- Amended Statement of Beneficial Ownership (SC 13D/A)
October 07 2010 - 5:16PM
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. 11)
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 of 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:
x
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. 11 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 (the Offer Price), 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.
Items 1
through 9 and 11
Items
1 through 9 and Item 11 of the Schedule TO, which incorporate by reference the
information contained in the Offer to Purchase, are hereby revised as follows:
The Offer expired at 9:00 a.m.,
New York City time, on Thursday, October 7, 2010. The Depositary (as defined in the Offer to
Purchase) has advised Parent and Purchaser that a total of 24,916,269 Shares
were validly tendered and not properly withdrawn upon expiration of the Offer
(not including 334,897 Shares subject to guaranteed delivery procedures). Purchaser accepted for payment all such
Shares in accordance with the terms of the Offer. In addition, Purchaser purchased 5,108,954 Shares
directly from certain stockholders pursuant to Support Agreements (as defined
in the Offer to Purchase). As a result
of these transactions, Purchaser owns approximately 86% of the outstanding
shares of Health Grades.
On
October 7, 2010, pursuant to the terms of the Merger Agreement (as defined
in the Offer to Purchase), Purchaser exercised its top-up option to purchase,
at a per share price equal to the Offer Price, 12,650,970 newly issued shares
of Health Gradess common stock (the Top-Up Shares), to bring Purchasers
ownership of Health Gradess common stock, when combined with the Shares
acquired by Purchaser in the Offer, to one share more than 90% of the shares of
Health Gradess common stock outstanding after such purchase (calculated on a fully
diluted basis in accordance with the Merger Agreement). The aggregate purchase price of
$103,737,954.00 for the Top-Up Shares was paid by Purchaser by a promissory
note. Health Grades offered and sold the
Top-Up Shares as a private placement pursuant to an exemption from registration
provided by Section 4(2) of the Securities Act of 1933, as amended.
Parent
and Purchaser effected a short-form merger (the Merger), without the need for
a meeting of Health Grades stockholders. In the Merger, Purchaser merged with
and into Health Grades with Health Grades continuing as the surviving
corporation and a wholly-owned subsidiary of Parent. At the effective time of
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) have been converted into
the right to receive the Offer Price.
On October 7, 2010, Health Grades and Vestar
Capital Partners V, L.P. issued a joint press release announcing that Purchaser
(a) had accepted for payment all Shares that were validly tendered and not
properly withdrawn in the Offer, (b) purchased Shares pursuant to the
Support Agreements, and (c) intends to effect a short-form merger in which
Purchaser will be merged with and into Health Grades, with Health Grades
surviving the Merger and continuing as a wholly-owned subsidiary of
Parent. The full text of the joint press
release is filed as Exhibit (a)(15) hereto and is incorporated herein by
reference.
Item
12. Exhibits.
Regulation
M-A Item 1016
Item
12 of the Schedule TO is amended and supplemented by adding the following
exhibits:
Exhibit No.
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Description
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(a)(15)
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Joint Press release issued by Health Grades, Inc.
and Vestar Capital Partners V, L.P. on 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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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: October 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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(a)(12)
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Joint Press Release of
Health Grades, Inc. and Vestar Capital Partners V, L.P., dated September 10,
2010 (incorporated by reference to Exhibit 99.1 to the Current Report on
Form 8-K filed by Health Grades, Inc. with the Securities and
Exchange Commission on September 10, 2010).*
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(a)(13)
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Press
Release of Vestar Capital Partners V, L.P., dated September 16, 2010.*
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(a)(14)
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Memorandum
of Understanding, dated as of September 15, 2010, among the parties in
the actions pending in the Delaware Court of Chancery captioned
Peter
P. Weigard v. Hicks, et
al
., C.A. No. 5732-VCS, and
Tove Forgo v. Health
Grades, Inc., et al
., C.A. No. 5716-VCS (incorporated by reference
to Exhibit (a)(5)(I) to the Schedule 14D-9 filed by Health Grades, Inc.
with the Securities and Exchange Commission on September 16, 2010).*
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(a)(15)
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Joint
Press release issued by Health Grades, Inc. and Vestar Capital Partners V,
L.P. on 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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(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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(b)(3)
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Third-Party Security
Agreement, dated November 9, 2007.*
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(b)(4)
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Promissory Note, 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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(d)(3)
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Form of Tender and Support
Agreement (incorporated by reference to Exhibit 10.1 to the Current Report on
Form 8-K filed by Health Grades, Inc. with the Securities and Exchange
Commission on July 28, 2010).*
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(d)(4)
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Amendment No. 2 to
Agreement and Plan of Merger among Health Grades, Inc., Mountain
Acquisition Corp., Mountain Merger Sub Corp., and Mountain Acquisition
Holdings, LLC, dated as of September 9, 2010 (incorporated by reference
to Exhibit 2.1 to the Current Report on Form 8-K filed by Health
Grades, Inc. with the Securities and Exchange Commission on September 10,
2010).*
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(d)(5)
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Amendment
No. 3 to Agreement and Plan of Merger among Health Grades, Inc.,
Mountain Acquisition Corp., Mountain Merger Sub Corp., and Mountain
Acquisition Holdings, LLC, dated as of September 15, 2010 (incorporated
by reference to Exhibit 2.1 to the Current Report on Form 8-K filed
by Health Grades, Inc. with the Securities and Exchange Commission on
September 16, 2010).*
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(d)(6)
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Form
of Amendment No. 1 to Tender and Support Agreement (incorporated by
reference to Exhibit 10.1 to the Current Report on Form 8-K filed
by Health Grades, Inc. with the Securities and Exchange Commission on
September 16, 2010).*
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*
Previously
filed.
The name of the bank has not
been made public pursuant to the instruction to Item 1007(d) of Regulation M-A.
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