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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of the

Securities Exchange Act of 1934

 

 

Filed by the Registrant  ☒

Filed by a Party other than the Registrant  ☐

Check the appropriate box:

 

Preliminary Proxy Statement

 

CONFIDENTIAL, FOR USE OF THE COMMISSION ONLY (AS PERMITTED BY RULE 14A-6(E)(2))

 

Definitive Proxy Statement

 

Definitive Additional Materials

 

Soliciting Material under §240.14a-12

BENEFITFOCUS, INC.

(Name of Registrant as Specified in its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

 

No fee required

 

Fee paid previously with preliminary materials

 

Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11

 

 

 


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PRELIMINARY PROXY MATERIALS—SUBJECT TO COMPLETION, DATED DECEMBER 6, 2022

 

 

LOGO

100 Benefitfocus Way

Charleston, South Carolina 29492

[●], 202[●]

Dear Benefitfocus Stockholders,

You are cordially invited to attend a special meeting of the stockholders of Benefitfocus, Inc. (the “Company” or “Benefitfocus”) to be held on [●], 202[●] at [●] a.m. Eastern time (the “Special Meeting”) at our offices located at 215 Benefitfocus Way, Charleston, South Carolina 29492, subject to any adjournments or postponements thereof.

At the Special Meeting, you will be asked to consider and vote on a proposal to adopt the Agreement and Plan of Merger, dated as of November 1, 2022 (as may be amended or modified from time to time in accordance with its terms, the “Merger Agreement”), by and among Benefitfocus, Voya Financial, Inc. (“Voya”) and Origami Squirrel Acquisition Corp (“Merger Sub”). Subject to the terms and conditions of the Merger Agreement, Merger Sub will be merged with and into Benefitfocus (the “Merger”) and Benefitfocus will survive the Merger as a wholly owned subsidiary of Voya.

Also on November 1, 2022, the Company, Voya and Merger Sub entered into support agreements with each of BuildGroup, LLC, a Company stockholder (“BG,” and such agreement, the “BG Support Agreement”), and Indaba Capital Management, L.P., a Company stockholder (“Indaba,” and such agreement, the “Indaba Support Agreement,” and, together with the BG Support Agreement, the “Support Agreements”), pursuant to which each of BG and Indaba has agreed to, among other things, vote its shares of Company capital stock in favor of the adoption of the Merger Agreement, not vote its shares of Company capital stock for any alternative proposal or any other transaction, proposal, agreement, or action made in opposition to the adoption of the Merger Agreement or in competition or inconsistent with the Merger, not exercise any appraisal rights under Section 262 of the General Corporation Law of the State of Delaware and not transfer its shares of Company capital stock (subject to certain exceptions). As of the close of business on [●], 202[●], there were [●] shares of Benefitfocus common stock, par value $0.001 per share (“Common Stock”), and [●] shares of Benefitfocus series A convertible preferred stock, par value $0.001 per share (“Preferred Stock”), convertible into [●] shares of Common Stock, subject to the Support Agreements. The Preferred Stock, together with the shares of Common Stock subject to the Support Agreements, represent approximately [●]% of the outstanding voting power of Company capital stock as of [●], 202[●]. We expect that a similar figure will be outstanding and entitled to vote at the Special Meeting as of the close of business on [●], 202[●], the record date for the Special Meeting.

If the Merger is completed, our common stockholders will have the right to receive $10.50 in cash, without interest and subject to any applicable withholding taxes, for each share of Common Stock, other than Excluded Shares (as defined in the accompanying proxy statement), that they own immediately prior to the effective time of the Merger (the “Effective Time”), which represents a premium of approximately 49% over the $7.05 per share closing trading price of our Common Stock on October 31, 2022, the last trading day prior to the date of the Merger Agreement, and a premium of approximately 65% over the 30-day volume weighted average price (“VWAP”) of $6.36 per share for the 30-day period ended October 31, 2022. If the Merger is completed, our preferred stockholders will have the right to receive $47.25 in cash, plus accumulated and unpaid dividends to, but not including, the date the Merger is completed, without interest and subject to any applicable withholding taxes, for each share of Preferred Stock that they own immediately prior to the Effective Time.

Our Common Stock is listed on Nasdaq Global Market (“NASDAQ”) under the symbol “BNFT.” The closing price of our Common Stock on NASDAQ on [●], 202[●], the most recent practicable date prior to the date of the accompanying proxy statement, was $[●] per share.


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The board of directors of Benefitfocus (the “Board”) has reviewed and considered the terms and conditions of the Merger and unanimously (i) approved the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement, (ii) declared advisable the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement, (iii) determined that the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement are fair to, and in the best interests of, Benefitfocus and its stockholders (other than Excluded Shares that are not Dissenting Shares (as defined in the accompanying proxy statement)), (iv) resolved to recommend that the Company’s stockholders entitled to vote adopt the Merger Agreement, and (v) directed that the Merger Agreement be submitted to the Company’s stockholders for their adoption. The Board made its determination after considering a number of factors more fully described in the accompanying proxy statement. Approval of the proposal to adopt the Merger Agreement (the “Merger Proposal”) requires the affirmative vote of the holders of a majority of the outstanding shares of our Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon at the Special Meeting. The Board unanimously recommends that you vote “FOR” the proposal to adopt the Merger Agreement.

At the Special Meeting, stockholders will also be asked to vote on a proposal to approve, on a non-binding, advisory basis, certain compensation that will or may be paid to certain of Benefitfocus’s named executive officers by Benefitfocus based on or otherwise relating to the Merger (the “Named Executive Officer Merger-Related Compensation Proposal”), as required by the rules adopted by the U.S. Securities and Exchange Commission (“SEC”). Approval of the Named Executive Officer Merger-Related Compensation Proposal requires the affirmative vote of the holders of a majority of the voting power of the Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon that are present in person or represented by proxy at the Special Meeting. The Board unanimously recommends that you vote “FOR” the Named Executive Officer Merger-Related Compensation Proposal.

The Board is soliciting your proxy to ensure that a quorum is present, and that your shares are represented and voted, at the Special Meeting and any postponement or adjournment thereof.

If your shares are held in “street name,” you should instruct your broker, bank or other nominee how to vote your shares on each proposal in accordance with your voting instruction form.

The Merger cannot be completed unless Benefitfocus stockholders adopt the Merger Agreement. Your vote is very important, regardless of the number of shares you own. Whether or not you expect to attend the Special Meeting, please submit a proxy to vote your shares as promptly as possible so that your shares may be represented and voted at the Special Meeting. If you attend the Special Meeting and vote in person during the meeting, your vote by ballot will revoke any proxy previously submitted. If you are a stockholder of record and you do not sign and return your proxy or attend the Special Meeting, your shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting and will have the same effect as a vote “AGAINST” the Merger Proposal, but will have no effect on the outcome of the Named Executive Officer Merger-Related Compensation Proposal, assuming that a quorum exists.

If you are the beneficial owner of shares held in “street name” and fail to instruct your broker, bank or other nominee how to vote your shares, your shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting. Your broker, bank and other nominee will not be permitted to vote those shares on either of the two proposals described in this proxy statement. This will have the same effect as a vote “AGAINST” the Merger Proposal, but will have no effect on the Named Executive Officer Merger-Related Compensation Proposal, assuming that a quorum exists.

The obligations of Benefitfocus, Voya and Merger Sub to complete the Merger are subject to the satisfaction or waiver of certain conditions. The accompanying proxy statement contains detailed information about Benefitfocus, the Special Meeting, the Merger Agreement, the Merger, the Support Agreements, the proposals

 

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that stockholders are being asked to approve and related matters. A copy of the Merger Agreement is attached as Annex A to the accompanying proxy statement and incorporated therein by reference. A copy of the BG Support Agreement is attached as Annex B to the accompanying proxy statement and incorporated therein by reference. A copy of the Indaba Support Agreement is attached as Annex C to the accompanying proxy statement and incorporated therein by reference. We urge you to, and you should, read the proxy statement carefully and in its entirety, including the Merger Agreement, the Support Agreements and the other annexes and the documents referred to or incorporated by reference in the accompanying proxy statement. You may obtain additional information about Benefitfocus from documents we have filed or furnished with the SEC.

If you have any questions or need assistance voting your shares of our Common Stock or Preferred Stock, please contact Okapi Partners LLC, our proxy solicitor, by calling (212) 297-0720, or toll-free at (855) 305-0855, or via email at info@okapipartners.com.

 

Sincerely,
By:    
  Name:    Douglas A. Dennerline
  Title:      Chairman of the Board

Neither the SEC nor any state securities regulatory agency has approved or disapproved of the Merger, passed upon the merits of the Merger Agreement or the Merger or determined if the accompanying proxy statement is accurate or complete. Any representation to the contrary is a criminal offense.

The accompanying proxy statement is dated [●] and, together with the enclosed form of proxy card, is first being mailed on or about [●] to Benefitfocus stockholders of record who owned shares of Common Stock or Preferred Stock as of the close of business on [●], 202[●].

 

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PRELIMINARY PROXY MATERIALS—SUBJECT TO COMPLETION, DATED DECEMBER 6, 2022

100 Benefitfocus Way

Charleston, South Carolina 29492

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

 

DATE & TIME

Notice is hereby given that a special meeting of stockholders (the “Special Meeting”) of Benefitfocus, Inc. (the “Company” or “Benefitfocus”) will be held on [●], 202[●] at [●] a.m. Eastern Time at our offices located at 215 Benefitfocus Way, Charleston, South Carolina 29492.

 

ITEMS OF BUSINESS

The Special Meeting will be held for the following purposes:

 

   

To consider and vote on a proposal to adopt the Agreement and Plan of Merger, dated as of November 1, 2022 (as may be amended or modified from time to time in accordance with its terms, the “Merger Agreement”), by and among Benefitfocus, Voya Financial, Inc. (“Voya”) and Origami Squirrel Acquisition Corp (“Merger Sub”), pursuant to which Merger Sub will be merged with and into Benefitfocus (such merger, the “Merger” and such proposal, the “Merger Proposal”) and Benefitfocus will survive the Merger as a wholly owned subsidiary of Voya; a copy of the Merger Agreement is attached to the accompanying proxy statement as Annex A thereto and is incorporated therein by reference;

 

   

To consider and vote on a proposal to approve, on a non-binding, advisory basis, certain compensation that will or may be paid by Benefitfocus to certain of its named executive officers that is based on or otherwise relates to the Merger (the “Named Executive Officer Merger-Related Compensation Proposal”); and

 

   

To transact such other business as may properly be brought before the Special Meeting, by or at the direction of the Benefitfocus board of directors (the “Board”).

 

  The Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement are described more fully in the accompanying proxy statement, and we urge you to read each of the accompanying proxy statement and Merger Agreement carefully and in its entirety.

 

RECORD DATE AND SHARES ENTITLED TO VOTE

Only holders of record of our common stock, par value $0.001 per share (“Common Stock”), and holders of record of our series A convertible preferred stock, par value $0.001 per share (“Preferred Stock”), at the close of business on [●] (the “Record Date”), are entitled to notice of, and to vote at, the Special Meeting and at any adjournment and postponement thereof. Each share of Common Stock will be entitled to one vote on each matter properly brought before the Special Meeting. Each share of Preferred Stock will be entitled to the

 

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number of votes equal to the number of shares of Common Stock into which the shares of Preferred Stock are convertible. Approval of the Merger Agreement requires the affirmative vote of the holders of a majority of the outstanding shares of our Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon at the Special Meeting. Approval of the Named Executive Officer Merger-Related Compensation Proposal requires the affirmative vote of the holders of a majority of the voting power of the Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon that are present in person or represented by proxy at the Special Meeting.

 

VOTING BY PROXY

Your vote is very important, regardless of the number of shares you own. Because stockholders cannot take any action at the Special Meeting unless a majority of the shares of our capital stock issued and outstanding and entitled to vote thereat is represented, it is important that you attend the Special Meeting or are represented by proxy at the Special Meeting. The Board is soliciting your proxy to ensure that a quorum is present, and that your shares are represented and voted, at the Special Meeting. For information on submitting your proxy over the Internet, by telephone or by mailing back the traditional proxy card (no extra postage is needed for the provided envelope if mailed in the U.S.), please see the attached proxy statement and enclosed proxy card. If you later decide to vote in person during the Special Meeting, information on revoking your proxy prior to the Special Meeting is also provided.

 

RECOMMENDATIONS

The Board unanimously recommends that you vote:

 

   

FOR” the Merger Proposal; and

 

   

FOR” the Named Executive Officer Merger-Related Compensation Proposal.

 

APPRAISAL

Stockholders who do not vote in favor of the Merger Proposal and who deliver a demand for appraisal before the vote is taken on the Merger Agreement and comply with all the requirements of Delaware law, including Section 262 of the General Corporation Law of the State of Delaware (the “DGCL”), which are summarized in the accompanying proxy statement, will be entitled to rights of appraisal to obtain the “fair value” of their shares of the Company. Section 262 of the DGCL is accessible at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262 and incorporated by reference herein.

YOUR VOTE IS VERY IMPORTANT. WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE SUBMIT A PROXY TO VOTE YOUR SHARES OF COMMON STOCK AND PREFERRED STOCK OVER THE INTERNET OR BY TELEPHONE PURSUANT TO THE INSTRUCTIONS CONTAINED IN THESE MATERIALS OR COMPLETE, DATE, SIGN AND RETURN A PROXY CARD AS PROMPTLY AS POSSIBLE. IF YOU RECEIVE MORE THAN ONE PROXY CARD BECAUSE YOU OWN SHARES REGISTERED IN DIFFERENT NAMES OR ADDRESSES, EACH PROXY SHOULD BE

 

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SUBMITTED. IF YOU DO NOT SUBMIT YOUR PROXY OR ATTEND THE SPECIAL MEETING AND VOTE IN PERSON DURING THE SPECIAL MEETING, IT WILL HAVE THE SAME EFFECT AS A VOTE “AGAINST” THE MERGER PROPOSAL.

If your shares are held through a bank, broker or other nominee, you are considered the “beneficial owner” of shares held in “street name.” If you hold your shares in “street name,” you should instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instruction form provided by your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the proposals to be considered at the Special Meeting without your instructions. If your shares are held by a broker, bank or other nominee and you wish to vote in person during the Special Meeting, you must bring to the Special Meeting a proxy from the broker, bank or other nominee that holds your shares authorizing you to vote in person during the Special Meeting. Please also bring to the Special Meeting your account statement evidencing your beneficial ownership of Common Stock or Preferred Stock as of the Record Date. IF YOU HOLD YOUR SHARES IN “STREET NAME” AND DO NOT INSTRUCT YOUR BROKER, BANK OR OTHER NOMINEE HOW TO VOTE YOUR SHARES OR IF YOU WISH TO VOTE IN PERSON AND DO NOT OBTAIN A PROXY FROM YOUR BROKER, BANK OR OTHER NOMINEE OR YOU DO NOT ATTEND THE SPECIAL MEETING AND VOTE IN PERSON DURING THE SPECIAL MEETING, IT WILL HAVE THE SAME EFFECT AS A VOTE “AGAINST” THE MERGER PROPOSAL.

You may revoke your proxy at any time before the vote at the Special Meeting by following the procedures outlined in the accompanying proxy statement.

The proxy statement of which this notice forms a part provides a detailed description of the Merger, the Merger Agreement, the Support Agreements, the Merger Proposal and the Named Executive Officer Merger-Related Compensation Proposal, and provides specific information concerning the Special Meeting. We urge you to read the proxy statement, including any documents incorporated therein by reference, and its annexes carefully and in their entirety. If you have any questions concerning the Merger or the proxy statement, would like additional copies of the proxy statement or need help voting your shares of Common Stock or Preferred Stock, please contact Okapi Partners LLC, our proxy solicitor, by calling (212) 297-0720, or toll-free at (855) 305-0855, or via email at info@okapipartners.com.

 

By Order of the Board of Directors,

By:

   
 

Name: Douglas A. Dennerline

 

Title: Chairman of the Board

[●], 202[●]

 

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TABLE OF CONTENTS

 

     Page  

SUMMARY

     1  

Introduction

     1  

The Parties to the Merger Agreement

     2  

The Special Meeting

     3  

The Merger

     6  

QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING AND THE MERGER

     19  

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

     31  

THE PARTIES TO THE MERGER AGREEMENT

     32  

THE SPECIAL MEETING

     33  

THE MERGER PROPOSAL (PROPOSAL 1)

     39  

Structure of the Merger

     39  

Merger Consideration

     39  

Treatment of Company Equity Awards

     39  

Effects on Benefitfocus If the Merger Is Not Completed

     40  

Background of the Merger

     41  

Recommendation of the Board and Reasons for the Merger

     59  

Factors the Board Considered Supporting Approval of the Merger.

     59  

Financial Forecasts and Financial Projections

     64  

Opinion of Benefitfocus’s Financial Advisor

     67  

Interests of Benefitfocus’s Executive Officers and Directors in the Merger

     76  

Financing of the Merger

     82  

Regulatory Approvals

     82  

Material U.S. Federal Income Tax Consequences of the Merger

     83  

Delisting and Deregistration of Common Stock

     84  

Appraisal Rights

     84  

THE MERGER AGREEMENT

     90  

The Merger

     91  

Closing and Effectiveness of the Merger

     91  

Effect of the Merger on Common Stock and Preferred Stock

     91  

Exchange Procedures

     92  

Treatment of Company Equity Awards

     95  

Representations and Warranties

     96  

Conduct of Business Pending the Merger

     99  

Non-Solicitation Covenants

     102  

Special Meeting

     107  

Efforts to Complete the Merger

     108  

Employee Benefits

     109  

Indemnification; Directors’ and Officers’ Insurance

     111  

Delisting and Deregistration

     112  

Treatment of Company Notes and Capped Call Transactions

     112  

Other Covenants

     112  

Closing Conditions

     113  

Termination

     114  

Termination Fee

     116  

Expenses

     117  

Amendments and Waivers

     117  

 

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Governing Law and Venue

     118  

Specific Performance

     118  

Support Agreements

     118  

ADVISORY VOTE ON NAMED EXECUTIVE OFFICER MERGER-RELATED COMPENSATION PROPOSAL (PROPOSAL 2)

     120  

MARKET PRICES OF COMMON STOCK

     121  

Market Information

     121  

Holders

     121  

Dividends

     121  

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

     122  

MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER

     124  

U.S. Holders

     125  

Non-U.S. Holders

     125  

Information Reporting and Backup Withholding

     126  

FUTURE STOCKHOLDER PROPOSALS

     128  

MULTIPLE STOCKHOLDERS SHARING ONE ADDRESS

     129  

WHERE YOU CAN FIND MORE INFORMATION

     130  

Annex A

   Agreement and Plan of Merger, dated as of November 1, 2022, by and among Benefitfocus, Inc., Voya Financial, Inc. and Origami Squirrel Acquisition Corp      A-1  

Annex B

   Support Agreement, dated November 1, 2022, by and among Voya Financial, Inc., Origami Squirrel Acquisition Corp, Benefitfocus, Inc. and BuildGroup, LLC      B-1  

Annex C

   Support Agreement, dated November 1, 2022, by and among Voya Financial, Inc., Origami Squirrel Acquisition Corp, Benefitfocus, Inc. and Indaba Capital Management, L.P.      C-1  

Annex D

   Opinion of Barclays Capital Inc., dated as of November 2, 2022      D-1  

 

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SUMMARY

This summary highlights information contained elsewhere in this proxy statement and might not contain all the information that is important to you with respect to the Merger and the other matters being considered at a special meeting of our stockholders to be held on [], 202[] at [] a.m. Eastern time (the “Special Meeting”) at our offices located at 215 Benefitfocus Way, Charleston, South Carolina 29492. We urge you to read carefully the entirety of the remainder of this proxy statement, including the attached annexes, and the other documents to which we have referred you. For additional information on Benefitfocus, see the section entitled “Where You Can Find More Information,” beginning on page 130 of this proxy statement. We have included page references in this summary to direct you to a more complete description of the topics presented below.

All references to “Benefitfocus,” the “Company,” “we,” “us,” or “our” in this proxy statement refer to Benefitfocus, Inc., a Delaware corporation, including, in certain cases, our subsidiaries; all references to “Voya” refer to Voya Financial, Inc., a Delaware corporation; all references to “Merger Sub” refer to Origami Squirrel Acquisition Corp, a Delaware corporation and a wholly owned subsidiary of Voya that exists solely for the purpose of entering into the Merger Agreement and engaging in the transactions contemplated by the Merger Agreement; all references to “Common Stock” refer to the common stock, par value $0.001 per share, of Benefitfocus; all references to “Preferred Stock” refer to the series A convertible preferred stock, par value $0.001 per share, of Benefitfocus; all references to the “Board” refer to the board of directors of Benefitfocus; all references to the “Merger” refer to the merger of Merger Sub with and into Benefitfocus, with Benefitfocus surviving as a wholly owned subsidiary of Voya; unless otherwise indicated or as the context otherwise requires, all references to the “Merger Agreement” refer to the Agreement and Plan of Merger, dated as of November 1, 2022, by and among Benefitfocus, Voya and Merger Sub, as may be amended or modified from time to time in accordance with its terms, a copy of which is attached as Annex A to this proxy statement and which is incorporated by reference herein; all references to the “BG Support Agreement” refer to the Support Agreement, dated as of November 1, 2022, by and among Benefitfocus, Voya, Merger Sub and BuildGroup, LLC, a Delaware limited liability company and Company stockholder (“BG”), as may be amended or modified from time to time in accordance with its terms, a copy of which is attached as Annex B to this proxy statement and which is incorporated by reference herein; all references to the “Indaba Support Agreement” refer to the Support Agreement, dated as of November 1, 2022, by and among Benefitfocus, Voya, Merger Sub and Indaba Capital Management L.P., a Delaware limited partnership and Company stockholder (“Indaba”), as may be amended or modified from time to time in accordance with its terms, a copy of which is attached as Annex C to this proxy statement and which is incorporated by reference herein; all references to the “Support Agreements” refer to the BG Support Agreement and the Indaba Support Agreement; all references to the “Excluded Shares” refer to (i) shares of Common Stock owned by Voya, Merger Sub or any other wholly owned subsidiary of Voya or owned by the Company or any of its wholly owned subsidiaries and that are not held on behalf of third parties and (ii) Dissenting Shares; all references to the “Dissenting Shares” refer to shares of Common Stock or Preferred Stock issued and outstanding immediately prior to the effective time of the Merger (the “Effective Time”) the holders of which did not vote in favor of the adoption of the Merger Agreement, have validly demanded appraisal pursuant to Section 262 of the Delaware General Corporation Law (the “DGCL”) and have not effectively withdrawn or otherwise waived or lost such right to appraisal under Section 262 of the DGCL. Benefitfocus, following the completion of the Merger, is sometimes referred to in this proxy statement as the “Surviving Corporation.”

Introduction

On November 1, 2022, Benefitfocus agreed to be acquired by Voya pursuant to the Merger Agreement. If the Merger is completed, our common stockholders will have the right to receive $10.50 in cash, without interest and subject to any applicable withholding taxes, for each share of Common Stock (the “Per Share Common

 

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Stock Merger Consideration”), other than Excluded Shares, that they own immediately prior to the Effective Time, and our preferred stockholders will have the right to receive $47.25 in cash, plus accumulated and unpaid dividends to, but not including, the date the Merger is completed, without interest and subject to any applicable withholding taxes, for each share of Preferred Stock that they own immediately prior to the Effective Time (the “Per Share Preferred Stock Merger Consideration” and, together with the Per Share Common Stock Merger Consideration, the “Per Share Merger Consideration”). Approval of the proposal to adopt the Merger Agreement requires the affirmative vote of the holders of a majority of the outstanding shares of our Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon at the Special Meeting. This proxy statement is dated [●], 202[●] and is first being mailed on or about [●], 202[●] to our stockholders, as of the close of business on [●], 202[●], in connection with the solicitation of proxies by our Board for use at the Special Meeting to be held at our offices located at 215 Benefitfocus Way, Charleston, South Carolina 29492, subject to any adjournment or postponements thereof, to vote to approve the Merger Agreement and certain other related proposals.

The Parties to the Merger Agreement

Benefitfocus (see page 32)

Benefitfocus is an industry-leading, cloud-based benefits administration technology company committed to helping organizations, and the people we serve, get the most out of their healthcare and benefits programs. Through exceptional service and innovative SaaS solutions, Benefitfocus aims to be the safest set of hands for our customers helping to simplify the complexity of benefits administration while delivering an experience that engages people and unlocks the potential for better health and improved outcomes. Benefitfocus’s mission is simple: to improve lives with benefits.

Our Common Stock is traded on Nasdaq Global Market (“NASDAQ”) under the symbol “BNFT.” Benefitfocus’s headquarters are located at 100 Benefitfocus Way, Charleston, South Carolina 29492, and our phone number is (843) 849-7476. Our website address is www.benefitfocus.com.

The information provided on our website is not part of this proxy statement and is not incorporated in this proxy statement by reference or by any other reference to Benefitfocus’s website provided in this proxy statement. Additional information about Benefitfocus is contained in our public filings with the U.S. Securities and Exchange Commission (the “SEC”), certain of which filings are incorporated by reference herein. For further information, see the section entitled “Where You Can Find More Information,” beginning on page 130 of this proxy statement.

Voya Financial, Inc. (see page 32)

Voya is a leading retirement, investment and employee benefits company providing complementary solutions to improve the financial outcomes of approximately 14.3 million customers, workplace participants and institutions in the United States as of December 31, 2021. Voya’s approximately 6,000 employees (as of December 31, 2021) are focused on executing its mission to make a secure financial future possible—one person, one family and one institution at a time. Through Voya’s complementary set of businesses, Voya helps its customers save, grow, protect and enjoy their wealth to and through retirement. Voya offers its products and services through a broad group of financial intermediaries, independent producers, affiliated advisors and dedicated sales specialists throughout the United States.

Voya’s common stock is listed on the New York Stock Exchange under the symbol “VOYA.” The principal executive office of Voya is located at 230 Park Avenue, New York, New York 10169, and its telephone number

 

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is 212-309-8200. Voya’s website address is www.voya.com. The information provided on Voya’s website is not part of this proxy statement and is not incorporated in this proxy statement by reference or by any other reference to Voya’s website provided in this proxy statement.

Merger Sub (see page 32)

Merger Sub is a Delaware corporation that was formed solely for the purposes of entering into the Merger Agreement and engaging in the transactions contemplated by the Merger Agreement. Merger Sub is a direct, wholly owned subsidiary of Voya and has not engaged in any business except for activities incidental to its formation and as contemplated by the Merger Agreement. Upon consummation of the Merger, Merger Sub will cease to exist and Benefitfocus will survive the Merger as a wholly owned subsidiary of Voya.

The principal executive office of Merger Sub is located at 230 Park Avenue, New York, New York 10169, and its telephone number is (212) 309-8200.

The Special Meeting

Date, Time and Place (see page 33)

The Special Meeting of Benefitfocus stockholders is scheduled to be held on [●], 202[●] at [●] a.m. Eastern time at our offices located at 215 Benefitfocus Way, Charleston, South Carolina 29492, subject to any adjournments or postponements thereof.

Purpose of the Special Meeting (see page 33)

The Special Meeting is being held in order to consider and vote on the following proposals:

 

   

To adopt the Merger Agreement (the “Merger Proposal”).

 

   

To approve, on a non-binding, advisory basis, certain compensation that will or may be paid by Benefitfocus to certain of its named executive officers that is based on or otherwise relates to the Merger (the “Named Executive Officer Merger-Related Compensation Proposal”).

Stockholders may also be asked to transact such other business as may properly be brought before the Special Meeting, or any adjournments or postponements of the Special Meeting, by or at the direction of the Board.

The Board has reviewed and considered the terms and conditions of the proposed Merger. After considering various factors more fully described in this proxy statement, the Board unanimously (i) approved the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement, (ii) declared advisable the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement, (iii) determined that the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement are fair to, and in the best interests of, Benefitfocus and its stockholders (other than Excluded Shares that are not Dissenting Shares), (iv) resolved to recommend that the Company’s stockholders entitled to vote adopt the Merger Agreement, and (v) directed that the Merger Agreement be submitted to the Company’s stockholders for their adoption. The Board made its determination after considering a number of factors more fully described in this proxy statement.

The Board unanimously recommends that you vote “FOR” the Merger Proposal and “FOR” the Named Executive Officer Merger-Related Compensation Proposal.

Benefitfocus stockholders must vote to approve the Merger Proposal as a condition for the Merger to occur. If the Benefitfocus stockholders fail to approve the Merger Proposal by the requisite vote, the Merger will not occur.

 

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Record Date; Stockholders Entitled to Vote (see page 34)

Only holders of record of Common Stock and Preferred Stock at the close of business on [●], 202[●], the record date for the Special Meeting (the “Record Date”), will be entitled to notice of, and to vote at, the Special Meeting or any adjournments or postponements of the Special Meeting. Holders of record of Common Stock are entitled to one vote for each share of Common Stock they own of record at the close of business on the Record Date. Holders of Preferred Stock are entitled to the number of votes equal to the number of shares of Common Stock into which the shares of Preferred Stock held by such holder would be convertible into (subject to a 19.9% beneficial ownership limitation). The holders of Preferred Stock have the right to vote (on an as-converted basis) together with the holders of our Common Stock as a single class for the Merger Proposal and the Named Executive Officer Merger-Related Compensation Proposal. At the close of business on [●], 202[●], [●] shares of Common Stock were issued and outstanding, held by approximately [●] holders of record, and [●] shares of Preferred Stock were issued and outstanding, convertible into [●] shares of Common Stock, held by BG, the holder of record. We expect that a similar figure will be outstanding and entitled to vote at the Special Meeting as of the close of business on the Record Date.

Quorum (see page 34)

Under our bylaws, the presence at the Special Meeting, in person or by proxy, of the holders of record of a majority of the issued and outstanding shares of capital stock entitled to vote at the Special Meeting will constitute a quorum. There must be a quorum for business to be conducted at the Special Meeting. Failure of a quorum to be represented at the Special Meeting will necessitate an adjournment or postponement of the Special Meeting and may subject Benefitfocus to additional expense.

If you attend the Special Meeting or if you submit (and do not thereafter revoke) a proxy by duly executing and returning a proxy card or by telephone or through the Internet, even if you abstain from voting, your shares of Common Stock and Preferred Stock will be counted for purposes of determining whether a quorum is present at the Special Meeting. In the event that a quorum is not present at the Special Meeting or additional votes must be solicited to adopt the Merger Agreement, the meeting may be adjourned or postponed in order to solicit additional proxies.

Required Vote (see page 34)

The proposals to be voted on at the Special Meeting require the following votes:

 

   

Approval of the Merger Proposal requires the affirmative vote of the holders of a majority of the outstanding shares of our Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon at the Special Meeting (the “Requisite Company Vote”).

 

   

Approval of the Named Executive Officer Merger-Related Compensation Proposal (on a non-binding basis) requires the affirmative vote of the holders of a majority of the voting power of the Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon that are present in person or represented by proxy at the Special Meeting.

Voting at the Special Meeting (see page 36)

If your shares are registered directly in your name with our transfer agent, you are considered a “stockholder of record” and you can vote your shares of Common Stock or Preferred Stock in the following four ways:

 

  (i)

by indicating your vote by completing, signing and dating the proxy card where indicated and by mailing or otherwise returning the card in the envelope that will be provided to you;

 

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  (ii)

by submitting your proxy by telephone by dialing the toll-free number shown on your proxy card;

 

  (iii)

by submitting your proxy over the Internet by going to the website shown on your proxy card; or

 

  (iv)

by attending the Special Meeting and voting your shares in person during the Special Meeting.

Even if you plan to attend the Special Meeting, we encourage you to submit a proxy in advance by Internet, telephone or mail so that your vote will be counted even if you later decide not to attend the Special Meeting.

If your shares are held by your broker, bank or other nominee, you are considered the beneficial owner of shares held in “street name” and you will receive a form from your broker, bank or other nominee seeking instruction from you as to how your shares should be voted. You should instruct your broker, bank or other nominee how to vote your shares on each proposal in accordance with your voting instruction form. If you beneficially own your shares and receive a voting instruction form, you can vote by following the instructions on your voting instruction form. Please refer to the information from your bank, broker or other nominee on how to submit voting instructions. Stockholders who own their shares in “street name” are not able to vote at the Special Meeting unless they have a “legal proxy,” executed in their favor, from the stockholder of record (broker, bank or other nominee) giving them the right to vote the shares at the Special Meeting.

