- Amended tender offer statement by Third Party (SC TO-T/A)
September 07 2010 - 8:26AM
Edgar (US Regulatory)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Rule 14d-100)
TENDER
OFFER STATEMENT UNDER SECTION 14(d)(1)
OR
SECTION 13(e)(1)OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 7)
Health Grades, Inc.
(Name of Subject Company (Issuer))
Mountain Acquisition Corp.
Mountain Merger Sub Corp.
Vestar Capital Partners V, L.P.
(Name of Filing Persons (Offeror))
Common Stock, Par Value $0.001 Per Share
(Title of Class Securities)
42218Q102
(CUSIP Number of Class of Securities)
Steven Della Rocca
Mountain Acquisition Corp.
c/o Vestar Capital Partners V, L.P.
245 Park Avenue, 41st Floor
New York, New York 10167
(212) 351-1600
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of Filing Persons)
With a
copy to:
Michael Movsovich
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
CALCULATION OF FILING FEE
Transaction Valuation*
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Amount of Filing Fee**
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$294,000,586.00
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$20,962.24
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*
Calculated solely
for purposes of determining the filing fee. The calculation assumes the
purchase of 30,534,195 shares of common stock, par value $0.001 per share, at
$8.20 per share. The transaction value also includes the aggregate offer price
for 3,688,167 shares issuable pursuant to outstanding options with an exercise
price less than $8.20 per share, which is calculated by multiplying the number
of shares underlying such outstanding options at each exercise price therefor
by an amount equal to $8.20 minus such exercise price. The transaction value
also includes the aggregate net offer price for 125,000 shares issuable
pursuant to a warrant and 1,700,000 shares issuable pursuant to a
confidentiality and non-competition agreement with Mr. Kerry R. Hicks, the
Chief Executive Officer of Health Grades.
**
Calculated in
accordance with Exchange Act Rule 0-11 by multiplying the transaction
value by 0.0000713.
x
Check the box if any part of
the fee is offset as provided by Rule 0-11(a)(2) and identify the filing
with which the offsetting fee was previously paid. Identify the previous filing
by registration statement number, or the Form or Schedule and the date of its
filing.
Amount Previously Paid:
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$20,962.24
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Filing Party:
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Mountain Acquisition Corp.
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Form or Registration No.:
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Schedule TO
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Date Filed:
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August 10, 2010
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o
Check the box if the filing
relates solely to preliminary communications made before the commencement of a
tender offer.
Check
the appropriate boxes below to designate any transactions to which the statement
relates:
x
third-party tender offer subject to Rule 14d-1.
o
issuer tender offer subject to Rule 13e-4.
o
going-private transaction subject to Rule 13e-3.
x
amendment to Schedule 13D under Rule 13d-2.
Check
the following box if the filing is a final amendment reporting the results of
the tender offer:
o
If
applicable, check the appropriate box(es) below to designate the appropriate
rule provision(s) relied upon:
o
Rule 13e-4(i) (Cross-Border Issuer Tender Offer).
o
Rule 14d-1(d) (Cross-Border Third-Party Tender Offer).
This
Amendment No. 7 to the Tender Offer Statement on Schedule TO (the Schedule
TO) amends and supplements the Schedule TO relating to the tender offer
by Mountain Merger Sub Corp., a Delaware corporation (Purchaser) and a direct
wholly-owned subsidiary of Mountain Acquisition Corp., a Delaware corporation (Parent),
for all of the outstanding common stock, par value $0.001 per share (the Shares),
of Health Grades, Inc., a Delaware corporation (Health Grades), at a
price of $8.20 per share net to the seller in cash without interest and less
any required withholding taxes, if any, upon the terms and conditions set forth
in the offer to purchase dated August 10, 2010 (the Offer to Purchase),
a copy of which is attached as Exhibit (a)(1)(A), and in the related
letter of transmittal (the Letter of Transmittal), a copy of which is
attached as Exhibit (a)(1)(B), which, together with any amendments or
supplements, collectively constitute the Offer.
All
the information set forth in the Offer to Purchase is incorporated by reference
herein in response to Items 1 through 9 and Item 11 in this
Schedule TO, and is supplemented by the information specifically provided
in this Schedule TO.
This
Amendment No. 7 is being filed to amend and supplement Items 11 and
12 as reflected below.
Item 11.
Additional Information.
Regulation M-A Item 1011
(a)
Agreements, Regulatory Requirements and Legal
Proceedings.
Item 11(a) of the Schedule TO is hereby
amended and supplemented by adding the following paragraph immediately before
the last paragraph of the sub-section captioned General.
On
September 3, 2010, the Court of Chancery conducted a hearing on
plaintiffs motion for preliminary injunction in the action styled
In re Health Grades, Inc. Shareholders
Litigation,
Consolidated C.A. No. 5716-VCS. The Court
denied plaintiffs motion in an oral ruling, a transcript of which is attached
hereto as Exhibit (a)(11). You are encouraged to read the exhibit in
its entirety.
