WEBMD HEALTH CORP. (NASDAQ:WBMD) Files An 8-K Entry into a Material Definitive AgreementItem 1.01
A “Superior Proposal” is a bona fide written acquisition proposal relating to more than 50% of the outstanding Shares, voting power or assets of the Company and its subsidiaries, taken as a whole, that the Board determines in good faith (after consultation with its outside counsel and financial advisor), taking into account all legal, timing, regulatory, financial (including financing terms) and other aspects of such proposal (1)would result in a transaction more favorable to the Company’s stockholders from a financial point of view than the Offer and the Merger and (2)is reasonably capable of being consummated.
The Merger Agreement includes customary representations, warranties and covenants of the Company made solely for the benefit of Parent and Purchaser. The assertions embodied in those representations and warranties were made solely for purposes of allocating risk among the Company, Purchaser and Parent rather than establishing matters of fact and may be subject to important qualifications and limitations agreed to by the Company, Purchaser and Parent in connection with the negotiated terms. Moreover, some of those representations and warranties may not be accurate or complete as of any specified date, may be subject to a contractual standard of materiality different from those generally applicable to the Company’s SEC filings or may have been used for purposes of allocating risk among the Company, Purchaser and Parent rather than establishing matters as facts. Investors should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts of the Company or any of its subsidiaries or affiliates.
If the Merger is consummated, the Company’s common stock will be delisted from the Nasdaq Global Select Market and deregistered under the Securities Exchange Act of 1934 (the “Exchange Act”).
This summary of the principal terms of the Merger Agreement and the copy of the Merger Agreement filed as an exhibit to this report are intended to provide information regarding the terms of the Merger Agreement and are not intended to modify or supplement any factual disclosures about the Company in its public reports filed with the U.S. Securities and Exchange Commission (the “SEC”). In particular, the Merger Agreement and related summary are not intended to be, and should not be relied upon as, disclosures regarding any facts and circumstances relating to the Company.
The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
| Item 1.01 | Amendments to Articles of Incorporation or By-laws; Changes in Fiscal Year |
On July23, 2017, the Board of Directors of the Company amended the Amended and Restated By-laws of the Company (the “By-laws”), effective immediately upon such approval.
The By-laws were amended by adding a new Section7.6 entitled “Forum for Adjudication of Disputes” that requires that, unless the Company consents in writing to the selection of an alternative forum, the sole and exclusive forum for any of the following actions
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shall be the Court of Chancery of the State of Delaware and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware):
| • | any derivative action or proceeding brought on behalf of the corporation; |
| • | any action asserting a claim of breach of a fiduciary duty owed by any director, officer, other employee or stockholder of the corporation to the corporation or the corporation’s stockholders; |
| • | any action asserting a claim arising to any provision of the DGCL or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware; and |
| • | any action asserting a claim governed by the internal affairs doctrine. |
The foregoing description of the By-laws is qualified in all respects by reference to the text of the By-laws, as amended and restated to reflect the change described above, a copy of which is attached as Exhibit 3.1 to this Current Report on Form 8-K, which is incorporated into this Item 1.01 by reference.
| Item 1.01. | Regulation FD Disclosure. |
In connection with the announcement of the entry into the Merger Agreement, the Company intends to issue a notice to the registered holders of, and the trustee for, its 1.50% Convertible Notes due 2020 (the “1.50% Convertible Notes”), 2.50% Convertible Notes due 2018 (the “2.50% Convertible Notes”) and 2.625% Convertible Notes due 2023 (the “2.625% Convertible Notes” and together with the 1.50% Convertible Notes and the 2.50% Convertible Notes, the “Convertible Securities”) to the requirements of each of the indentures (as amended and supplemented) governing the Convertible Securities (collectively, the “Indentures” and each an “Indenture”), notifying the holders of, among other items:
| • | the entry into the Merger Agreement; and |
| • | the anticipated date of the expected “Fundamental Change” and “Make-Whole Fundamental Change,” as such terms are defined in the Indentures governing the 1.50% Convertible Notes and the 2.625% Convertible Notes, and of the expected “Change in Control” and a “Make Whole Change of Control,” as such terms are defined in the Indenture governing the 2.50% Convertible Notes, as a result of the consummation of the Offer. |
On July24, 2017, the Company and Internet Brands issued a joint press release announcing the entry into the Merger Agreement, a copy of which is filed as Exhibit 99.1 hereto and incorporated herein by reference.
