- Current report filing (8-K)
October 07 2010 - 1:23PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported):
October 7, 2010
Health
Grades, Inc.
(Exact name of registrant as specified in its charter)
Delaware
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0-22019
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62-1623449
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(State or other Jurisdiction of
Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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500 Golden Ridge Road, Suite 100
Golden, Colorado
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80401
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrants telephone number, including area code:
(303) 716-0041
(Former name or former address if changed since last report.)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
o
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
Item 3.01. Notice
of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;
Transfer of Listing.
On October 7, 2010, in connection with the
Merger (as defined in Item 5.01 below) effected pursuant to the Agreement and
Plan of Merger, dated as of July 27, 2010 (as amended, the Merger
Agreement), among Health Grades, Inc., a Delaware corporation (the Company),
Mountain Acquisition Corp., a Delaware corporation (Parent), Mountain Merger Sub Corp.,
a Delaware corporation and a wholly-owned subsidiary of Parent (Purchaser), and Mountain Acquisition
Holdings, LLC, a Delaware limited liability company, the Company notified The NASDAQ Stock Market, LLC (NASDAQ) of its
intent to remove its common stock from listing on the NASDAQ Global Select
Market and requested NASDAQ to file a Notification of Removal from Listing
and/or Registration on Form 25 with the Securities and Exchange Commission
(the SEC) to delist and deregister its shares of common stock (Shares). The Company intends to file with the SEC a Form 15
under the Securities Exchange Act of 1934, as amended (the Exchange Act),
requesting the deregistration of the Shares and the suspension of the Companys
reporting obligations under Section 13 and 15(d) of the Exchange Act.
Item 3.02. Unregistered
Sales of Equity Securities.
On
October 7, 2010, pursuant to the terms of the Merger Agreement, Purchaser
exercised its top-up option to purchase, at a per share price equal to the
Offer Price (as defined in Item 5.01 below), 12,650,970 newly issued shares of
the Companys common stock (the Top-Up Shares), in exchange for an unsecured,
non-negotiable and non-transferable promissory note issued by Purchaser to the
Company in the aggregate principal amount of $103,737,954, bearing interest at
8% per annum, with principal and interest due one year after the purchase of
the Top-Up Shares, prepayable without premium or penalty. The Top-Up Shares bring Purchasers ownership
of the Companys common stock, when combined with the Shares acquired by
Purchaser in the Offer (as defined in Item 5.01 below), to more than 90% of the
Shares outstanding after such purchase (calculated on a fully diluted basis in
accordance with the Merger Agreement).
The Top-Up Shares were issued without registration under the Securities
Act of 1933, as amended (the Securities Act), in reliance upon an exemption
from registration pursuant to Section 4(2) of the Securities Act, as a
transaction by an issuer not involving a public offering.
Item 3.03. Material
Modification to Rights of Security Holders.
The information set forth in Items 3.01 and 5.01 of
this Current Report on Form 8-K is incorporated herein by reference.
Item 5.01. Changes
in Control of Registrant.
As
previously disclosed, pursuant to the Merger Agreement, Purchaser commenced a
cash tender offer on August 10, 2010 to acquire all of the Companys
Shares for a purchase price of $8.20 per share in cash (the Offer Price), upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated August 10,
2010, as amended and supplemented (the Offer
to Purchase), and in the related Letter of Transmittal (which, together
with the Offer to Purchase, as amended and supplemented, constitute the Offer). Parent is controlled by a private equity fund
associated with Vestar Capital Partners V, L.P. (Vestar).
Upon
the expiration of the Offer at 9:00 a.m., New York City Time, on October 7,
2010, Purchaser accepted (such time of acceptance, the Acceptance Time) for
payment all 24,916,269 Shares (not including 334,897 Shares tendered pursuant
to the guaranteed delivery procedures set forth in the Offer to Purchase)
validly tendered and not withdrawn prior to the expiration of the Offer
according to the terms and conditions of the Offer. In addition, Purchaser purchased 5,108,954
Shares directly from executive officers of the Company pursuant to previously
disclosed tender and support agreements with such executive officers. The tendered and purchased Shares (not
including Shares tendered pursuant to guaranteed delivery procedures) represent
approximately 86% of the outstanding Shares of the Company. Upon the acceptance of the Shares for payment
pursuant to the Offer and the purchase of Shares from executive officers
pursuant to the tender and support agreements, on October 7, 2010, a
change of control of the Company occurred.
