WBMD Webmd Health Corp

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

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SCHEDULE TO

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No. 2)

 

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WEBMD HEALTH CORP.

(Name of Subject Company (Issuer))

DIAGNOSIS MERGER SUB, INC.

(Offeror)

A direct wholly-owned subsidiary of

MH SUB I, LLC

(Parent of Offeror)

KKR NORTH AMERICA FUND XI L.P.

 (Other Person)

(Names of Filing Persons (identifying status as Offeror, Issuer or Other Person))

COMMON STOCK, PAR VALUE $0.01 PER SHARE

(Title of Class of Securities)

94770V102

(CUSIP Number of Class of Securities)

 

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B. Lynn Walsh

DIAGNOSIS MERGER SUB, INC.

909 N. Sepulveda Blvd., 11th Floor

El Segundo, CA 90245

(310) 280-4000

(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)

 

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Copies to:

Marni J. Lerner

Michael T. Holick

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

(212) 455-2000

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CALCULATION OF FILING FEE

 

 

Check the appropriate boxes below to designate any transactions to which the statement relates:

Check the following box if the filing is a final amendment reporting the results of the tender offer. ☐

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (together with any amendments and supplements hereto, the “Schedule TO”) filed with the Securities and Exchange Commission on August 7, 2017 by (i) MH Sub I, LLC, a Delaware limited liability company (“Parent”), (ii) Diagnosis Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (the “Purchaser”), and (iii) KKR North America Fund XI L.P., a Cayman Islands limited partnership and an affiliate of an alternative investment vehicle that is the controlling stockholder of both Parent and the Purchaser. The Schedule TO relates to the tender offer for all of the issued and outstanding shares of common stock, par value $0.01 per share (“Shares”), of WebMD Health Corp., a Delaware corporation (“WebMD”), at a price of $66.50 per Share, net to the seller in cash, without interest and less any applicable withholding taxes upon the terms and conditions set forth in the offer to purchase, dated August 7, 2017 (together with any amendments or supplements thereto, the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offer”), a copy of which is attached as Exhibit (a)(1)(B).

All the information set forth in the Offer to Purchase and the related Letter of Transmittal, including all schedules thereto, is hereby incorporated by reference herein in response to Items 1 through 9 and Item 11 of this Amendment, except as otherwise set forth below. This Amendment should be read together with the Schedule TO. Capitalized terms used but not defined in this Amendment shall have the meanings ascribed to them in the Offer to Purchase of the Schedule TO.

This Amendment is being filed to amend and supplement Item 11 as reflected below.

Item 11. Additional Information.

Item 11 of the Schedule TO is hereby amended and supplemented as follows:

The information set forth in Section 16 – “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase is hereby amended and supplemented by replacing the last two paragraphs with the following three paragraphs:

“ Certain Litigation . On August 9, 2017, Jeffrey Rubin filed a purported stockholder class action lawsuit concerning the Transactions against WebMD and the directors of WebMD in the U.S. District Court for the Southern District of New York.  In the case, captioned Jeffrey Rubin v. WebMD Health Corp., et al. , Case No. 1:17-cv-06019, plaintiff alleges that the Schedule 14D-9 omits or misrepresents material information, including, among other things, with respect to certain financial data and analyses underlying J.P. Morgan’s opinion and purported conflicts of interest on the part of WebMD’s “insiders” and J.P. Morgan.  Jeffrey Rubin asserts claims under the federal securities laws and seeks, among other things, to enjoin the Transactions or, in the alternative, rescission (or rescissory damages) if the Transactions close.

On August 11, 2017, Robert Berg filed a substantially similar putative stockholder class action lawsuit against WebMD and the directors of WebMD, as well as Parent and the Purchaser, also in the U.S. District Court for the Southern District of New York.  The case is captioned Robert Berg v. WebMD Health Corp., et al. , Case No. 1:17-cv-06064.  Plaintiff alleges that the Schedule 14D-9 omits or misrepresents material information, including, among other things, with respect to certain financial data and analyses underlying J.P. Morgan’s opinion and purported conflicts of interest on the part of  WebMD’s “insiders” and J.P. Morgan.  Robert Berg asserts claims under the federal securities laws and seeks, among other things, to enjoin the Transactions or, in the alternative, rescission (or rescissory damages) if the Transactions close.

The outcome of these lawsuits cannot be predicted with certainty; however, WebMD, Parent and the Purchaser believe that they are without merit and intend to vigorously defend against them.  If additional similar complaints are filed, absent new or different allegations that are material, Parent and the Purchaser will not necessarily announce such additional filings.”

SIGNATURE

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

EXHIBIT INDEX

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* Previously filed.

 

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