You may revoke your proxy at any time prior to the vote at the Special Meeting by (i) submitting a later dated proxy (including a proxy submitted through the internet at www.proxyvote.com, by telephone or by proxy card); (ii) notifying our Corporate Secretary at Benefitfocus, Inc., Attn: Corporate Secretary, 100 Benefitfocus Way, Charleston, South Carolina 29492 that you are revoking your proxy; or (iii) voting in person at the Special Meeting. If you hold shares in street name, you may submit new voting instructions by contacting your bank, broker or other nominee. You may also change your vote or revoke your proxy in person at the Special Meeting if you obtain a “legal proxy,” executed in your favor, from the stockholder of record (broker, bank or other nominee) giving you the right to vote the shares at the Special Meeting.

We recommend that you submit a proxy to vote your shares as soon as possible, even if you are planning to attend the Special Meeting, to ensure that your shares are represented and voted at the meeting and so that the vote count will not be delayed. Attendance at the Special Meeting will not, in and of itself, result in the revocation of a proxy or cause your shares of Common Stock or Preferred Stock to be voted.

Abstentions and Broker Non-Votes (see page 35)

At the Special Meeting, abstentions will be counted as present for purposes of determining whether a quorum exists.

Abstaining from voting will have the same effect as a vote “AGAINST” the Merger Proposal and the Named Executive Officer Merger-Related Compensation Proposal.

If no instruction as to how to vote is given (including no instruction to abstain from voting) in an executed, duly returned and not revoked proxy, the proxy will have the same effect as a vote “FOR” the Merger Proposal and the Named Executive Officer Merger-Related Compensation Proposal.

Broker non-votes are shares held in “street name” by brokers, banks and other nominees that are present or represented by proxy at the Special Meeting, but with respect to which the broker, bank or other nominee is not instructed by the beneficial owner of such shares how to vote on a particular proposal and such broker, bank or other nominee does not have discretionary voting power on such proposal. Because, under applicable stock exchange rules, brokers, banks and other nominees holding shares in “street name” do not have discretionary voting authority with respect to either of the two proposals described in this proxy statement, if a beneficial

 

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owner of shares of Common Stock held in “street name” does not give voting instructions to the broker, bank or other nominee, then such shares will not be voted or counted as present in person or by proxy at the Special Meeting. Under applicable stock exchange rules, such shares are not permitted to be voted by the broker, bank or other nominee on either of the two proposals described in this proxy statement. As the vote to approve the Merger Proposal is based on the total number of outstanding shares of our Common Stock and Preferred Stock (voting as a single class with the shares of our Common Stock, on an as-converted basis) entitled to vote thereon at the Special Meeting at the close of business on the Record Date, if you fail to issue voting instructions to your broker, bank or other nominee, it will have the same effect as a vote “AGAINST” the Merger Proposal but will have no effect on the outcome of the Named Executive Officer Merger-Related Compensation Proposal, which is non-binding and, assuming that a quorum exists, requires only the affirmative vote of the holders of a majority of the voting power of the Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon that are present in person or represented by proxy at the Special Meeting.

For further information, see the sections entitled “The Special Meeting—Required Vote” and “The Special Meeting—Failure to Vote Record Shares,” beginning on pages 34 and 35, respectively, of this proxy statement.

Solicitation of Proxies (see page 37)

The Board is soliciting your proxy, and Benefitfocus will bear the cost of soliciting proxies. Benefitfocus has engaged Okapi Partners LLC (“Okapi”) to assist with the solicitation of proxies. Okapi will be paid approximately $25,000. Benefitfocus will reimburse Okapi for reasonable out-of-pocket expenses and will indemnify Okapi and its affiliates against certain claims, liabilities, losses, damages and expenses. Solicitation initially will be made by mail. Forms of proxies and proxy materials may also be distributed through brokers, banks and other nominees to the beneficial owners of shares of Common Stock and Preferred Stock, in which case these parties will be reimbursed for their reasonable out-of-pocket expenses. Proxies may also be solicited in person or by telephone, facsimile, electronic mail, or other electronic medium by Okapi or, without additional compensation, by certain of Benefitfocus’s directors, officers and employees.

Adjournment (see page 37)

Although it is not currently expected, the Special Meeting may be adjourned or postponed for the purpose of soliciting additional proxies if there are insufficient votes at the time of the Special Meeting to approve the proposal to adopt the Merger Agreement or if a quorum is not present at the Special Meeting. Pursuant to the Company’s bylaws, approval of the adjournment of the Special Meeting does not require a vote of the holders of the Company capital stock entitled to vote. Any meeting of stockholders may be adjourned from time to time to any other time and to any other place at which a meeting of stockholders may be held under our bylaws by the chairman of the Board or the chairman’s delegate, subject to certain limitations on the Company’s ability to adjourn or postpone the Special Meeting set forth in the Merger Agreement.

The Merger

The rights and obligations of the parties to the Merger Agreement are governed by the specific terms and conditions of the Merger Agreement and not by any summary or other information in this proxy statement. Therefore, the information in this proxy statement regarding the Merger Agreement and the Merger is qualified in its entirety by reference to the Merger Agreement, a copy of which is attached as Annex A to this proxy statement and is incorporated herein by reference. We encourage you to read the Merger Agreement carefully and in its entirety because it is the principal legal agreement that governs the Merger.

 

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Structure of the Merger (see page 39)

Upon the terms and subject to the conditions of the Merger Agreement and in accordance with the DGCL, at the Effective Time, Merger Sub will merge with and into Benefitfocus, the separate corporate existence of Merger Sub will cease, and Benefitfocus will continue as the Surviving Corporation and a wholly owned subsidiary of Voya, and the separate corporate existence of Benefitfocus will continue unaffected by the Merger. The Merger will have the effects set forth in the Merger Agreement and the relevant provisions of the DGCL.

Merger Consideration (see page 39)

Upon the terms and subject to the conditions of the Merger Agreement, at the Effective Time, each share of Common Stock issued and outstanding immediately prior to the Effective Time (other than Excluded Shares) will be automatically cancelled and will cease to exist, and each holder of such shares will cease to have any rights with respect thereto, except the right to receive the Per Share Common Stock Merger Consideration. Upon the terms and subject to the conditions of the Merger Agreement, at the Effective Time, each share of Preferred Stock issued and outstanding immediately prior to the Effective Time (other than Excluded Shares), will be automatically cancelled and will cease to exist, and each holder of such shares will cease to have any rights with respect thereto, except the right to receive the Per Share Preferred Stock Merger Consideration.

Treatment of Company Equity Awards (see page 39)

At the Effective Time, Company Equity Awards (as defined below) outstanding immediately prior to the Effective Time will generally be subject to the following treatment:

 

   

each option (each, a “Company Option”) to purchase shares of Common Stock granted under the Benefitfocus Third Amended and Restated 2012 Stock Plan (the “Plan”) that is outstanding and vested as of immediately prior to the Effective Time will be cancelled, and each holder of such Company Options will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company Option immediately prior to the Effective Time, multiplied by (ii) the excess, if any, of (A) the Per Share Common Stock Merger Consideration over (B) the exercise price per share of Common Stock of such Company Option, less applicable taxes required to be withheld with respect to such payment, provided that any Company Option which has an exercise price equal to or greater than the Per Share Common Stock Merger Consideration will be cancelled at the Effective Time for no consideration;

 

   

each Company Equity Award (other than a Company Option) that was granted in 2019 or 2020 to a Company employee who remains employed by the Company as of immediately prior to the Effective Time (a “Specified Award”) that is unvested and outstanding as of immediately prior to the Effective Time, will be cancelled, and each holder of such Specified Award will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Specified Award immediately prior to the Effective Time, multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment, provided that with respect to a Specified Award that is a Company Time-Vesting PRSU (as defined below), the number of shares of Common Stock subject to such Specified Award will be the number of shares of Common Stock earned for the applicable performance period pursuant to the terms of such Company Time-Vesting PRSU;

 

   

each (A) outstanding restricted stock unit granted under the Plan (each, a “Company RSU”) that is not a Specified Award (including, for the avoidance of doubt, any transaction-related retention restricted stock units (“Company Retention RSUs”)) and (B) performance stock unit which has been earned for

 

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the applicable performance period (which performance period has ended prior to the date on which the closing of the Merger occurs (the “Closing Date”)) and which is only subject to time-based vesting as of the Closing Date of the Merger (each, a “Company Time-Vesting PRSU”), in each of (A) and (B), that is outstanding as of immediately prior to the Effective Time will be assumed by Voya and converted into a restricted stock unit (a “Voya RSU”) covering a number of shares of common stock of Voya, par value $0.01 per share (the “Voya Common Stock”) (rounded down to the nearest whole number), equal to the product of (i) the number of shares of Common Stock subject to such Company RSUs immediately prior to the Effective Time, multiplied by (ii) the quotient, rounded to four decimal places, of (a) the Per Share Common Stock Merger Consideration, divided by (b) the 10-day VWAP of Voya Common Stock for the 10-day trading period ending on the second to last trading day prior to the Closing Date (the “Equity Award Exchange Ratio”). Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company RSUs immediately prior to the Effective Time;

 

   

each performance stock unit granted under the Plan other than a Company Time-Vesting PRSU (each, a “Company PRSU” and, together with the Company RSUs, Company Time-Vesting PRSUs, Company Retention RSUs and Company Options, the “Company Equity Awards”) that is outstanding as of immediately prior to the Effective Time will be assumed by Voya and converted into a Voya RSU covering a number of shares of Voya Common Stock (rounded down to the nearest whole number) equal to the product of (i) the number of shares of Common Stock subject to such Company PRSUs immediately prior to the Effective Time based on target performance, multiplied by (ii) the Equity Award Exchange Ratio. Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company PRSUs immediately prior to the Effective Time; and

 

   

each Company RSU and Company PRSU that is outstanding as of immediately prior to the Effective Time and held by a non-employee director or consultant of the Company or by any employee who is not an employee that continues to remain employed with the Company or any of its subsidiaries at the Effective Time (a “Continuing Employee”) will be cancelled, and each holder of such Company Equity Award will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company Equity Award immediately prior to the Effective Time (with respect to each Company PRSU, based on target performance), multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment.

As promptly as practicable following the date of the Merger Agreement, but in any event prior to the Effective Time, the Company will take all actions necessary or required under the 2016 Employee Stock Purchase Plan (the “ESPP”) and applicable laws to ensure that (i) except for the six-month offering period under the ESPP that commenced on July 1, 2022 (the “Final Offering”), no offering period will be authorized or commenced on or after the date of the Merger Agreement, (ii) the Final Offering will end on the Closing Date, (iii) each ESPP participant’s accumulated contributions under the ESPP will be returned to the participant through the payroll system of the Surviving Corporation, as soon as practicable following the Closing Date, and (iv) the ESPP will terminate in its entirety at the Effective Time and no further rights will be granted or exercised under the ESPP thereafter.

Recommendation of the Board (see page 59)

The Board has reviewed and considered the terms and conditions of the proposed Merger. After considering various factors, the Board unanimously (i) approved the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement, (ii) declared advisable the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement, (iii) determined that the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement are fair to, and

 

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in the best interests of, Benefitfocus and its stockholders (other than Excluded Shares that are not Dissenting Shares), (iv) resolved to recommend that the Company’s stockholders entitled to vote adopt the Merger Agreement (clause (iv) being the “Board Recommendation”), and (v) directed that the Merger Agreement be submitted to the Company’s stockholders for their adoption. Certain factors considered by the Board in reaching its decision to adopt the Merger Agreement can be found in “The Merger Proposal (Proposal 1)—Recommendation of the Board and Reasons for the Merger,” beginning on page 59 of this proxy statement.

The Board unanimously recommends that Benefitfocus stockholders vote:

 

   

FOR” the Merger Proposal; and

 

   

FOR” the Named Executive Officer Merger-Related Compensation Proposal.

Opinion of Benefitfocus’s Financial Advisor (see page 67)

Benefitfocus engaged Barclays Capital Inc. (“Barclays”) to act as its financial advisor with respect to pursuing strategic alternatives for Benefitfocus, including a possible sale of Benefitfocus, pursuant to an engagement letter dated March 3, 2022 (the “Barclays Engagement Letter”). On November 1, 2022, Barclays rendered its oral opinion (which was subsequently confirmed in writing on November 2, 2022) to the Board that, as of such date and based upon and subject to the qualifications, assumptions and limitations stated in its opinion, from a financial point of view, the Per Share Common Stock Merger Consideration to be offered to the holders of the Common Stock (other than the holders of Excluded Shares) in the Merger is fair to such holders.

The full text of Barclays’s written opinion, dated as of November 2, 2022, is attached as Annex D to this proxy statement. Barclays’s written opinion sets forth, among other things, the assumptions made, procedures followed, factors considered and limitations upon the review undertaken by Barclays in rendering its opinion. You are encouraged to read the opinion carefully in its entirety.

For further discussion of Barclays’s opinion, see the section entitled “The Merger Proposal (Proposal 1)—Opinion of Benefitfocus’s Financial Advisor” beginning on page 67 of this proxy statement.

Interests of Benefitfocus’s Executive Officers and Directors in the Merger (see page 76)

In considering the recommendation of the Board that you vote to approve the Merger Proposal, you should be aware that, aside from their interests as Benefitfocus stockholders, Benefitfocus’s directors and executive officers have interests in the Merger that may be different from, or in addition to, the interests of Benefitfocus stockholders generally, which may create potential conflicts of interest. The Board was aware of these interests and considered them when it adopted the Merger Agreement and approved the Merger. These interests include the following types of payments and benefits that may be triggered by or otherwise relate to the Merger:

 

   

each Company Option that is outstanding and vested as of immediately prior to the Effective Time will be cancelled and converted into the right to receive an amount in cash equal, without interest, to the product of (i) the number of shares of Common Stock subject to such Company Option immediately prior to the Effective Time, multiplied by (ii) the excess, if any, of (A) the Per Share Common Stock Merger Consideration (as defined below), over (B) the exercise price per share of Common Stock of such Company Option, less applicable taxes required to be withheld with respect to such payment, provided that any Company Option which has an exercise price equal to or greater than the Per Share Common Stock Merger Consideration will be cancelled at the Effective Time for no consideration;

 

   

each Specified Award that is unvested and outstanding as of immediately prior to the Effective Time will be cancelled and converted into the right to receive an amount in cash, without interest, equal to

 

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the product of (i) the number of shares of Common Stock subject to such Specified Award immediately prior to the Effective Time, multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment, provided that with respect to a Specified Award that is a Company Time-Vesting PRSU, the number of shares of Common Stock subject to such Specified Award shall be the number of shares of Common Stock earned for the applicable performance period pursuant to the terms of such Company Time-Vesting PRSU;

 

   

each (A) Company RSU that is not a Specified Award (including for the avoidance of doubt, any Company Retention RSUs) and (B) Company Time-Vesting PRSU, in each of (A) and (B), that is outstanding as of immediately prior to the Effective Time, will be assumed by Voya and converted into a Voya RSU covering a number of shares of Voya Common Stock (rounded down to the nearest whole number) equal to the product of (i) the number of shares of Common Stock subject to such Company RSUs immediately prior to the Effective Time multiplied by (ii) the Equity Award Exchange Ratio. Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company RSUs immediately prior to the Effective Time;

 

   

each Company PRSU that is outstanding as of immediately prior to the Effective Time will be assumed by Voya and converted into a Voya RSU covering a number of shares of Voya Common Stock (rounded down to the nearest whole number) equal to the product of (i) the number of shares of Common Stock subject to such Company PRSUs immediately prior to the Effective Time based on target performance, multiplied by (ii) the Equity Award Exchange Ratio. Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company PRSUs immediately prior to the Effective Time; and

 

   

each Company RSU and Company PRSU that is outstanding as of immediately prior to the Effective Time and is held by a non-employee director or consultant of the Company or by any employee who is not a Continuing Employee will be cancelled, and each holder of such Company Equity Award will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company Equity Award immediately prior to the Effective Time (with respect to each Company PRSU, based on target performance) multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment;

 

   

grants by Benefitfocus of Company Retention RSUs to certain executive officers;

 

   

cash severance payments and other termination benefits under the executives’ employment agreements, if the executive’s employment is terminated without “cause” or by the executive for “good reason” on or following the Merger;

 

   

pursuant to the terms of the Merger Agreement, Benefitfocus’s directors and executive officers will be entitled to certain ongoing indemnification, expense advancement and insurance arrangements; and

 

   

under the terms and conditions of the Certificate of Designations for the Preferred Stock, dated as of May 21, 2020 (the “Certificate of Designations”), BG, as the sole holder of Preferred Stock, is entitled to receive the greater of the Convertible Preferred Liquidation Amount (which is defined and further described in the section entitled “The Merger Agreement—Effect of the Merger on Common Stock and Preferred Stock” beginning on page 91 of this proxy statement) and the Per Share Common Stock Merger Consideration (measured as if the shares of Preferred Stock were converted into shares of Common Stock in accordance with the Certificate of Designations) upon the completion of the Merger. The Convertible Preferred Liquidation Amount represents $5.25, or 50%, more per share of Common Stock than the Per Share Common Stock Merger Consideration to be paid to holders of Common Stock (measured as if the shares of Preferred Stock were converted into shares of Common Stock in accordance with the Certificate of Designations, but received the Convertible Preferred Liquidation

 

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Amount rather than the Per Share Common Stock Merger Consideration). In addition to the Convertible Preferred Liquidation Amount that BG is entitled to receive, BG will have the right to receive the pro rata portion of any BG annual fees (“BG Annual Fees”) due and accumulated, but unpaid, to it on the Closing.

These interests are discussed in more detail in the section entitled “The Merger Proposal (Proposal 1)—Interests of Benefitfocus’s Executive Officers and Directors,” beginning on page 76 of this proxy statement.

Regulatory Approvals (see page 82)

As further discussed in the section entitled “The Merger Proposal (Proposal 1)—Regulatory Approvals” beginning on page 82 of this proxy statement, we cannot complete the Merger until the expiration of the statutory waiting period (and any extensions thereof) applicable to the consummation of the transactions contemplated by the Merger Agreement under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) and, if applicable, until any contractual waiting periods under certain timing agreements have expired or been earlier terminated.

While we have no reason to believe it will not be possible to complete the antitrust reviews in a timely manner, there is no certainty that the antitrust reviews will be completed within the period of time contemplated by the Merger Agreement or that the completion of such reviews would not be conditioned upon actions that would be materially adverse to Benefitfocus or Voya, or that a regulatory challenge to the Merger will not be made.

Material U.S. Federal Income Tax Consequences of the Merger (see page 83)

The exchange of Common Stock or Preferred Stock for cash pursuant to the Merger generally will be a taxable transaction for U.S. holders (as defined in the section entitled “Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 124 of this proxy statement) for U.S. federal income tax purposes and may also be taxable under state, local or other tax laws. The tax consequences of the Merger to such holders will depend on their particular circumstances. U.S. holders should read the section entitled “Material U.S. Federal Income Tax Consequences of the Merger,” beginning on page 124 of this proxy statement, and U.S. holders should consult their tax advisors regarding the U.S. federal, state, local and non-U.S. tax consequences of the Merger to such holders in light of their particular circumstances.

Appraisal Rights (see page 84)

Stockholders of Benefitfocus are entitled to appraisal rights under the DGCL in connection with the Merger, provided that such stockholders comply with the requirements of Section 262 of the DGCL. If the Merger is completed, any stockholder of Benefitfocus who does not vote in favor of the Merger Proposal and who otherwise complies with the requirements of Section 262 of the DGCL has the right to seek appraisal of his, her or its shares of Common Stock and Preferred Stock and to receive payment in cash for the “fair value” of his, her or its shares of Common Stock and Preferred Stock, exclusive of any element of value arising from the accomplishment or expectation of the Merger, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be “fair value,” in lieu of the amount the stockholder would have received under the Merger Agreement. The ultimate amount stockholders of Benefitfocus receive in an appraisal proceeding may be less than, equal to or more than the amount a stockholder would have received under the Merger Agreement if they did not seek appraisal of their shares.

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the Special Meeting or by proxy, in favor of the proposal to adopt the Merger Agreement and must continue to hold the shares of Common Stock or Preferred Stock of record from the date of making the demand for appraisal through the Effective Time. As such, merely voting against, abstaining or failing to vote on the proposal to adopt the Merger Agreement will not by itself preserve your right to appraisal under the DGCL. A stockholder’s failure to strictly comply with the procedures specified under the DGCL will result in the loss of such stockholder’s appraisal rights. The requirements for exercising appraisal rights are further described in the section entitled “The Merger Proposal (Proposal 1)—Appraisal Rights,” beginning on page 84 of this proxy statement. In addition, a copy of Section 262 of the DGCL, which details the applicable Delaware appraisal statute, may be accessed without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262. We encourage you to read these provisions carefully and in their entirety. If you hold your shares through a bank, broker or other nominee and you wish to exercise your appraisal rights, you should consult with your bank, broker or other nominee to determine the appropriate procedures. In view of the complexity of the DGCL, stockholders who may wish to pursue appraisal rights should consult their legal and financial advisors promptly. The discussion of appraisal rights in this proxy statement is not a full summary of the law pertaining to appraisal rights under the DGCL, and is qualified in its entirety by the full text of Section 262 of the DGCL, accessible without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262.

Pursuant to the Support Agreements entered into by Indaba and BG, each of BG and Indaba has agreed to, among other things, vote its shares of Company capital stock in favor of the adoption of the Merger Agreement and not exercise any appraisal rights under Section 262 of the DGCL.

Expected Timing of the Merger

Assuming timely satisfaction of the necessary closing conditions, including the approval by our stockholders of the Merger Proposal, the parties to the Merger Agreement expect to complete the Merger in the first quarter of 2023. However, the Merger is subject to HSR Act review and various other conditions, and it is possible that factors outside of the control of Benefitfocus or Voya could result in the Merger being completed at a later time, or not at all. There may be a substantial amount of time between the Special Meeting and the completion of the Merger. We expect to complete the Merger promptly following the receipt of all required clearances and approvals and the satisfaction or, to the extent permitted, waiver of the other conditions to the consummation of the Merger.

Financing of the Merger (see page 82)

The Merger is not conditioned upon receipt of financing by Voya. Voya plans to finance the transaction through cash on hand.

Non-Solicitation of Acquisition Proposals (see page 102)

During the period commencing with the execution and delivery of the Merger Agreement and continuing until the earlier of the Effective Time and the termination of the Merger Agreement and abandonment of the transactions contemplated by the Merger Agreement (the “Interim Period”), except as permitted by the Merger Agreement, Benefitfocus must not, and must cause its subsidiaries and its and their respective directors, executive officers or controlled affiliates not to, and must instruct any other representatives and employees of Benefitfocus or any of its subsidiaries not to, directly or indirectly:

 

   

initiate, solicit, cause, propose or knowingly encourage, assist or facilitate any inquiry, proposal or offer, with respect to, the making, submission or announcement of, any Acquisition Proposal (as defined in the section entitled “The Merger Agreement—Non-Solicitation Covenants,” beginning on page 102 of this proxy statement) or any inquiry, proposal or request for information that would reasonably be expected to lead to, or result in, an Acquisition Proposal;

 

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engage in, conduct, continue, knowingly facilitate, respond to or otherwise participate in any discussions or negotiations with respect to any Acquisition Proposal or any inquiry, proposal, offer or request for information that would reasonably be expected to lead to, or result in, an Acquisition Proposal;

 

   

provide or make available any non-public information or data concerning Benefitfocus or its subsidiaries or access to Benefitfocus’s or its subsidiaries’ business, properties, assets, books, records or other non-public information to any third party, or to any personnel, of Benefitfocus, in connection with any Acquisition Proposal or any inquiry, proposal, offer or request for information that would reasonably be expected to lead to, or result in, an Acquisition Proposal;

 

   

recommend, authorize, approve, adopt, endorse, declare advisable (or make any public statement recommending, authorizing, approving, adopting, endorsing, declaring advisable) or enter into any agreement with respect to an Acquisition Proposal;

 

   

approve any transaction or any person becoming an “interested stockholder” under Section 203 of the DGCL or approve any related transaction;

 

   

grant any waiver, amendment or release under any standstill agreement or Takeover Statute (as defined in the section entitled “The Merger Agreement—Non-Solicitation Covenants,” beginning on page 102 of this proxy statement); or

 

   

resolve, agree, authorize or commit to do any of the foregoing.

Notwithstanding the foregoing, prior to the time the Requisite Company Vote is obtained, in response to an unsolicited, bona fide written Acquisition Proposal that is made after the date of the Merger Agreement that did not result from a breach of the non-solicitation covenants contained in the Merger Agreement, Benefitfocus may:

 

   

provide non-public and other information and data concerning Benefitfocus and its subsidiaries and access to Benefitfocus’s and its subsidiaries’ properties, books and records in response to a request by the third party making such Acquisition Proposal. However, as promptly as practicable (but in any event within 24 hours), Benefitfocus must also provide to Voya such information, data or access that was not previously provided to Voya and prior to providing such information, data or access to such third party making the Acquisition Proposal must have entered into a legally binding confidentiality agreement with terms that are not materially less restrictive than the confidentiality agreement between Voya and Benefitfocus (a “Permitted Confidentiality Agreement”); and

 

   

engage or otherwise participate in any discussions or negotiations with such third party.

Prior to taking any action described in the preceding bullet points, the Board must have determined in good faith, after consultation with outside legal counsel, that based on the information then available (A) and after consultation with its financial advisor, such Acquisition Proposal either constitutes a Superior Proposal (as defined in the section entitled “The Merger Agreement—Non-Solicitation Covenants,” beginning on page 102 of this proxy statement) or is reasonably likely to result in a Superior Proposal and (B) the failure to take such action as described in the preceding bullet points would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable law. Prior to engaging or otherwise participating in any such discussions or negotiations or furnishing any information to such third party, Benefitfocus must promptly provide Voya with written notice of such Acquisition Proposal in accordance with the notice of acquisition proposals covenant contained in the Merger Agreement.

Except as permitted by the Merger Agreement, the Board must not effect a Change of Recommendation (as defined in the section entitled “The Merger Agreement—Non-Solicitation Covenants,” beginning on page 102 of this proxy statement). In addition, except as permitted by the Merger Agreement, the Board must not cause or

 

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permit Benefitfocus or any of its subsidiaries to enter into an Alternative Acquisition Agreement (as defined in the section entitled “The Merger Agreement—Non-Solicitation Covenants,” beginning on page 102 of this proxy statement) or agree, authorize or commit to do so.

Notwithstanding anything to the contrary set forth in the Merger Agreement, prior to the time the Requisite Company Vote is obtained, if Benefitfocus has otherwise complied with the non-solicitation covenants contained in the Merger Agreement (except for failures which are both immaterial and unintentional) the Board may:

 

   

effect a Change of Recommendation, if:

 

   

(1) (i)(a) an unsolicited, bona fide written Acquisition Proposal is received by Benefitfocus after the date of the Merger Agreement and such Acquisition Proposal was made in compliance with the terms of the non-solicitation covenants contained in the Merger Agreement (except for failures to comply which are both immaterial and unintentional), (b) the Board determines in good faith (after consultation with outside legal counsel) that such Acquisition Proposal is bona fide, and (c) such Acquisition Proposal is not withdrawn prior to the Change of Recommendation; or (ii) an Intervening Event (as defined in the section entitled “The Merger Agreement—Non-Solicitation Covenants,” beginning on page 102 of this proxy statement) has occurred; and

 

   

(2) the Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with its financial advisor, (x) a failure to effect a Change of Recommendation would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable law and (y) in the case of an Acquisition Proposal, such Acquisition Proposal constitutes a Superior Proposal; and/or

 

   

take action to terminate the Merger Agreement to cause or permit Benefitfocus or any of its subsidiaries to enter into an Alternative Acquisition Agreement with respect to an Acquisition Proposal that the Board determines in good faith that such Acquisition Proposal is bona fide and that such Acquisition Proposal constitutes a Superior Proposal.

No such actions described in the foregoing four bullet points may be taken unless and until:

 

   

Benefitfocus has given Voya written notice at least four business days in advance (the “Notice Period”), which notice must set forth in writing that the Board intends to consider whether to take such action and such basis therefor, and must also include, in the case of an Acquisition Proposal, all information with respect to such Acquisition Proposal that is required to be provided to Voya pursuant to the Merger Agreement and, in the case of an Intervening Event, a reasonable description of such Intervening Event;

 

   

during the Notice Period, Benefitfocus must, and must instruct its legal and financial advisors to, negotiate in good faith with Voya (to the extent Voya wishes to negotiate) to revise the Merger Agreement so that failure of the Board to effect a Change of Recommendation or take such actions to terminate the Merger Agreement to enter into an Alternative Acquisition Agreement, would no longer be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable law; and

 

   

at the end of the Notice Period, prior to taking action to effect a Change of Recommendation or to terminate the Merger Agreement, the Board has taken into account any revisions to the Merger Agreement committed to by Voya in writing and any other information offered by Voya in writing during the Notice Period, and the Board has thereafter determined in good faith, after consultation with outside legal counsel, that, based on the information then available, and after consultation with its financial advisor, a failure to effect a Change of Recommendation continues to be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable law, or that, in the case of an Acquisition Proposal, such Acquisition Proposal continues to constitute a Superior Proposal and as

 

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such the Merger Agreement should be terminated. Any material revisions to any such Acquisition Proposal will be deemed to be a new Acquisition Proposal, except that, subsequent to the initial Notice Period, the Notice Period will be reduced to two business days.

Conditions to the Closing of the Merger (see page 113)

The obligations of each of Benefitfocus, Voya and Merger Sub to effect the Merger are subject to the satisfaction or, to the extent permitted by applicable law, waiver at or prior to the Effective Time of the following conditions:

 

   

the Requisite Company Vote must have been obtained;

 

   

the statutory waiting period (and any extensions thereof) applicable to the consummation of the transactions contemplated by the Merger Agreement under the HSR Act and, if applicable, any contractual waiting periods under any timing agreements in connection therewith will have expired or been earlier terminated; and

 

   

no governmental entity will have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and prevents the consummation of the transactions contemplated by the Merger Agreement.

The obligations of Voya and Merger Sub to effect the Merger are also subject to the satisfaction or, to the extent permitted by applicable law, waiver by Voya at or prior to the Effective Time of the following additional conditions:

 

   

each of the representations and warranties of Benefitfocus regarding certain aspects of its organization, good standing and qualification, corporate authority and approval, applicability of anti-takeover statutes, absence of any stockholder rights plan and absence of any broker’s fees that (i) are not qualified by the words “Material Adverse Effect” or “material” will be true and correct in all material respects as of the closing of the Merger (the “Closing”) as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all material respects as of such earlier date) and (ii) are qualified by the words “Material Adverse Effect” or “material” will be true and correct in all respects as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty will be true and correct in all respects as of such earlier date);

 

   

the representation and warranty of Benefitfocus regarding certain aspects of its capital structure will be true and correct in all respects as of 5:00 p.m. (New York time) on October 31, 2022, except for any de minimis inaccuracies (and any inaccuracies resulting in fewer than 200,000 additional shares of Common Stock (calculated on an as-converted basis and as exercised basis) will be deemed de minimis);

 

   

the representation and warranty of Benefitfocus regarding the absence of a Material Adverse Effect (as further described below in the section entitled “The Merger Agreement—Representations and Warranties,” beginning on page 96 of this proxy statement) since December 31, 2021 will be true and correct in all respects as of the Closing;

 

   

the other representations and warranties made by Benefitfocus in the Merger Agreement, without giving effect to any “materiality” or “Material Adverse Effect” qualifiers or qualifiers of similar import set forth therein, will be true and correct as of the Closing as though made as of Closing (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty will be so true and correct as of such particular

 

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date or period of time), except for any failure of any such representation and warranty to be so true and correct that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;

 

   

Benefitfocus will have performed in all material respects all obligations required to be performed by it under the Merger Agreement at or prior to the Closing;

 

   

since the date of the Merger Agreement, no Material Adverse Effect has occurred and, in certain circumstances, is continuing; and

 

   

Voya will have received a certificate duly executed on behalf of Benefitfocus by a duly authorized officer of Benefitfocus certifying that the conditions described in the six immediately preceding bullet points have been satisfied.

The Company’s obligation to effect the Closing is also subject to the satisfaction or, to the extent permitted by applicable law, waiver by Benefitfocus at or prior to the Effective Time of the following additional conditions:

 

   

the representations and warranties of Voya and Merger Sub set forth in the Merger Agreement, without giving effect to any “materiality” qualifiers of similar import set forth therein, will be true and correct as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty will be so true and correct as of such particular date or period of time), except for any failure of any such representations and warranties to be so true and correct that would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of Voya or Merger Sub to consummate the transactions contemplated by the Merger Agreement;

 

   

each of Voya and Merger Sub will have performed in all material respects all obligations required to be performed by it under the Merger Agreement at or prior to the Closing; and

 

   

Benefitfocus will have received a certificate duly executed on behalf of Voya and Merger Sub by a duly authorized officer of Voya and Merger Sub certifying that the conditions described in the two immediately preceding bullet points have been satisfied.