2
Pursuant
to the terms and conditions of the Merger Agreement, following the exercise of
the top-up option as described in Item 3.02, Purchaser was merged with
and into the Company (the Merger) on October 7, 2010 in accordance with
applicable provisions of Delaware law that authorize the completion of the
Merger without a vote or meeting of stockholders of the Company. In connection with the Merger, each
outstanding Share not tendered in the Offer (other than treasury Shares, Shares
held by Parent, Purchaser or any of their wholly-owned subsidiaries or Shares
held by stockholders who properly exercise appraisal rights under applicable
provisions of Delaware law) was converted into the right to receive the Offer
Price. Following the consummation of the
Merger, the Company continued as the surviving corporation and a wholly-owned
subsidiary of Parent.
To
the knowledge of the Company, except as set forth herein, there are no
arrangements, including any pledge by any person of securities of the Company
or Parent, the operation of which may at a subsequent date result in a further
change in control of the Company.
The
foregoing summary of the Merger Agreement does not purport to be complete and
is subject to, and qualified in its entirety by, the full text of the Merger
Agreement, which was filed as Exhibit 2.1 to the Form 8-K filed by
the Company with the SEC on July 28, 2010, and the amendments of which
were filed as Exhibit 2.1 to the Form 8-K filed by the Company with
the SEC on August 9, 2010 and as Exhibit 2.1 to the Form 8-K
filed by the Company with the SEC on September 16, 2010, respectively.
Item 5.02. Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
In
accordance with the Merger Agreement, effective as of Acceptance Time, the
Board of Directors of the Company (the Board) appointed the following
individuals as new members of the Board: Roger C. Holstein, Norman W. Alpert
and Garrick D. Bernstein. Such persons were designated for appointment as
directors of the Company by Parent pursuant to the Merger Agreement. Each such person is an officer and/or
director of Vestar. Information about
the directors designated for appointment by Parent was previously disclosed in
the Information Statement comprising Annex B to the Companys
Solicitation/Recommendation on Schedule 14D-9 originally filed by the Company
with the SEC on August 10, 2010 and is incorporated herein by reference.
Effective
at the effective time of the Merger and in accordance with the Merger
Agreement, Kerry R. Hicks, Mary Boland, Leslie S. Matthews, M.D., John
Quattrone and Mats Wahlstrom voluntarily resigned from the Board and from all
Board committees on which such directors served. Each resigning director resigned pursuant to
the provisions of the Merger Agreement and no director resigned from the Board
because of any disagreements with the Company on any matter relating to the
Companys operations, policies or practices.
Item 5.03. Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year.
At the effective time of the Merger and in
accordance with the Merger Agreement, (i) the certificate of incorporation
of the Company was amended and restated (the Amended and Restated Charter) to
be substantially in the form of the certificate of incorporation of Purchaser
in effect immediately prior to the effective time of the Merger, and (ii) the
bylaws of the Company were amended and restated (the Amended and Restated
Bylaws) to be substantially in the form of Purchasers bylaws in effect
immediately prior to the effective time of the Merger.
Copies of the Amended and Restated Charter and the
Amended and Restated Bylaws are filed as Exhibits 3.1 and 3.2 to this Current
Report on Form 8-K and are incorporated by reference in this Item 5.03.
Item 8.01 Other Events.
On
October 7, 2010, the Company and Vestar issued the joint press release
attached hereto as Exhibit 99.1.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No.
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Description
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3.1
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Amended
and Restated Certificate of Incorporation of Health Grades, Inc.
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3.2
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Amended
and Restated Bylaws of Health Grades, Inc.
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99.1
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Joint
Press Release issued by Health Grades, Inc. and Vestar Capital Partners
V, L.P., dated October 7, 2010 (incorporated by reference to
Exhibit (a)(5)(J) to Amendment No. 9 to Schedule 14D-9 filed
by Health Grades, Inc. with the Securities and Exchange Commission on
October 7, 2010).
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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HEALTH GRADES, INC.
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By:
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/s/ Allen Dodge
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Allen
Dodge
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Executive
Vice President and Chief Financial Officer
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Dated:
October 7, 2010
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EXHIBIT INDEX
Exhibit No.
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Description
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3.1
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Amended
and Restated Certificate of Incorporation of Health Grades, Inc.
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3.2
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Amended
and Restated Bylaws of Health Grades, Inc.
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99.1
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Joint
Press Release issued by Health Grades, Inc. and Vestar Capital Partners
V, L.P., dated October 7, 2010 (incorporated by reference to
Exhibit (a)(5)(J) to Amendment No. 9 to Schedule 14D-9 filed
by Health Grades, Inc. with the Securities and Exchange Commission on
October 7, 2010).
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