Introductory Note
On January 24, 2023, Voya Financial, Inc., a Delaware
corporation (“Parent”), completed its previously announced
acquisition of Benefitfocus, Inc., a Delaware corporation (the
“Company”), through the merger of Origami Squirrel Acquisition
Corp, a Delaware corporation and wholly owned subsidiary of Parent
(“Merger Sub”), with and into the Company (the “Merger”), with the
Company continuing as the surviving corporation in the Merger (the
“Surviving Corporation”), pursuant to the Agreement and Plan of
Merger, dated as of November 1, 2022 (the “Original
Agreement”), as amended and restated by the Amended and Restated
Agreement and Plan of Merger, dated as of December 19, 2022
(the “Merger Agreement”), by and among the Company, Parent and
Merger Sub. Subject to the terms and conditions set forth in the
Merger Agreement, at the effective time of the Merger (the
“Effective Time”), (i) each share of common stock, par value $0.001
per share, of the Company (“Common Stock”) issued and outstanding
immediately prior to the Effective Time (excluding shares of Common
Stock owned by Parent, Merger Sub or any other wholly owned
subsidiary of Parent or owned by the Company or any of its wholly
owned subsidiaries that are, in each case, not held on behalf of
third parties, and shares of Common Stock owned by stockholders of
the Company who did not vote in favor of the Merger and have
properly demanded and not withdrawn or otherwise lost appraisal
rights under Delaware law) was converted into the right to receive
$10.50 per share in cash, without interest and subject to any
applicable withholding taxes (the “Per Share Common Stock Merger
Consideration”) and (ii) each share of the Series A
Convertible Preferred Stock, par value $0.001 per share, of the
Company issued and outstanding immediately prior to the Effective
Time was converted into the right to receive an amount of cash
equal to the Convertible Preferred Liquidation Amount, as defined
in the Merger Agreement, without interest and subject to any
applicable withholding taxes. 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.
The Merger Agreement is filed as
Exhibit 2.1 to this Current Report on Form 8-K and the foregoing description
thereof is qualified in its entirety by reference to the full text
of the Merger Agreement. The Merger Agreement provides investors
with information regarding its terms and is not intended to provide
any other factual information about the parties. In particular, the
assertions embodied in the representations and warranties contained
in the Merger Agreement were made as of the execution date of the
Original Agreement only and are qualified by information in
confidential disclosure schedules provided by the parties to each
other in connection with the signing of the Original Agreement.
These disclosure schedules contain information that modifies,
qualifies, and creates exceptions to the representations and
warranties set forth in the Merger Agreement. Moreover, certain
representations and warranties in the Merger Agreement may have
been used for the purpose of allocating risk between the parties
rather than establishing matters of fact. Accordingly, you should
not rely on the representations and warranties in the Merger
Agreement as characterizations of the actual statements of fact
about the parties.
| Item 1.01 |
Entry into a Material Definitive Agreement.
|
The Merger constitutes a Merger Event (as defined in the Indenture,
dated as of December 27, 2018 (the “Indenture,” as
supplemented by the First Supplemental Indenture (defined below)),
by and between the Company and U.S. Bank Trust Company, National
Association (formerly known as U.S. Bank National Association), as
trustee (the “Trustee”), relating to the Company’s 1.25%
Convertible Senior Notes Due 2023 (the “Notes”)). In accordance
with Section 14.07 of the Indenture, the Company and the
Trustee entered into a First Supplemental Indenture to the
Indenture, dated as of January 24, 2023 (the “First
Supplemental Indenture”), relating to the Company’s Notes, which
provides that at and after the Effective Time the right to convert
each $1,000 principal amount of Notes into shares of Common Stock,
as set forth in Section 14.01 of the Indenture, has been
changed to a right to convert each $1,000 principal amount of Notes
into Reference Property (as defined in the Indenture), which
consists solely of cash.
| Item 1.02 |
Termination of a Material Definitive Agreement.
|
In connection with the consummation of the Merger, on
January 24, 2023, all outstanding obligations in respect of
principal, interest and fees under that certain Credit Agreement,
dated as of August 17, 2022 (the “Credit Agreement”), with
JPMorgan Chase Bank, N.A., as administrative agent, joint lead
arranger and sole bookrunner and Wells Fargo Securities, LLC and
Regions Bank as joint lead arrangers, were repaid, and the Credit
Agreement and all liens arising thereunder were terminated, along
with the obligations of the parties thereto.