Termination of the Merger Agreement; Termination Fee (see page 114)

The Merger Agreement contains certain customary termination rights for Benefitfocus, Voya and Merger Sub, including:

 

   

by mutual consent of the parties;

 

   

by either Benefitfocus or Voya if:

 

   

the Merger is not consummated on or before 5:00 p.m. (New York time) on April 30, 2023 (subject to one two-month extension to a date not beyond June 30, 2023, under certain circumstances);

 

   

the Requisite Company Vote is not obtained at the Special Meeting or any postponement, recess or adjournment thereof; or

 

   

any law or order enacted, issued, promulgated, enforced or entered into after the date of the Merger Agreement prohibiting the Merger has become final and non-appealable;

 

   

by Benefitfocus:

 

   

if there has been a breach by Voya or Merger Sub of any of their representations, warranties, covenants or agreements in the Merger Agreement, or if any representation or warranty of Voya

 

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or Merger Sub shall have become untrue or incorrect following the date of the Merger Agreement, and, in each case, such breach or failure to be true and correct is not curable or cured in accordance with the terms of the Merger Agreement, or

 

   

prior to the time the Requisite Company Vote is obtained, in order for the Board to cause or permit Benefitfocus to enter into, or for Benefitfocus to enter into, an Alternative Acquisition Agreement with respect to a Superior Proposal (as defined in the section entitled “The Merger Agreement—Non-Solicitation Covenants,” beginning on page 102 of this proxy statement), so long as Benefitfocus pays or causes to be paid to Voya a termination fee of $14.0 million in accordance with the terms of the Merger Agreement; and

 

   

by Voya

 

   

in the event of a breach by Benefitfocus of any of its representations, warranties, covenants or agreements in the Merger Agreement or if any representation or warranty of Benefitfocus shall have become untrue or incorrect following the date of the Merger Agreement, and in each case, such breach or failure to be true and correct is not curable or cured in accordance with the terms of the Merger Agreement; or

 

   

prior to the time the Requisite Company Vote is obtained, (i) if the Board has effected a Change of Recommendation or (ii) if Benefitfocus or any of its representatives have knowingly and intentionally breached the non-solicitation covenants contained in the Merger Agreement.

Upon termination of the Merger Agreement under certain specified circumstances, Benefitfocus will be required to pay to Voya a termination fee of $14.0 million.

The Support Agreements (see page 118)

On November 1, 2022, concurrently with the execution of the Merger Agreement, each of BG and Indaba, in their respective capacities as stockholders of Benefitfocus, entered into a Support Agreement with Benefitfocus, Voya and Merger Sub, pursuant to which each of BG and Indaba has agreed to, among other things, vote its shares of Common Stock or Preferred Stock, as applicable, in favor of the adoption of the Merger Agreement, not vote its shares of Common Stock or Preferred Stock, as applicable, for any alternative proposal or any other transaction, proposal, agreement, or action made in opposition to adoption of the Merger Agreement or in competition or inconsistent with the Merger, not exercise any appraisal rights under Section 262 of the DGCL and not transfer its Common Stock or Preferred Stock, as applicable (subject to certain exceptions) to third parties.

By entering into the Support Agreements, each of BG and Indaba has agreed to revoke any proxies that BG or Indaba, as applicable, has granted with respect to its shares of Common Stock or Preferred Stock, as applicable. Additionally, BG and Indaba have irrevocably granted to, and appointed, Voya and any of its designees as BG’s and Indaba’s respective proxy and attorney-in-fact (with full power of substitution) to vote all of their respective shares of Common Stock or Preferred Stock, as applicable, on the matters described in the preceding paragraph (but not on any other matters).

Pursuant to the Support Agreements, each of BG and Indaba has also agreed not to, and to instruct their representatives not to, among other things, directly or indirectly take certain actions that could reasonably be expected to lead to an Acquisition Proposal, as defined in the section entitled “The Merger Agreement—Non-Solicitation Covenants,” beginning on page 102 of this proxy statement, or participate or engage in any discussions or negotiations with any third parties with respect to an Acquisition Proposal. These restrictions will not prohibit BG or Indaba from responding to an inquiry, proposal or offer solely to (i) notify the applicable person or entity of the existence of the restrictions as agreed to in the Support Agreements and (ii) refer the applicable person or entity to Benefitfocus with respect to such inquiry or proposal.

 

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The Support Agreements are discussed in more detail in the section entitled “The Merger Agreement—Support Agreements,” beginning on page 118 of this proxy statement.

Delisting and Deregistration of Common Stock (see page 112)

Prior to the Closing Date, Benefitfocus will cooperate with Voya and use reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable on its part under applicable law, including the rules and policies of NASDAQ, to enable the delisting by the Surviving Corporation of the shares of Common Stock from NASDAQ and the deregistration of the shares of Common Stock under the Exchange Act as promptly as practicable after the Effective Time. In connection therewith, Voya will (a) assist in enabling Benefitfocus or NASDAQ to be in a position to promptly file and cause the Surviving Corporation or NASDAQ to file with the SEC a Form 25 on the Closing Date and (b) cause the Surviving Corporation to file a Form 15 on the first business day that is at least ten days after the date the Form 25 is filed.

Market Prices of Common Stock (see page 121)

The closing price of Common Stock on NASDAQ on [●], 202[●], the most recent practicable date prior to the filing of this proxy statement, was $[●] per share. If the Merger is completed, our holders of Common Stock will have the right to receive $10.50 in cash, without interest and subject to any applicable withholding taxes, for each share of Common Stock, other than Excluded Shares, that they own immediately prior to the Effective Time, which represents a premium of approximately 49% over the $7.05 per share closing trading price of our Common Stock on October 31, 2022, the last trading day prior to the date of the Merger Agreement, and a premium of approximately 65% over the 30-day VWAP of $6.36 per share for the 30-day period ended October 31, 2022. If the Merger is completed, our preferred stockholders will have the right to receive $47.25 in cash, plus accumulated and unpaid dividends to, but not including, the date the Merger is completed, without interest and subject to any applicable withholding taxes, for each share of Preferred Stock that they own immediately prior to the Effective Time of the Merger. You are encouraged to obtain current market prices of Common Stock in connection with voting your shares of Common Stock.

Effects on Benefitfocus If the Merger Is Not Completed (see page 40)

If the Merger Agreement is not adopted by our stockholders, or if the Merger is not completed for any other reason, our stockholders will not receive any payment for their shares of our Common Stock or Preferred Stock in connection with the Merger. Instead: (i) Benefitfocus will remain an independent public company; (ii) our Common Stock will continue to be listed and traded on the NASDAQ and registered under the Exchange Act; and (iii) we will continue to file periodic reports with the SEC. Benefitfocus may be required to pay Voya a termination fee of $14.0 million if the Merger Agreement is terminated under certain specified circumstances pursuant to the terms of the Merger Agreement. For a discussion of the circumstances under which Benefitfocus will be required to pay a termination fee, see the section entitled “The Merger Agreement—Termination Fee” beginning on page 116 of this proxy statement.

 

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QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING AND THE MERGER

The following are brief answers to certain questions that you may have regarding the Merger, the Special Meeting and the proposals being considered at the Special Meeting. We urge you to carefully read the remainder of this proxy statement because the information in this section does not provide all of the information that might be important to you with respect to the Merger and the Special Meeting. Additional important information is also contained in the annexes attached to this proxy statement and the documents referred to or incorporated by reference into this proxy statement. You may obtain the information incorporated by reference in this proxy statement without charge by following the instructions in the section entitled “Where You Can Find More Information,” beginning on page 130 of this proxy statement.

 

Q.

Why am I receiving these proxy materials?

 

A.

On November 1, 2022, Benefitfocus entered into the Merger Agreement providing for the merger of Merger Sub with and into Benefitfocus, pursuant to which Benefitfocus will survive the Merger as a wholly owned subsidiary of Voya. A copy of the Merger Agreement is attached to this proxy statement as Annex A and is incorporated by reference herein. In order to complete the Merger, Benefitfocus’s stockholders must vote to adopt the Merger Agreement. The approval of the Merger Proposal by our stockholders is a condition to the consummation of the Merger. For further information, see the section entitled “The Merger Agreement—Closing Conditions,” beginning on page 113 of this proxy statement. You are receiving this proxy statement in connection with the solicitation by the Board of proxies of Benefitfocus’s stockholders in favor of the Merger Proposal.

You are also being asked to vote on a proposal to approve, on a non-binding, advisory basis, certain compensation that will or may be paid by Benefitfocus to certain of our named executive officers that is based on or otherwise relates to the Merger.

This proxy statement, which you should read carefully and in its entirety, contains important information about the Merger, the Merger Agreement, the Support Agreements, the Special Meeting of our stockholders and the matters to be voted on thereat. The enclosed materials allow you to submit a proxy to vote your shares of Common Stock or Preferred Stock without attending the Special Meeting and to ensure that your shares are represented and voted at the Special Meeting.

Your vote is very important. Even if you plan to attend the Special Meeting, we encourage you to submit a proxy as soon as possible.

 

Q.

What is the proposed transaction?

 

A.

If the Merger Proposal is approved by Benefitfocus’s stockholders and the other conditions to the consummation of the Merger contained in the Merger Agreement are satisfied or, to the extent permitted, waived, Merger Sub will merge with and into Benefitfocus, with Benefitfocus continuing as the Surviving Corporation in the Merger. As a result of the Merger, Benefitfocus will become a privately held wholly owned subsidiary of Voya, and our Common Stock will no longer be publicly traded and will be delisted from NASDAQ. In addition, our Common Stock will be deregistered under the Exchange Act, and we will no longer file periodic reports with the SEC on account of our Common Stock.

 

Q.

As a holder of Common Stock, what will I receive in the Merger if it is completed?

 

A.

Under the terms of the Merger Agreement, if the Merger is completed, you will be entitled to receive the Per Share Common Stock Merger Consideration of $10.50 in cash, without interest and subject to any applicable withholding taxes, for each share of Common Stock you own (other than Excluded Shares), which represents a premium of approximately 49% over the $7.05 per share closing trading price of our Common Stock on October 31, 2022, the last trading day prior to the date of the Merger Agreement, and a

 

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  premium of approximately 65% over the 30-day VWAP of $6.36 per share for the 30-day period ended October 31, 2022. For example, if you own 100 shares of Common Stock, you will be entitled to receive $1,050 in cash in exchange for your shares, without interest and subject to any applicable withholding taxes. You will not be entitled to receive shares in the Surviving Corporation or in Voya nor will you have any interest in the future earnings or growth of the Surviving Corporation or Voya.

 

Q.

What will holders of Preferred Stock receive in the Merger if it is completed?

 

A.

Under the terms of the Merger Agreement and the Certificate of Designations, if the Merger is completed, you will be entitled to receive the Per Share Preferred Stock Merger Consideration of $47.25 per share of Preferred Stock in cash, plus accumulated and unpaid dividends to, but not including, the date the Merger is completed, without interest and subject to any applicable withholding taxes, for each share of Preferred Stock that you own immediately prior to the Effective Time. Section 6 of the Certificate of Designations entitles each holder of shares of Preferred Stock to receive the greater of the Per Share Preferred Stock Merger Consideration and the Per Share Common Stock Merger Consideration (measured as if the shares of Preferred Stock were converted into shares of Common Stock in accordance with the Certificate of Designations) upon the completion of the Merger; pursuant to the Merger, the Per Share Preferred Stock Merger Consideration will be a greater amount than the Per Share Common Stock Merger Consideration (assuming each share of Preferred Stock is converted into Common Stock).

You will not be entitled to receive shares in the Surviving Corporation or in Voya nor will you have any interest in the future earnings or growth of the Surviving Corporation or Voya.

 

Q.

When and where will the Special Meeting be held?

 

A.

The Special Meeting will be held on [●], 202[●] at [●] a.m. Eastern time at our offices located at 215 Benefitfocus Way, Charleston, South Carolina 29492, subject to any adjournments or postponements thereof.

If you wish to attend the Special Meeting, you must bring photo identification. If your shares are held by a broker, bank or other nominee and you wish to vote in person during the Special Meeting, you must bring to the Special Meeting a proxy from the broker, bank or other nominee that holds your shares authorizing you to vote in person during the Special Meeting. Please also bring to the Special Meeting your account statement evidencing your beneficial ownership of Common Stock or Preferred Stock as of the Record Date.

 

Q.

What is a proxy?

 

A.

A proxy is your legal designation of another person, referred to as a “proxy,” to vote your shares of Common Stock or Preferred Stock. The written document describing the matters to be considered and voted on at the Special Meeting is called a “proxy statement.” The document used to designate a proxy to vote your shares of Common Stock or Preferred Stock is called a “proxy card.”

 

Q.

What different methods can I use to vote?

 

A.

You can vote by any of the following methods:

 

   

In Person—You may vote your shares of Common Stock or Preferred Stock in person at the Special Meeting. If you desire to vote your shares of Common Stock or Preferred Stock in person at the Special Meeting, please request, complete, and submit a ballot prior to or during the time that ballots are collected at the Special Meeting.

 

   

By Internet—You may submit your proxy by going to the website shown on your proxy card and by following the instructions on how to complete an electronic proxy card. You will need the 16-digit number included on your proxy card or the instructions that accompanied your proxy materials in order to vote by Internet.

 

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By Telephone—You may submit your proxy by dialing the toll-free number shown on your proxy card and by following the recorded instructions. You will need the 16-digit number included on your proxy card or the instructions that accompanied your proxy materials in order to vote by telephone.

 

   

By Mail—You may vote by mail by indicating your vote by completing, signing and dating the proxy card where indicated and by mailing or otherwise returning the card in the envelope that will be provided to you. You should sign your name exactly as it appears on the proxy card. If you are signing in a representative capacity (for example, as guardian, executor, trustee, custodian, attorney or officer of a corporation), indicate your name and title or capacity.

If your shares are held in the name of a bank, broker or other holder of record (also known as “street name”), you have the right to direct your bank, broker or other nominee on how to vote your shares by using the voting instruction form provided to you by them, or by following their instructions for voting through the internet or by telephone. In the alternative, you may vote at the meeting if you obtain a legal proxy from your bank, broker or other nominee and present it at the meeting. In order for your shares to be voted on all matters presented at the meeting, we urge all stockholders whose shares are held in street name by a bank, brokerage firm or other nominee to provide voting instructions to such record holder.

Even if you plan to attend the Special Meeting, you are strongly encouraged to vote your shares by proxy.

Internet and telephone voting facilities will close at 11:59 p.m., Eastern time, on [], 202[], for the voting of shares held by stockholders of record or held in street name.

Mailed proxy cards with respect to shares of record must be received no later than [], 202[].

 

Q.

If a stockholder submits a proxy, how are the shares of Common Stock or Preferred Stock voted?

 

A.

Regardless of the method you choose to submit a proxy, the individuals named on the enclosed proxy card will vote your shares of Common Stock or Preferred Stock as you instruct. When completing the Internet or telephone processes or the proxy card, you may specify whether your shares of Common Stock or Preferred Stock should be voted “FOR” or “AGAINST,” or to “ABSTAIN” from voting on, all, some or none of the specific items of business to come before the Special Meeting, including the Merger Proposal and the Named Executive Officer Merger-Related Compensation Proposal.

If you properly sign your proxy card but do not mark the boxes indicating how your shares of Common Stock or Preferred Stock should be voted on any particular matter, the shares of Common Stock or Preferred Stock represented by your properly signed proxy will be voted as recommended by the Board, which means your shares of Common Stock or Preferred Stock will be voted “FOR” the Merger Proposal and “FOR” the Named Executive Officer Merger-Related Compensation Proposal.

 

Q.

What can I do if I change my mind after I vote my shares?

 

A.

You can change your vote by revoking your proxy at any time before your proxy is voted, in one of three ways:

 

   

submitting a later dated proxy (including a proxy submitted through the internet at www.proxyvote.com, by telephone or by proxy card);

 

   

notifying Benefitfocus’s Corporate Secretary at Benefitfocus, Inc., Attn: Corporate Secretary, 100 Benefitfocus Way, Charleston, South Carolina 29492 that you are revoking your proxy; or

 

   

voting in person at the Special Meeting.

If you are a beneficial owner of Common Stock or Preferred Stock held by a bank, broker or other nominee, you will need to contact the bank, broker or other nominee to revoke your proxy.

 

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Q.

What is the difference between holding shares as a stockholder of record and as a beneficial owner?

 

A.

If your shares are registered directly in your name with our registrar and transfer agent, Broadridge Corporate Issuer Solutions, Inc., you are considered a “stockholder of record” with respect to those shares. If your shares are held in a bank or brokerage account, you are considered the “beneficial owner” of those shares.

 

Q.

What if I am a beneficial owner and do not give voting instructions to my broker? What is a broker non-vote?

 

A.

As a beneficial owner, in order to ensure your shares are voted in the way you would like, you must provide voting instructions to your bank, broker or other nominee by the deadline provided in the materials you receive from your bank, broker or other nominee. As described further in the section entitled “Special Meeting—Abstentions and Broker Non-Votes,” beginning on page 35 of this proxy statement, broker non-votes are shares held in “street name” by brokers, banks and other nominees that are present or represented by proxy at the Special Meeting, but with respect to which the broker, bank or other nominee is not instructed by the beneficial owner of such shares how to vote on a particular proposal and such broker, bank or other nominee does not have discretionary voting power on such proposal. Because, under applicable stock exchange rules, brokers, banks and other nominees holding shares in “street name” do not have discretionary voting authority with respect to either of the two proposals described in this proxy statement, if a beneficial owner of shares of Common Stock held in “street name” does not give voting instructions to the broker, bank or other nominee, then such shares will not be voted or counted as present in person or by proxy at the Special Meeting. Under applicable stock exchange rules, such shares are not permitted to be voted by the broker, bank or other nominee on either of the two proposals described in this proxy statement. As the vote to approve the Merger Proposal is based on the total number of outstanding shares of our Common Stock and Preferred Stock (voting as a single class with the shares of our Common Stock, on an as-converted basis) entitled to vote thereon at the Special Meeting at the close of business on the Record Date, if you fail to issue voting instructions to your broker, bank or other nominee, it will have the same effect as a vote “AGAINST” the Merger Proposal but will have no effect on the outcome of the Named Executive Officer Merger-Related Compensation Proposal, which is non-binding and, assuming that a quorum exists, requires only the affirmative vote of the holders of a majority of the voting power of the Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon that are present in person or represented by proxy at the Special Meeting. For further information, see the section entitled “The Special Meeting—Required Vote,” beginning on page 34 of this proxy statement.

 

Q.

Will my shares held in “street name” or another form of record ownership be combined for voting purposes with shares I hold of record?

 

A.

No. Because any shares you may hold in “street name” will be deemed to be held by a different stockholder than any shares you hold of record, any shares held in “street name” will not be combined for voting purposes with shares you hold of record. Similarly, if you own shares in various registered forms, such as jointly with your spouse, as trustee of a trust or as custodian for a minor, you will receive, and will need to sign and return, a separate proxy card (or submit a proxy by telephone or through the Internet) for each of those shares because they are held in a different form of record ownership. Shares held by a corporation or business entity must be voted by an authorized officer of the entity. Shares held in an individual retirement account must be voted under the rules governing the account.

 

Q.

Who is soliciting my proxy? Who will pay for the cost of this proxy solicitation?

 

A.

The Board is soliciting your proxy, and Benefitfocus will bear the cost of soliciting proxies. Benefitfocus has engaged Okapi to assist with the solicitation of proxies. Okapi will be paid approximately $25,000.

 

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  Benefitfocus will reimburse Okapi for reasonable out-of-pocket expenses and will indemnify Okapi and its affiliates against certain claims, liabilities, losses, damages and expenses. Solicitation initially will be made by mail. Forms of proxies and proxy materials may also be distributed through brokers, banks and other nominees to the beneficial owners of shares of Common Stock and Preferred Stock, in which case these parties will be reimbursed for their reasonable out-of-pocket expenses. Proxies may also be solicited in person or by telephone, facsimile, electronic mail, or other electronic medium by Okapi or, without additional compensation, by certain of Benefitfocus’s directors, officers and employees.

 

Q.

What matters will be voted on at the Special Meeting?

 

A.

At the Special Meeting, you will be asked to consider and vote on the following:

 

   

a proposal to adopt the Merger Agreement that provides for, among other things, the acquisition of Benefitfocus by Voya; and

 

   

a proposal to approve, by non-binding, advisory vote, certain compensation arrangements for certain named executive officers of the Company in connection with the Merger.

Stockholders may also be asked to transact such other business as may properly be brought before the Special Meeting or any adjournments or postponements of the Special Meeting, by or at the direction of the Board.

 

Q.

What is the position of the Board regarding the Merger?

 

A.

The Board has reviewed and considered the terms and conditions of the proposed Merger. After considering various factors, the Board unanimously (i) approved the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement, (ii) declared advisable the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement, (iii) determined that the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement are fair to, and in the best interests of, Benefitfocus and its stockholders (other than Excluded Shares that are not Dissenting Shares), (iv) resolved to recommend that the Company’s stockholders entitled to vote adopt the Merger Agreement, and (v) directed that the Merger Agreement be submitted to the common stockholders for their adoption. Certain factors considered by the Board in reaching its decision to adopt the Merger Agreement can be found in “The Merger Proposal (Proposal 1)—Recommendation of the Board and Reasons for the Merger,” beginning on page 59 of this proxy statement.

 

Q.

How does the Board recommend that I vote on the proposals?

 

A.

The Board unanimously recommends that you vote:

 

   

FOR” the Merger Proposal; and

 

   

FOR” the Named Executive Officer Merger-Related Compensation Proposal.

 

Q.

What vote is required to approve the Merger Proposal?

 

A.

The Merger Proposal will be approved if the holders of a majority of the outstanding shares of our Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon at the Special Meeting affirmatively vote “FOR” the proposal.

If you are a stockholder of record and you do not sign and return your proxy or attend the Special Meeting, your shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting and will have the same effect as a vote “AGAINST” the Merger Proposal.

If you are the beneficial owner of shares held in “street name” and fail to instruct your broker, bank or other nominee how to vote your shares, your shares will not be counted for purposes of determining whether a

 

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quorum is present at the Special Meeting. Your broker, bank and other nominee will not be permitted to vote those shares with respect to the Merger Proposal. This will have the same effect as a vote “AGAINST” the Merger Proposal.

 

Q.

What vote is required to approve the Named Executive Officer Merger-Related Compensation Proposal (on a non-binding, advisory basis)?

 

A.

The Named Executive Officer Merger-Related Compensation Proposal will be approved if the holders of a majority of the voting power of the Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon that are present in person or represented by proxy at the Special Meeting affirmatively vote “FOR” the proposal.

If you are a stockholder of record and you do not sign and return your proxy or attend the Special Meeting or if you are the beneficial owner of shares held in “street name” and fail to instruct your broker, bank or other nominee how to vote your shares, your shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting, but will have no effect on the outcome of the Named Executive Officer Merger-Related Compensation Proposal, assuming that a quorum exists.

 

Q.

What will happen if Benefitfocus’s stockholders do not approve the Named Executive Officer Merger-Related Compensation Proposal?

 

A.

Approval of the compensation that will or may become payable by Benefitfocus to certain of our named executive officers in connection with the Merger is not a condition to consummation of the Merger and, therefore, such approval is not required to consummate the Merger. This is an advisory vote and will not be binding on Benefitfocus or Voya. The underlying plans and arrangements providing for such compensation are contractual in nature and are not, by their terms, subject to stockholder approval.

 

Q.

Do you expect the Merger to be taxable to Benefitfocus stockholders?

 

A.

The exchange of Common Stock or Preferred Stock for cash in the Merger generally will be taxable for U.S. holders (as defined in the section entitled “Material U.S. Federal Income Tax Consequences of the Merger,” beginning on page 124 of this proxy statement) for U.S. federal income tax purposes and may also be taxable under state, local or other tax laws. The tax consequences of the Merger to such holders will depend on their particular circumstances. U.S. holders should read the section entitled “Material U.S. Federal Income Tax Consequences of the Merger,” beginning on page 124 of this proxy statement, and U.S. holders should consult their tax advisors regarding the U.S. federal, state, local, and non-U.S. tax consequences of the Merger to such holders in light of their particular circumstances. U.S. holders will generally recognize gain or loss in an amount equal to the difference, if any, between the amount of cash received with respect to their shares and their adjusted tax basis in such shares.

 

Q.

What other effects will the Merger have on Benefitfocus?

 

A.

If the Merger is completed, Benefitfocus will become a privately held wholly owned subsidiary of Voya at the Effective Time. The Common Stock will be delisted from NASDAQ and deregistered under the Exchange Act, and Benefitfocus will no longer be required to file periodic reports with the SEC with respect to the Common Stock, in each case in accordance with applicable law, rules and regulations. Following the completion of the Merger, our Common Stock will no longer be publicly traded and you will no longer have any interest in Benefitfocus’s or Voya’s future earnings or growth. Instead, each share of Common Stock will represent only the right to receive $10.50 per share in cash, without interest and subject to any applicable withholding taxes, for each share of Common Stock, other than Excluded Shares, and each share of Preferred Stock, other than Excluded Shares, will represent only the right to receive $47.25 per share in cash, plus accumulated and unpaid dividends to, but not including, the date the Merger is completed, respectively, without interest and subject to any applicable withholding taxes.

 

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Q.

When is the Merger expected to be completed?

 

A.

Assuming timely satisfaction of necessary closing conditions, including the approval by our stockholders of the Merger Proposal, the parties to the Merger Agreement expect to complete the Merger in the first quarter of 2023. However, Benefitfocus cannot assure you that the Merger will be completed by any particular date, if at all. Because the Merger is subject to a number of conditions, including the receipt of stockholder approval of the Merger Proposal and the expiration or termination of the waiting period under the HSR Act, the exact timing of consummation of the Merger cannot be determined at this time and we cannot guarantee that the Merger will be completed in the expected time frame or at all.

 

Q.

What happens if the Merger is not completed?

 

A.

If the Merger Proposal is not approved by Benefitfocus stockholders, or if the Merger is not completed for any other reason, Benefitfocus stockholders will not receive any payment for their shares of Common Stock or Preferred Stock in connection with the Merger. Instead, Benefitfocus will remain an independent public company, our shares of Common Stock will continue to be listed and traded on NASDAQ and we will continue to file periodic reports, current reports and proxy and information statements with the SEC. Benefitfocus may be required to pay Voya a termination fee of $14.0 million if the Merger Agreement is terminated under certain specified circumstances pursuant to the terms of the Merger Agreement. For a discussion of the circumstances under which Benefitfocus will be required to pay a termination fee, see the section entitled “The Merger Agreement—Termination Fee,” beginning on page 116 of this proxy statement.

 

Q.

What are the Support Agreements?

 

A.

Concurrently with the execution of the Merger Agreement, the Company, Voya and Merger Sub entered into support agreements with each of BG and Indaba, pursuant to which each of BG and Indaba has agreed to, among other things, vote its shares of Company capital stock in favor of the adoption of the Merger Agreement, not vote its shares of Company capital stock for any alternative proposal or any other transaction, proposal, agreement, or action made in opposition to adoption of the Merger Agreement or in competition or inconsistent with the Merger, not exercise any appraisal rights under Section 262 of the DGCL and not transfer its shares of Company capital stock (subject to certain exceptions). As of [●], 202[●], there were [●] shares of Common Stock and [●] shares of Preferred Stock convertible into [●] shares of Common Stock subject to the Support Agreements. The Preferred Stock, together with the shares of Common Stock subject to the Support Agreements, represent approximately [●]% of the outstanding voting power of Company capital stock as of [●], 202[●]. We expect that a similar figure will be outstanding and entitled to vote at the Special Meeting as of the close of business on the Record Date.

 

Q.

How will our directors and executive officers vote on the Merger Proposal?

 

A.

Our current understanding is that the directors and executive officers of Benefitfocus intend, as of the date of this proxy statement, to vote their shares of Common Stock and Preferred Stock in favor of the Merger Proposal.

As of [●], 202[●], the directors and executive officers of Benefitfocus beneficially owned, in the aggregate, [●] outstanding shares of Common Stock and Preferred Stock representing [●]% of the voting power of the shares of Common Stock and Preferred Stock issued and outstanding on that date. We expect that a similar figure will be outstanding and entitled to vote at the Special Meeting as of the close of business on the Record Date.

 

Q.

Do any of Benefitfocus’s directors or executive officers have interests in the Merger that may differ from or be in addition to my interests as a stockholder?

 

A.

Yes. In considering the recommendation of the Board with respect to the Merger Proposal, you should be aware that our directors and executive officers may have interests in the Merger that may be different from, or in addition to, the interests of our stockholders generally. The Board was aware of and considered these

 

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  differing interests, to the extent such interests existed at the time, among other matters, in evaluating and negotiating the Merger Agreement and the Merger, and in unanimously recommending that the Merger Agreement be adopted by the Benefitfocus stockholders. For further information, see the section entitled “The Merger Proposal (Proposal 1)—Interests of Benefitfocus’s Executive Officers and Directors in the Merger,” beginning on page 76 of this proxy statement.

 

Q.

Why am I being asked to consider and vote on the Named Executive Officer Merger-Related Compensation Proposal?

 

A.

The SEC rules require Benefitfocus to seek approval on a non-binding, advisory basis with respect to certain payments that will or may be made to certain Benefitfocus’s named executive officers in connection with the Merger. Approval of the Named Executive Officer Merger-Related Compensation Proposal is not required to complete the Merger. For further information, see the section entitled “Advisory Vote On Named Executive Officer Merger-Related Compensation Proposal (Proposal 2),” beginning on page 120 of this proxy statement.

 

Q.

How many shares of our Common Stock and Preferred Stock must be present to constitute a quorum for the Special Meeting? What if there is no quorum?

 

A.

Under our bylaws, the presence at the Special Meeting, in person or by proxy, of the holders of a majority of our outstanding shares of capital stock entitled to vote at the close of business on the Record Date will constitute a quorum. There must be a quorum for business to be conducted at the Special Meeting. If a quorum is not present, the person presiding at the Special Meeting may adjourn the Special Meeting from time to time until a quorum is present. Failure of a quorum to be present at the Special Meeting will necessitate an adjournment or postponement of the Special Meeting and may subject Benefitfocus to additional expense. If the adjournment is for more than 30 days, or if, after the adjournment, a new Record Date is fixed for the adjourned meeting, a notice of the adjourned meeting will be given to each stockholder of record entitled to vote at the meeting. As of the close of business on [●], 202[●], there were [●] shares of Common Stock outstanding representing [●] votes and [●] shares of Preferred Stock outstanding representing [●] votes. We expect that a similar figure will be outstanding and entitled to vote at the Special Meeting as of the close of business on the Record Date.

 

Q.

What if I abstain from voting on any proposal?

 

A.

If you attend the Special Meeting or if you submit (and do not thereafter revoke) a proxy by duly executing and returning a proxy card, by telephone or through the Internet, even if you abstain from voting, your shares of Common Stock or Preferred Stock will still be counted for purposes of determining whether a quorum is present at the Special Meeting, but will not be voted on the proposals. If you mark “ABSTAIN” on your proxy card or otherwise indicate that you are abstaining from voting when you submit your proxy by telephone or through the Internet, your abstention from voting will have the same effect as a vote “AGAINST” the Merger Proposal and the Named Executive Officer Merger-Related Compensation Proposal.

 

Q.

Will my shares be voted if I do not sign and return my proxy card or vote by telephone or over the Internet or electronically during the Special Meeting?

 

A.

No. If you are a stockholder of record of Benefitfocus and you do not electronically vote at the Special Meeting, sign and return your proxy card by mail, or submit your proxy by telephone or over the Internet, your shares will not be voted at the Special Meeting and will not be counted as present for purposes of determining whether a quorum exists. The failure to submit a proxy or otherwise vote your shares at the Special Meeting will have no effect on the outcome of the Named Executive Officer Merger-Related

 

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  Compensation Proposal, assuming that a quorum exists. However, the vote to approve the Merger Proposal is based on the total number of outstanding shares of Common Stock and Preferred Stock (with each share of Preferred Stock voting on an as-converted basis) entitled to vote as of the close of business on the Record Date, not just the shares that are counted as present in person or by proxy and entitled to vote at the Special Meeting. As a result, if you fail to submit a proxy or otherwise vote your shares electronically at the Special Meeting, it will have the same effect as a vote “AGAINST” the Merger Proposal.

You will have the right to receive the Merger consideration if the Merger Proposal is approved and the Merger is completed even if your shares are not voted at the Special Meeting. However, if your shares are not voted at the Special Meeting, it will have the same effect as a vote “AGAINST” the Merger Proposal.

 

Q.

Am I entitled to exercise appraisal rights under the DGCL instead of receiving the Merger consideration for my shares of Common Stock or Preferred Stock?

 

A.