Item 12. Exhibits.
Regulation M-A Item 1016
Item 12
of the Schedule TO is amended and supplemented by adding the following
exhibit:
Exhibit
No.
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(a)(11)
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Transcript From
September 3, 2010 Hearing Containing the Courts Ruling on Plaintiffs
Motion for Preliminary Injunction,
In
re Health Grades, Inc. Shareholders Litigation,
Consolidated
C.A. No. 5716-VCS (pending in the Delaware Court of Chancery)
(incorporated by reference to Exhibit (a)(5)(F) to the amendment to
the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Health
Grades, Inc. with the Securities and Exchange Commission on
September 7, 2010).
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SIGNATURES
After
due inquiry and to the best of their knowledge and belief, each of the undersigned
certifies that the information set forth in this statement is true, complete
and correct.
Dated: September 7, 2010
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MOUNTAIN
MERGER SUB CORP.
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By:
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/s/ STEVEN DELLA ROCCA
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Name:
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Steven Della Rocca
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Title:
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Secretary
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MOUNTAIN
ACQUISITION CORP.
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By:
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/s/ STEVEN DELLA ROCCA
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Name:
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Steven Della Rocca
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Title:
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Secretary
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VESTAR
CAPITAL PARTNERS V, L.P.
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By: Vestar Associates
V, L.P.,
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its General Partner
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By: Vestar Managers
V Ltd., its General Partner
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By:
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/s/ BRIAN P. SCHWARTZ
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Name:
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Brian P. Schwartz
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Title:
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Authorized Signatory
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3
EXHIBIT INDEX
(a)(1)(A)
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Offer to Purchase, dated
August 10, 2010.*
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(a)(1)(B)
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Letter of Transmittal.*
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(a)(1)(C)
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Notice of Guaranteed
Delivery.*
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(a)(1)(D)
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Letter from the
Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and
Nominees.*
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(a)(1)(E)
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Letter to Clients for Use
by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.*
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(a)(1)(F)
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Joint Press Release of
Health Grades, Inc. and Vestar Capital Partners V, L.P., dated
July 28, 2010 (incorporated by reference to Exhibit 99.1 to the
Schedule TO-C filed by Mountain Merger Sub Corp. with the Securities and
Exchange Commission on July 29, 2010).*
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(a)(1)(G)
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Summary Advertisement as
published on August 10, 2010.*
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(a)(5)
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Class Action Complaint and
Jury Demand dated July 30, 2010 (
Reginald W. Harris v.
Vestar Capital Partners V, L.P. et al.
).*
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(a)(6)
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Class Action Complaint and
Jury Demand dated August 4, 2010 (
Medford Bragg v. Vestar
Capital Partners V, L.P. et al.
).*
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(a)(7)
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Press Release of
Affiliates of Vestar Capital Partners V, L.P., dated August 10,
2010.*
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(a)(8)
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Verified Class Action
Complaint dated August 12, 2010 (
Tove
Forgo v. Health Grades, Inc. et. al.
).*
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(a)(9)
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Verified Class Action
Complaint for Breach of Fiduciary Duty dated August 16, 2010 (
Peter P. Weigard v. Kerry Hicks, et. al.
).*
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(a)(10)
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Shareholder Class Action
Complaint and Jury Demand dated August 17, 2010 (
Sarah E. Tomsky v. Health Grades, Inc., et.
al.
).*
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(a)(11)
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Transcript From September 3,
2010 Hearing Containing the Courts Ruling on Plaintiffs Motion for
Preliminary Injunction,
In re Health
Grades, Inc. Shareholders Litigation,
Consolidated C.A. No. 5716-VCS
(pending in the Delaware Court of Chancery) (incorporated by reference to
Exhibit (a)(5)(F) to the amendment to the
Solicitation/Recommendation Statement on Schedule 14D-9 filed by Health
Grades, Inc. with the Securities and Exchange Commission on September 7,
2010).
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(b)(1)
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Equity Financing
Commitment, dated July 27, 2010.*
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(b)(2)
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Loan and Security
Agreement, dated November 9, 2007.*
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(d)(1)
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Agreement and Plan of
Merger, dated as of July 27, 2010, by and among Mountain Acquisition
Corp., Mountain Merger Sub Corp., Mountain Acquisition Holdings, LLC and
Health Grades, Inc. (incorporated by reference to Exhibit 2.1 to
the Form 8-K filed by Health Grades, Inc. with the Securities and
Exchange Commission on July 28, 2010).*
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(d)(2)
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Amendment to the Agreement
and Plan of Merger, dated as of August 9, 2010, by and among Mountain
Acquisition Corp., Mountain Merger Sub Corp., Mountain Acquisition
Holdings, LLC and Health Grades, Inc. (incorporated by reference to
Exhibit 2.1 to the Form 8-K filed by Health Grades, Inc. with
the Securities and Exchange Commission on August 9, 2010).*
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*
Previously
filed.
4
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