Item 1.01 Entry into a Material Definitive Agreement.
The Merger constitutes a Merger Event (as defined in the Indenture, dated as of
Item 1.02 Termination of a Material Definitive Agreement.
In connection with the consummation of the Merger, on
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Item 2.01 Completion of Acquisition or Disposition of Assets.
The information set forth in the Introductory Note of this Current Report on Form 8-K is incorporated herein by reference.
Pursuant to the Merger Agreement, at the Effective Time:
• each vested and outstanding option (each, a "Company Option") to purchase
shares of Common Stock was cancelled and converted into the right to receive, without interest, 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;
• in respect of (i) each outstanding Company equity-based award (each, a
"Company Equity Award") that was granted in 2019 or 2020 (a "Prior Award"), (ii) the unvested number of shares of Common Stock underlying each outstanding Company RSU (as defined below) granted in connection with the transactions contemplated by the Merger Agreement (each, a "Company Retention RSU") and each outstanding restricted stock award granted in replacement of a Company Retention RSU that would vest at the Effective Time (each, a "Company Retention RSA") (iii) each outstanding performance stock unit which has been earned under the Company's 2022 short-term incentive plan for the 2022 performance period (each, a "Company 2022 STI RSU") and (iv) the unvested number of shares of Common Stock underlying each outstanding Company RSU granted pursuant to the Company's Own It equity program (each, a "Specified Company RSU" and together with the Prior Awards, Company Retention RSUs,Company Retention RSAs and Company 2022 STI RSUs, the "Specified Awards"), such award or shares, as the case may be, was cancelled and converted into the right to receive, without interest, 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 outstanding Company Retention RSU 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 . . .
Item 2.04 Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet Arrangement.
The consummation of the Merger also constitutes a Fundamental Change and a Make-Whole Fundamental Change (each as defined in the Indenture).
Pursuant to the Indenture, each Holder (as defined in the Indenture) has the
option, subject to certain conditions, to require the Company to repurchase the
Notes of such Holder in a principal amount equal to
In addition, pursuant to the terms and conditions of the Indenture, the Notes
are currently convertible at the option of the Holders thereof. Pursuant to the
terms and conditions of the Indenture, if any Holder elects to convert its Notes
at any time from and after
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
In connection with the consummation of the Merger, the Company notified the
Nasdaq Global Market ("Nasdaq") that each outstanding share of Common Stock was
converted into the right to receive the Per Share Common Stock Merger
Consideration and requested that Nasdaq withdraw the listing of the Common
Stock. The Company requested that Nasdaq file a notification of removal from
listing on Form 25 with the
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in the Introductory Note, Item 2.01, Item 3.01, Item 5.01 and Item 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
Item 5.01 Changes in Control of Registrant.
The information set forth in the Introductory Note, Item 2.01, Item 3.01 and Item 5.03 of this Current Report is incorporated herein by reference.
As a result of the consummation of the transactions contemplated by the Merger Agreement, the Company became a wholly owned subsidiary of Parent at the Effective Time.
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Effective as of the Effective Time, in accordance with the terms of the Merger
Agreement, all of the directors of the Company immediately prior to the
effectiveness of the Merger, ceased serving in such capacities with the
Effective as of the Effective Time, in accordance with the terms of the Merger
Agreement, all of the incumbent officers of the Company immediately prior to the
effectiveness of the Merger, continued as officers of the
From and after the Effective Time, until the earlier of their death,
resignation, removal or disqualification or until successors are duly elected or
appointed and qualified,
Item 5.03 Amendments to Certificate of Incorporation or Bylaws; Change in Fiscal
Year.
Immediately following the Effective Time, the Company's certificate of incorporation and bylaws were amended and restated in their entirety. Copies of the Second Amended and Restated Certificate of Incorporation of the Company and the Amended and Restated Bylaws of the Company are filed as Exhibits 3.1 and 3.2 to this Current Report on Form 8-K, respectively, and are incorporated herein by reference.
Item 7.01 Regulation FD Disclosure
On
As provided in General Instruction B.2 of Form 8-K, the information and exhibits provided pursuant to this Item 7.01 shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall they be deemed to be incorporated by reference in any filing under the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such a filing.
Item 9.01 Financial Statements and Exhibits.
Exhibit No. Description 2.1 Amended and Restated Agreement and Plan of Merger, dated as ofDecember 19, 2022 , by and among the Company, Voya Financial, Inc., andOrigami Squirrel Acquisition Corp (incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K filed onDecember 19, 2022 ). 3.1 Second Amended and Restated Certificate of Incorporation ofBenefitfocus, Inc. 3.2 Amended and Restated Bylaws ofBenefitfocus, Inc. 4.1 First Supplemental Indenture, dated as ofJanuary 24, 2023 , betweenBenefitfocus, Inc. andU.S. Bank Trust Company, National Association , as Trustee 99.1 Press Release regarding closing of the Merger, dated as ofJanuary 24, 2023 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
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