Yes. If you are a record holder of Common Stock or Preferred Stock, you are entitled to exercise appraisal rights under Section 262 of the DGCL in connection with the Merger if you comply with the requirements of Section 262 of the DGCL. For further information, see the section entitled “The Merger Proposal (Proposal 1)—Appraisal Rights,” beginning on page 84 of this proxy statement. In addition, a copy of Section 262 of the DGCL, which details the applicable Delaware appraisal statute, may be accessed without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262.

Failure to strictly comply with all procedures required by Section 262 of the DGCL will result in a loss of your right to appraisal. We encourage you to read these provisions carefully and in their entirety and, in view of their complexity, to promptly consult with your legal and financial advisors if you wish to pursue your appraisal rights in connection with the Merger.

 

Q.

What happens if I sell my shares of Common Stock or Preferred Stock before the completion of the Merger?

 

A.

If you transfer your shares of Common Stock or Preferred Stock before the Merger is completed, you will lose your right to receive the Merger consideration or to exercise appraisal rights. In order to receive the Merger consideration, you must hold your shares of Common Stock or Preferred Stock through the completion of the Merger.

 

Q.

Should I send in my evidence of ownership now?

 

A.

No. After the Merger is completed, if you are a stockholder of record and hold your shares of Common Stock in certificated form or in book-entry form not through The Depository Trust Company (“DTC”), you will receive transmittal materials from the paying agent for the Merger with detailed written instructions for exchanging your shares of Common Stock for the consideration to be paid to Benefitfocus stockholders in connection with the Merger. If you are a stockholder of record and hold your shares of Common Stock in book-entry form through DTC, and only if required by the paying agent, you will receive transmittal materials from the paying agent for the Merger with detailed written instructions for exchanging your shares of Common Stock for the consideration to be paid to Benefitfocus stockholders in connection with the Merger. If you are the beneficial owner of shares of Common Stock held in “street name,” you may receive instructions from your broker, bank or other nominee as to what action, if any, you need to take to effect the surrender of such shares.

 

Q.

What does it mean if I get more than one proxy card or voting instruction card?

 

A.

If your shares are registered differently or are held in more than one account, you will receive more than one proxy card or voting instruction card. Please complete and return all of the proxy cards or voting instruction cards you receive (or submit each of your proxies over the Internet or by telephone) to ensure that all of your shares are voted.

 

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Q.

What is householding and how does it affect me?

 

A.

The SEC’s proxy rules permit companies and intermediaries, such as brokers, to satisfy delivery requirements for proxy statements with respect to two or more stockholders sharing the same address by delivering a single proxy statement to those stockholders. This process, which is commonly referred to as “householding,” provides cost savings for companies. As such, Benefitfocus is sending only one copy of this proxy statement to stockholders who share the same last name and address, unless they have notified Benefitfocus that they want to continue receiving multiple copies.

If you received a household mailing and you would like to have additional copies of this proxy statement mailed to you or you would like to opt out of this practice for future mailings, we will promptly deliver such additional copies to you if you submit your request to Benefitfocus’s Corporate Secretary in writing at Benefitfocus, Inc., Attn: Corporate Secretary, 100 Benefitfocus Way, Charleston, South Carolina 29492, or call us at (843) 849-7476. You may also contact us in the same manner if you received multiple copies of this proxy statement and would prefer to receive a single copy of future mailings.

 

Q.

What will the holders of outstanding Company equity awards receive in the Merger?

 

A.

At the Effective Time, Company Equity Awards outstanding immediately prior to the Effective Time will generally be subject to the following treatment:

 

   

each Company Option to purchase shares of Common Stock granted under the Plan that is outstanding and vested as of immediately prior to the Effective Time will be cancelled, and each holder of such Company Options will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company Option immediately prior to the Effective Time, multiplied by (ii) the excess, if any, of (A) the Per Share Common Stock Merger Consideration over (B) the exercise price per share of Common Stock of such Company Option, less applicable taxes required to be withheld with respect to such payment, provided that any Company Option which has an exercise price equal to or greater than the Per Share Common Stock Merger Consideration will be cancelled at the Effective Time for no consideration;

 

   

each Specified Award that is unvested and outstanding as of immediately prior to the Effective Time will be cancelled, and each holder of such Specified Award will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Specified Award immediately prior to the Effective Time, multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment, provided that with respect to a Specified Award that is a Company Time-Vesting PRSU, the number of shares of Common Stock subject to such Specified Award will be the number of shares of Common Stock earned for the applicable performance period pursuant to the terms of such Company Time-Vesting PRSU;

 

   

each (A) Company RSU that is not a Specified Award (including for the avoidance of doubt, any Company Retention RSUs) and (B) Company Time-Vesting PRSU, in each of (A) and (B), that is outstanding as of immediately prior to the Effective Time, will be assumed by Voya and converted into a Voya RSU covering a number of shares of Voya Common Stock (rounded down to the nearest whole number) equal to the product of (i) the number of shares of Common Stock subject to such Company RSUs immediately prior to the Effective Time multiplied by (ii) the Equity Award Exchange Ratio. Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company RSUs immediately prior to the Effective Time;

 

   

each Company PRSU that is outstanding as of immediately prior to the Effective Time will be assumed by Voya and converted into a Voya RSU covering a number of shares of Voya Common Stock (rounded down to the nearest whole number) equal to the product of (i) the number of shares of Common Stock subject to such Company PRSUs immediately prior to the Effective Time based on

 

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target performance, multiplied by (ii) the Equity Award Exchange Ratio. Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company PRSUs immediately prior to the Effective Time; and

 

   

each Company RSU and Company PRSU that is outstanding as of immediately prior to the Effective Time and held by a non-employee director or consultant of the Company or by any employee who is not a Continuing Employee will be cancelled, and each holder of such Company Equity Award will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company Equity Award immediately prior to the Effective Time (with respect to each Company PRSU based on target performance) multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment.

As promptly as practicable following the date of the Merger Agreement, but in any event prior to the Effective Time, the Company will take all actions necessary or required under the ESPP and applicable laws to ensure that (i) except for the Final Offering, no offering period will be authorized or commenced on or after the date of the Merger Agreement, (ii) the Final Offering will end on the Closing Date, (iii) each ESPP participant’s accumulated contributions under the ESPP will be returned to the participant through the payroll system of the Surviving Corporation, as soon as practicable following the Closing, and (iv) the ESPP will terminate in its entirety at the Effective Time and no further rights will be granted or exercised under the ESPP thereafter.

 

Q.

When will Benefitfocus announce the voting results of the Special Meeting, and where can I find the voting results?

 

A.

Benefitfocus intends to announce the preliminary voting results at the Special Meeting, and will report the final voting results of the Special Meeting in a Current Report on Form 8-K filed with the SEC within four business days after the Special Meeting. All reports that Benefitfocus files with the SEC are publicly available when filed.

 

Q.

Where can I find more information about Benefitfocus?

 

A.

You can find more information about us from various sources described in the section entitled “Where You Can Find More Information,” beginning on page 130 of this proxy statement.

 

Q.

Who can help answer my other questions?

 

A.

If you have questions about the Merger, require assistance in submitting your proxy or voting your shares, or need additional copies of this proxy statement or the enclosed proxy card, please contact Okapi, which is

 

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  acting as the proxy solicitor for Benefitfocus in connection with the Merger, or the Benefitfocus Group Investor Relations Department.

Okapi Partners LLC

1212 Avenue of the Americas, 17th Floor

New York, New York 10036

(212) 297-0720 (Main)

(855) 305-0855 (Toll Free)

info@okapipartners.com

or

Benefitfocus Investor Relations

100 Benefitfocus Way

Charleston, South Carolina 29492

Telephone: (843) 284-1052 (ext. 6441)

Email: ir@benefitfocus.com

If your broker, bank or other nominee holds your shares, you should also call your broker, bank or other nominee for additional information.

 

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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

Certain statements in this communication may constitute “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 (the “Exchange Act”), each as amended. Forward-looking statements are often identified by the use of words such as, but not limited to, “anticipate,” “believe,” “can,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “will,” “plan,” “project,” “seek,” “should,” “target,” “would,” and similar expressions or variations intended to identify forward-looking statements. These statements are based on the beliefs and assumptions of our management based on information currently available to management.

Such forward-looking statements are subject to risks, uncertainties and other important factors that could cause actual results and the timing of certain events to differ materially from future results expressed or implied by such forward-looking statements. Factors that could cause or contribute to such differences include the following: (i) conditions to the completion of the proposed transaction, including stockholder approval of the proposed transaction, might not be satisfied or the regulatory approval required for the proposed transaction might not be obtained on the terms expected or on the anticipated schedule; (ii) the occurrence of any event, change or other circumstance that could give rise to the termination of the Merger Agreement between the parties to the proposed transaction; (iii) the effect of the announcement or pendency of the proposed transaction on the Company’s customers, suppliers, business relationships, operating results and business generally; (iv) the risk that the proposed transaction disrupts the Company’s current plans and operations and the potential difficulties in the Company’s employee retention as a result of the proposed transaction; (v) the risk related to diverting management’s attention from our ongoing business operations; (vi) potential litigation that may be instituted against the Company or its directors or officers related to the proposed transaction or the Merger Agreement between the parties to the proposed transaction; (vii) the amount of the costs, fees, expenses and other charges related to the proposed transaction; (viii) the risk that the proposed transaction will not be consummated in a timely manner; and (ix) such other factors as are set forth in the Company’s periodic public filings with the SEC, including but not limited to those described under the headings “Risk Factors” and “Forward Looking Statements” in its Form 10-K, as amended for the fiscal year ended December 31, 2021 and in its other filings made with the SEC from time to time, which are available via the SEC’s website at www.sec.gov.

The Company’s forward-looking statements speak only as of the date of this communication or as of the date they are made. The Company disclaims any intent or obligation to update any “forward looking statement” made in this communication to reflect changed assumptions, the occurrence of unanticipated events or changes to future operating results over time.

 

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THE PARTIES TO THE MERGER AGREEMENT

Benefitfocus, Inc.

Benefitfocus is an industry-leading, cloud-based benefits administration technology company committed to helping organizations, and the people we serve, get the most out of their healthcare and benefits programs. Through exceptional service and innovative SaaS solutions, Benefitfocus aims to be the safest set of hands for our customers helping to simplify the complexity of benefits administration while delivering an experience that engages people and unlocks the potential for better health and improved outcomes. Benefitfocus’s mission is simple: to improve lives with benefits.

Benefitfocus Common Stock is traded on NASDAQ under the symbol “BNFT.” Benefitfocus’s headquarters are located at 100 Benefitfocus Way, Charleston, South Carolina 29492, and our phone number is (843) 849-7476. Our website address is www.benefitfocus.com.

The information provided on the Benefitfocus website is not part of this proxy statement and is not incorporated in this proxy statement by reference or by any other reference to Benefitfocus’s website provided in this proxy statement.

Additional information about Benefitfocus is contained in our public filings with the SEC, certain of which filings are incorporated by reference herein. For additional information on these filings, see the section entitled “Where You Can Find More Information,” beginning on page 130 of this proxy statement.

Voya Financial, Inc.

Voya is a leading retirement, investment and employee benefits company providing complementary solutions to improve the financial outcomes of approximately 14.3 million customers, workplace participants and institutions in the United States as of December 31, 2021. Voya’s approximately 6,000 employees (as of December 31, 2021) are focused on executing its mission to make a secure financial future possible—one person, one family and one institution at a time. Through Voya’s complementary set of businesses, Voya helps its customers save, grow, protect and enjoy their wealth to and through retirement. Voya offers its products and services through a broad group of financial intermediaries, independent producers, affiliated advisors and dedicated sales specialists throughout the United States.

Voya’s common stock is listed on the New York Stock Exchange under the symbol “VOYA.” The principal executive office of Voya is located at 230 Park Avenue, New York, New York 10169, and its telephone number is 212-309-8200. Voya’s website address is www.voya.com. The information provided on Voya’s website is not part of this proxy statement and is not incorporated in this proxy statement by reference or by any other reference to Voya’s website provided in this proxy statement.

Merger Sub

Merger Sub is a Delaware corporation that was formed solely for the purposes of entering into the Merger Agreement and engaging in the transactions contemplated by the Merger Agreement. Merger Sub is a direct, wholly owned subsidiary of Voya and has not engaged in any business except for activities incidental to its formation and as contemplated by the Merger Agreement. Upon consummation of the Merger, Merger Sub will cease to exist and Benefitfocus will survive the Merger as a wholly owned subsidiary of Voya.

The principal executive office of Merger Sub is located at 230 Park Avenue, New York, New York 10169, and its telephone number is (212) 309-8200.

 

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THE SPECIAL MEETING

This proxy statement is being provided to Benefitfocus stockholders as part of a solicitation by the Board of proxies for use at the Special Meeting, to be held at the time and place specified below, and at any properly convened meeting following an adjournment or postponement of the Special Meeting.

Date, Time and Place

The Special Meeting is scheduled to be held on [●], 202[●] at [●] a.m. Eastern time at our offices located at 215 Benefitfocus Way, Charleston, South Carolina 29492, subject to any adjournments or postponements thereof.

Purpose of the Special Meeting

At the Special Meeting, Benefitfocus stockholders will be asked to consider and vote on the following proposals:

 

   

the Merger Proposal, which is further described in the sections entitled “The Merger Proposal (Proposal 1)” and “The Merger Agreement,” beginning on pages 39 and 90, respectively, of this proxy statement and a copy of the Merger Agreement is attached to this proxy statement as Annex A and is incorporated herein by reference; and

 

   

the Named Executive Officer Merger-Related Compensation Proposal, which is further described in the sections entitled “The Merger Proposal (Proposal 1)—Interests of Benefitfocus’s Executive Officers and Directors in the Merger” and “Advisory Vote On Named Executive Officer Merger-Related Compensation Proposal (Proposal 2),” beginning on pages 76 and 120, respectively, of this proxy statement.

Stockholders may also be asked to transact such other business as may properly be brought before the Special Meeting, or any adjournments or postponements of the Special Meeting, by or at the direction of the Board.

The holders of a majority of the outstanding shares of our Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon at the Special Meeting must vote to adopt the Merger Agreement as a condition to the completion of the Merger. If Benefitfocus stockholders fail to approve the Merger Proposal, the Merger will not occur. The vote on the Named Executive Officer Merger-Related Compensation Proposal is a vote separate and apart from the vote to approve the Merger Proposal. Accordingly, a stockholder may vote to approve the Merger Proposal and vote not to approve the Named Executive Officer Merger-Related Compensation Proposal, and vice versa. Because the vote on the Named Executive Officer Merger-Related Compensation Proposal is only advisory in nature, it will not be binding on Benefitfocus, Voya or the Surviving Corporation. Accordingly, because Benefitfocus is contractually obligated to pay such Merger-related compensation, the compensation will be payable, subject only to the conditions applicable thereto, if the Merger Proposal is approved, regardless of the outcome of the advisory vote.

Other than the matters described above, Benefitfocus does not expect a vote to be taken on any other matters at the Special Meeting or any adjournment or postponement thereof.

Recommendation of the Board

The Board has reviewed and considered the terms and conditions of the proposed Merger. After considering various factors, the Board unanimously (i) approved the Merger Agreement, the Support Agreements, the Merger Agreement and the transactions contemplated by the Merger Agreement, (ii) declared advisable the Merger

 

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Agreement, the Merger and the transactions contemplated by the Merger Agreement, (iii) determined that the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement are fair to, and in the best interests of, Benefitfocus and its stockholders (other than Excluded Shares that are not Dissenting Shares), (iv) resolved to recommend that the Company’s stockholders entitled to vote adopt the Merger Agreement, and (v) directed that the Merger Agreement be submitted to the common stockholders for their adoption. The Board made its determination after considering a number of factors more fully described in the section entitled “The Merger Proposal (Proposal 1)—Recommendation of the Board and Reasons for the Merger,” beginning on page 59 of this proxy statement.

The Board unanimously recommends that Benefitfocus stockholders vote “FOR” the Merger Proposal and “FOR” the Named Executive Officer Merger-Related Compensation Proposal.

Record Date; Stockholders Entitled to Vote

Only holders of record of Common Stock and Preferred Stock at the close of business on [●], 202[●], the Record Date, will be entitled to notice of, and to vote at, the Special Meeting or any adjournments or postponements of the Special Meeting. Holders of record of Common Stock are entitled to one vote for each share of Common Stock they own of record at the close of business on the Record Date. Holders of Preferred Stock are entitled to the number of votes equal to the number of shares of Common Stock into which the shares of Preferred Stock held by such holders would be convertible into (subject to a 19.9% beneficial ownership limitation). The holders of Preferred Stock have the right to vote (on an as-converted basis) together with the holders of Common Stock as a single class for the Merger Proposal and the Named Executive Officer Merger-Related Compensation Proposal. At the close of business on [●], 202[●], [●] shares of Common Stock were issued and outstanding, held by approximately [●] holders of record, and [●] shares of Preferred Stock were issued and outstanding, convertible into [●] shares of Common Stock, held by BG. We expect that a similar figure will be outstanding and entitled to vote at the Special Meeting as of the close of business on the Record Date.

Quorum

Under our bylaws, the presence at the Special Meeting, in person or by proxy, of the holders of record of a majority of the outstanding shares of capital stock entitled to vote at the Special Meeting will constitute a quorum. There must be a quorum for business to be conducted at the Special Meeting.

If you attend the Special Meeting or if you submit (and do not thereafter revoke) a proxy by duly executing and returning a proxy card or by telephone or through the Internet, even if you abstain from voting, your shares of Common Stock and Preferred Stock will be counted for purposes of determining whether a quorum is present at the Special Meeting. In the event that a quorum is not present at the Special Meeting or additional votes must be solicited to adopt the Merger Agreement, the meeting may be adjourned or postponed in order to solicit additional proxies, which may subject Benefitfocus to additional expense.

Required Vote

The proposals to be voted on at the Special Meeting require the following votes:

 

   

Approval of the Merger Proposal requires the affirmative vote of the holders of a majority of the outstanding shares of our Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon at the Special Meeting.

 

   

Approval of the Named Executive Officer Merger-Related Compensation Proposal (on a non-binding basis) requires the affirmative vote of the holders of a majority of the voting power of the Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon that are present in person or represented by proxy at the Special Meeting.

 

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Abstentions and Broker Non-Votes

An abstention occurs when a stockholder attends a meeting, in the case of the Special Meeting either in person or by proxy, but abstains from voting. At the Special Meeting, abstentions will be counted as present for purposes of determining whether a quorum exists. Abstaining from voting will have the same effect as a vote “AGAINST” the Merger Proposal and the Named Executive Officer Merger-Related Compensation Proposal.

If no instruction as to how to vote is given (including no instruction to abstain from voting) in an executed, duly returned and not revoked proxy, the proxy will have the same effect as a vote “FOR” the Merger Proposal and the Named Executive Officer Merger-Related Compensation Proposal.

Broker non-votes are shares held in “street name” by brokers, banks and other nominees that are present or represented by proxy at the Special Meeting, but with respect to which the broker, bank or other nominee is not instructed by the beneficial owner of such shares how to vote on a particular proposal and such broker, bank or other nominee does not have discretionary voting power on such proposal. Because, under applicable stock exchange rules, brokers, banks and other nominees holding shares in “street name” do not have discretionary voting authority with respect to either of the two proposals described in this proxy statement, if a beneficial owner of shares of Common Stock held in “street name” does not give voting instructions to the broker, bank or other nominee, then such shares will not be voted or counted as present in person or by proxy at the Special Meeting. Under applicable stock exchange rules, such shares are not permitted to be voted by the broker, bank or other nominee on either of the two proposals described in this proxy statement. As the vote to approve the Merger Proposal is based on the total number of outstanding shares of our Common Stock and Preferred Stock (voting as a single class with the shares of our Common Stock, on an as-converted basis) entitled to vote thereon at the Special Meeting at the close of business on the Record Date, if you fail to issue voting instructions to your broker, bank or other nominee, it will have the same effect as a vote “AGAINST” the Merger Proposal but will have no effect on the outcome of the Named Executive Officer Merger-Related Compensation Proposal, which is non-binding and, assuming that a quorum exists, requires only the affirmative vote of the holders of a majority of the voting power of the Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon that are present in person or represented by proxy at the Special Meeting.

Failure to Vote Record Shares

If you are a stockholder of record and you do not sign and return your proxy card by mail or vote over the Internet, by telephone or in person during the Special Meeting, your shares will not be voted at the Special Meeting, will not be counted as present in person or by proxy at the Special Meeting and will not be counted as present for purposes of determining whether a quorum exists.

A failure to vote by a stockholder of record will have no effect on the outcome of the Named Executive Officer Merger-Related Compensation Proposal, assuming that a quorum exists, which requires only the affirmative vote of the holders of a majority of the voting power of the Common Stock and Preferred Stock, voting together as a single class (with each share of Preferred Stock voting on an as-converted basis), entitled to vote thereon that are present in person or represented by proxy at the Special Meeting. However, the vote to approve the Merger Proposal is based on the total number of outstanding shares of our Common Stock and Preferred Stock, voting as a single class (with each share of Preferred Stock voting on an as-converted basis) entitled to vote thereon at the Special Meeting at the close of business on the Record Date, not just the shares that are counted as present in person or by proxy at the Special Meeting. As a result, if you fail to vote your shares, it will have the same effect as a vote “AGAINST” the Merger Proposal.

Voting by Benefitfocus’s Directors and Executive Officers

At the close of business on [●], 202[●], directors and executive officers of Benefitfocus were entitled to vote or otherwise beneficially owned [●] shares of Common Stock representing [●]% of the voting power of the

 

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shares of Common Stock and Preferred Stock issued and outstanding on that date. We expect that a similar figure will be outstanding and entitled to vote at the Special Meeting as of the close of business on the Record Date. The directors and executive officers of Benefitfocus intend, as of the date of this proxy statement, to vote their shares of Common Stock and Preferred Stock in favor of the Merger Proposal, although none of Benefitfocus’s directors and executive officers is obligated to do so, except pursuant to the Support Agreements.

Voting at the Special Meeting

If your shares are registered directly in your name with our transfer agent, you are considered a “stockholder of record.” Stockholders of record can vote their shares of Common Stock or Preferred Stock in the following four ways:

 

   

At the Special Meeting—You may vote your shares of Common Stock or Preferred Stock in person at the Special Meeting. If you desire to vote your shares of Common Stock or Preferred Stock in person at the Special Meeting, please request, complete, and submit a ballot prior to or during the time that ballots are collected at the Special Meeting.

 

   

By Internet—You may submit your proxy by going to the website shown on your proxy card and by following the instructions on how to complete an electronic proxy card. You will need the 16-digit number included on your proxy card or the instructions that accompanied your proxy materials in order to vote by Internet. Internet facilities for the submission of a proxy to vote shares will be available 24 hours a day and will close at 11:59 p.m. Eastern time on [●], 202[●].

 

   

By Telephone—You may submit your proxy by dialing the toll-free number shown on your proxy card and by following the recorded instructions. You will need the 16-digit number included on your proxy card or the instructions that accompanied your proxy materials in order to vote by telephone. Telephone facilities for the submission of a proxy to vote shares will be available 24 hours a day and will close at 11:59 p.m. Eastern time on [●], 202[●].

 

   

By Mail—You may vote by mail by indicating your vote by completing, signing and dating the proxy card where indicated and by mailing or otherwise returning the card in the envelope that will be provided to you. You should sign your name exactly as it appears on the proxy card. If you are signing in a representative capacity (for example, as guardian, executor, trustee, custodian, attorney or officer of a corporation), indicate your name and title or capacity. Proxy cards mailed with respect to shares held by stockholders of record or held in “street name” must be received no later than [●], 202[●] in order to be counted in the vote.

If your shares are held in the name of a bank, broker or other holder of record (also known as “street name”), you have the right to direct your bank, broker or other nominee on how to vote your shares by using the voting instruction form provided to you by them, or by following their instructions for voting through the internet or by telephone. In the alternative, you may vote at the Special Meeting if you obtain a legal proxy from your bank, broker or other nominee and present it at the Special Meeting. In order for your shares to be voted on all matters presented at the Special Meeting, we urge all stockholders whose shares are held in street name by a bank, brokerage firm or other nominee to provide voting instructions to such record holder.

Regardless of the method you choose to submit a proxy, the individuals named on the enclosed proxy card will vote your shares of Common Stock or Preferred Stock as you instruct. When completing the Internet or telephone processes or the proxy card, you may specify whether your shares of Common Stock or Preferred Stock should be voted “FOR” or “AGAINST,” or to “ABSTAIN” from voting on, all, some or none of the specific items of business to come before the Special Meeting, including the Merger Proposal and the Named Executive Officer Merger-Related Compensation Proposal.

If you properly sign your proxy card but do not mark the boxes indicating how your shares of Common Stock or Preferred Stock should be voted on any particular matter, the shares of Common Stock or Preferred

 

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Stock represented by your properly signed proxy will be voted as recommended by the Board, which means your shares of Common Stock or Preferred Stock will be voted “FOR” the Merger Proposal and “FOR” the Named Executive Officer Merger-Related Compensation Proposal.

Stockholders who are entitled to vote at the Special Meeting may attend the Special Meeting. If you wish to attend the Special Meeting, you must bring photo identification. Please also bring to the Special Meeting your account statement evidencing your beneficial ownership of Common Stock or Preferred Stock as of the Record Date. Even if you plan to attend the Special Meeting, you are strongly encouraged to vote your shares by proxy.

Revocation of Proxies

You can change or revoke your proxy at any time before the final vote at the Special Meeting. If you are the stockholder of record, you may change or revoke your proxy by:

 

   

submitting a later dated proxy (including a proxy submitted through the internet at www.proxyvote.com, by telephone or by proxy card);

 

   

notifying Benefitfocus’s Corporate Secretary at Benefitfocus, Inc., Attn: Corporate Secretary, 100 Benefitfocus Way, Charleston, South Carolina 29492 that you are revoking your proxy; or

 

   

voting in person at the Special Meeting.

If you are a beneficial owner of Common Stock or Preferred Stock held by a bank, broker or other nominee, you will need to contact the bank, broker or other nominee to revoke your proxy.

Solicitation of Proxies

The Board is soliciting your proxy, and Benefitfocus will bear the cost of soliciting proxies. Benefitfocus has engaged Okapi to assist with the solicitation of proxies. Okapi will be paid approximately $25,000. Benefitfocus will reimburse Okapi for reasonable out-of-pocket expenses and will indemnify Okapi and its affiliates against certain claims, liabilities, losses, damages and expenses. Solicitation initially will be made by mail. Forms of proxies and proxy materials may also be distributed through brokers, banks and other nominees to the beneficial owners of shares of Common Stock or Preferred Stock, in which case these parties will be reimbursed for their reasonable out-of-pocket expenses. Proxies may also be solicited in person or by telephone, facsimile, electronic mail, or other electronic medium by Okapi or, without additional compensation, by certain of Benefitfocus’s directors, officers and employees.

Adjournment

Although it is not currently expected, the Special Meeting may be adjourned or postponed for the purpose of soliciting additional proxies if there are insufficient votes at the time of the Special Meeting to approve the proposal to adopt the Merger Agreement or if a quorum is not present at the Special Meeting. Pursuant to the Company’s bylaws, approval of the adjournment of the Special Meeting does not require a vote of the holders of the Company capital stock entitled to vote. Any meeting of stockholders may be adjourned from time-to-time to any other time and to any other place at which a meeting of stockholders may be held under our bylaws by the chairman of the Board or the chairman’s delegate, subject to certain limitations on the Company’s ability to adjourn or postpone the Special Meeting set forth in the Merger Agreement.

Other Information

You should not send documents representing Common Stock or Preferred Stock with the proxy card. If the Merger is completed, the paying agent for the Merger will send you transmittal materials and instructions for exchanging your shares of Common Stock for the consideration to be paid to Benefitfocus stockholders in connection with the Merger.

 

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Questions

If you have more questions about the Merger or how to submit your proxy, or if you need additional copies of this proxy statement or the enclosed proxy card or voting instructions, please contact Okapi Partners LLC, our proxy solicitor, by calling (212) 297-0720, or toll-free at (855) 305-0855, or via email at info@okapipartners.com.

 

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THE MERGER PROPOSAL

(PROPOSAL 1)

The discussion of the Merger in this proxy statement is qualified in its entirety by reference to the Merger Agreement, a copy of which is attached to this proxy statement as Annex A and hereby is incorporated by reference into this proxy statement.

Structure of the Merger

Upon the terms and subject to the conditions of the Merger Agreement and in accordance with the DGCL, at the Effective Time, Merger Sub will merge with and into Benefitfocus, the separate corporate existence of Merger Sub will cease, and Benefitfocus will continue as the Surviving Corporation and a wholly owned subsidiary of Voya, and the separate corporate existence of Benefitfocus will continue unaffected by the Merger. The Merger will have the effects set forth in the Merger Agreement and the relevant provisions of the DGCL.

Merger Consideration

Upon the terms and subject to the conditions of the Merger Agreement, at the Effective Time, each Eligible Common Share will be automatically cancelled and will cease to exist, and each holder of such Eligible Common Shares will cease to have any rights with respect thereto, except the right to receive an amount in cash, without interest and subject to any applicable withholding taxes, equal to the Per Share Common Stock Merger Consideration. Upon the terms and subject to the conditions of the Merger Agreement, at the Effective Time, each Eligible Preferred Share, as defined below in the section entitled “The Merger Agreement—Effect of the Merger on Common Stock and Preferred Stock,” beginning on page 91 of this proxy statement, issued and outstanding immediately prior to the Effective Time, will be automatically cancelled and will cease to exist, and each holder of Eligible Preferred Shares will cease to have any rights with respect thereto, except the right to receive an amount in cash, without interest, equal to the Per Share Preferred Stock Merger Consideration.

Treatment of Company Equity Awards

At the Effective Time, Company Equity Awards outstanding immediately prior to the Effective Time will generally be subject to the following treatment:

 

   

each Company Option to purchase shares of Common Stock granted under the Plan that is outstanding and vested as of immediately prior to the Effective Time will be cancelled, and each holder of such Company Options will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company Option immediately prior to the Effective Time, multiplied by (ii) the excess, if any, of (A) the Per Share Common Stock Merger Consideration over (B) the exercise price per share of Common Stock of such Company Option, less applicable taxes required to be withheld with respect to such payment, provided that any Company Option which has an exercise price equal to or greater than the Per Share Common Stock Merger Consideration will be cancelled at the Effective Time for no consideration;

 

   

each Specified Award that is unvested and outstanding as of immediately prior to the Effective Time will be cancelled, and each holder of such Specified Award will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Specified Award immediately prior to the Effective Time, multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment, provided that with respect to a Specified Award that is a Company Time-Vesting PRSU, the number of shares of Common Stock subject to such Specified Award will be the number of shares of Common Stock earned for the applicable performance period pursuant to the terms of such Company Time-Vesting PRSU;

 

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each (A) Company RSU that is not a Specified Award (including for the avoidance of doubt, any Company Retention RSUs) and (B) Company Time-Vesting PRSU, in each of (A) and (B) that is outstanding as of immediately prior to the Effective Time, will be assumed by Voya and converted into a Voya RSU covering a number of shares of Voya Common Stock (rounded down to the nearest whole number) equal to the product of (i) the number of shares of Common Stock subject to such Company RSUs immediately prior to the Effective Time, multiplied by (ii) the Equity Award Exchange Ratio. Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company RSUs immediately prior to the Effective Time;

 

   

each Company PRSU that is outstanding as of immediately prior to the Effective Time will be assumed by Voya and converted into a Voya RSU covering a number of shares of Voya Common Stock (rounded down to the nearest whole number) equal to the product of (i) the number of shares of Common Stock subject to such Company PRSUs immediately prior to the Effective Time based on target performance, multiplied by (ii) the Equity Award Exchange Ratio. Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company PRSUs immediately prior to the Effective Time; and

 

   

each Company RSU and Company PRSU that is outstanding as of immediately prior to the Effective Time and held by a non-employee director or consultant of the Company or by any employee who is not a Continuing Employee will be cancelled, and each holder of such Company Equity Award will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company Equity Award immediately prior to the Effective Time, (with respect to each Company PRSU, based on target performance) multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment.

As promptly as practicable following the date of the Merger Agreement, but in any event prior to the Effective Time, the Company will take all actions necessary or required under the ESPP and applicable laws to ensure that (i) except for the Final Offering, no offering period will be authorized or commenced on or after the date of the Merger Agreement, (ii) the Final Offering will end on the Closing Date, (iii) each ESPP participant’s accumulated contributions under the ESPP will be returned to the participant through the payroll system of the Surviving Corporation, as soon as practicable following the Closing, and (iv) the ESPP will terminate in its entirety at the Effective Time and no further rights will be granted or exercised under the ESPP thereafter.