Notice to Investors
This Current Report on Form 8-K is being filed in accordance with the requirements of the Exchange Act and is neither a recommendation, an offer to purchase nor a solicitation of an offer to sell any securities of the Company. The tender offer for the outstanding common stock of the Company referred to in this Current Report on Form 8-K has not yet commenced. Any offers to purchase or solicitation of offers to sell will be made only to the tender offer statement (including the offer to purchase, the letter of transmittal and other documents relating to the tender offer) which will be filed on Schedule TO by Purchaser with the SEC, and soon thereafter the Company will file a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the tender offer. The Company’s stockholders are advised to read these documents and any other documents relating to the tender offer that will be filed with the SEC carefully and in their entirety because they contain important information, including the various terms of, and conditions to, the tender offer. The offer to purchase, the related letter of transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, will be made available to all stockholders of WebMD at no expense to them. The Company’s stockholders may obtain copies of these documents for free at the SEC’s website at www.sec.gov or by contacting Investor Relations at WebMD, 395 Hudson Street, 3rd Floor, New York, NY 10014; telephone number (212) 624-3700.
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Forward-Looking Statements
Certain statements in this Current Report on Form 8-K may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements relate to a variety of matters, including but not limited to, the timing and anticipated completion of the Offer and the proposed Merger, and other statements that are not purely statements of historical fact. These forward-looking statements are made on the basis of the current beliefs, expectations and assumptions of the management of WebMD, and are subject to significant risks and uncertainties. These risks and uncertainties include, without limitation, risks and uncertainties related to: whether the proposed transaction will close; the timing of the closing of the proposed transaction; the outcome of the regulatory reviews of the proposed transaction; the ability of the parties to complete the proposed transaction; the ability of the parties to meet other closing conditions; how many WebMD stockholders tender their shares in the proposed transaction; the outcome of legal proceedings that may be instituted against WebMD and/or others related to the proposed transaction; unexpected costs or unexpected liabilities that may result from the proposed transaction, whether or not consummated; the possibility that competing offers will be made; effects of disruption from the proposed transaction making it more difficult to maintain relationships with employees, customers and other business partners; and regulatory submissions. Investors are cautioned not to place undue reliance on any such forward-looking statements. All such forward-looking statements speak only as of the date they are made. Except as required by law or regulation, WebMD undertakes no obligation to update or revise any forward-looking statements to reflect subsequent events, circumstances or otherwise.
Investors are cautioned not to place undue reliance on any such forward-looking statements. All such forward-looking statements speak only as of the date they are made. Except as required by law or regulation, WebMD undertakes no obligation to update or revise any forward-looking statements to reflect subsequent events, circumstances or otherwise. Forward-looking statements are subject to a number of risks and uncertainties, including without limitation, those described in Part I, Item 1A. “Risk Factors” in WebMD’s Annual Report on Form 10-K filed with the SEC. WebMD may update risk factors from time to time in Part II, Item 1A. “Risk Factors” in Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, or other filings with the SEC.
| Item 1.01. | Financial Statements and Exhibits. |
(d) Exhibits. The following exhibits are filed herewith:
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Exhibit No. |
Description |
| 2.1* | Agreement and Plan of Merger by and among MH Sub I, LLC, Diagnosis Merger Sub, Inc. and WebMD Health Corp., dated as of July24, 2017. |
| 3.1 | Amended and Restated By-laws of WebMD Health Corp., effective July23, 2017. |
| 99.1 | Joint Press Release issued by WebMD and Internet Brands, dated July24, 2017. |
| * | The schedules to the Merger Agreement have been omitted from this filing to Item 601(b)(2) of RegulationS-K. The Company will furnish copies of any such schedules to the U.S. Securities and Exchange Commission upon request. |
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to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| WEBMD HEALTH CORP. | ||
| Dated: July26, 2017 | By: | /s/ Lewis H. Leicher |
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Lewis H. Leicher Senior Vice President |
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EXHIBIT INDEX
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Exhibit No. |
Description |
| 2.1* | Agreement and Plan of Merger by and among MH Sub I, LLC, Diagnosis Merger Sub, Inc. and WebMD Health Corp., dated as of July24, 2017. |
| 3.1 | Amended and Restated By-laws of WebMD Health Corp, effective July23, 2017. |
| 99.1 | Joint Press Release issued by WebMD and Internet Brands, dated July24, 2017. |
| * | Schedules omitted WebMD Health Corp. ExhibitEX-2.1 2 d400180dex21.htm EX-2.1 EX-2.1 Exhibit 2.1 CONFORMED COPY AGREEMENT AND PLAN OF MERGER among MH SUB I,…To view the full exhibit click hereAbout WEBMD HEALTH CORP. (NASDAQ:WBMD) WebMD Health Corp. is a provider of health information services. The Company provides its services to consumers, physicians and other healthcare professionals, employers and health plans through its public and private online portals, mobile platforms and health-focused publications. The WebMD Health Network includes: www.WebMD.com, its primary public portal for consumers and related mobile-optimized sites and mobile apps; www.Medscape.com, its primary public portal for physicians and other healthcare professionals and related mobile services; and other sites through which, the Company provides its branded health and wellness content, tools and services. The Company offers related mobile applications, which are included in The WebMD Health Network. Its mobile applications for consumers include the WebMD App, the WebMD Pregnancy App, the WebMD Baby App, the WebMD Pain Coach App, the WebMD Allergy App and the WebMD Magazine App. |
