DEFA14A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): September 28, 2012

Graymark Healthcare, Inc.

(Exact Name of Registrant as Specified in Charter)

Oklahoma	001-34171	20-0180812
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

204 N. Robinson Ave., Suite 400

Oklahoma City, Oklahoma 73102

(Address of Principal Executive Offices) (Zip Code)

(405) 601-5300

(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

x Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01. Entry into a Material Definitive Agreement.

On September 28, 2012, Graymark Healthcare, Inc. and its wholly-owned subsidiary, TSH Acquisition, LLC, entered into an amendment (the “Amendment”) to the Membership Interest Purchase Agreement, dated as of August 13, 2012, with Foundation Healthcare Affiliates, LLC (“Seller”). Pursuant to the Amendment, a party may terminate the agreement if the closing of the acquisition does not occur on or before October 31, 2012, and an additional closing condition was added requiring the Seller to obtain the consent of the holder of preferred interests in certain subsidiaries of Seller prior to the closing of the acquisition. A copy of the Amendment is filed herewith as Exhibit 2.1 and is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

Exhibit No.	Description
2.1	Amendment to Membership Interest Purchase Agreement, dated as of September 28, 2012, among Graymark Healthcare, Inc., TSH Acquisition, LLC and Foundation Healthcare Affiliates, LLC

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: October 4, 2012	GRAYMARK HEALTHCARE, INC.
	By:	/s/ Stanton Nelson
		Stanton Nelson, Chief Executive Officer

EXHIBIT INDEX

Exhibit No.	Description
2.1	Amendment to Membership Interest Purchase Agreement, dated as of September 28, 2012, among Graymark Healthcare, Inc., TSH Acquisition, LLC and Foundation Healthcare Affiliates, LLC

EX-2.1

Exhibit 2.1

AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

This Amendment to Membership Interest Purchase Agreement (the “Amendment”), dated as of September 28, 2012 (the “Effective Date”), is entered into among Foundation Healthcare Affiliates, LLC, an Oklahoma limited liability company (“Seller”), TSH Acquisition, LLC, a Delaware limited liability company (“Buyer”), and Graymark Healthcare, Inc., an Oklahoma corporation (“Parent” and together with the Seller and Buyer, the “Parties”).

RECITALS

WHEREAS, Seller and Buyer entered into that certain Membership Interest Purchase Agreement dated as of August 13, 2012 (the “Purchase Agreement”), by which Seller agreed to sell and Buyer agreed to purchase (i) all of the issued and outstanding membership interests in Foundation Surgery Affiliates, LLC, a Nevada limited liability company, and (ii) all of the issued and outstanding membership interests in Foundation Surgical Hospital Affiliates, LLC, a Nevada limited liability company, all as more particularly described in the Purchase Agreement.

WHEREAS, the Parties desire to amend the Purchase Agreement to include the Seller’s receipt of consent to the consummation of the transaction contemplated by the Agreement from Tyche Health Enterprises, LLC, the holder of preferred interests in certain Subsidiaries of Seller as an express condition to Closing, among other things.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual rights and obligations hereunder, the Parties hereby agree as follows:

1. Purchase Agreement. The Parties agree that the Purchase Agreement is in full force and effect. All capitalized terms used in, and not otherwise defined in, this Amendment shall have the meanings given them in the Purchase Agreement.

2. New Defined Term. The following definition is added to Article I of the Purchase Agreement:

““Seller’s Preferred Member” means Tyche Health Enterprises, LLC, the holder of the preferred interests in certain Subsidiaries of Seller.”

3. Amendment to Section 7.2. The following condition is added to Section 7.2 of the Purchase Agreement:

“(p) Seller shall have received the consent of Seller’s Preferred Member to the consummation of the transactions contemplated by this Agreement.”

4. Amendments to Article IX.

(a) Section 9.1(c) is deleted and the following is added as Section 9.(1)(b)(ii):

“(ii) any of the conditions set forth in Section 7.1 shall not have been, or if it becomes apparent that any of such conditions will not be, fulfilled by October 31, 2012, unless such failure shall be due to the failure of Parent or Buyer to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing;”

(b) Section 9.1(d) is hereby redesignated as Section 9.1(c) with the current Section 9.1(d)(ii) being deleted and replaced with the following as Section 9.1(c)(ii):

“(ii) any of the conditions set forth in Section 7.2 shall not have been, or if it becomes apparent that any of such conditions will not be, fulfilled by October 31, 2012, unless such failure shall be due to the failure of Seller to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing; or”

(c) Section 9.1(e) is hereby redesignated Section 9.1(d) but is otherwise unchanged.

5. Ratification. Except as specifically amended herein, the Purchase Agreement shall remain in full force and effect, and is hereby ratified by the Parties. In the event that any terms of this Amendment shall conflict with the terms of the Purchase Agreement, the terms of this Amendment shall prevail. All references herein to the “Purchase Agreement” shall mean the Purchase Agreement as amended by this Amendment. This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Amendment delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Amendment.

[SIGNATURES ON FOLLOWING PAGE]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed effective in all respects as of the Effective Date set forth above.

FOUNDATION HEALTHCARE AFFILIATES, LLC
By:	/s/ Robert Byers
Name:	Robert Byers
Title:	President
GRAYMARK HEALTHCARE, INC.
By:	/s/ Stanton Nelson
Name:	Stanton Nelson
Title:	Chief Executive Officer
TSH ACQUISITION, LLC
By:	Graymark Healthcare, Inc.,
	its Manager
	By:	/s/ Stanton Nelson
	Name:	Stanton Nelson
	Title:	Manager

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