Effects on Benefitfocus If the Merger Is Not Completed

If the Merger Proposal is not approved by Benefitfocus stockholders or if the Merger is not completed for any other reason, Benefitfocus stockholders will not receive any payment for their shares in connection with the Merger. Instead, Benefitfocus will remain an independent public company, our shares of Common Stock will continue to be listed and traded on NASDAQ and we will continue to file periodic reports, current reports and proxy and information statements with the SEC. In addition, if the Merger is not completed, Benefitfocus expects that management will operate Benefitfocus’s business in a manner similar to that in which it is being operated today and that Benefitfocus stockholders will continue to be subject to the same risks and opportunities to which they are currently subject, including, without limitation, risks related to the competitive industry in which Benefitfocus operates and adverse economic conditions.

Furthermore, if the Merger is not completed, and depending on the circumstances that would have caused the Merger not to be completed, it is likely that the price of Common Stock will decline significantly. If that were to occur, it is uncertain when, if ever, the price of Common Stock would return to the price at which it trades as of the date of this proxy statement.

Accordingly, if the Merger is not completed, there can be no assurance as to the effect of these risks and opportunities on the future value of your shares of Common Stock or Preferred Stock. If the Merger is not

 

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completed, the Board will continue to evaluate and review Benefitfocus’s business operations, properties and capitalization, among other things, make such changes as are deemed appropriate, and continue to seek to identify strategic alternatives to enhance stockholder value. If the Merger Proposal is not approved by Benefitfocus stockholders or if the Merger is not completed for any other reason, there can be no assurance that any other transaction acceptable to Benefitfocus will be offered or that Benefitfocus’s business, prospects or results of operation will not be adversely impacted.

Further, upon termination of the Merger Agreement, under certain specified circumstances, Benefitfocus may be required to pay a termination fee of $14.0 million to Voya pursuant to the terms and conditions of the Merger Agreement. For a discussion of the circumstances under which Benefitfocus will be required to pay a termination fee, see the section entitled “The Merger Agreement—Termination Fee,” beginning on page 116 of this proxy statement.

Background of the Merger

The following is a summary of events, meetings and discussions that are relevant to the decision of the Board to approve the Merger Agreement and recommend that Benefitfocus’s stockholders adopt the Merger Agreement.

The Board, together with management, regularly reviews and assesses Benefitfocus’s business, strategies and objectives and evaluates strategic opportunities and alternatives available to Benefitfocus to enhance and maximize stockholder value, including acquisitions, dispositions, other business combinations, partnerships and other strategic transactions. These reviews have included discussions as to whether the continued execution of Benefitfocus’s strategy as a standalone company, potential strategic acquisitions or other transactions, or a possible sale of Benefitfocus to a third party offered the best avenue to maximize stockholder value, and the potential benefits and risks of any such course of action. These regular reviews and assessments have been an important aspect of Benefitfocus’s history.

Beginning in the late fall of 2020 and continuing through the spring of 2021, Benefitfocus’s management received input from, and held lengthy discussions with, certain stockholders regarding corporate strategy and potential growth opportunities for Benefitfocus. On December 14, 2020, Benefitfocus received a letter (the “December Letter”) from Indaba suggesting, among other things, that Benefitfocus explore strategic alternatives and add representatives from Indaba to the Board. The Board met on December 15, 2020, with representatives of Wyrick Robbins Yates & Ponton LLP (“Wyrick”), outside counsel to Benefitfocus, in attendance to discuss potential responses to the December Letter, as well as the engagement of outside advisors to advise on a potential proxy contest. Also on December 15, 2020, Indaba filed a Schedule 13D disclosing that Indaba then held 7.5% of Benefitfocus’s outstanding Common Stock.

The Board met on December 16, 2020 and December 23, 2020 and established a working group composed of certain directors to oversee the development of a response to the December Letter with the assistance of Benefitfocus’s outside advisors. The Board also discussed the Company’s standalone plans and alternatives and whether initiating a formal process to consider strategic alternatives was in the best interests of Benefitfocus and its stockholders. Following a detailed discussion, the Board directed management and its outside advisors to conduct an assessment of these topics and to engage in discussions with Indaba. The Board met several times during the first quarter of 2021 to consider these matters.

On February 11, 2021, Indaba issued a public letter (the “February Letter”) responding to certain Board and governance changes that the Board undertook in the period following the December Letter. The February Letter contended that mismanagement of Benefitfocus had resulted in poor performance for Benefitfocus’s stockholders and that additional Board and governance changes were warranted in light of this performance. Among other things, the February Letter demanded that the Board (i) be refreshed with additional independent directors and (ii) establish a special committee to conduct a review of strategic alternatives, including a potential sale of Benefitfocus.

 

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Throughout March and April of 2021, the Board met multiple times with representatives of management and its advisors to discuss the situation with Indaba, including the potential to consider a settlement with Indaba, as well as a potential strategic alternatives process with respect to Benefitfocus.

In March of 2021, Indaba formally nominated two director candidates for election at the 2021 annual meeting of stockholders (the “2021 Annual Meeting”). Over the ensuing months, Benefitfocus discussed with Indaba a potential resolution of the concerns raised by Indaba, but these discussions concluded without agreement. Following the Company’s announcement that an additional independent director, unrelated to Indaba, would be nominated for election by holders of Common Stock at the 2021 Annual Meeting, Indaba issued another public letter on May 13, 2021, indicating that Indaba would not proceed with nominating candidates to run for election to the Board in 2021 but would continue to engage with Benefitfocus.

Also during this time, the Board appointed Matthew Levin as the President and Chief Executive Officer of Benefitfocus, which was announced on May 4, 2021. Mr. Levin was selected based upon his extensive experience in the benefits administration, health insurance and healthcare technology industries, as well as his distinguished track record of executing innovative growth strategies for leading companies.

During the latter half of 2021, Benefitfocus’s management team worked to formulate and execute new corporate strategies to drive growth and create value for Benefitfocus’s stockholders, which included, among other things, working to strengthen core technology solutions, improve service levels, expand Benefitfocus’s customer base through improved distribution, develop its network of strategic partners and extend its suite of applications and technology capabilities (these new corporate strategies, the “Turn-Around Plan”). Also during this time, Benefitfocus continued to be in dialogue with Indaba regarding the ongoing strategy and operations of Benefitfocus.

On February 4, 2022, a representative of a financial buyer referred to as “Sponsor A” contacted Mr. Levin by telephone to deliver an unsolicited, non-binding indication of interest, which was confirmed in writing promptly following that call (the “February 4 Sponsor A IOI”). The February 4 Sponsor A IOI indicated that Sponsor A at that time owned approximately 4.4% of the outstanding Common Stock and expressed a potential interest in acquiring all other outstanding shares of Common Stock for a purchase price between $14.00 and $14.50 per share in cash, which, at the midpoint of that range, represented a 39% premium over the February 3, 2022 closing price of Benefitfocus’s Common Stock. The February 4 Sponsor A IOI detailed areas of diligence Sponsor A desired before discussing definitive agreements in connection with a transaction, including Benefitfocus’s bookings and revenue, cost structure and technology platforms. The February 4 Sponsor A IOI was promptly distributed to the Board for consideration.

The Board met on February 9, 2022, with representatives of management, Sullivan & Cromwell LLP (“S&C”), outside mergers and acquisitions counsel to Benefitfocus, Wyrick and certain other advisors of Benefitfocus in attendance to discuss the February 4 Sponsor A IOI and other potential strategic alternatives, including (1) a potential transaction in which Benefitfocus would acquire or be combined with a complementary business (referred to as “Business A”) that Benefitfocus believed might be put up for sale later in the year by a strategic seller in a transaction involving third-party financing (referred to as “Strategic Seller A”) (outreach and negotiation regarding such potential transaction, including such transaction involving Sponsor A, the “Strategic Seller A Process”) and (2) a potential sale of Benefitfocus (outreach and negotiation regarding such potential transaction, the “Strategic Alternatives Process”). The Board also discussed with its advisors a recent oral outreach to Mr. Levin by a financial buyer referred to as “Sponsor B” related to Sponsor B’s desire to explore a potential transaction with the Company. Following a detailed discussion, the Board expanded the responsibility of a subcommittee of the Board established in late 2021 to oversee strategic transactions involving Benefitfocus (the “Special Transaction Committee”) to encompass overseeing management’s evaluation of a potential transaction with Sponsor A as well as the Strategic Seller A Process and the Strategic Alternatives Process.

The Board then discussed with its advisors the form, operation and potential desirability of a stockholder rights plan, which the Board could elect to deploy at some future date if determined appropriate at the time. The

 

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Board also directed management to focus on preparing an updated long-range plan for the Board to use as a reference point to evaluate the merits of the February 4 Sponsor A IOI, as well as to prepare for Benefitfocus’s next earnings call, which was scheduled for early March 2022. The Board determined to postpone responding to Sponsor A regarding the February 4 Sponsor A IOI until the Board had an opportunity to consider the updated long-range plan and the Company’s first quarter 2022 results.

During February 2022, management worked on updating Benefitfocus’s long-range plan, which the Board approved that month (the “February LRP”) and on preparing for Benefitfocus’s first quarter 2022 earnings call. During this time period, management communicated intermittently with representatives of Sponsor A to advise them that Benefitfocus was considering their proposal and expected to respond to them after the first quarter 2022 earnings call.

The Board met on March 4, 2022, with representatives of management, S&C, Wyrick, Barclays and other advisors also in attendance. Representatives of management updated the Board on recent communications with Sponsor A. Representatives of Barclays then provided a preliminary perspective on Benefitfocus’s valuation based on the February LRP and how the valuation implied by the execution of Benefitfocus’s February LRP compared to the $14.00 to $14.50 indicative price range set forth in the February 4 Sponsor A IOI. Representatives of Barclays noted that assuming successful achievement of the results projected in the February LRP, and taking into account Benefitfocus’s cost of capital based on assumptions about then-current market conditions, among other things, a discounted cash flow analysis of Benefitfocus implied values in excess of Sponsor A’s proposal. The Board then discussed the risks and uncertainties in the February LRP and the Turn-Around Plan. Detailed discussion followed with a focus on Benefitfocus’s potential valuation, the possibility of stockholder activist campaigns in 2022, Sponsor A’s transaction experience, the fact that Sponsor A’s proposal was not informed by any diligence and did not indicate that Sponsor A had secured any financing, the Board’s desire to allow the Strategic Seller A Process and the Strategic Alternatives Process to unfold and the potential for management distraction and leaks during an important sales cycle then underway. The Board concluded, based upon the matters discussed at the meeting, that Sponsor A’s proposal was not reasonably certain of being completed and undervalued Benefitfocus relative to its potential standalone value based upon the February LRP. The Board also discussed the Strategic Seller A Process, noting that any such transaction would be challenging to structure and finance but could generate meaningful synergies. The Board then directed Barclays to inform Sponsor A that the price proposed by Sponsor A in the February 4 Sponsor A IOI was inadequate.

Later during the meeting, the Board approved Benefitfocus entering into an engagement letter with Barclays in which Barclays agreed to provide financial advisory services to Benefitfocus. Barclays was selected based on its qualifications, expertise, reputation and knowledge of Benefitfocus’s business and the industry in which Benefitfocus operates. For additional information on the engagement of Barclays as financial advisor, see the section entitled “The Merger Proposal (Proposal 1)—Opinion of Benefitfocus’s Financial Advisor—General,” beginning on page 75 of this proxy statement.

Following the March 4, 2022 Board meeting, representatives of Barclays met with Sponsor A and conveyed the Board’s conclusion that their proposal was inadequate. Sponsor A indicated that it would need to conduct due diligence to further refine its valuation of Benefitfocus.

On March 11, 2022, Mr. Levin updated the Board via email regarding the latest discussions with Sponsor A. Later that same day, Barclays spoke with Sponsor A’s financial advisor regarding what due diligence information Sponsor A required in order to improve its proposed price from the February 4 Sponsor A IOI.

On March 15, 2022, Benefitfocus received a letter from Indaba requesting a copy of Benefitfocus’s director questionnaire and other materials contemplated by its advance notice by-law provisions, suggesting that Indaba was planning to nominate a candidate for election as a director at the Company’s 2022 annual stockholder meeting. On March 22, 2022, Indaba filed a Schedule 13D disclosing that Indaba then held 11.3% of Benefitfocus’s outstanding Common Stock.

 

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On March 21, 2022, representatives of management met with Indaba and Indaba asked Benefitfocus to announce a process to sell Benefitfocus and to appoint one of Indaba’s principals, Alex Lerner, to the Board. Indaba indicated that it would consider conducting a proxy contest if Benefitfocus did not begin a sales process.

On March 23, 2022, one of Benefitfocus’s other significant stockholders met with management and expressed an interest in the Board conducting an evaluation of strategic alternatives for Benefitfocus following the selling season, which commenced on January 1, 2022 and was expected to be substantially complete by early September 2022.

The Board met on March 24, 2022 to discuss Indaba’s outreach. The Board reached consensus that the Board should discuss with Indaba a potential settlement by which Mr. Lerner would join the Board in order to avoid a proxy contest that could be highly disruptive during Benefitfocus’s selling season. At this meeting, Lanham Napier, a director designated by BG (which, at that time, held approximately 13.7% of the as-converted voting power of Benefitfocus’s outstanding capital stock) and elected by the holder of a majority of the outstanding Preferred Stock, informed the Board that the addition of Mr. Lerner would likely prompt the Board to focus its attentions on pursuing the Strategic Alternatives Process and that, from his perspective, further exploring the Strategic Alternatives Process would be sensible. The Board concluded that any Strategic Alternatives Process should be continued on a limited basis prior to the completion of the Company’s selling season to reduce the risk of leaks and disruption during the selling season.

Also on March 24, 2022, Mr. Levin met with Derek Schrier, Managing Partner and Chief Investment Officer of Indaba, and Mr. Lerner to discuss a potential settlement with Indaba. Following that meeting, on March 25, 2022, Mr. Lerner sent Mr. Levin an email setting forth a framework for a potential settlement with Indaba that included, among other things, that Mr. Lerner would chair a strategic planning committee that would be formed to assess value creation opportunities for Benefitfocus, including to explore strategic alternatives.

On March 25, 2022, Benefitfocus and Sponsor A executed a confidentiality agreement (the “Sponsor A Confidentiality Agreement”) allowing Sponsor A to access certain non-public diligence materials regarding Benefitfocus in order to facilitate an improvement in its proposed terms of a possible transaction. The Sponsor A Confidentiality Agreement, and the other confidentiality agreements executed by Benefitfocus with other parties, provided for automatic termination of the standstills contained therein upon Benefitfocus’s entry into a definitive written agreement for the sale of Benefitfocus. Following the signing of the Sponsor A Confidentiality Agreement on March 25, 2022, representatives of Sponsor A engaged in multiple diligence sessions with representatives of management.

On March 27, 2022, the Board met to discuss the potential settlement with Indaba. At this meeting, the Board also discussed a term sheet that representatives of BG delivered to Benefitfocus in advance of the meeting, which provided in part that BG would agree to waive its “right to designate a third director in the event the [Board] is expanded to ten (10) directors” granted under the Certificate of Designations for a specified period of time and “to take all necessary action to cause the size of the Board to be increased to ten (10) directors and to vote in favor of appointing Mr. Lerner (or such other person designated by Indaba) to the Board,” in exchange for certain amendments to the terms of the Preferred Stock, including improvements in the economics thereof. At the meeting, Mr. Napier and Zeynep Young, the other director designated by BG and elected by the holders of a majority of the outstanding Preferred Stock, recused themselves from the discussion of BG’s term sheet. Following their recusal, the Board determined that the Board would not be amenable to amending the terms of the Preferred Stock and given that another member of the Board, Francis Pelzer V, was planning to retire following Benefitfocus’s 2022 annual meeting of stockholders, it would be preferable for Mr. Pelzer to retire now instead, creating a vacancy on the Board such that Mr. Lerner could be appointed without expanding the Board and without requiring BG to waive any of its rights. The Board also discussed the possibility of Mr. Pelzer remaining available to Benefitfocus as a compensated consultant (which would extend the exercisability of his previously granted stock options) in the event that he retired from the Board earlier than planned. Later that day, a representative of S&C contacted a representative of Shearman & Sterling LLP (“Shearman”), BG’s outside

 

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counsel, to convey the Board’s decision in connection with the potential settlement with Indaba, at the conclusion of which conversation the representative of Shearman confirmed that, because BG was not being asked to waive any of its rights in relation to or otherwise consent to the potential settlement with Indaba, BG would not seek changes to the terms of the Preferred Stock.

On March 30, 2022, representatives of Barclays contacted representatives of the financial advisor to Sponsor A to discuss the ongoing due diligence requests of Sponsor A following the March 28, 2022 meeting between representatives of management and Sponsor A.

The Board met on March 30, 2022 and March 31, 2022, with representatives of management, Barclays, S&C, Wyrick and certain other advisors in attendance to discuss the latest discussions and negotiations with Indaba regarding a potential settlement agreement, the risks and likelihood of a proxy contest, recent discussions with Sponsor A and the latest discussions regarding the Strategic Seller A Process. Detailed discussions ensued, at the conclusion of which the Board gave management and Benefitfocus’s advisors directions as to next steps, timing and process. The Board also discussed and approved a proposal for Mr. Pelzer to provide consulting services to Benefitfocus through December 31, 2022, consistent with the Board’s discussion on March 27, 2022.

On April 3, 2022, the Board met and discussed the proposed terms of a cooperation agreement with Indaba (the “Cooperation Agreement”). Following a discussion, the Board authorized Benefitfocus to enter into the Cooperation Agreement and authorized the reconstitution of the Special Transaction Committee into the Strategy and Finance Committee (“SFC”), to which Mr. Lerner would be appointed as co-chair alongside John Park, a current member of the Board, and J. Bradley Wilson, another current member of the Board and the third member of the SFC, effective upon the execution of the Cooperation Agreement. The Board also discussed that the SFC would have responsibility for overseeing Benefitfocus’s evaluation of potential inorganic strategic alternatives, including the Strategic Seller A Process and Strategic Alternatives Process, including with respect to Sponsor A, and would provide the Board with periodic updates on these processes. Douglas Dennerline, the Chairman of the Board, voluntarily stepped down from the SFC at the same time that Mr. Lerner was appointed as co-chair of the SFC. Following the addition of Mr. Lerner and the departure of Mr. Dennerline, the size of the SFC remained at three directors.

On April 4, 2022, Benefitfocus entered into the Cooperation Agreement with Indaba, which at the time owned approximately 11.8% of the Common Stock, pursuant to which Benefitfocus agreed to, among other things, appoint Mr. Lerner to the Board and to include Mr. Lerner on the recommended slate of nominees for election at Benefitfocus’s 2022 annual meeting of stockholders. The Cooperation Agreement also included certain provisions regarding voting and standstill restrictions, which automatically terminated upon Benefitfocus consummating a change of control transaction, which includes the consummation of the Merger. The standstill provisions also allowed for Indaba to communicate privately with the Board and with management regarding any relevant corporate matters. For additional information on the Cooperation Agreement in the public filings that Benefitfocus makes with the SEC, see the section entitled “Where You Can Find More Information” beginning on page 130 of this proxy statement. Also on April 4, 2022, Mr. Pelzer notified the Board of his retirement, effective immediately. Mr. Pelzer’s decision to retire was not related to any disagreement with Benefitfocus or any matter relating to Benefitfocus’s operations, policies or practices. Following the addition of Mr. Lerner and the departure of Mr. Pelzer, the size of the Board remained at nine directors.

Starting in mid-April 2022 until the execution of the Merger Agreement, the SFC met on a regular (and sometimes weekly) basis to discuss the Strategic Seller A Process and Strategic Alternatives Process. Among other matters, with respect to the Strategic Alternatives Process, the SFC considered whether to conduct a broad or narrow sale process; whether to invite both financial and strategic buyers into the process; how to identify and prioritize various potential bidders; how to structure the process; whether to conduct any pre-marketing, and the timing of the process relative to key dates like Benefitfocus’s Investor Day planned for May 2022, selling season and discussions with Sponsor A. At the invitation of the SFC, representatives of Barclays and S&C participated in the SFC’s meetings from time to time.

 

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At the SFC’s direction, beginning in April 2022, Barclays reached out to parties potentially interested in a strategic transaction with Benefitfocus. Between April and October 2022, representatives of Barclays contacted 10 strategic buyers (including Voya and the strategic party referred to as “Strategic Party A”) and 17 financial buyers (including Sponsor A, Sponsor B and the financial buyers referred to as “Sponsor C,” “Sponsor D” and “Sponsor E”) regarding the Strategic Seller A Process and the Strategic Alternatives Process. Of the parties contacted, six of the strategic buyers and one financial buyer declined to participate in the process. During this period, Benefitfocus negotiated confidentiality agreements with potential counterparties and ultimately entered into confidentiality agreements with four strategic buyers and 16 financial buyers, including Voya, Strategic Party A, Sponsor A, Sponsor B, Sponsor C, Sponsor D and Sponsor E, although one of the financial buyers declined to participate further in the process after signing a confidentiality agreement and another financial buyer was not able to hold calls with management due to timing constraints. During this period, 18 potential buyers that entered into confidentiality agreements held calls with management and received access to additional due diligence materials.

On April 13, 2022, representatives of management met with representatives of Sponsor A to discuss questions regarding the February LRP and other diligence matters.

On April 25, 2022, Benefitfocus entered into a confidentiality agreement with Sponsor B.

On May 13, 2022, Sponsor A sent an updated written, non-binding indication of interest (the “May 13 Sponsor A IOI”) to Mr. Dennerline, proposing to acquire all outstanding shares of Common Stock for a purchase price of $14.25 per share in cash, which represented a 75% premium over the May 12, 2022 closing price of Benefitfocus’s Common Stock. The May 13 Sponsor A IOI did not include any committed equity or debt financing but Sponsor A indicated confidence in its ability to obtain financing from its current fund and select lenders. The May 13 Sponsor A IOI also requested exclusivity and approximately four weeks to complete due diligence and negotiate transaction documents. The May 13 Sponsor A IOI was promptly distributed to the Board for consideration.

On May 17, 2022, the Board met with representatives of management, Barclays, S&C and Wyrick to review the May 13 Sponsor A IOI and discuss any updates on the Strategic Seller A Process. Representatives of management also updated the Board on the terms of the May 13 Sponsor A IOI and the latest discussions between management and Sponsor A, as well as conversations with other potential counterparties and financing sources with respect to the Strategic Alternatives Process and the Strategic Seller A Process. The Board then discussed with management and its outside advisors the state of the financial markets, Benefitfocus’s business, preliminary views on valuation and potential strategic alternatives. The Board considered that Sponsor A’s proposal remained subject to financing uncertainty, and that, given the uncertainty in the markets, Benefitfocus should continue to focus on getting through its selling season, allow time to make more progress with its Turn-Around Plan, give market conditions time to improve, allow the Strategic Seller A Process time to play out and take time to reach out to other potentially interested counterparties to create some competitive tension with Sponsor A’s proposal in the May 13 Sponsor A IOI. After further discussion, the Board determined to decline the May 13 Sponsor A IOI at the proposed price at that time and directed management and Barclays to continue discussions with all potential transaction counterparties and financing sources.

On June 8, 2022 and June 9, 2022, the Board met with representatives of management, Barclays, S&C, Wyrick and certain other advisors in attendance. Representatives of management and Barclays provided an update to the Board on the Strategic Seller A Process and continuing discussions with Sponsor A, which was followed by a discussion regarding preliminary views on Benefitfocus’s valuation, feedback from potential transaction counterparties, timing of a potential strategic transaction and the availability of debt financing given the current state of the financing markets, all in the context of advice from S&C and Wyrick regarding the Board’s fiduciary duties. The Board directed management to work with Barclays to continue discussions with financial sponsors that could act as potential financing sources in connection with the Strategic Seller A Process but not to move forward with a broad Strategic Alternatives Process to solicit interest in Benefitfocus on a

 

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standalone basis until closer to the completion of selling season. The Board discussed that the likely structure of a transaction from the Strategic Seller A Process would result in a take-private of Benefitfocus and, therefore, should be evaluated in comparison to other potential transactions involving a change of control of Benefitfocus, such as a transaction resulting from the Strategic Alternatives Process, to assess which potential transaction would yield the highest value for Benefitfocus’s stockholders. While the Board was not actively pursuing a standalone sale of Benefitfocus at this time, the Board considered information relating to the valuation of Benefitfocus on a standalone basis and on a combined basis with Business A gathered from the Strategic Seller A Process to be informative as the Board continued to consider potential strategic alternatives for Benefitfocus, including the Strategic Alternatives Process.

On June 13, 2022, representatives of management met with one of Benefitfocus’s stockholders (not the same stockholder from March 23, 2022), who conveyed that Benefitfocus should run a sale process and that a reasonable clearing price for a sale of the Company would be a price in excess of $12.00 per share of Common Stock.

On June 22, 2022, a research analyst covering Benefitfocus published a report downgrading Benefitfocus from “Overweight” to “Neutral” and reducing the price target from $16.00 per share of Common Stock to $9.00 per share of Common Stock. One of Benefitfocus’s stockholders (not the same stockholder from March 23, 2022 or June 13, 2022) forwarded the report to representatives of management and stated that the report reinforced “the importance of [Benefitfocus] expeditiously pursuing strategies to maximize stockholder value into the seasonally strong period of your business.”

On July 18, 2022, representatives of Sponsor C indicated to Barclays that Sponsor C was interested in a potential transaction in which Sponsor C would simultaneously acquire and combine both Benefitfocus and Business A.

On July 19, 2022, representatives of Barclays met with representatives of Voya for the purpose of discussing the benefits administration industry, in general. At this meeting, representatives of Voya expressed an interest in the benefits administration industry, including a potential transaction with Benefitfocus, and requested an introductory call with Mr. Levin.

On July 20, 2022, Benefitfocus entered into a confidentiality agreement with Strategic Seller A in order to continue discussions with Strategic Seller A in connection with the Strategic Seller A Process.

On July 25, 2022, representatives of Barclays updated the members of the SFC regarding the interaction with representatives of Voya on July 19, 2022. The SFC authorized representatives of management and Barclays to engage with Voya regarding a potential transaction. Representatives of Barclays then organized an introductory call between representatives of Voya and Mr. Levin, which occurred on July 27, 2022.

Consistent with the Board’s discussion on June 9, 2022, and at the Board’s direction, in June and July of 2022, representatives of Barclays continued to reach out to potential financing sources and transaction partners regarding the Strategic Seller A Process and to discuss with them their preliminary interest in other potential strategic transactions involving Benefitfocus.

On August 1, 2022, the SFC met to discuss an update on the Strategic Seller A Process and the Strategic Alternatives Process. Representatives of Barclays informed the SFC of the interactions with parties to date, including that up to six financial sponsors had expressed preliminary interest in financing a combination of Benefitfocus with Business A in the Strategic Seller A Process, but that none of them had expressed interest to date in owning Benefitfocus on a standalone basis because the Turn-Around Plan was still in process, Benefitfocus had still been working to win a significant number of new customers, Benefitfocus was still seeing elevated churn levels and the financing markets continued to be very tight. The SFC discussed the pros and cons of more proactively reaching out to potential buyers concerning a possible sale of Benefitfocus without tying the process to the Strategic Seller A Process. The SFC also discussed the pros and cons of inviting Sponsor A to

 

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finance the Strategic Seller A Process. At this meeting, management also informed the SFC that they had a preliminary introductory discussion with Voya, who had expressed interest in exploring a transaction with Benefitfocus. The SFC directed management to continue in the Strategic Seller A Process while preserving all other options, including the Strategic Alternatives Process, and to continue to provide updates regarding discussions with potential transaction counterparties.

In connection with the ongoing discussions regarding the Strategic Seller A Process, Benefitfocus sent a written, non-binding indication of interest on August 2, 2022 (the “August 2 Strategic Seller A Process IOI”) to Strategic Seller A describing Benefitfocus’s proposal to acquire Business A in an all-cash transaction, which was subject to various assumptions, including that Business A’s revenue projections would be met and that certain cost synergies would result from the potential transaction. The August 2 Strategic Seller A Process IOI also detailed additional diligence requirements and that the transaction would be financed through a combination of debt, cash-on-hand and incremental capital from a third party source.

On August 8, 2022, representatives of management spoke with one of Benefitfocus’s stockholders (the same stockholder from June 13, 2022) in connection with ordinary course investor relations activities. The stockholder informed management that Benefitfocus should immediately commence a process to sell Benefitfocus, and that the stockholder intended to go public with its investment thesis.

In addition, on August 8, 2022, representatives of Sponsor A spoke to representatives of Barclays and requested permission under the Sponsor A Confidentiality Agreement to speak with a few financing sources to firm up Sponsor A’s views on financing and to explore whether there was a value at which the Board would be willing to further engage with Sponsor A concerning a sale of Benefitfocus.

On August 9, 2022, Mr. Levin updated the Board concerning Sponsor A’s request to speak with financing sources and management’s August 8, 2022 discussions with one of Benefitfocus’s stockholders regarding the stockholder’s view that Benefitfocus should immediately commence a sale process. In the following week, Benefitfocus authorized Sponsor A to contact selected potential lenders to evaluate the potential for financing an acquisition of Benefitfocus.

Also on August 9, 2022, representatives of Sponsor C indicated to Barclays that Sponsor C viewed the simultaneous acquisition of Benefitfocus and Business A to be too complicated and preferred instead to first focus on acquiring Business A and to further evaluate a transaction with Benefitfocus at a later time.

Later on August 9, 2022, following multiple diligence sessions conducted throughout July 2022, Sponsor E provided a verbal indication to representatives of Barclays that it would be interested in a transaction in which it would acquire both Business A and Benefitfocus.

On August 11, 2022, Sponsor B provided management with its view that Sponsor B valued Benefitfocus at $13.00 per share of Common Stock in a transaction in which Sponsor B would acquire both Business A and Benefitfocus.

On August 12, 2022, Benefitfocus and Voya executed a confidentiality agreement (the “Voya Confidentiality Agreement”) allowing Voya to access non-public diligence materials regarding Benefitfocus in order to facilitate its evaluation, negotiation and implementation of a possible transaction. The Voya Confidentiality Agreement, similar to the other confidentiality agreements entered into between Benefitfocus and the other potential bidders, provided for automatic termination of the standstill contained therein upon Benefitfocus’s entry into a definitive written agreement for the sale of Benefitfocus.

Also on August 12, 2022, representatives of Barclays contacted the members of the SFC to update them regarding interactions with various potential counterparties in connection with the Strategic Seller A Process. In the update, representatives of Barclays noted that Sponsor E had indicated that they would value Benefitfocus at

 

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$11.61 per share in connection with the Strategic Seller A Process, inclusive of the value of synergies, and that Sponsor B had indicated that they would value Benefitfocus at $13.00 per share of Common Stock in connection with the Strategic Seller A Process, inclusive of the value of synergies, in each case subject to due diligence. Also on August 12, 2022, the SFC met to discuss the state of play with all of the potential counterparties with whom Benefitfocus had been in discussions and to discuss the interplay between the Strategic Seller A Process and the Strategic Alternatives Process. The SFC discussed that no decision had been made to sell Benefitfocus at that time, but directed management to start to plan to conduct a broader sale process, including to identify which potential bidders to contact and how to structure the process. The SFC discussed various potential counterparties and their potential level of interest in participating in a process to acquire Benefitfocus. The SFC also discussed that management and Barclays were making efforts to accelerate Voya’s due diligence of Benefitfocus, that care needed to be taken not to disrupt the selling season, and that management and Barclays should work with Sponsor A to get Sponsor A to put forward an updated proposal and price backed by financing commitments if possible.

Also on August 12, 2022, representatives of Barclays were informed by representatives of the financial advisor to Strategic Seller A that Benefitfocus had advanced to the next round of the bid process. Representatives of Barclays requested that Benefitfocus be able to partner with either Sponsor B or Sponsor E.

On August 13, 2022, representatives of Barclays spoke with representatives of the financial advisor representing Strategic Seller A and discussed Benefitfocus’s participation in management presentations relating to the Strategic Seller A Process.

On August 15, 2022, representatives of Barclays were informed by representatives of the financial advisor to Strategic Seller A that Benefitfocus could only partner with one party moving forward in the bid process. Promptly following this discussion, Benefitfocus and Sponsor B agreed to partner for the purposes of pursuing the transaction contemplated by the Strategic Seller A Process.

