BENEFITFOCUS, INC. Item 1.01. Entry into a Material Definitive Agreement.
On
The Company's Board of Directors (the "Company Board") unanimously approved and declared advisable the Merger Agreement and the transactions contemplated by the Merger Agreement and determined that the Merger Agreement and transactions contemplated by the Merger Agreement are fair to, and in the best interests of, the Company and its stockholders (other than Excluded Shares that are not Dissenting Shares (each as defined in the Merger Agreement)). The Company Board also resolved to recommend that the Company's stockholders adopt the Merger Agreement.
Subject to the terms and conditions set forth in the Merger Agreement, at the
effective time of the Merger, each share of common stock of the Company,
The Merger Agreement also contains customary "no-shop" restrictions pursuant to which the Company, is required, among other things, not (i) to initiate, solicit, cause, propose or knowingly encourage, assist or facilitate any alternative transaction proposals from third parties or (ii) to provide non-public information regarding the Company to and engage in discussions or negotiations with third parties regarding alternative transaction proposals. Notwithstanding the limitations applicable under the "no-shop" restrictions, after the execution date of the Merger Agreement, and prior to obtaining the approval of the Merger Agreement by holders of a majority of the Company's outstanding shares of Common Stock and Preferred Stock (voting as a single class with the shares of Common Stock, on an as-converted basis) entitled to vote on such matter at a stockholders' meeting duly called and held for such purpose (the "Requisite Company Vote"), the Company may under certain circumstances provide information to and participate in discussions or negotiations with third parties with respect to any unsolicited, bona fide alternative transaction proposal if the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available, (1) and after consultation with its financial advisor, that such transaction proposal either constitutes a Superior Proposal, as such term is defined in the Merger Agreement, or is reasonably likely to result in a Superior Proposal and (2) the failure to take such action would be reasonably likely to be inconsistent with the directors' fiduciary duties under applicable law.
At the Effective Time, Company equity-based awards (each, a "Company Equity Award") outstanding immediately prior to the Effective Time will generally be subject to the following treatment:
• Each vested and outstanding option (each, a "Company Option") to purchase
shares of Common Stock granted under the Company's Third Amended and
Restated 2012 Stock Plan will be cancelled, and each holder of such
Company Options will be entitled to receive, without interest, as
promptly as reasonably practicable after the Effective Time, an amount in
cash equal to the product of (i) the number of shares of Common Stock
subject to such Company Option immediately prior to the Effective Time,
multiplied by (ii) the excess, if any, of (A) the Per Share Common Stock
Merger Consideration over (B) the exercise price per share of Common
Stock of such Company Option, less applicable taxes required to be
withheld with respect to such payment;
• Each outstanding Company Equity Award that was granted in 2019 or 2020 (a
"Specified Award"), will be cancelled, and each holder of such Specified
Award will be entitled to receive, without interest, as promptly as
reasonably practicable after the Effective Time, an amount in cash equal
to the product of (i) the number of shares of Common Stock subject to
such Specified Award immediately prior to the Effective Time, multiplied
by (ii) the Per Share Common Stock Merger Consideration, less applicable
taxes required to be withheld with respect to such payment;
• Each outstanding restricted stock unit (each, a "Company RSU") that is
not a Specified Award (including any Company Retention RSUs (as defined
below) and each outstanding performance stock unit which has been earned
for the applicable performance period
--------------------------------------------------------------------------------
(which performance period has ended prior to the closing of the Merger)
and which is only subject to time-based vesting as of the closing of the
Merger (each, a "Company Time-Vesting PSU")) will be assumed by Parent
and converted into a restricted stock unit (a "Parent RSU") covering a
number of shares of common stock of Parent, par value $0.01 per share
(the "Parent Common Stock") (rounded to the nearest whole number) equal
to the product of (i) the number of shares of Common Stock subject to
such Company RSUs or Company Time-Vesting PSU immediately prior to the
Effective Time multiplied by (ii) the Equity Award Exchange Ratio (as
defined in the Merger Agreement). Each Parent RSU will continue to be
governed by the same terms and conditions as were applicable to the
corresponding Company RSU or Company Time-Vesting PSU immediately prior
to the Effective Time;
• Each outstanding performance stock unit other than a Company Time-Vesting
PSU or a Specified Award (each, a "Company PSU") will be assumed by
. . .
