Filing of Certain Prospectuses and Communications in Connection With Business Combination Transactions (425)
December 10 2018 - 4:54PM
Edgar (US Regulatory)
Filed by Nutrisystem, Inc.
pursuant to Rule 425 under the Securities Act of 1933
and deemed filed pursuant to Rule 14a-12
under the Securities Exchange Act of 1934
Subject Company: Nutrisystem, Inc.
Commission File No. 000-28551
On December 10, 2018, various executives of Nutrisystem, Inc.
(the “Company”) shared the below email with the Company’s key vendors and partners regarding the transaction
contemplated by that certain Merger Agreement, dated December 9, 2018, among the Company, Tivity Health, Inc. and Sweet Acquisition,
Inc.
Dear [name],
Today marks an important milestone in Nutrisystem’s 45-year
history. This morning we announced that Tivity Health is to acquire Nutrisystem. Through this transaction, we will become part
of a leading health and wellness company that will offer a wide array of nutrition, fitness and social support to a broad spectrum
of consumers. The press release announcement is attached.
The combination of our two entities, Nutrisystem and Tivity Health,
greatly accelerates our agenda of being able to offer a holistic approach to weight management and being able to serve customers
beyond the first step of their journey to optimal health.
We value our partnership with you! Should you have any questions
about this announcement, please don’t hesitate to reach out.
NOTE ON FORWARD LOOKING STATEMENTS
This communication contains certain statements that are “forward-looking”
statements within the meaning of the federal securities laws, including Section 27A of the Securities Act of 1933, as amended,
and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements are based upon current
expectations and include all statements that are not historical statements of fact and those regarding the intent, belief or expectations,
including, without limitation, statements that are accompanied by words such as “will,” “expect,” “outlook,”
“anticipate,” “intend,” “plan,” “believe,” “seek,” “see,”
“will,” “would,” “target,” or other similar words, phrases or expressions and variations or
negatives of these words. These forward-looking statements include, but are not limited to, statements regarding the proposed merger,
integration and transition plans, synergies, opportunities and anticipated future performance. Readers of this communication
should understand that these statements are not guarantees of performance or results. Many risks and uncertainties could affect
actual results and cause them to vary materially from the expectations contained in the forward-looking statements.
These risks and uncertainties include, among other things: the
timing and likelihood of, and any conditions or requirements imposed in connection with, obtaining required stockholder or regulatory
approval of the proposed transaction; the possibility that the closing conditions to the proposed transaction may not be satisfied
or waived; delay in closing the proposed transaction or the possibility of non-consummation of the proposed transaction; the risk
that expected benefits, synergies and growth opportunities of the proposed transaction may not be achieved in a timely manner or
at all, including that the proposed transaction may not be accretive within the expected timeframe or to the extent anticipated;
the occurrence of any event that could give rise to termination of the merger agreement; the risk that stockholder litigation in
connection with the proposed transaction may affect the timing or occurrence of the proposed transaction or result in significant
costs of defense, indemnification and liability; the risk that Tivity Health, Inc. (“
Tivity Health
”) and Nutrisystem,
Inc. (“
Nutrisystem
”) will be unable to retain or hire key personnel; the ability to successfully integrate Nutrisystem’s
business with Tivity Health following the closing; the risk that the significant indebtedness incurred to fund the purchase price
may limit Tivity Health’s ability to adapt to changes in the economy or market conditions, expose the company to interest
rate risk for the variable rate indebtedness and require a substantial portion of cash flows from operations to be dedicated to
the payment of indebtedness; and the risk that disruption from the proposed transaction may adversely affect Tivity Health’s
and Nutrisystem’s business and their respective relationships with customers, vendors or employees. For additional information
about factors that could cause actual results to differ materially from those described in the forward-looking statements, please
refer to both Tivity Health’s and Nutrisystem’s filings with the Securities and Exchange Commission (“
SEC
”).
Except as required by law, neither Tivity Health nor Nutrisystem undertakes any obligation to update forward-looking statements
made by it to reflect new information, subsequent events or circumstances.
Important Additional Information and Where to Find It
In connection with the proposed transaction, Tivity Health expects
to file with the SEC a registration statement of Tivity Health on Form S-4 (the “
registration statement
”) that
will include a proxy statement of Nutrisystem and that will also constitute a prospectus of Tivity Health (the “
proxy
statement/prospectus
”). Nutrisystem expects to mail the proxy statement/prospectus to its stockholders in connection
with the proposed transaction. INVESTORS AND SECURITY HOLDERS ARE URGED TO CAREFULLY READ THE ENTIRE REGISTRATION STATEMENT, PROXY
STATEMENT/PROSPECTUS AND OTHER RELEVANT INFORMATION FILED WITH THE SEC WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT TIVITY HEALTH, NUTRISYSTEM AND THE PROPOSED TRANSACTION. The registration statement and other documents filed
by Tivity Health with the SEC may be obtained free of charge at Tivity Health’s website at http://www.tivityhealth.com or
at the SEC’s website at http://www.sec.gov. These documents may also be obtained free of charge from Tivity Health by requesting
them by mail at Tivity Health, Inc., 701 Cool Springs Boulevard, Franklin, Tennessee 37067, Attention: Investor Relations, or by
telephone at (615) 614-4576. The proxy statement/prospectus and other documents filed by Nutrisystem with the SEC may be obtained
free of charge at Nutrisystem’s website at http://www.nutrisystem.com or at the SEC’s website at http://www.sec.gov.
These documents may also be obtained free of charge from Nutrisystem by requesting them by mail at Nutrisystem, Inc., 600 Office
Center Drive, Fort Washington, PA 19034, Attention: Investor Relations, or by telephone at (215) 346-8136.
Participants in Solicitation
Tivity Health and Nutrisystem and their respective directors
and executive officers and other members of management and employees may be deemed to be participants in the solicitation of proxies
in respect of the proposed transaction. Information about Tivity Health’s directors and executive officers is available in
Tivity Health’s proxy statement for Tivity Health’s 2018 annual meeting of stockholders filed with the SEC on April
13, 2018 on Schedule 14A. Information about Nutrisystem’s directors and executive officers is available in Nutrisystem’s
proxy statement for Nutrisystem’s 2018 annual meeting of stockholders filed with the SEC on March 26, 2018 on Schedule 14A.
Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests,
by security holdings or otherwise, will be contained in the proxy statement/prospectus and other relevant materials to be filed
with the SEC regarding the transaction when they become available. Investors should read the proxy statement/prospectus carefully
when it becomes available before making any voting or investment decisions. You may obtain free copies of these documents from
Tivity Health or Nutrisystem as indicated above.
No Offer or Solicitation
This communication shall not constitute an offer to sell or the
solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities
Act of 1933, as amended.
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