On August 19, 2022, the Board met with representatives of management, Barclays, S&C and Wyrick in attendance to discuss updates on the Strategic Seller A Process and the Strategic Alternatives Process. Representatives of S&C reviewed with the Board its fiduciary duties in the context of a potential strategic transaction, such as the transactions contemplated by the Strategic Seller A Process and the Strategic Alternatives Process. Representatives of Barclays presented on the latest developments regarding the Strategic Seller A Process and the Strategic Alternatives Process, with discussion topics including the current status of discussions with counterparties, timing considerations and potential next steps. The Board then engaged in further discussion regarding optimizing the strategic transactions processes, including the timing of further engagement with Sponsor A and other potential counterparties, as well as identifying other potential parties interested in acquiring Benefitfocus. Representatives of management then led a discussion on trends and forecasts, changes in new subscription bookings and churn rates and notified the Board that they planned to provide an updated long-range plan (i.e., the Projections) at the next Board meeting. The Board then directed management and Barclays to continue working on the Strategic Seller A Process and the Strategic Alternatives Process.

On August 24, 2022, one of Benefitfocus’s stockholders (not the same stockholder from March 23, 2022 or from June 13, 2022 and August 8, 2022) contacted Mr. Levin to indicate that he had heard rumors that Benefitfocus was contemplating a sale transaction and stated that he should be consulted regarding the process. Mr. Levin informed Mr. Dennerline of this conversation and Mr. Dennerline contacted the stockholder to inform him that Benefitfocus was not going to share any confidential information with him at that time.

On August 31, 2022, the Board held a meeting at which representatives of management presented the Projections, as more fully described in the section below entitled “The Merger Proposal (Proposal 1)—Financial Forecasts and Financial Projections,” beginning on page 64 of this proxy statement, to the Board and discussed the assumptions and considerations underlying the Projections, which, relative to the February LRP, reflected updates in light of Benefitfocus’s performance to date and that it was taking longer than expected to see the

 

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positive impact of product enhancements, operation and service improvements on bookings and churn in the near term. Representatives of management then updated the Board on the status of the Strategic Seller A Process and the Strategic Alternatives Process, which was followed by a presentation by representatives of Barclays regarding, among other things, transaction counterparty outreach as it related to the Strategic Alternatives Process and potential negotiating strategy and timing as it related to the Strategic Seller A Process. Discussion then ensued regarding the development and growth of Benefitfocus’s business and associated impacts on the Projections, stock market conditions and implications for Benefitfocus’s potential valuation in the short- and long-term. Representatives of S&C provided advice to the Board on its fiduciary duties in this context. The Board determined that representatives of Barclays should continue outreach to the parties identified in Barclays’ presentation materials in regards to the Strategic Alternatives Process, but should not contact any new bidders because market conditions made it unlikely that any new bidder would be willing to pay a higher price at that time than those parties currently engaging with the Company. The Board also decided it would not make a decision on whether to enter into an agreement for the sale of Benefitfocus until the Strategic Seller A Process had run its course and outreach to the currently identified potential parties in regards to the Strategic Alternatives Process was completed and proposals were received. The Board subsequently met in executive session without representatives of management present and discussed that some of the nearer-term Projections may not be achieved because the Company needed more time to achieve the goals of the Turn-Around Plan, especially with respect to certain operational matters, including client referenceability. The Board also discussed the contributions that management was making to the Strategic Seller A Process and the Strategic Alternatives Process and directed the Compensation Committee of the Board (the “Compensation Committee”) to consider whether management’s compensation was structured in a manner that would align management’s interests with securing an outcome that was in the best interests of Benefitfocus’s stockholders, and, if not, to recommend appropriate changes to management’s compensation. The Board also discussed that certain potential counterparties, especially financial sponsors, may wish to have discussions with representatives of management in the future concerning their continued employment after completion of a transaction, and determined that the chairs of the SFC, Mr. Lerner and Mr. Park, should be consulted regarding any discussions with bidders of management having a continued role with the Company or a bidder after completion of a transaction.

As of September 2022, 11 parties remained interested in a potential transaction with Benefitfocus, including Voya, Strategic Party A, Sponsor A, Sponsor B, Sponsor C, Sponsor D and Sponsor E. Representatives of management continued to work with representatives of Barclays regarding outreach with respect to a potential transaction; however, in its regular meetings the SFC discussed that general economic uncertainty and difficulties in the financing markets due to rising interest rates presented a challenging environment to pursue a transaction.

On September 2, 2022, Voya received the Projections (other than with respect to Unlevered Free Cash Flow, which was not provided to any of the potential bidders) in order to facilitate its evaluation, negotiation and implementation of a possible transaction.

On September 6, 2022, Benefitfocus was granted access to Strategic Seller A’s virtual dataroom in connection with the Strategic Seller A Process, following which Benefitfocus and Sponsor B conducted business and financial due diligence.

On September 7, 2022, representatives of Benefitfocus and Voya met to discuss Voya’s business strategy, including the manner in which a potential transaction with Benefitfocus might accelerate achievement of Voya’s strategic objectives.

On September 8, 2022, representatives of Voya submitted proposed due diligence session agendas to Benefitfocus to guide upcoming due diligence sessions.

On September 12, 2022, representatives of Barclays spoke with representatives of Sponsor A to discuss a potential transaction between Sponsor A and Benefitfocus. After speaking with potential lenders, representatives

 

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of Sponsor A informed representatives of Barclays that they valued Benefitfocus at $10.00 per share of Common Stock but that their proposal was subject to completion of additional due diligence, including review of the Projections.

On September 12, 2022, representatives of Barclays met with representatives of management and S&C. At this meeting, with respect to the Strategic Alternatives Process, representatives of Barclays provided updates to the group on its discussions with respect to a potential sale of Benefitfocus to Sponsor A, Voya and other strategic bidders and financial buyers. With respect to Sponsor A, representatives of Barclays indicated that Sponsor A did not currently have committed financing and Sponsor A’s ability to complete a transaction depended upon the financing markets, which could be challenging given the state of those markets. With respect to Voya, representatives of Barclays indicated that discussions were productive and that initial diligence items were being shared with Voya and its advisors. With respect to the other strategic and financial buyers, representatives of Barclays indicated that the initial due diligence materials were being reviewed by the other potential strategic and financial bidders. An additional strategic buyer informed representatives of Barclays that it was not interested in pursuing a transaction.

Also on September 12, 2022, representatives of Voya met with Mr. Levin to discuss an overview of Benefitfocus’s business and strategy, and Voya’s potential interest in a transaction with Benefitfocus. During this meeting, the representatives of Voya informed Mr. Levin that Voya had hired outside legal counsel and a financial advisor to assist with the potential transaction and that Voya intended to share its initial proposal regarding the valuation of Benefitfocus later in September.

From September 13, 2022 through September 22, 2022, Benefitfocus and Sponsor B conducted business and financial due diligence on Business A, and met multiple times with representatives of Strategic Seller A to discuss various diligence-related issues.

On September 15, 2022, the SFC met with representatives of Barclays and S&C. At this meeting, representatives of Barclays provided an update on a potential transaction between Benefitfocus and Voya, Sponsor A and other strategic and financial buyers. Representatives of Barclays and management reported that ongoing discussions between management and representatives of Voya continued to be productive. Representatives of Barclays indicated that they would continue current efforts on the Strategic Seller A Process but that they were more optimistic about a transaction with Voya at this stage and were waiting for responses from the other strategic and financial buyers following initial outreach and internal discussions regarding a potential transaction with Benefitfocus.

Also on September 15, 2022, representatives of Barclays spoke with representatives of Sponsor A to discuss the status of Sponsor A’s ongoing due diligence efforts. As a result of this discussion, Barclays confirmed that Benefitfocus would share the Projections with Sponsor A and would schedule a meeting for Sponsor A to review the Projections with management and requested that Sponsor A deliver a revised offer, inclusive of price, financing assumptions and due diligence requirements. Promptly following this call, Sponsor A received the Projections.

Additionally on September 15, 2022, representatives of Sponsor B indicated to representatives of Barclays that their valuation view of Benefitfocus was between $10.00 and $11.00 per share on a combination basis with Business A, based on the Projections and conditional on the ability of Sponsor B to obtain debt financing.

On September 19, 2022, representatives of Voya held a call with representatives of management in connection with Voya’s ongoing due diligence review of Benefitfocus.

On September 26, 2022, Sponsor B informed representatives of Barclays that Sponsor B was no longer interested in pursuing a combination transaction involving Strategic Seller A or an acquisition of Benefitfocus on a standalone basis.

 

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On September 27, 2022, Voya sent a written, non-binding indication of interest (the “September 27 Voya IOI”) to Benefitfocus, expressing a potential interest in acquiring all outstanding shares of Common Stock for a purchase price between $9.50 and $10.50 per share in cash, which, at the midpoint of that range, represented a premium of 64% over the September 26, 2022 closing price of Benefitfocus’s Common Stock. The purchase price range reflected Voya’s limited assessment to date of the Company’s revenue projections and prospects for cost-savings resulting from the acquisition of Benefitfocus by Voya. The September 27 Voya IOI also detailed additional diligence requirements and requested that key stockholders of Benefitfocus enter into customary voting and support agreements in connection with the potential transaction. The September 27 Voya IOI was promptly distributed to the Board for consideration.

Also on September 27, 2022, Mr. Levin met with representatives of Sponsor A to further discuss business and financial due diligence, Benefitfocus’s business strategy, the Turn-Around Plan and the Projections.

Around September 27, 2022, representatives of management spoke with one of Benefitfocus’s stockholders (not the same stockholder from March 23, 2022, June 13, 2022 and August 8, 2022 or August 24, 2022), which informed management that it planned to sell its stake in Benefitfocus by the end of 2022 if Benefitfocus did not publicly announce a strategic alternatives process.

On September 28, 2022, representatives of management, Barclays, S&C and Wyrick met with the Board to provide an update on the Strategic Alternatives Process. The Board discussed the pricing indications received from Voya and Sponsor A and the status of discussions with other potential counterparties. Representatives of Barclays informed the Board that Sponsor A had recently informed them that their indicative price range was now $9.00 to $10.00 per share based on the Projections, and that a price in that range was predicated on Sponsor A getting comfortable with the achievability of the Projections for the fourth quarter of 2022 and calendar year 2023 revenues, booking and churn. Sponsor A had informed Barclays that the deterioration in the macroeconomic environment and the financing markets was putting downward pressure on its proposal. Management stated that, although their long-term outlook had not changed materially, it was taking longer to achieve the Turn-Around Plan and the Projections than initially anticipated as informed by the results of the selling season, which had just concluded in September. The Board considered the implications of not achieving the performance reflected in the Projections on Benefitfocus’s valuation. The Board also discussed the characteristics and strategic rationales for a transaction with Voya and Sponsor A, along with next steps with approximately 10 additional potential counterparties. Additionally, in light of Sponsor B’s decision not to proceed, representatives of management advised, and the Board agreed, that Benefitfocus would not be capable of completing a transaction resulting from the Strategic Seller A Process without a partner.

Also on September 28, 2022, a follow-up meeting was held between representatives of Barclays and representatives of Sponsor A to continue discussions about a potential transaction between Sponsor A and Benefitfocus. Promptly following this call, representatives of Sponsor A sent an updated list of due diligence questions and data requests related to the Projections. Representatives of management provided responses to these questions and requests in due course.

On September 29, 2022, representatives of S&C met with representatives of Cleary Gottlieb Steen & Hamilton (“Cleary”), outside legal counsel to Voya, to discuss process and document preparation. Representatives of S&C stated that they would provide a draft bid contract in the Company’s virtual dataroom in due course as part of Benefitfocus’s process and that if Voya wanted Benefitfocus’s stockholders to sign voting and support agreements, then Cleary should identify the relevant stockholders and provide drafts of the voting and support agreements.

In early October 2022, Sponsor C announced that it had entered into a definitive agreement with Strategic Seller A to acquire Business A from Strategic Seller A.

On October 3, 2022, representatives of Barclays met with representatives of Sponsor C to further discuss a potential transaction between Sponsor C and Benefitfocus. Representatives of Sponsor C indicated that they were

 

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interested in a transaction with Benefitfocus but needed to engage in discussions with potential lenders. Representatives of Barclays provided additional diligence materials to facilitate Sponsor C’s consideration of a potential transaction.

Later on October 3, 2022, Voya was granted access to the virtual dataroom for further diligence matters. Between October 7 and October 28, representatives of Voya met multiple times with representatives of Benefitfocus and Barclays to discuss various diligence-related issues.

On October 5, 2022, the SFC met with representatives of Barclays and representatives of S&C in attendance. At this meeting, representatives of Barclays provided an update on the status of interested counterparties, particularly Voya, Strategic Party A and Sponsor C. The SFC discussed the September 27 Voya IOI, including that Voya was targeting announcement of a transaction within one month of the September 27 Voya IOI. Sponsor C also indicated interest in a potential transaction with Benefitfocus on the basis that Benefitfocus would be combined with Business A upon completion of Sponsor C’s acquisition of Business A from Strategic Seller A in order to realize expected operational synergies.

On October 7, 2022, representatives of management held a follow-up meeting with representatives of Sponsor C to discuss additional business and financial diligence questions, as well as the Projections. Sponsor C was also granted access to the virtual dataroom for further diligence matters, which included the Projections.

Between October 8, 2022 and October 24, 2022, representatives of Sponsor C held multiple meetings with representatives of Benefitfocus and Barclays to discuss various diligence-related issues.

On October 12, representatives of Voya met with Mr. Levin to discuss the potential acquisition of Benefitfocus.

On October 13, 2022, representatives of Barclays held a call with representatives of Sponsor D to address initial due diligence questions regarding the Projections and other due diligence matters.

On October 14, 2022, a draft Merger Agreement prepared by S&C was shared with the potential bidders in the virtual dataroom.

On October 16, 2022, Strategic Party A sent a written, non-binding indication of interest (the “October 16 Strategic Party A IOI”) to Benefitfocus, proposing to acquire all outstanding shares of Common Stock for a purchase price of $10.00 per share of Common Stock in cash, which represented a premium of 69% over the October 14, 2022 closing price of Benefitfocus’s Common Stock. The October 16 Strategic Party A IOI was promptly distributed to the Board for consideration.

On October 18, 2022, representatives of management held a follow-up meeting with representatives of Sponsor A to discuss additional business and financial diligence questions, as well as the Projections.

On October 19, 2022, the SFC met with representatives of Barclays and S&C in attendance. At this meeting, representatives of Barclays provided an update on the status of the currently interested parties, particularly Voya, Strategic Party A and Sponsor C, noting that discussions with Voya, Strategic Party A and Sponsor C had been focused on due diligence as well as estimated cost synergies to be realized in a potential transaction with Benefitfocus. Barclays also indicated that they were continuing to engage with other financial buyers, including Sponsor D.

Later on October 19, 2022, representatives of Sponsor A informed representatives of Barclays that they valued Benefitfocus at $9.00 per share of Common Stock, assuming successful execution of Benefitfocus’s Turn-Around Plan and the Projections. Representatives of Barclays indicated that the Board would likely be meeting sometime during the week of October 24 and suggested that Sponsor A make a written proposal before that meeting.

Later on October 19, 2022, representatives of Cleary sent a draft Support Agreement to S&C.

 

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On October 22, 2022, representatives of Cleary sent a revised draft Merger Agreement to S&C in which Voya made the following proposals and modifications (among others): (1) the termination fee payable by Benefitfocus under certain circumstances, as more fully described below in the section entitled “The Merger Agreement—Termination Fee,” would be calculated by multiplying 4% by Benefitfocus’s equity value at the offer price (calculated on a fully diluted basis), (2) Benefitfocus would be required to reimburse Voya’s transaction expenses in the event Benefitfocus failed to obtain the required approval from its stockholders, (3) Voya would not be required to take any remedial actions (including divesting assets or agreeing to behavioral remedies) in order to obtain the requisite regulatory approvals, (4) Benefitfocus employee equity awards would generally roll into Voya equity awards rather than be cashed out at the offer price, (5) certain stockholders (not specifically identified) would be required to sign Support Agreements and (6) Voya would be permitted to terminate the Merger Agreement if Benefitfocus suffered a Material Adverse Effect, as more fully described below in the section entitled “The Merger AgreementRepresentations and Warranties,” beginning on page 96 of this proxy statement, or if Benefitfocus materially breached the “no shop” covenant, as more fully described below in the section entitled “The Merger Agreement—Non-Solicitation Covenants,” beginning on page 102 of this proxy statement (and in the latter case, Benefitfocus would be required to pay Voya the termination fee).

On October 24, 2022, a representative of Sponsor A sent a written, non-binding indication of interest (the “October 24 Sponsor A IOI”) to Benefitfocus, proposing to acquire all outstanding shares of Common Stock for a purchase price of $9.00 per share of Common Stock in cash, which represented a premium of 47% over the October 21, 2022 closing price of Benefitfocus’s Common Stock, and was subject to various assumptions. The October 24 Sponsor A IOI also included a proposed timeline of four weeks to complete various diligence processes and to arrange debt financing before signing. The October 24 Sponsor A IOI was promptly distributed to the Board for consideration.

Also on October 24, 2022, Voya sent a written, non-binding indication of interest (the “October 24 Voya IOI”) to Benefitfocus, proposing to acquire all outstanding shares of Common Stock for a purchase price of $9.50 per share of Common Stock in cash, which represented a premium of 55% over the October 24, 2022 closing price of Benefitfocus’s Common Stock. The October 24 Voya IOI also identified that Voya was substantively complete with its due diligence process. The October 24 Voya IOI was promptly distributed to the Board for consideration.

Also on October 24, 2022, representatives of Sponsor D conducted a due diligence session with management covering financial, business and other mutually agreed diligence items.

During the period of October 24–26, 2022, representatives of Strategic Party A engaged in multiple diligence sessions with management and provided additional diligence requests.

On October 25, 2022, a representative of Sponsor C sent a written, non-binding indication of interest (the “October 25 Sponsor C IOI”) to Mr. Dennerline, expressing an interest in acquiring all outstanding shares of Common Stock for a purchase price of $8.75 per share of Common Stock in cash, which represented a premium of 43% over the October 24, 2022 closing price of Benefitfocus’s Common Stock. The October 25 Sponsor C IOI also detailed additional diligence requests that would be required to be completed in advance of executing a definitive agreement with respect to a transaction. The October 25 Sponsor C IOI was promptly distributed to the Board for consideration.

Later on October 25, 2022, the Board met with representatives of Barclays, S&C and Wyrick to discuss the various bids submitted by potential bidders. The Board then discussed Voya’s revised bid of $9.50 per share of Common Stock, and representatives of S&C described its view as to the posture of Voya’s mark-up of the draft Merger Agreement and that S&C would provide further detail on the key open issues at subsequent meetings of the Board. The Board discussed Sponsor A’s bid of $9.00 per share of Common Stock, subject to due diligence and arranging financing. The Board then discussed Strategic Party A’s bid of $10.00 per share of Common Stock, and Benefitfocus’s advisors described to the Board the risks associated with Strategic Party A’s bid, including that (1) it entailed the most significant potential risk of regulatory scrutiny, (2) Strategic Party A would

 

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need to conduct a significant amount of incremental due diligence prior to executing a definitive agreement, which would likely take weeks and further distract management, and created risk that the proposed $10.00 per share of Common Stock bid price would be reduced and (3) there was uncertainty as to whether Strategic Party A would be able to arrange financing. The Board then discussed Sponsor C’s bid of $8.75 per share of Common Stock with the need for an additional week to complete due diligence. Representatives of S&C reviewed with the Board its fiduciary duties in this context.

At this same Board meeting, representatives of management reviewed the Projections with the Board and explained, among other things, the execution risks of the Projections and the Turn-Around Plan, including fourth quarter bookings revenue and macroeconomic trends. Representatives of management observed greater risk in achieving the forecasts in the Projections due to bookings being delayed by customers. The Board (1) engaged in a robust discussion with management regarding the reasonableness of the forecasts in the Management Case, Alternative Case 1 and Alternative Case 2 (each as defined in the section below entitled “The Merger Proposal (Proposal 1)—Financial Forecasts and Financial Projections,” beginning on page 64 of this proxy statement), revisiting each forecast in light of deteriorating macroeconomic conditions, unexpected challenges resulting in a delay of the execution of Benefitfocus’s Turn-Around Plan and the recent performance of Benefitfocus’s business to date, (2) determined that the Management Case was the most probable predictor of Benefitfocus’s future performance based on current market conditions and the recent performance of Benefitfocus’s business to date and (3) directed that Barclays use the Management Case for the purposes of preparing its financial analyses in connection with a potential transaction. The Board also requested that Barclays show the Board a discounted cash flow analysis based on Alternative Case 1 for reference purposes only so that the Board could observe the associated impact on valuation. The Board directed management and Barclays to pursue a transaction at a price with Voya higher than $9.50 per share of Common Stock and to keep the other potential counterparties engaged.

On October 26, 2022, Barclays distributed a relationship disclosure memorandum (the “Relationship Disclosure”) to the Board, which described certain relationships between Barclays and its deal team members and Benefitfocus, Indaba, Sponsor A, Sponsor C, Strategic Party A and Voya.

Also on October 26, 2022, representatives of S&C sent Voya’s draft of the Support Agreement to Shearman and to Olshan Frome Wolosky LLP (“Olshan”), counsel to Indaba, for their consideration and comment.

On October 27, 2022, a representative of Voya orally communicated to representatives of Barclays Voya’s revised proposal (the “October 27 Revised Offer”) for an acquisition of all outstanding shares of Common Stock for a purchase price of $10.50 per share of Common Stock in cash, which represented a premium of 67% over the October 26, 2022 closing price of Benefitfocus’s Common Stock. The October 27 Revised Offer was conditioned on Benefitfocus granting Voya exclusivity until November 7, 2022. The October 27 Revised Offer was promptly communicated to the Board for consideration.

Later on October 27, 2022, the Board met with representatives of management, Barclays, S&C and Wyrick to discuss ongoing negotiations. Representatives of Barclays provided an overview of the current status of bids, including (1) Voya increasing its bid to $10.50 per share of Common Stock, conditioned on exclusivity until November 7, 2022, (2) Sponsor C’s bid of $8.75 per share of Common Stock, with an indication of potentially increasing its offer, subject to further due diligence and (3) Strategic Party A’s bid of $10.00 per share of Common Stock, which would require several weeks of additional diligence. The Board decided not to further engage with Strategic Party A in light of the execution risks associated with Strategic Party A’s bid as discussed at the October 25, 2022 Board meeting. The Board discussed the merits of the various bids and the pros and cons of granting exclusivity to Voya until November 7, 2022. The Board directed Barclays to immediately engage with Sponsor C to determine whether Sponsor C would increase its offer price above $10.50 per share of Common Stock on substantially similar contractual terms and on a similar timetable as proposed by Voya and, if Sponsor C declined, directed management to grant Voya exclusivity through November 7, 2022 and work towards negotiating a transaction with Voya to be announced by November 1, 2022.

 

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After the Board meeting on October 27, 2022, representatives of Barclays met with representatives of Sponsor C to discuss the bid submitted by Sponsor C. At this meeting, representatives of Barclays indicated that a competitive bid from Sponsor C would need to be greater than $10.50 per share of Common Stock in cash and be subject to fewer due diligence requests. Representatives of Sponsor C responded that they could not waive their due diligence requirements even if they were able to potentially reach an offer price of up to $10.50 per share of Common Stock. Because Sponsor C was unable to submit a bid in excess of $10.50 per share on the same contractual terms as Voya and could not waive their due diligence requirements, representatives of S&C, consistent with the Board’s discussion on October 27, 2022 and at the Board’s direction, proceeded to negotiate an exclusivity agreement with Voya to grant Voya exclusivity through November 7, 2022.

Later on October 27, 2022, representatives of S&C delivered an updated draft Merger Agreement to Cleary in which Benefitfocus made the following proposals and modifications (among others): (1) the termination fee payable by Benefitfocus under certain circumstances would be calculated by multiplying 2% by Benefitfocus’s outstanding common equity value at the offer price, (2) Benefitfocus would not be required to reimburse Voya’s transaction expenses in the event Benefitfocus failed to obtain the required approval from its stockholders, (3) Voya would be required to take certain remedial actions (including divesting assets or agreeing to behavioral remedies) in order to obtain the requisite regulatory approvals unless such remedial actions would reasonably be likely to result in a material adverse effect on Voya and its subsidiaries and Benefitfocus and its subsidiaries (as measured on a combined basis), (4) Benefitfocus employee equity awards would be cashed out at the offer price and (5) Voya would not be permitted to terminate the Merger Agreement if Benefitfocus suffered a Material Adverse Effect or if Benefitfocus materially breached the “no shop” covenant.

From October 28, 2022 through the announcement of the execution of the Merger Agreement on November 1, 2022, representatives of S&C and Cleary met multiple times to finalize the Merger Agreement and related documents, including to negotiate, among other things, (1) how the termination fee payable by Benefitfocus under certain circumstances would be calculated, (2) the circumstances (if any) under which Benefitfocus would have to reimburse Voya’s transaction expenses, (3) the efforts standard relating to Voya’s obligation to secure regulatory approvals, (4) the treatment of Benefitfocus employee equity awards, and (5) the terms pursuant to which the parties would be permitted to terminate the Merger Agreement.

On October 28, 2022, a representative of Sponsor D sent a written, non-binding indication of interest (the “October 28 Sponsor D IOI”) to the Board, expressing an interest in acquiring all outstanding shares of Common Stock for a purchase price between $8.25 and $9.00 per share of Common Stock in cash, which, at the midpoint of that range, represented a premium of 31% over the October 27, 2022 closing price of Benefitfocus’s Common Stock and was subject to various assumptions. The October 28 Sponsor D IOI also detailed additional diligence requirements. The October 28 Sponsor D IOI was promptly distributed to the Board for consideration.

Also on October 28, 2022, representatives of Cleary met with representatives of S&C to discuss ongoing negotiations of the Merger Agreement, Support Agreements and other transaction documents. Representatives from Cleary requested that Indaba and BG execute the Support Agreements as a condition to Voya executing the Merger Agreement.

Later on October 28, 2022, the Board met with representatives of management, Barclays, S&C and Wyrick to receive an update on the negotiations. Representatives of Barclays reported that Sponsor C stated that it was unwilling to raise its offer in light of the fact that it could not move on an expedited basis due to due diligence requirements. Representatives of Barclays then reviewed its preliminary financial analyses of Benefitfocus and how they compared with Voya’s offer price of $10.50 per share of Common Stock. Throughout the discussion, the Board considered the potential impact of macroeconomic conditions on and the risks to achievement of the Projections. Representatives of S&C then updated the Board on the status of negotiations of the Merger Agreement and the Support Agreements with Voya, including ongoing discussions of the “no shop” covenant and related “fiduciary out” provision, termination events and associated fees, regulatory efforts covenant and

 

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treatment of equity awards held by Benefitfocus employees. Representatives of S&C informed the Board that Voya had not proposed any employment agreements for representatives of management, and the Board discussed Mr. Levin’s and Alpana Wegner’s (Benefitfocus’s Chief Financial Officer) rights and obligations under their respective employment agreements. The Board instructed S&C that it was comfortable agreeing to a meaningful termination fee, as Benefitfocus’s advisors had conducted significant outreach to potential buyers in the preceding months.

Later on October 28, 2022, consistent with Board discussions and at the direction of the Board, Benefitfocus and Voya signed an exclusivity agreement, which granted Voya exclusivity until the earlier of (i) the date that Benefitfocus and Voya entered into definitive transaction documentation, (ii) any time at which Voya proposed to reduce its offer price of $10.50 per share of Benefitfocus’s Common Stock, and (iii) 9:00 a.m. New York City time on November 7, 2022.

On October 29, 2022, representatives of Shearman and Olshan sent revised drafts of the Support Agreements to representatives of S&C, which were shared with representatives of Cleary. The revised drafts modified the draft Support Agreements with respect to, among other terms, the circumstances under which BG or Indaba agreed not to solicit alternative transaction proposals from third parties or engage in discussions or negotiations with third parties regarding alternative transaction proposals and the circumstances under which the Support Agreements would terminate. For further information on the Support Agreements, see the section entitled “The Merger Agreement—Support Agreements,” beginning on page 118 of this proxy statement.

Later on October 29, 2022, representatives of Cleary sent a revised draft Merger Agreement to representatives of S&C in which Voya made the following proposals and modifications (among others): (1) Voya accepted Benefitfocus’s proposal that Benefitfocus would not be required to reimburse Voya’s transaction expenses in the event Benefitfocus failed to obtain the required approval from its stockholders, (2) Benefitfocus employee equity awards would generally roll into Voya equity awards, (3) the termination fee payable by Benefitfocus under certain circumstances would be $15.0 million and (4) Voya would be permitted to terminate the Merger Agreement if Benefitfocus knowingly and intentionally breached the “no shop” covenant (and in the latter case, Benefitfocus would be required to pay Voya the termination fee).

The Board met on October 30, 2022, with representatives of S&C and Wyrick in attendance, and representatives of management and Barclays in attendance for portions of the meeting. The Board began in executive session without representatives of management present, with representatives of S&C providing an overview of various executive compensation and retention matters in connection with a transaction with Voya, including, among other matters, the fact that Voya requested that the Merger Agreement include an interim operating covenant by which Benefitfocus would not terminate any employees between the signing and the closing of the transaction other than terminations for “cause,” without Voya’s consent (which consent would not be unreasonably withheld, delayed or conditioned). The Board also discussed the rationale for providing certain Benefitfocus employees with inducement and retention awards (the “Retention Awards”) in connection with the transaction, with further input from the Compensation Committee, S&C and other advisors. Representatives of S&C also reported on the latest negotiations of the Merger Agreement, including deal protection and termination provisions, treatment of equity awards and regulatory efforts standard, following which the Board gave S&C guidance on negotiating certain key points. Representatives of S&C then gave the Board a presentation regarding their fiduciary duties to Benefitfocus stockholders generally and within the context of a sale to Voya. The Board then discussed next steps in the negotiations and process, and reaffirmed that the Compensation Committee would continue providing oversight regarding executive compensation matters involved in the transaction, including any Retention Awards, subject to final approval by the Board.

On October 31, 2022, representatives of S&C sent a revised draft Merger Agreement to representatives of Cleary in which Benefitfocus made the following proposals and modifications (among others): (1) Benefitfocus employee equity awards granted in 2019 and 2020 would be cashed out at the offer price and the other employee equity awards granted by Benefitfocus would be assumed by Voya and converted into Voya equity awards (with

 

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certain exceptions), (2) Voya would be required to take certain remedial actions (including divesting assets or agreeing to behavioral remedies) in order to obtain the requisite regulatory approvals unless such remedial actions would reasonably be likely to result in a material adverse effect on Voya and its subsidiaries (as if Voya were the size of Benefitfocus) or Benefitfocus and its subsidiaries, (3) the termination fee payable by Benefitfocus under certain circumstances would be $12.5 million, and (4) Voya would not be permitted to terminate the Merger Agreement if Benefitfocus materially breached the “no shop” covenant.

In the afternoon on October 31, 2022, representatives of Benefitfocus, Voya, S&C, Cleary, Barclays and Perella Weinberg Partners LP (“Perella Weinberg”), financial advisor to Voya, met to negotiate open terms in the Merger Agreement, including, among other terms, (1) the treatment of employee equity awards, (2) the scope of Benefitfocus’s representations and warranties, (3) the scope of covenants restricting Benefitfocus from taking certain actions during the period between signing and closing, (4) the terms under which Benefitfocus could solicit Acquisition Proposals from third parties and provide non-public information to and engage in discussions or negotiations with third parties regarding alternative transaction proposals, (5) covenants relating to the parties’ efforts to secure antitrust and other regulatory approvals, (6) the terms under which Benefitfocus or Voya could terminate the Merger Agreement and (7) the size of and triggers for the termination fee.

Also on October 31, 2022, representatives of Cleary, Olshan and S&C met to negotiate open items in the Support Agreements, including, among other terms, (1) terms related to restrictions on soliciting alternative transaction proposals from third parties and (2) Indaba’s request for indemnification by Voya in connection with Indaba’s entry into the Support Agreement. Representatives of Olshan then sent a revised draft of the Support Agreement to representatives of S&C, who shared the draft with Cleary, and Olshan confirmed that Indaba would accept Voya’s position to remove the requirement for indemnification by Voya in connection with Indaba’s entry into the Support Agreement. Representatives of Shearman also sent a revised draft of the Support Agreement to representatives of Cleary on this date.

Later in the afternoon on October 31, 2022, the Board met with members of management, Barclays, S&C and Wyrick in attendance. At the meeting, representatives of management gave an update on the discussions with Voya and potential timing of signing definitive agreements with respect to a transaction. Representatives of S&C then provided a report of the latest terms of the proposed transaction and negotiations of the definitive agreements and then outlined the next steps in the negotiations and process for the Board to approve the Merger Agreement, the other transaction documents and the transactions contemplated thereby, communications matters, the delivery of a fairness opinion by Barclays, the proxy statement filing process and potential timeline from signing to closing the transaction. After discussion, the Board gave the representatives of S&C guidance on negotiating certain key points of the transaction documents.

Also on October 31, 2022, Barclays distributed an updated version of the Relationship Disclosure, which described certain relationships between Barclays and its deal team members and Benefitfocus, Indaba, BG, Strategic Party A, Sponsor A, Sponsor C and Voya.

