Item 1.01 Entry into a Material Definitive Agreement.
On June 28, 2022, Parent, Merger Sub, as the initial borrower, and the Company,
following the merger with the initial borrower, the borrower, entered into that
certain Credit Agreement with HPS Investment Partners, LLC as administrative
agent and collateral agent, Truist Bank as revolver agent, the lenders from time
to time party thereto, and the other parties from time to time party thereto
(the "Credit Agreement"), which provides for a term loan facility funded on
June 28, 2022 in an amount equal to $1,125,000,000 and a revolving credit
facility with revolving credit commitments of $75,000,000. The obligations under
the Credit Agreement are guaranteed by certain material domestic restricted
subsidiaries of the Company (subject to certain exclusions and exceptions). The
obligations under the Credit Agreement are secured on a first priority basis by
substantially all assets of the borrowers and guarantors (subject to certain
exclusions and exceptions). The Credit Agreement includes representations and
warranties, covenants, events of default and other provisions that are customary
for facilities of this type.
Item 1.02 Termination of a Material Definitive Agreement.
Concurrently with the closing of the Merger, the Company repaid all loans and
terminated all credit commitments outstanding under the Credit Agreement, dated
June 30, 2021, by and among the Company, certain subsidiaries of the Company as
guarantors, the lenders party thereto, Morgan Stanley Senior Funding, Inc., as
general administrative agent, term loan facility administrative agent and
collateral agent, and Truist Bank, as revolving facility agent and swingline
lender.
The information set forth in the Introductory Note and Item 2.01 below is
incorporated herein by reference.
Item 2.01. Completion of Acquisition or Disposition of Assets.
On June 28, 2022, pursuant to the terms of the Merger Agreement, the Merger was
completed, with Merger Sub being merged with and into the Company, with the
Company surviving the Merger as a wholly-owned subsidiary of Parent. At the
effective time of the Merger, each outstanding share of the Company's common
stock, par value $0.001 per share (the "Common Stock"), subject to certain
exceptions, was cancelled and converted into the right to receive an amount in
cash equal to $32.50 per share, without interest, pursuant to the Merger
Agreement. A description of the consideration payable to holders of the
Company's options, restricted stock units and market stock units is set forth
under the heading "Terms of the Merger Agreement-Transaction
Consideration-Outstanding Tivity Health Equity Awards" in the Company's
Definitive Proxy Statement filed with the SEC on May 24, 2022 (the "Proxy
Statement"), and such description is incorporated herein by reference.
The total aggregate consideration paid in connection with the Merger was
approximately $2,125,000,000. The source of funds for the consideration paid in
the Merger was a combination of equity contributions from investment funds
associated with Stone Point Capital, as well as proceeds from debt facilities
described in Item 1.01 above.
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The information set forth in the Introductory Note above is incorporated herein
by reference. The foregoing description, including the portions incorporated by
reference herein, does not purport to be complete and is subject to, and
qualified in its entirety by, the full text of the Merger Agreement, which is
incorporated by reference as Exhibit 2.1 hereto and incorporated herein by
reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant
The information set forth under Item 1.01 above is incorporated herein by
reference.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
In connection with the completion of the Merger, on June 28, 2022, the Company
(i) notified the Nasdaq Stock Market LLC ("Nasdaq") that the Merger has been
completed and (ii) submitted a request to Nasdaq for Nasdaq to cease trading of
the Common Stock on Nasdaq and to suspend the listing of the Common Stock and to
file with the SEC an application on Form 25 to delist the Common Stock from
Nasdaq and deregister the Common Stock under Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
The Company intends to file with the SEC a certification on Form 15 with respect
to the Common Stock requesting the deregistration of the Common Stock under
Section 12(g) of the Exchange Act and the suspension of the Company's reporting
obligations under Sections 13 and 15(d) of the Exchange Act.
The information set forth in the Introductory Note and Item 2.01 above
(including the section of the Proxy Statement listed therein) is incorporated
herein by reference.
Item 3.03. Material Modifications to Rights of Security Holders.
Upon the effective time of the Merger on June 28, 2022, each issued and
outstanding share of Common Stock, subject to certain exceptions, was canceled
and ceased to exist, and holders of Common Stock immediately prior to the
effective time of the Merger ceased to have any rights as stockholders of the
Company (other than their right to receive the merger consideration of $32.50
per share in cash, without interest, pursuant to the Merger Agreement). The
foregoing description does not purport to be complete and is subject to, and
qualified in its entirety by, the full text of the Merger Agreement, which is
incorporated by reference as Exhibit 2.1 hereto and incorporated herein by
reference.
The information set forth in the Introductory Note, Item 2.01, Item 3.01, Item
5.01 and Item 5.02 is incorporated herein by reference.
Item 5.01. Changes in Control of Registrant.
Pursuant to the terms of the Merger Agreement, at the effective time of the
Merger on June 28, 2022, the Company became a wholly-owned subsidiary of Parent
and, accordingly, a change in control of the Company occurred.
The information set forth in the Introductory Note, Item 2.01, Item 3.01 and
Item 5.02 is incorporated herein by reference.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Pursuant to the terms of the Merger Agreement, Anthony M. Sanfilippo, Sara J.
Finley, Robert J. Greczyn, Jr., Beth M. Jacob, Bradley S. Karro, Erin L. Russell
and Stephanie Davis Michelman ceased serving as members of the Company's board
of directors and each committee thereof. Following the consummation of the
Merger, Adam Holland, Ray Bilbao, Tommy Lewis and Ryan Wagers were appointed
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as members of the Company's board of directors until the earlier of their death,
resignation or removal or until their respective successors are duly elected and
qualified, and Richard M. Ashworth remained a member of the Company's board of
directors.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal
Year.
At the effective time of the Merger on June 28, 2022, the Restated Certificate
of Incorporation of the Company, as amended, was amended and restated in its
entirety. In addition, in connection with the Merger, the Second Amended and
Restated Bylaws of the Company, as amended, were amended and restated in their
entirety. The Amended and Restated Certificate of Incorporation of the Company
and the Amended and Restated Bylaws of the Company are attached hereto as
Exhibit 3.1 and Exhibit 3.2, respectively, and are incorporated by reference
herein.
Item 8.01 Other Events
On June 28, 2022, the Company issued a press release announcing the closing of
the Merger. The press release is attached hereto as Exhibit 99.1 and is
incorporated by reference herein.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit 2.1 Agreement and Plan of Merger, dated as of April 5, 2022, by and
among Tivity Health, Inc., Titan-Atlas Parent, Inc. (presently
known as Tivity Health OpCo Parent, Inc.) and Titan-Atlas Merger
Sub, Inc. [incorporated by reference to Exhibit 2.1 to the
Company's Current Report on Form 8-K dated April 6, 2022, File No.
000-19364]*
Exhibit 3.1 Amended and Restated Certificate of Incorporation of the
Company
Exhibit 3.2 Amended and Restated Bylaws of the Company
Exhibit 99.1 Press Release dated June 28, 2022
Exhibit 104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
* Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of
Regulation S-K. The Company agrees to furnish a supplemental copy of any omitted
schedule or attachment to the SEC upon request.
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