s external growth since 2012. Mr. Fraenckel holds a degree in accounting and business law.

ALA FINANCIERE

ALA FINANCIERE is a French Société à responsabilité limitée with its principal executive offices located at 8 rue du Général Ducrot, 67000 Strasbourg, France. It is controlled and represented by Larry Abensur.

Oren Bitton

Oren Bitton joined Biosynex in 2011, as OTC Sales Director and became Deputy CEO in charge of the OTC Business Unit in 2022. With more than 25 years of various experiences in the healthcare industry, Mr. Bitton is a graduate from HEC Paris where he completed an Executive Master of Sciences in general management.

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