On November 1, 2022, representatives of S&C and Cleary met to negotiate open items in the Merger Agreement including, among other things, (1) the termination fee and (2) whether Voya would be permitted to terminate the Merger Agreement if Benefitfocus knowingly and intentionally breached the “no shop” covenant (and in such case, whether Benefitfocus would be required to pay Voya the termination fee). Cleary then sent a revised draft Merger Agreement to S&C in which Voya made the following proposals and modifications (among others): (1) agreeing to a termination fee of $14.0 million and (2) agreeing to Benefitfocus’s proposal that Voya would be permitted to terminate the Merger Agreement if Benefitfocus knowingly and intentionally breached the “no shop” covenant (but, in such case, that Benefitfocus would not be required to pay Voya the termination fee).

Representatives of S&C, Cleary, Olshan and Shearman continued to negotiate open items and exchange drafts of the Merger Agreement, Support Agreements and related transaction documents, as applicable, until all transaction documents were in execution form.

 

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The Board met on the afternoon of November 1, 2022 with members of Benefitfocus’s management and representatives of S&C in attendance, and with representatives of Barclays also in attendance for portions of the meeting. Representatives of S&C presented to the Board key changes in the draft Merger Agreement since the meeting on October 31. Representatives of S&C then provided a report of the terms of the proposed transaction and latest negotiations of the definitive agreements, which included, among other things, deal protections, regulatory risk allocation and treatment of equity awards and interim operating restrictions related to benefits for continuing employees and long-term incentive awards. Mr. Lerner and Mr. Napier confirmed that each of Indaba and BG, respectively, was prepared to execute its Support Agreement. Representatives of Barclays reviewed with the Board Barclays’ financial analyses of the Merger consideration of $10.50 per share of Common Stock in cash and rendered to the Board its oral opinion, subsequently confirmed in writing, to the effect that, as of November 1, 2022 and based upon and subject to the qualifications, assumptions and limitations stated in its opinion, from a financial point of view, the Per Share Common Stock Merger Consideration (as defined in the Merger Agreement) to be offered to the holders of the Common Shares (as defined in the Merger Agreement) (other than the holders of Excluded Shares (as defined in the Merger Agreement)) in the transactions contemplated by the Merger Agreement was fair to such holders, as more fully described below in the section entitled “The Merger Proposal (Proposal 1)—Opinion of Benefitfocus’s Financial Advisor,” beginning on page 67 of this proxy statement. After further discussing the advantages and risks of the proposed transaction and the risks faced by Benefitfocus in remaining as a standalone company, in each case that are described below in the section entitled “The Merger Proposal (Proposal 1)—Recommendation of the Board and Reasons for the Merger,” beginning on page 59 of this proxy statement, the Board unanimously approved and declared the advisability of the Merger Agreement, and further declared that the Merger Agreement was in the best interests of Benefitfocus and its stockholders, and recommended that Benefitfocus’s stockholders adopt the Merger Agreement. The Board also unanimously approved and authorized Benefitfocus to grant the Retention Awards, which are described below in the section entitled “The Merger Proposal (Proposal 1)—Interests of Benefitfocus’s Executive Officers and Directions in the Merger,” beginning on page 76 of this proxy statement.

Shortly after the Board meeting concluded on November 1, 2022, the parties executed the Merger Agreement and the Support Agreements. Thereafter, Benefitfocus and Voya issued a joint press release announcing the execution of the Merger Agreement.

Recommendation of the Board and Reasons for the Merger

The Board unanimously recommends that you vote “FOR” the Merger Proposal.

At a meeting of the Board held on November 1, 2022, the Board unanimously (i) approved the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement, (ii) declared advisable the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement, (iii) determined that the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement are fair to, and in the best interests of, Benefitfocus and its stockholders (other than Excluded Shares that are not Dissenting Shares), (iv) resolved to recommend that the Company’s stockholders entitled to vote adopt the Merger Agreement, and (v) directed that the Merger Agreement be submitted to the Company’s stockholders for adoption.

When you consider the Board’s recommendation, you should be aware that Benefitfocus’s directors and executive officers may have interests in the Merger that may be different from, or in addition to, the interests of Benefitfocus stockholders generally. These interests are described in the section entitled “The Merger Proposal (Proposal 1)—Interests of Benefitfocus’s Executive Officers and Directors in the Merger,” beginning on page 76 of this proxy statement.

Factors the Board Considered Supporting Approval of the Merger

In evaluating the Merger, the Board consulted with Benefitfocus’s senior management and legal and financial advisors and reviewed a significant amount of information. In its decision to recommend that you vote

 

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FOR” the proposal to adopt the Merger Agreement, the Board considered various factors that it believed supported its decision, including, among others, the following (not necessarily in order of relative importance):

 

   

Per Share Common Stock Merger Consideration. The Board considered the $10.50 Per Share Common Stock Merger Consideration in relation to (i) the Board’s estimate of the current and future value of Benefitfocus as an independent public company and (ii) the market prices of the Common Stock as described in the bullet immediately below.

 

   

Implied Premiums. The Board considered that the $10.50 Per Share Common Stock Merger Consideration represented a premium of approximately 49% over the $7.05 per share closing trading price of our Common Stock on October 31, 2022 (the last trading day prior to the date of the Merger Agreement) and a premium of approximately 65% over the 30-day VWAP of $6.36 per share of our Common Stock for the 30-day period ended on October 31, 2022.

 

   

Implied EBITDA multiples. The Board considered the fact that the enterprise value of Benefitfocus implied by the Per Share Merger Consideration represented a multiple of approximately:

 

   

15.5x Benefitfocus’s estimated Adjusted EBITDA for the last twelve month period as of September 30, 2022 of $41 million based on Benefitfocus’s financial performance as of September 30, 2022;

 

   

13.0x Benefitfocus’s estimated Adjusted EBITDA for 2022 of $49 million based on the Management Case (as defined below in the section entitled “The Merger Proposal — Financial Forecasts and Financial Projections,” beginning on page 64 of this proxy statement); and

 

   

12.6x Benefitfocus’s estimated Adjusted EBITDA for 2023 of $50 million based on the Management Case.

 

   

Cash consideration. The Board considered the fact that the Per Share Merger Consideration that will be paid to Benefitfocus stockholders will be paid solely in cash, which enables Benefitfocus’s stockholders to realize value that has been created at Benefitfocus while eliminating long-term business and execution risk upon the consummation of the Merger. The receipt of cash consideration eliminates uncertainty and risk for our stockholders related to the continued execution of Benefitfocus’s business.

 

   

Value relative to other strategic alternatives. The Board considered the potential values, benefits, risks and uncertainties facing Benefitfocus’s stockholders associated with possible other strategic alternatives to the proposed Merger, and the timing and likelihood of accomplishing such alternatives. In particular, the Board considered the potential stockholder value based on the Projections (as defined below in the section entitled “The Merger Proposal — Financial Forecasts and Financial Projections,” beginning on page 64 of this proxy statement) that could be expected to be generated from remaining an independent public company, the possibility of being acquired by a buyer other than Voya, and other strategic transactions involving Benefitfocus, as well as the potential benefits, risks and uncertainties associated with such alternatives. Based on the foregoing, the Board considered that none of these options, on a risk-adjusted basis, was reasonably likely to create value for Benefitfocus’s stockholders greater than the Per Share Merger Consideration. For additional information on the results of Benefitfocus’s strategic alternatives review, see the section entitled “The Merger Proposal (Proposal 1)—Background of the Merger,” beginning on page 41 of this proxy statement.

 

   

Risks associated with continued independence. While the Board remained supportive of the Projections and optimistic about Benefitfocus’s prospects on a standalone basis, the Board believes that the Per Share Common Stock Merger Consideration is more favorable than the potential long-term value of a share of Common Stock if the Company remained an independent public company, taking into account the risks associated with Benefitfocus continuing to operate as a standalone company, including the (i) potential execution risks associated with the Projections and the time horizon required for the Projections to yield improved financial and market performance, and the achievability of meeting financial projections, (ii) communications to Benefitfocus by certain significant stockholders

 

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requesting Benefitfocus to publicly announce a strategic alternatives sales process, (iii) potential impact associated with certain stockholders selling their shares of Common Stock or commencing a proxy contest in connection with Benefitfocus’s 2023 annual meeting if Benefitfocus failed to publicly announce a strategic alternatives sales process, (iv) business and macroeconomic environment in which Benefitfocus operates including the risk of the expected weakening of the broader macroeconomic environment and the potential risks and volatility associated with these developments, (v) potential risk associated with the possibility that, even if the Projections were successfully executed, the market may not reflect such successful execution in Benefitfocus’s stock price and (vi) potential risks posed by rising interests rates and tightening financing markets affecting the availability of other strategic alternatives. For an additional discussion of risks facing Benefitfocus, see “Where You Can Find More Information” beginning on page 130 of this proxy statement.

 

   

Negotiations with Voya. The Board considered Benefitfocus’s extensive, arms-length negotiations with Voya, with the assistance of Benefitfocus’s advisors, which resulted in Voya increasing its proposed purchase price per share from $9.50 per share of Common Stock on October 24, 2022 to $10.50 per share of Common Stock on October 27, 2022, and the Board’s belief, based on those negotiations, that the $10.50 per share of Common Stock purchase price represented the highest price per share that Voya was willing to pay. The Board also considered the substantial risk of losing Voya’s final offer of $10.50 per share of Common Stock if Benefitfocus failed to execute a transaction quickly with Voya.

 

   

Considerations regarding other potential buyers. The Board considered, among other things, (i) the robust pre-signing sale process conducted by Barclays at the direction and under the supervision of the Board, which involved outreach to approximately 27 potential interested parties, (ii) the Board’s and Benefitfocus’s management’s belief that none of the non-binding indications of interest in respect of the acquisition of Benefitfocus submitted by third-party bidders were (or would result in) a transaction that is superior to the Merger, including, among other reasons, as a result of varying levels of risks associated with financing markets, third-party financing needs of certain third-party bidders, additional due diligence requests and regulatory risks associated with other bids, and (iii) the Board’s belief that, based upon the Board’s and Benefitfocus’s management’s knowledge of the industry and industry participants, as well as the actual bids received and subsequent discussions with bidders about purchase price, it was unlikely that other potential acquirors would be willing and able to acquire Benefitfocus at a purchase price in excess of $10.50 per share of Common Stock in cash.

 

   

Opinions of Benefitfocus’s financial advisor. On November 1, 2022, the Board considered the oral opinion, of Barclays (which was subsequently confirmed in writing on November 2, 2022) that, as of the date of such opinion and based upon and subject to the qualifications, assumptions and limitations stated in its opinion, from a financial point of view, the Per Share Common Stock Merger Consideration to be offered to the holders of shares of Common Stock (other than holders of Excluded Shares) in the Merger was fair to such holders. The full text of the written opinion of Barclays, dated as of November 2, 2022, is attached as Annex D to this proxy statement and a discussion of the opinion, including the assumptions made and limitations on the review undertaken by Barclays, may be found under the heading “The Merger Proposal (Proposal 1)—Opinion of Benefitfocus’s Financial Advisor,” beginning on page 67 of this proxy statement.

 

   

No financing condition. The Board considered that the Merger is not subject to a financing condition of the type commonly used in private equity transactions, and that Voya represented to Benefitfocus in the Merger Agreement that it will have sufficient financial resources at the Closing to pay the aggregate Per Share Merger Consideration and to consummate the Merger. Related to the foregoing, Benefitfocus has a right to specifically enforce Voya’s obligations under the Merger Agreement.

 

   

Voya’s capabilities. The Board considered that (i) Voya is a creditworthy entity with substantial assets, (ii) Voya has the financial capacity to complete an acquisition of this size, and (iii) a transaction with Voya does not present material regulatory and financing risks, which the Board believed supported the conclusion that a transaction with Voya could be successfully and timely completed.

 

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Board’s independence and comprehensive review process. The Board considered the fact that the Board consists of a majority of independent directors who carefully reviewed the transaction with the assistance of Benefitfocus’s management and legal and financial advisors, and also took into consideration the financial expertise and prior industry experience of a number of directors.

 

   

Merger Agreement. The Board considered, in consultation with Benefitfocus’s legal counsel, the terms of the Merger Agreement, including:

 

   

the customary nature of the Merger Agreement’s (i) representations, warranties, covenants and agreements, (ii) closing conditions, (iii) termination rights, and (iv) other provisions;

 

   

the definition of “Material Adverse Effect” having a number of customary exceptions;

 

   

Benefitfocus having a customary amount of flexibility to conduct its business in the ordinary course during the Interim Period;

 

   

Benefitfocus’s right, subject to certain limitations contained in the Merger Agreement, to respond to unsolicited bona fide written Acquisition Proposals (as defined below) and to terminate the Merger Agreement in order to enter into an Alternative Acquisition Agreement (as defined below) with respect to an Acquisition Proposal that the Board determines in good faith is bona fide and constitutes a Superior Proposal (as defined below), provided that Benefitfocus concurrently pays Voya the required Termination Fee (as defined below);

 

   

the Board’s right, subject to certain limitations contained in the Merger Agreement, to change the Board Recommendation in response to a Superior Proposal or an Intervening Event (as defined below), subject to the requirement that Benefitfocus pays Voya the required Termination Fee if Voya terminates the Merger Agreement as a result of such change of the Board Recommendation; and

 

   

the Board’s belief that Benefitfocus’s obligation to pay Voya a termination fee of $14.0 million in the circumstances described above, and in certain other circumstances described below under “The Merger Agreement—Termination Fee,” beginning on page 116 of this proxy statement, is reasonable in the context of comparable transactions, and its further belief that a fee of such size would not be a meaningful deterrent to other potential acquirors making alternative acquisition proposals.

 

   

Antitrust efforts framework. The Board considered, in consultation with Benefitfocus’s legal counsel, the framework that the parties negotiated regarding Voya’s obligation, subject to certain limitations contained in the Merger Agreement, to take all necessary or advisable steps to obtain antitrust clearance of the Merger, including by proposing divestitures and behavioral remedies to governmental antitrust entities. In this regard, the Board noted that the parties and their respective legal counsel engaged early in the transaction process to assess any potential antitrust issues that an acquisition of Benefitfocus by Voya could present. For additional information on the regulatory approvals, see the section entitled “The Merger Agreement—Efforts to Complete the Merger,” beginning on page 108 of this proxy statement.

 

   

Stockholders’ ability to reject the Merger. The Board considered the fact that the Merger is subject to approval by the holders of a majority of the outstanding shares of Common Stock and Preferred Stock, voting together as a single class, with each share of Preferred Stock voting on an as-converted basis, and that stockholders would be able to reject the Merger. The Board considered the fact that the Merger Agreement does not include a requirement that Benefitfocus reimburse Voya’s transaction expenses if Benefitfocus fails to obtain the required approval from its stockholders, the concept of which was requested and ultimately withdrawn by Voya. The Board also considered the fact that each Support Agreement automatically terminates upon a Change of Recommendation or the termination of the Merger Agreement, including in order for Benefitfocus to enter into an Alternative Acquisition Agreement (defined below) with a third party constituting a superior proposal, provided that Benefitfocus concurrently pays Voya the required Termination Fee.

 

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Appraisal rights. The Board considered the fact that stockholders who do not vote for the adoption of the Merger Agreement and who timely and properly follow certain prescribed procedures will have the right to dissent from the Merger and demand appraisal of the fair value of their shares under Section 262 of the DGCL.

 

   

Likelihood of consummation. The Board considered the likelihood that the Merger would be completed, in light of, among other things, (i) the customary closing conditions to the Merger and the absence of a financing condition, (ii) the absence of any required approval by Voya’s stockholders, (iii) the relative likelihood of obtaining required antitrust approvals (in light of Voya’s obligations to seek to obtain such approvals, described above under the bullet entitled “Antitrust efforts framework”), and (iv) the remedies available to Benefitfocus under the Merger Agreement.

Other Factors Considered by the Board

In the course of reaching its decision, the Board also considered a number of potentially negative factors with respect to the Merger and the other transactions contemplated by the Merger Agreement, including, among others, the following (not necessarily in order of relative importance):

 

   

No participation in future gains. The Board considered the fact that Benefitfocus will no longer exist as an independent public company and stockholders will forgo any future increase in Benefitfocus’s value that might result from our earnings or potential growth as an independent public company. The Board was optimistic about Benefitfocus’s prospects on a standalone basis, but concluded that the premium reflected in the Per Share Common Stock Merger Consideration constituted fair compensation for the loss of the potential stockholder benefits that could reasonably be expected to be realized by the Projections, particularly on a risk-adjusted basis.

 

   

Antitrust and other regulatory risk. The Board considered the risk that antitrust and other regulatory approvals may be delayed, conditioned or denied, and the risk that the applicable governmental entities may seek to impose unfavorable terms or conditions, or otherwise fail to grant, such approvals. In this regard, the Board particularly considered the risk that governmental antitrust entities could require certain remedies or divestitures which Voya is not required to agree to pursuant to the terms of the Merger Agreement. (see “The Merger Agreement—Efforts to Complete the Merger,” beginning on page 108 of this proxy statement).

 

   

Risks associated with announcement and pendency of the Merger. The Board considered the risk that the announcement and pendency of the Merger may cause substantial harm to relationships with our employees, customers, vendors or strategic partners or may divert management and employee attention away from the day-to-day operation of our business. The Board also considered our ability to attract and retain key personnel while the proposed transaction is pending and the potential adverse effects on our financial results as a result of that disruption, as well as the possibility of any suit, action or proceeding in respect of the Merger Agreement or the transactions contemplated thereby.

 

   

Risks associated with a failure to consummate the Merger. The Board considered the fact that there can be no assurance that all conditions to the parties’ obligations to consummate the Merger will be satisfied, and as a result there can be no assurance that the Merger will be completed, even if the adoption of the Merger Agreement is approved by Benefitfocus’s stockholders. The Board considered that, if the Merger is not completed, (i) Benefitfocus will have incurred significant risk, transaction expenses and opportunity costs, including the possibility of disruption to our operations, diversion of management and employee attention, employee attrition and a potentially negative effect on our business and customer relationships, (ii) depending on the circumstances that caused the Merger not to be completed, the price of Common Stock could decline, potentially significantly, and (iii) the market’s perception of Benefitfocus’s prospects could be adversely affected.

 

   

Restrictions on the operation of Benefitfocus’s business. The Board considered the restrictions on the conduct of Benefitfocus’s business prior to the consummation of the Merger, including restrictions on

 

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realizing certain business opportunities or taking certain actions with respect to Benefitfocus’s operations we may have otherwise taken absent the pending Merger.

 

   

Potential differing interests of directors and executive officers. The Board considered that, aside from their interests as Benefitfocus stockholders, Benefitfocus’s directors and executive officers may have interests in the Merger that are different from, or in addition to, the interests of other Benefitfocus stockholders generally. See “The Merger Proposal (Proposal 1)—Interests of Benefitfocus’s Executive Officers and Directors in the Merger,” beginning on page 76 of this proxy statement.

 

   

Non-solicitation covenants. The Board considered the fact that the Merger Agreement restricts Benefitfocus from soliciting alternative acquisition proposals and provides Voya with customary “matching” rights prior to Benefitfocus terminating the Merger Agreement to accept a Superior Proposal.

 

   

Termination fee. The Board considered the possibility that the $14.0 million termination fee payable to Voya in certain circumstances might have the effect of discouraging alternative acquisition proposals or reducing the price of such third-party proposals.

 

   

Tax treatment. The Board considered the fact that any gains arising from the receipt of the Per Share Merger Consideration would generally be taxable to Benefitfocus stockholders that are U.S. holders for U.S. federal income tax purposes.

 

   

Stockholder litigation. The Board considered the impact on Benefitfocus of potential stockholder litigation in connection with the Merger.

While the Board considered potentially positive and potentially negative factors, including those described above, the Board ultimately concluded that, overall, the potentially positive factors outweighed the potentially negative factors.

The foregoing discussion is intended to be illustrative and is not intended to be an exhaustive list of the information and factors considered by the Board in its consideration of the Merger, but includes the material factors considered by the Board in that regard. In view of the number and variety of factors and the amount of information considered, the Board did not find it practicable to, nor did it attempt to, quantify, or otherwise assign specific or relative weights to, the specific factors considered in reaching its determinations and recommendations. In addition, each individual member of the Board applied his or her own personal business judgment to the process and may have given different weight to different factors.

Based on the totality of the information presented, the Board collectively reached the unanimous decision to (i) approve the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement, (ii) declare advisable the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement, (iii) determine that the Merger Agreement, the Support Agreements, the Merger and the transactions contemplated by the Merger Agreement are fair to, and in the best interests of, Benefitfocus and its stockholders (other than Excluded Shares that are not Dissenting Shares), (iv) recommend that the Company’s stockholders entitled to vote adopt the Merger Agreement, and (v) direct that the Merger Agreement be submitted to the Company’s stockholders for their adoption, in light of the factors described above and other factors that the members of the Board felt were appropriate.

Portions of this explanation of Benefitfocus’s reasons for the Merger and other information presented in this section are forward-looking in nature and, therefore, should be read in light of the section entitled “Cautionary Statement Regarding Forward-Looking Statements,” beginning on page 31 of this proxy statement.

Financial Forecasts and Financial Projections

In order to develop a framework for evaluating the potential value of Benefitfocus, Benefitfocus management prepared certain non-public, unaudited financial projections regarding Benefitfocus’s future

 

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operations for the fourth quarter of 2022 and fiscal years 2023 through 2026 (the “Management Case”), together with two alternative cases, Alternative Case 1 and Alternative Case 2 ((each, as defined below), and together with the Management Case, the “Projections”).

“Alternative Case 1” included the same assumptions as the Management Case but differed from the Management Case primarily by applying the following assumptions: (i) higher bookings growth, (ii) higher revenue retention, and (iii) faster uptake and greater attachment of new growth initiatives.

“Alternative Case 2” included the same assumptions as Alternative Case 1, but with more optimistic outcomes.

Benefitfocus’s management provided the Management Case, Alternative Case 1 and Alternative Case 2 to the Board, Barclays, Voya and certain other bidders (other than with respect to Unlevered Free Cash Flow (as defined below), which was not provided to Voya or any of the potential bidders). After reviewing and discussing the Projections and Benefitfocus management’s assessments regarding the probability of achieving the financial results in the Projections, the Board approved and instructed its financial advisor, Barclays, to use and rely upon the Management Case in connection with Barclays’s financial analyses and opinion summarized below in the section entitled “The Merger Proposal (Proposal 1)—Opinion of Benefitfocus’s Financial Advisor,” beginning on page 67 of this proxy statement.

In Benefitfocus’s press releases announcing quarterly or annual earnings, Benefitfocus has from time to time publicly provided certain projections as to its future financial performance. Benefitfocus does not otherwise, as a matter of course, publicly disclose projections as to its future financial performance. The Projections were developed by Benefitfocus’s management for internal use and for use in connection with the Merger Proposal and were not prepared with a view toward public disclosure. The Projections do not necessarily comply with U.S. Generally Accepted Accounting Principles (“GAAP”), published guidelines of the SEC regarding projections, forward-looking statements or the use of non-GAAP measures, or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of financial forecasts. The Projections were prepared by, and are the responsibility of, Benefitfocus’s management. Our independent registered public accounting firm has not audited, reviewed, examined, compiled or applied any agreed-upon procedures with respect to the Projections, and does not express an opinion or any form of assurance related thereto. The Projections and summaries of the Projections are not included in this proxy statement to influence any Benefitfocus stockholder’s decision whether to vote in favor of the Merger Proposal or any of the other proposals to be voted on at the Special Meeting or whether to exercise dissenter’s rights, but are included because they were made available to the Board, Barclays, Voya and certain other bidders in connection with the proposed Merger. The Projections are not intended to be considered as public guidance of our financial performance.

The Projections, while presented with numerical specificity, necessarily were based on numerous estimates, variables and assumptions that are inherently subjective and uncertain and many of which are beyond our control. Because the Projections cover multiple years, by their nature, they become subject to greater uncertainty with each successive year. The assumptions upon which the Projections were based necessarily involve judgments with respect to, among other things, future economic, competitive and regulatory conditions, the ability to take new product offerings to market and financial market conditions, all of which are difficult or impossible to predict and many of which are beyond our control. The Projections also reflect assumptions as to certain business decisions that are subject to change. Furthermore, the Projections do not take into account any circumstances or events occurring after the date they were prepared, including the public announcement of the proposed Merger or Benefitfocus’s compliance with its covenants under the Merger Agreement. The Projections do not take into account the possible financial and other effects on Benefitfocus of the Merger and do not attempt to predict or suggest future results of the Surviving Corporation. The Projections do not give effect to any of the Merger, the impact of negotiating or executing the Merger Agreement, the expenses that may be incurred in connection with consummating the Merger, any synergies that may be achieved following the Merger, the effect on Benefitfocus of any business or strategic decision or action that has been or will be taken as a result of the Merger Agreement

 

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having been executed, or the effect of any business or strategic decisions or actions that may have been taken if the Merger Agreement had not been executed. Further, the Projections do not take into account the effect of any possible failure of the Merger to occur. Important factors that may affect actual results and may result in the Projections not being achieved include, but are not limited to, the risk factors described in our annual report on Form 10-K for the fiscal year ended December 31, 2021, as amended by the Form 10-K/A filed on May 2, 2022, subsequent quarterly reports on Form 10-Q and current reports on Form 8-K. In addition, the Projections may be affected by our ability to achieve strategic goals, objectives and targets over the applicable period. The Projections are forward-looking statements. For information on factors that may cause our future financial results to vary materially, see the section entitled “Cautionary Statement Regarding Forward-Looking Statements,” beginning on page 31 of this proxy statement.

The Projections were prepared in good faith and on a reasonable basis based on the best information available to Benefitfocus’s management when prepared. However, there can be no assurance that the Projections will be realized, and actual results may vary materially from those shown. The inclusion of the Projections in this proxy statement should not be regarded as an indication that we or any of our officers, directors, affiliates, advisors or other representatives considered or consider the Projections to be material or predictive of actual future events, and they should not be relied upon as such. Neither we nor any of our officers, directors, affiliates, advisors or other representatives can give any assurance that actual results will not differ from the Projections and Benefitfocus undertakes no obligation to update or otherwise revise or reconcile the Projections to reflect circumstances existing after the respective dates on which they were prepared or to reflect the occurrence of future events, even in the event that any or all of the assumptions underlying the Projections are shown to be inappropriate. We do not intend to make publicly available any update or other revision to the Projections, except as otherwise required by law. Neither we nor any of our officers, directors, affiliates, advisors or other representatives has made or makes any representation to any Benefitfocus stockholder or any other person regarding our ultimate performance compared to the information contained in the Projections or that the Projections will be achieved. We have made no representation to Voya in the Merger Agreement or otherwise concerning the Projections.

Certain of the measures included in the Projections may be considered non-GAAP financial measures. Non-GAAP financial measures should not be considered in isolation from, or as a substitute for, financial information presented in compliance with GAAP, and non-GAAP financial measures as used by Benefitfocus might not be comparable to similarly titled amounts used by other companies. Financial measures provided to a board of directors or a financial advisor in connection with a business combination transaction are excluded from the definition of non-GAAP financial measures and therefore are not subject to SEC rules regarding disclosures of non-GAAP financial measures, which would otherwise require a reconciliation of a non-GAAP financial measure to a GAAP financial measure. Reconciliations of non-GAAP financial measures were not relied upon by the Board or Benefitfocus’s financial advisor in connection with the proposed Merger. Accordingly, we have not provided a reconciliation of the financial measures.

 

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Projections. The following table presents a summary of the Management Case, the Alternative Case 1 and the Alternative Case 2. Dollar totals are in millions.

 

            Fiscal Year ending December 31,  
     Q4 2022E      2023E      2024E      2025E      2026E  

Line Item

              

Management Case

              

Revenue

   $ 79      $ 246      $ 260      $ 281      $ 309  

Adjusted EBITDA(1)

   $ 26      $ 50      $ 55      $ 62      $ 74  

Unlevered Free Cash Flow(2)

   $ 10      $ 18      $ 19      $ 23      $ 30  

Alternative Case 1

              

Revenue

   $ 79      $ 255      $ 276      $ 309      $ 351  

Adjusted EBITDA(1)

   $ 26      $ 55      $ 62      $ 74      $ 93  

Unlevered Free Cash Flow(2)

   $ 10      $ 22      $ 25      $ 33      $ 47  

Alternative Case 2

              

Revenue

   $ 79      $ 258      $ 285      $ 328      $ 386  

Adjusted EBITDA(1)

   $ 26      $ 53      $ 62      $ 78      $ 103  

 

(1)

“Adjusted EBITDA” means earnings before net interest, taxes, and depreciation and amortization expense, adjusted to eliminate stock-based compensation, transaction and acquisition-related costs expensed, restructuring costs, impairment of goodwill, intangible assets, and long-lived assets, gain or loss on extinguishment of debt, costs not core to Benefitfocus’s business, loss on settlement of lawsuits and changes in fair value of contingently returnable consideration.

(2)

“Unlevered Free Cash Flow” means Adjusted EBITDA less stock-based compensation, less capital expenditures, changes in net working capital and taxes. Unlevered Free Cash Flow was not presented in Alternative Case  2.

Opinion of Benefitfocus’s Financial Advisor

Benefitfocus engaged Barclays to act as its financial advisor with respect to pursuing strategic alternatives for Benefitfocus, including a possible sale of Benefitfocus, pursuant to the Barclays Engagement Letter. On November 1, 2022, Barclays rendered its oral opinion (which was subsequently confirmed in writing on November 2, 2022) to the Board that, as of such date and based upon and subject to the qualifications, assumptions and limitations stated in its opinion, from a financial point of view, the Per Share Common Stock Merger Consideration to be offered to the holders of the Common Stock (other than the holders of Excluded Shares) in the Merger is fair to such holders.

The full text of Barclays’s written opinion, dated as of November 2, 2022, is attached as Annex D to this Proxy Statement. Barclays’s written opinion sets forth, among other things, the assumptions made, procedures followed, factors considered and limitations upon the review undertaken by Barclays in rendering its opinion. You are encouraged to read the opinion carefully in its entirety. The following is a summary of Barclays’s opinion and the methodology that Barclays used to render its opinion. This summary is qualified in its entirety by reference to the full text of the opinion.

Barclays’s opinion, the issuance of which was approved by Barclays’s Valuation and Fairness Opinion Committee, is addressed to the Board, addresses only the fairness, from a financial point of view, of the consideration to be offered to the holders of Common Stock (other than holders of Excluded Shares) and does not constitute a recommendation to any stockholder of Benefitfocus as to how such stockholder should vote with respect to the Merger or any other matter. The terms of the Merger were determined through arm’s-length negotiations between Benefitfocus and Voya and were unanimously approved by the Board. Barclays did not recommend any specific form of consideration to Benefitfocus or that any specific form of consideration

 

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constituted the only appropriate consideration for the Merger. Barclays was not requested to address, and its opinion does not in any manner address, Benefitfocus’s underlying business decision to proceed with or effect the Merger, the likelihood of the consummation of the Merger, or the relative merits of the Merger as compared to any other transaction in which Benefitfocus may engage. In addition, Barclays expressed no opinion on, and its opinion does not in any manner address, the fairness of the amount or the nature of any consideration received in the Merger by the holders of any other class of securities of Benefitfocus (including the Preferred Stock) or any compensation to any officers, directors or employees of any parties to the Merger, or any class of such persons, relative to the consideration to be offered to the holders of Common Stock (other than holders of Excluded Shares) in the Merger. No limitations were imposed by the Board upon Barclays with respect to the investigations made or procedures followed by it in rendering its opinion.

In arriving at its opinion, Barclays, among other things:

 

   

reviewed and analyzed the Merger Agreement and the terms of the Merger;

 

   

reviewed and analyzed publicly available information concerning Benefitfocus that Barclays believed to be relevant to its analysis, including Benefitfocus’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 (as amended by the Form 10-K/A filed on May 2, 2022) and Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2022 and June 30, 2022;

 

   

reviewed and analyzed financial and operating information with respect to the business, operations and prospects of Benefitfocus furnished to Barclays by Benefitfocus, including the Management Case, and the Company net operating loss projections (the “Company NOL Projections”), also prepared by Benefitfocus’s management;

 

   

reviewed and analyzed the trading history of the Common Stock from January 1, 2022 through October 31, 2022;

 

   

reviewed and analyzed a comparison of the historical financial results and present financial condition of Benefitfocus with those of other companies that Barclays deemed relevant;

 

   

reviewed and analyzed a comparison of the financial terms of the Merger with the financial terms of certain other transactions that Barclays deemed relevant;

 

   

reviewed and analyzed the results of Barclays’s efforts to solicit indications of interest from third parties with respect to a sale of Benefitfocus;

 

   

had discussions with the management of Benefitfocus concerning its business, operations, assets, liabilities, financial condition and prospects; and

 

   

undertook such other studies, analyses and investigations as Barclays deemed appropriate.