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
In connection with the execution of the Merger Agreement, on
The foregoing description of the Company Retention RSUs is qualified in its entirety by reference to the full text of the form of Retention RSU Agreement, a copy of which is attached hereto as Exhibit 10.1, and is incorporated herein by reference.
Item 8.01. Other Events. Support Agreements
On
Cautionary Statement Regarding Forward-Looking Statements
Certain statements in this communication may constitute "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, each as amended. Forward-looking statements are often identified by the use of words such as, but not limited to, "anticipate," "believe," "can," "continue," "could," "estimate," "expect," "intend," "may," "might," "will," "plan," "project," "seek," "should," "target," "would," and similar expressions or variations intended to identify forward-looking statements. These statements are based on the beliefs and assumptions of our management based on information currently available to management.
--------------------------------------------------------------------------------
Such forward-looking statements are subject to risks, uncertainties and other
important factors that could cause actual results and the timing of certain
events to differ materially from future results expressed or implied by such
forward-looking statements. Factors that could cause or contribute to such
differences include the following: (i) conditions to the completion of the
proposed transaction, including stockholder approval of the proposed
transaction, may not be satisfied or the regulatory approval required for the
proposed transaction may not be obtained on the terms expected or on the
anticipated schedule; (ii) the occurrence of any event, change or other
circumstance that could give rise to the termination of the merger agreement
between the parties to the proposed transaction; (iii) the effect of the
announcement or pendency of the proposed transaction on the Company's customers,
suppliers, business relationships, operating results and business generally;
(iv) the risk that the proposed transaction disrupts the Company's current plans
and operations and the potential difficulties in the Company's employee
retention as a result of the proposed transaction; (v) the risk related to
diverting management's attention from our ongoing business operations;
(vi) potential litigation that may be instituted against the Company or its
directors or officers related to the proposed transaction or the merger
agreement between the parties to the proposed transaction; (vii) the amount of
the costs, fees, expenses and other charges related to the proposed transaction;
(viii) the risk that the proposed transaction will not be consummated in a
timely manner; (ix) macroeconomic and industry trends and adverse developments
in the debt, consumer credit and financial services markets; natural disasters
and adverse weather, acts of terrorism, an outbreak of hostilities or other
international or domestic calamities, including the recent war in
The Company's forward-looking statements speak only as of the date of this communication or as of the date they are made. The Company disclaims any intent or obligation to update any "forward looking statement" made in this communication to reflect changed assumptions, the occurrence of unanticipated events or changes to future operating results over time.
Additional Information and Where to Find It
This communication may be deemed to be solicitation material in respect of the
proposed transaction of the Company by Parent. In connection with the proposed
transaction, the Company will file with the
Participants in Solicitation
The Company and its directors and executive officers may be deemed to be
participants in the solicitation of proxies from the Company's stockholders in
respect of the proposed transaction. Information about the directors and
executive officers of the Company is set forth in the proxy statement for the
Company's 2022 Annual Meeting of Stockholders, which was filed with the
--------------------------------------------------------------------------------
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description of Exhibit 2.1* Agreement and Plan of Merger, datedNovember 1, 2022 , by and amongBenefitfocus, Inc. , Voya Financial, Inc. andOrigami Squirrel Acquisition Corp. 10.1 Form of Restricted Stock Unit Agreement for awards granted to executives ofBenefitfocus, Inc. , datedNovember 1, 2022 . 10.2 Support Agreement, datedNovember 1, 2022 , by and among Voya Financial Inc.,Origami Squirrel Acquisition Corp ,Benefitfocus Inc. andBuildGroup Management, LLC . 10.3 Support Agreement, datedNovember 1, 2022 , by and among Voya Financial Inc.,Origami Squirrel Acquisition Corp ,Benefitfocus Inc. andIndaba Capital Management, L.P. 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The
Company hereby undertakes to furnish supplemental copies of any omitted
schedules upon request by the
provided, however, that the Company may request confidential treatment pursuant
to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any
schedules so furnished.
--------------------------------------------------------------------------------
© Edgar Online, source
