Item 1.01 Entry into a Material Definitive Agreement
On
The Amended and Restated Merger Agreement is substantially the same as the Original Merger Agreement except that, in connection with the actions disclosed in Item 5.02 below, the Amended and Restated Merger Agreement reflects that unvested shares of restricted stock of the Company will be outstanding at the Closing (the "Company Restricted Shares"). The Company Restricted Shares will be treated substantially the same at the Effective Time of the transaction contemplated by the Amended and Restated Merger Agreement (the "Merger") as the restricted stock units that the Company Restricted Shares replaced.
Additionally, at Parent's request, any outstanding Company Retention RSUs or
Company Retention Restricted Shares that are, per their terms, scheduled to vest
in connection with the Closing (collectively, the "Specified Company Retention
Awards") and any outstanding Company RSUs granted under the Company's Own It
equity program (the "Specified Company RSUs") will no longer be assumed by
Parent and converted into Parent RSUs covering a number of shares of Parent
Common Stock, and will instead be cancelled in exchange for the right to receive
an amount in cash (the "Specified Award Consideration"), without interest, equal
to the product obtained by multiplying the number of Common Shares subject to
such Specified Company Retention Awards and Specified Company RSUs immediately
prior to the closing of the Merger by
For the avoidance of doubt, the amendments to the Original Merger Agreement reflected in the Amended and Restated Merger Agreement do not accelerate the time of payment or vesting of any Company Equity Awards held by the named executive officers but will result in the cancellation of the Specified Company Retention Awards held by the named executive officers in exchange for the right to receive the Specified Award Consideration.
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 Merger, certain employees of the Company (including each of its named executive officers, the "Covered Individuals") may become entitled to payments and benefits that may be treated as "excess parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code").
Accordingly, the Company and Parent have agreed to take certain actions with respect to such Covered Individuals that are intended to mitigate the impact of Section 280G of the Code (the "280G Mitigation Actions"), including:
(i) the payment of the portion of the cash short-term incentive compensation
opportunity under the Company's 2022 short-term incentive plan (the "Bonus")
that the Company's board of directors (the "Board") determined has been earned
in
--------------------------------------------------------------------------------
(ii) the replacement of certain Company restricted stock unit ("RSU") and
Company performance restricted stock unit ("PSU") awards held by the Covered
Individuals with Company Restricted Shares, to be effective as of
The Board approved the following 280 Mitigation Actions:
(i) For
(ii) For
For the avoidance of doubt, the 280 Mitigation Actions disclosed above do not accelerate the time of payment or vesting of Company Equity Awards held by the named executive officers.
The foregoing description of the Amended and Restated Merger Agreement and the Company Restricted Shares does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Amended and Restated Merger Agreement and the form of Company Restricted Stock Award Agreement, respectively, which are filed as Exhibit 2.1 and Exhibit 10.1 hereto, respectively, and incorporated herein by reference. A copy of the Amended and Restated Merger Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company, Parent, or their respective subsidiaries or affiliates. The representations, warranties, and covenants contained in the Amended and Restated Merger Agreement were made only for purposes of the Amended and Restated Merger Agreement and as of specific dates, were solely for the benefit of the parties to the Amended and Restated Merger Agreement, may be subject to limitations, qualifications or other particulars agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Amended and Restated Merger Agreement instead of establishing these matters as facts or made for other purposes, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the Amended and Restated Merger Agreement and may not rely on the representations, warranties, and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the Original Merger Agreement, which subsequent information will not necessarily be fully reflected in the Company's public disclosures.
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 (the "Exchange Act"), 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, might not be satisfied 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 Amended and Restated 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 Amended and Restated 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; and (ix) such other factors as are set forth in the Company's
periodic public filings with the
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 acquisition of the Company by Parent. In connection with the proposed
acquisition, the Company has filed 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 acquisition. 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 Amended and Restated Agreement and Plan of Merger, datedDecember 19, 2022 , by and amongBenefitfocus, Inc. , Voya Financial, Inc. andOrigami Squirrel Acquisition Corp 10.1 Form of Restricted Stock Award Agreement for Company Restricted Shares granted to Covered Individuals ofBenefitfocus, Inc. 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
--------------------------------------------------------------------------------
© Edgar Online, source