In arriving at its opinion, Barclays assumed and relied upon the accuracy and completeness of the financial and other information used by Barclays without any independent verification of such information (and did not assume responsibility or liability for any independent verification of such information). Barclays also relied upon the assurances of management of Benefitfocus that they were not aware of any facts or circumstances that would make such information inaccurate or misleading. With respect to the Management Case, upon the advice of Benefitfocus, Barclays assumed that such projections were reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of Benefitfocus as to the future financial performance of Benefitfocus and that Benefitfocus would perform substantially in accordance with such projections. With respect to the Company NOL Projections, at the instruction of Benefitfocus, Barclays assumed that the amounts of the Company NOL Projections were reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of Benefitfocus as to the future utilization of net operating losses by Benefitfocus. In arriving at its opinion, Barclays assumed no responsibility for and expressed no view as to any such projections or estimates or the assumptions on which they were based. In arriving at its opinion, Barclays did not conduct a physical inspection of the properties and facilities of Benefitfocus and did

 

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not make or obtain any evaluations or appraisals of the assets or liabilities of Benefitfocus. Barclays’s opinion was necessarily based upon market, economic and other conditions as they existed on, and could be evaluated as of, November 2, 2022. Barclays assumed no responsibility for updating or revising its opinion based on events or circumstances that may have occurred after the date of its opinion.

Barclays assumed the accuracy of the representations and warranties contained in the Merger Agreement and all the agreements related thereto. Barclays also assumed, upon the advice of Benefitfocus, that all material governmental, regulatory and third-party approvals, consents and releases for the Merger would be obtained within the constraints contemplated by the Merger Agreement and that the Merger would be consummated in accordance with the terms of the Merger Agreement without waiver, modification or amendment of any material term, condition or agreement thereof. Barclays did not express any opinion as to any tax or other consequences that might result from the Merger, nor did Barclays’s opinion address any legal, tax, regulatory or accounting matters, as to which Barclays understood that Benefitfocus had obtained such advice as it deemed necessary from qualified professionals.

In connection with rendering its opinion, Barclays performed certain financial, comparative and other analyses as summarized below. In arriving at its opinion, Barclays did not ascribe a specific range of values to the Common Stock but rather made its determination as to fairness, from a financial point of view, to the holders of Common Stock (other than the holders of Excluded Shares) of the consideration to be offered to such stockholders in the Merger on the basis of various financial and comparative analyses. The preparation of a fairness opinion is a complex process and involves various determinations as to the most appropriate and relevant methods of financial and comparative analyses and the application of those methods to the particular circumstances. Therefore, a fairness opinion is not readily susceptible to summary description.

In arriving at its opinion, Barclays did not attribute any particular weight to any single analysis or factor considered by it but rather made qualitative judgments as to the significance and relevance of each analysis and factor relative to all other analyses and factors performed and considered by it and in the context of the circumstances of the particular transaction. Accordingly, Barclays believes that its analyses must be considered as a whole, as considering any portion of such analyses and factors, without considering all analyses and factors as a whole, could create a misleading or incomplete view of the process underlying its opinion.

Summary of Material Financial Analyses

The following is a summary of the material financial analyses used by Barclays in preparing its opinion to the Board. The summary of Barclays’s analyses and reviews provided below is not a complete description of the analyses and reviews underlying Barclays’s opinion, nor does the order of the financial analyses described represent the relative importance or weight given to those financial analyses by Barclays. The preparation of a fairness opinion is a complex process involving various determinations as to the most appropriate and relevant methods of analysis and review and the application of those methods to particular circumstances, and, therefore, is not readily susceptible to summary description.

For the purposes of its analyses and reviews, Barclays made numerous assumptions with respect to industry performance, general business, economic, market and financial conditions and other matters, many of which are beyond the control of Benefitfocus or any other parties to the Merger. No company, business or transaction considered in Barclays’s analyses and reviews is identical to Benefitfocus or the Merger, and an evaluation of the results of those analyses and reviews is not entirely mathematical. Rather, the analyses and reviews involve complex considerations and judgments concerning financial and operating characteristics and other factors that could affect the acquisition, public trading or other values of the companies, businesses or transactions considered in Barclays’s analyses and reviews. None of Benefitfocus, Voya, Merger Sub, Barclays or any other person assumes responsibility if future results are materially different from those discussed. Any estimates contained in these analyses and reviews and the ranges of valuations resulting from any particular analysis or review are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than as set forth below. In addition, analyses relating to the value of companies, businesses or securities do not purport to be appraisals or reflect the prices at which the companies,

 

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businesses or securities may actually be sold. Accordingly, the estimates used in, and the results derived from, Barclays’s analyses and reviews are inherently subject to substantial uncertainty.

The summary of the financial analyses and reviews provided below include information presented in tabular format. In order to fully understand the financial analyses and reviews used by Barclays, the tables must be read together with the text of each summary, as the tables alone do not constitute a complete description of the financial analyses and reviews. Considering the data in the tables below without considering the full description of the analyses and reviews, including the methodologies and assumptions underlying the analyses and reviews, could create a misleading or incomplete view of Barclays’s analyses and reviews.

Selected Comparable Company Analysis

In order to assess how the public market values shares of similar publicly traded companies and to provide a range of relative implied equity values per share of Benefitfocus by reference to those companies, Barclays reviewed and compared specific financial and operating data relating to Benefitfocus with a selected company that Barclays, based on its experience in the technology services industry, deemed comparable to Benefitfocus.

The selected human resource business process outsourcing comparable company with respect to Benefitfocus was:

 

   

Alight Solutions LLC (the “Comparable Company”)

Barclays calculated and compared various financial multiples and ratios of Benefitfocus and the Comparable Company. As part of its selected comparable company analysis, Barclays calculated and analyzed the ratio of (i) the Comparable Company’s enterprise value (“EV”) to its estimated calendar year 2022 (“CY 2022E”) and estimated calendar year 2023 (“CY 2023E”) revenue and (ii) the Comparable Company’s EV to its estimated calendar year 2022 and estimated calendar year 2023 earnings before interest, taxes, depreciation and amortization and before share-based compensation and adjusted for non-recurring items (“Adj. EBITDA”). The Comparable Company’s EV was obtained by adding its straight debt, lease liabilities, the book value of any minority interest and out-of-the-money convertible instruments to the sum of the market value of its common equity and subtracting its cash. All of these calculations were performed, and based on publicly available financial data (from sources including Comparable Company’s filings and FactSet) and closing prices, as of October 31, 2022, the last trading date prior to the delivery of Barclays’s oral opinion. The results of the Comparable Company analysis are summarized below:

 

     EV/CY
2022E
Revenue
     EV/CY
2023E
Revenue
     EV/CY
2022E
Adj.
EBITDA
     EV/CY
2023E
Adj.
EBITDA
 

Alight Solutions LLC

     2.5x        2.3x        11.7x        10.3x  

Barclays selected the Comparable Company listed above because of similarities in one or more business or operating characteristics with Benefitfocus. However, because no selected comparable company is exactly the same as Benefitfocus, Barclays believed that it was inappropriate to, and therefore did not, rely solely on the quantitative results of the Comparable Company analysis. Accordingly, Barclays also made qualitative judgments concerning differences between the business, financial and operating characteristics and prospects of Benefitfocus and the Comparable Company that could affect the public trading values of each in order to provide a context in which to consider the results of the quantitative analysis. These qualitative judgments related primarily to the differing sizes, growth prospects, profitability levels and degree of operational risk between Benefitfocus and the Comparable Company included in the selected comparable company analysis. Based upon these judgments, Barclays selected a range of 9.0x to 11.0x multiples of EV to its estimated calendar year 2023 Adj. EBITDA (as defined below) and applied such range to the Management Case. For Benefitfocus, Adj. EBITDA was defined as net loss before net interest, taxes, and depreciation and amortization expense, adjusted to eliminate stock-based compensation, transaction and acquisition-related costs expensed, restructuring costs, impairment of goodwill, intangible assets, and long-lived assets, gain or loss on extinguishment of debt, costs not

 

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core to Benefitfocus’s business, loss on settlement of lawsuits and changes in fair value of contingently returnable consideration. The following summarizes the result of these calculations:

 

     Implied
Multiple Range
     Implied
Equity Value per Share
 

EV/CY 2023E Adj. EBITDA

     9.0x-11.0x      $ 5.97-$8.58  

Barclays noted that on the basis of the selected comparable company analysis, the Per Share Common Stock Merger Consideration of $10.50 per share was above the range of implied values per share calculated using the Management Case.

Selected Precedent Transaction Analysis

Barclays reviewed and compared the purchase prices and financial multiples paid in selected other transactions that Barclays, based on its experience with merger and acquisition transactions, deemed relevant. Barclays chose such transactions based on, among other things, the similarity of the applicable target companies in the transactions to Benefitfocus with respect to the industry, size, mix, margins and other characteristics of their businesses.

As part of its selected precedent transaction analysis, for each of the selected transactions, based on information Barclays obtained from company filings and broker research, Barclays analyzed the ratio of each target company’s EV to both the last 12-month period (“LTM”) and the forward 12-month period (“NTM”) revenue and earnings before interest, taxes, depreciation and amortization (“EBITDA”) multiples at the time of announcement of the respective transactions. The results of this precedent transaction analysis are summarized below:

 

Date
Announced

 

Acquiror

 

Target

 

EV/Revenue
LTM

 

EV/Revenue

NTM

 

EV/EBITDA

LTM

 

EV/EBITDA

NTM

10/3/2022  

Francisco Partners, LP

 

bswift LLC

  N/A   N/A   N/A   N/A
6/21/2022  

TPG, Inc.

  Convey Health Solutions Holdings, Inc.   3.1x   2.6x   15.7x   13.0x
6/16/2022  

Telus Corp

  LifeWorks Holdings, Inc.   2.9x   2.8x   15.7x   14.5x
1/5/2022  

Vera Whole Health, Inc.

  Castlight Health, Inc.   2.2x   2.2x   20.9x   N/A
12/1/2021  

Stone Point Capital LLC

  Businessolver.com, Inc.   N/A   N/A   N/A   N/A
4/4/2021  

Wex, Inc.

  Benefit Express Services, LLC   N/A   N/A   N/A   N/A
1/25/2021  

Foley Trasimene Acquisition Corp.

  Alight Solutions LLC   2.7x   2.6x   13.3x   12.2x
10/27/2020  

Teleperformance S.A.

  Health Advocate, Inc.   4.9x   4.5x   13.9x   12.1x
7/28/2020  

TA Associates Management, L.P./Francisco Partners, LP

  Edifecs, Inc. (51% stake)   N/A   N/A   N/A   N/A
11/25/2019  

Securian Financial Services, Inc.

  Empyrean Capital Partners, LP   N/A   N/A   N/A   N/A
6/27/2019  

HealthEquity, Inc.

  WageWorks, Inc.   3.2x   3.1x   10.8x   11.0x
1/17/2019  

WEX, Inc.

  Discovery Benefits, Inc.   4.3x   N/A   21.3x   N/A
    Mean   3.3x   3.0x   15.9x   12.5x
    Medium   3.1x   2.7x   15.7x   12.2x

 

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The reasons for and the circumstances surrounding each of the selected precedent transactions analyzed were diverse and there are inherent differences in the business, operations, financial conditions and prospects of Benefitfocus and the target companies included in the selected precedent transaction analysis. Accordingly, Barclays believed that a purely quantitative selected precedent transaction analysis would not be particularly meaningful in the context of considering the Merger. Barclays therefore made qualitative judgments concerning differences between the characteristics of the selected precedent transactions and the Merger which would affect the acquisition values of the selected target companies and Benefitfocus. Based upon these judgments, Barclays selected a range of multiples of 12.0x to 15.0x and applied such range to Benefitfocus’s Adj. EBITDA for the LTM period as of September 30, 2022 from the Management Case to calculate a range of implied prices per share of Benefitfocus. The following table sets forth the results of such analysis:

 

     Implied
Multiple
Range
   Implied
Equity Value
per Share

EV/LTM Sep-22A Adj. EBITDA

   12.0x-15.0x    $6.87-$10.03

Barclays noted that on the basis of the selected precedent transaction analysis, the Per Share Common Stock Merger Consideration of $10.50 per share was above the range of implied values per share calculated using the Management Case.

Discounted Cash Flow Analysis

In order to estimate the present value of our Common Stock, Barclays performed a discounted cash flow analysis of Benefitfocus. A discounted cash flow analysis is a traditional valuation methodology used to derive a valuation of an asset by calculating the “present value” of estimated future cash flows of the asset. “Present value” refers to the current value of future cash flows or amounts and is obtained by discounting those future cash flows or amounts by a discount rate that takes into account macroeconomic assumptions and estimates of risk, the opportunity cost of capital, expected returns and other appropriate factors.

To calculate the estimated enterprise value of Benefitfocus using the discounted cash flow method, Barclays added (i) Benefitfocus’s projected after-tax Unlevered Free Cash Flows for the last quarter of fiscal year 2022 and for fiscal years 2023 through 2026 based on the Management Case and (ii) the “terminal value” of Benefitfocus as of the end of fiscal year 2026, and discounted such amount to its present value using a mid-year convention and a range of selected discount rates. The after-tax Unlevered Free Cash Flows is Benefitfocus’s Adj. EBITDA less stock-based compensation, less capital expenditures and adjusting for changes in net working capital and taxes. The residual value of Benefitfocus at the end of the forecast period, or “terminal value,” was estimated by selecting a range of estimated LTM Adj. EBITDA exit multiples. Barclays assumed a range of terminal value LTM Adj. EBITDA exit multiples of 9.5x to 11.5x, which was derived by Barclays utilizing its professional judgment and experience, taking into account the results from the selected comparable companies analysis and applying such range to the Management Case. The range of after-tax discount rates of 11.0% to 13.0% was selected based on an analysis of the weighted average cost of capital of Benefitfocus. Barclays then calculated a range of implied prices per share of Benefitfocus by subtracting estimated net debt of $(143.0 million) as of September 30, 2022 and the value of Benefitfocus’s outstanding Preferred Stock (at liquidation value) of $80.0 million, in each case as provided by Benefitfocus’s management, and adding the present value of tax savings post-2026 from Benefitfocus’s net operating losses derived from the Management Case using the discounted cash flow method to the estimated enterprise value and dividing such amount by the fully diluted number of shares of Common Stock as of October 31, 2022 (comprised of 34.4 million shares of Common Stock outstanding, 4.2 million Company RSUs and Company PRSUs outstanding and 0.1 million outstanding Company

 

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Options with a weighted average exercise price of $13.53, in each case as provided by Benefitfocus’s management). The following summarizes the result of these calculations:

 

     Selected Terminal Value
LTM Adj. EBITDA
Multiple Range
     Implied Equity
Value per
Share
 

Discount Rate of 11.0%—13.0%

     9.5x-11.5x      $ 7.63-$11.09  

Barclays noted that on the basis of the discounted cash flow analysis, the Per Share Common Stock Merger Consideration of $10.50 per share was within the range of implied values per share calculated using Management Case.

Other Factors

Barclays also reviewed and considered other factors, which were not considered part of its financial analyses in connection with rendering its advice, but were references for informational purposes, including, among other things, an Illustrative Future Share Price Analysis, a Discounted Cash Flow Analysis of Alternative Case 1, an Equity Research Target Prices Review, a Precedent Transactions Premium Paid Analysis and a Historical Share Price Analysis, each described below.

Illustrative Future Share Price Analysis

Barclays performed an illustrative analysis of the implied present value of an illustrative future value per share of Common Stock, which is designed to provide an indication of the present value of the theoretical future value of a company’s equity as a function of such company’s financial projections and valuation multiples. Barclays first calculated the implied future EV of Benefitfocus for fiscal year ending 2022 and each of the next three fiscal year ends by applying ratios of (i) multiples of Benefitfocus’s EV to NTM Adj. EBITDA ranging from 9.0x to 11.0x to (ii) NTM Adj. EBITDA estimates for Benefitfocus as reflected in the Management Case for each of the 2022, 2023, 2024 and 2025 fiscal years. The illustrative EV to NTM Adj. EBITDA multiple estimates were derived by Barclays utilizing its professional judgment and experience, taking into account the results from the selected comparable companies analysis and the EV to NTM Adj. EBITDA multiples for Benefitfocus as of October 31, 2022. Barclays then calculated a range of implied prices per share of Benefitfocus based on the fully diluted number of shares of Common Stock as of October 31, 2022 (comprised of 34.4 million shares of Common Stock outstanding, 4.2 million Company RSUs and Company PRSUs outstanding and 0.1 million outstanding Company Options with a weighted average exercise price of $13.53, in each case as provided by Benefitfocus’s management).

Utilizing a discount rate of 15.0%, based on an analysis of the cost of equity of Benefitfocus, Barclays then derived a range of implied present values per share for Benefitfocus by discounting to present value the implied future values per share of Benefitfocus as a standalone entity. The following table presents the results of the analysis of the implied present value of the illustrative future value per share of Common Stock.

Present Value of Illustrative Future Share Price

 

     Selected
Multiple
Range
     Implied Equity
Value Per
Share

NTM EBITDA @ 12/31/2024

     9.0x-11.0x      $7.13-$9.46

NTM EBITDA @ 12/31/2025

     9.0x-11.0x      $8.58-$10.83

Discounted Cash Flow Analysis of Alternative Case 1

Barclays performed an additional discounted cash flow analysis based on Alternative Case 1 (as described above in the section entitled “The Merger Proposal (Proposal 1)—Financial Forecasts and Financial Projections,”

 

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beginning on page 64 of this proxy statement) using the same methodology as described above under the caption “Discounted Cash Flow Analysis” (including LTM Adj. EBITDA exit multiples of 9.5x to 11.5x and after-tax discount rates of 11.0% to 13.0%) but utilizing the unlevered after-tax cash flows for Benefitfocus derived from the Alternative Case 1. The following summarizes the result of this analysis:

 

     Selected Terminal Value
LTM Adj. EBITDA
Multiple Range
     Implied Equity
Value per Share
 

Discount Rate of 11.0%—13.0%

     9.5x-11.5x      $ 11.06-$15.35  

Barclays noted that, on the basis of the discounted cash flow analysis based on the Alternative Case 1, the Per Share Common Stock Merger Consideration of $10.50 per share was below the range of implied values per share calculated using Alternative Case 1.

Equity Research Target Prices Review

Barclays reviewed publicly available one-year forward price targets for the Common Stock prepared and published by three equity research firms that covered Benefitfocus as of October 31, 2022. The price targets published by the equity research firms did not necessarily reflect current market trading prices for the Common Stock. Barclays noted that the range of low to high one-year forward share price targets as of October 31, 2022 was $6.00 to $10.00 per share.

Precedent Transactions Premium Paid Analysis

In order to assess the premium offered to the stockholders of Benefitfocus in the Merger relative to the premiums offered to stockholders in other transactions, Barclays reviewed the premiums paid in 50 diversified industries mergers and acquisitions transactions known to Barclays involving publicly listed target companies in which the target equity was valued between $100.0 million and $1.5 billion from March 12, 2019 to July 21, 2022. For each transaction, Barclays calculated the premium per share paid by the acquiror by comparing the announced transaction value per share to the target company’s historical VWAP during the following periods: (i) one trading day prior to announcement and (ii) 30 trading days prior to announcement.

The reasons for and the circumstances surrounding each of the transactions analyzed in the precedent transactions premium paid analysis were diverse and there are inherent differences in the business, operations, financial conditions and prospects of Benefitfocus and the target companies included in the precedent transactions premium paid analysis. Accordingly, Barclays believed that a purely quantitative transaction premium analysis would not be particularly meaningful in the context of considering the Merger. Barclays therefore made qualitative judgments concerning the differences between the characteristics of the selected transactions and the Merger which would affect the acquisition values of the target companies and Benefitfocus. Based upon these judgments, Barclays selected a range of premiums to (i) the closing price of Benefitfocus on October 31, 2022 and (ii) the 30-trading day VWAP of the Common Stock ending on October 31, 2022 (the last trading day prior to the date of the Merger Agreement), to calculate a range of implied equity values per share of Common Stock. The following summarizes the result of these calculations:

 

     Selected Premium
Range
     Implied Equity Value per
Share of Common Stock

1-Day Price

     25.0%-55.0%      $8.81-$10.93

30-Day Average Price

     25.0%-55.0%      $7.95-$9.86

Barclays noted that on the basis of the precedent transactions premium paid analysis, the Per Share Common Stock Merger Consideration of $10.50 per share was (i) within the range of implied values per share calculated using the closing price of the Common Stock on October 31, 2022 and (ii) above the range of implied values per share calculated using the 30-trading day VWAP of the Common Stock ending on October 31, 2022 (the last trading day prior to the date of the Merger Agreement).

 

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Historical Share Price Analysis

To illustrate the trend in the historical trading prices of the Common Stock, Barclays considered historical data with regard to the trading prices of the Common Stock for the 52-week period from November 1, 2021 to October 31, 2022. Barclays noted that during this period, the closing price of the Common Stock ranged from $5.69 to $13.06 per share.

General

Barclays is an internationally recognized investment banking firm and, as part of its investment banking activities, is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, investments for passive and control purposes, negotiated underwritings, competitive bids, secondary distributions of listed and unlisted securities, private placements and valuations for estate, corporate and other purposes. The Board selected Barclays because of its qualifications, reputation and experience in the valuation of businesses and securities in connection with mergers and acquisitions generally, as well as substantial experience in transactions comparable to the Merger.

Barclays is acting as financial advisor to Benefitfocus in connection with the Merger. As compensation for its services in connection with the Merger, Barclays is entitled to a fee from Benefitfocus of $1.0 million, payable upon the delivery of Barclays’s opinion, which is referred to as the “Opinion Fee.” The Opinion Fee was not contingent upon the conclusion of Barclays’s opinion or the consummation of the Merger. Additional compensation of approximately $11.11 million will be payable by Benefitfocus upon completion of the Merger (against which the amount of the Opinion Fee as well as $250,000 of advisory fees previously earned by Barclays will be credited). In addition, Benefitfocus has agreed to reimburse Barclays for its reasonable out-of-pocket expenses incurred in connection with the Merger and to indemnify Barclays for certain liabilities that may arise out of its engagement by Benefitfocus and the rendering of Barclays’s opinion. Barclays has performed various investment banking and financial services for Benefitfocus and Voya in the past, and is likely to perform such services in the future, and has received, and is likely to receive, customary fees for such services. Specifically, in the past two years, the aggregate fees invoiced (but not yet received) by Barclays to Benefitfocus for advisory services were approximately $3.25 million (excluding the Opinion Fee and the fees payable to Barclays upon consummation of the Merger). In the past two years, Barclays has not performed any investment banking services for Voya for which it has received any fees.

In addition, Barclays and its affiliates in the past have provided, currently are providing, or in the future may provide, investment banking services to Indaba and BG, each an affiliate of Benefitfocus and a Company stockholder, and certain of their respective affiliates and portfolio companies and have received or in the future may receive customary fees for rendering such services, including (i) having acted or acting as financial advisor to Indaba and BG and certain of their respective portfolio companies and affiliates in connection with certain mergers and acquisition transactions; (ii) having acted or acting as arranger, bookrunner and/or lender for Indaba and BG and certain of their respective portfolio companies and affiliates in connection with corporate finance transactions, including providing financing for various acquisition transactions; and (iii) having acted or acting as underwriter, initial purchaser and/or placement agent for various equity and debt offerings undertaken by Indaba and BG and certain of their respective portfolio companies and affiliates. In the past two years, Barclays has not performed any investment banking services for Indaba or BG for which it has received any fees.

Barclays, its subsidiaries and its affiliates engage in a wide range of businesses from investment and commercial banking, lending, asset management and other financial and non-financial services. In the ordinary course of its business, Barclays and affiliates may actively trade and effect transactions in the equity, debt and/or other securities (and any derivatives thereof) and financial instruments (including loans and other obligations) of Benefitfocus, Voya, Indaba and BG and their respective affiliates for their own accounts and for the accounts of our customers and, accordingly, may at any time hold long or short positions and investments in such securities and financial instruments.

 

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Interests of Benefitfocus’s Executive Officers and Directors in the Merger

In considering the recommendation of the Board that you vote to approve the Merger Proposal, you should be aware that, aside from their interests as Benefitfocus stockholders, Benefitfocus’s directors and executive officers have interests in the Merger that may be different from, or in addition to, the interests of Benefitfocus stockholders generally, which may create potential conflicts of interest. These interests are described in more detail below, and with respect to the named executive officers of Benefitfocus, are quantified in the “Golden Parachute Compensation” table below. The Board was aware of these interests and considered them when it adopted the Merger Agreement and approved the Merger, and in unanimously recommending that the Merger Agreement be adopted by the Benefitfocus stockholders.

Acceleration of Equity Awards Held by Directors and Executive Officers

Accelerated Equity Awards of Directors

At the Effective Time, each outstanding Company RSU held by a non-employee director of Benefitfocus will be cancelled, and each non-employee director holding Company RSUs will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company RSU immediately prior to the effective time multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment.

The estimated aggregate amount that would be realized by the non-employee directors of the Benefitfocus Board in respect of their unvested Company RSUs if the merger was to be completed on November 30, 2022 is $1,494,706.50. This estimated amount was determined using the number of Company RSUs held by the non-employee directors of the Benefitfocus Board that were outstanding as of November 30, 2022, the latest practicable date prior to the filing of this proxy statement, and a price per share of $10.50. This amount does not attempt to forecast any additional equity award grants, issuances or forfeitures that may occur prior to the effective time following the date of this proxy statement. As a result of the foregoing assumptions, which may or may not actually occur or be accurate on the relevant date, the actual amounts to be received by the members of the Benefitfocus Board may materially differ from the amount set forth above. None of the Company’s non-employee directors hold Company Options, Company PRSUs or Company Time-Vesting PRSUs.

Accelerated Equity Awards of Executive Officers

At the Effective Time, each outstanding Company Equity Award, including any held by an executive officer, prior to the Effective Time will generally be subject to the treatment described below:

For the avoidance of doubt, none of the outstanding Company Equity Awards held by Mr. Levin would accelerate and “single trigger” (as described below) vest in connection with the Closing. As discussed in the section entitled “The Merger Proposal (Proposal 1)—Interests of Benefitfocus’s Executive Officers and Directors in the Merger—Retention Awards,” beginning on page 78 of this proxy statement, Mr. Levin was granted Company Retention RSUs, a portion of which, by their terms, will vest upon the Closing. For an estimate of the amounts that would be realized by each of Benefitfocus’s named executive officers who hold outstanding and unvested Company Equity Awards if the Merger is consummated on November 30, 2022 and he or she experiences a qualifying termination on November 30, 2022, see the section entitled “The Merger Proposal (Proposal 1)—Interests of Benefitfocus’s Executive Officers and Directors in the Merger—Golden Parachute Compensation,” beginning on page 80 of this proxy statement.

Company Options

Each Company Option to purchase shares of Common Stock granted under the Plan that is outstanding and vested as of immediately prior to the Effective Time will be cancelled, and each holder of such Company Options

 

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will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company Option immediately prior to the Effective Time, multiplied by (ii) the excess, if any, of (A) the Per Share Common Stock Merger Consideration, over (B) the exercise price per share of Common Stock of such Company Option, less applicable taxes required to be withheld with respect to such payment, provided that any Company Option which has an exercise price equal to or greater than the Per Share Common Stock Merger Consideration will be cancelled at the Effective Time for no consideration.

Specified Awards

Each Specified Award that is unvested and outstanding as of immediately prior to the Effective Time, will be cancelled, and each holder of such Specified Award will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Specified Award immediately prior to the Effective Time, multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment, provided that, with respect to a Specified Award that is a Company Time-Vesting PRSU, the number of shares of Common Stock subject to such Specified Award will be the number of shares of Common Stock earned for the applicable performance period pursuant to the terms of such Company Time-Vesting PRSU.

Company RSUs, Company Retention RSUs and Company Time-Vesting PRSUs

Each (A) Company RSU that is not a Specified Award (including for the avoidance of doubt, any Company Retention RSUs) and (B) Company Time-Vesting PRSU, in each of (A) and (B), that is outstanding as of immediately prior to the Effective Time, will be assumed by Voya and converted into a Voya RSU covering a number of shares of Voya Common Stock (rounded down to the nearest whole number), equal to the product of (i) the number of shares of Common Stock subject to such Company RSUs immediately prior to the Effective Time, multiplied by (ii) the Equity Award Exchange Ratio. Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company RSUs immediately prior to the Effective Time.

Company PRSUs

Each Company PRSU that is outstanding as of immediately prior to the Effective Time will be assumed by Voya and converted into a Voya RSU covering a number of shares of Voya Common Stock (rounded down to the nearest whole number) equal to the product of (i) the number of shares of Common Stock subject to such Company PRSUs immediately prior to the Effective Time based on target performance, multiplied by (ii) the Equity Award Exchange Ratio. Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company PRSUs immediately prior to the Effective Time.

In the event the Closing occurs in 2023, with respect to each Company PRSU with a performance period ending in 2022, the Company may determine achievement of the performance goals based on the greater of (x) 50% of the target performance goal and (y) actual achievement of the applicable performance goals in accordance with the terms of the Company PRSUs.

Company Equity Awards Held by Former Employees

Each Company RSU and Company PRSU that is outstanding as of immediately prior to the Effective Time and held by a non-employee director or consultant of the Company or by any employee who is not a Continuing Employee will be cancelled, and each holder of such Company Equity Award will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company Equity Award immediately prior to the Effective Time, (with respect to each Company PRSU, based on target performance), multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment.

 

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Retention Awards

In connection with the execution of the Merger Agreement, Benefitfocus granted Company Retention RSUs to the Company’s executive officers to promote the retention of the individuals whose skills, capabilities and knowledge are critical to Benefitfocus and the Merger and to incentivize efforts to consummate the Merger. In accordance with the Company Retention RSU award agreements, half of the Company Retention RSUs will vest upon the Closing Date and the other half will vest on the date that is six months after the Closing (the “Final Vesting Date”), subject to continued service. The Company Retention RSUs will become fully vested upon termination of employment without “cause” by Benefitfocus or for “good reason” by the applicable executive officer on or after the Closing Date and prior to the Final Vesting Date.

 

Executive Officers

   Grant Value of Company
Retention RSUs on
Grant Date ($)*
     Number of Company
Retention RSUs (#)
 

Matthew Levin

     2,800,000        445,611  

Alpana Wegner

     1,500,000        238,720  

 

*

The number of Company Retention RSUs was determined by dividing the grant value of the Company Retention RSUs on the grant date by approximately $6.28, which was the 20-day historic average stock price of Benefitfocus as of the grant date.

Cash Severance Payments and Other Termination Benefits Under Existing Employment Agreements

Benefitfocus previously entered into employment agreements with each of Mr. Levin (the “Levin Agreement”) and Ms. Wegner (the “Wegner Agreement” and, together with the Levin Agreement, the “Existing Employment Agreements”).

The Levin Agreement provides that if Mr. Levin is terminated without cause or resigns for good reason (a “qualifying termination”), within 12 months of a change in control, Mr. Levin will be entitled to (i) two times the sum of his then-current base salary plus two times his then-current target bonus, payable over 12 months, (ii) full vesting of all of his equity awards (with any performance conditions deemed met at target) and (iii) payment of the same percentage of the premium Benefitfocus was paying prior to termination during the first 12 months of Mr. Levin’s continued coverage under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), if he is eligible for and elects COBRA continuation coverage. The Levin Agreement provides that if Mr. Levin experiences a qualifying termination at any other time, Mr. Levin will receive (i) an amount equal to his then-current base salary plus his then-current target bonus, payable over 12 months, (ii) COBRA premium support for 12 months, and (iii) continued vesting of all of his equity awards that would have otherwise vested in the 12 months period following his termination if he had remained employed, other than the previously disclosed one-time inducement grant of 248,826 RSUs and 106,640 PRSUs, which will vest in full.

The Wegner Agreement provides that if Ms. Wegner experiences a qualifying termination, within 12 months of a change in control, Ms. Wegner will be entitled to (i) salary continuation at a rate equal to her base salary then in effect for a period of 12 months, (ii) a pro rata portion of her target annual bonus, (iii) an insurance premium in an amount equal to that which was paid on her behalf prior to the termination of employment, paid during the same period in which she receives salary continuation (subsections (i) through (iii), collectively, the “Wegner Severance Benefits”), and (iv) accelerating vesting of all her unvested and outstanding equity awards (with any performance conditions for awards with an ongoing performance period as of her qualifying termination deemed met at target). The Wegner Agreement provides that if Ms. Wegner experiences a qualifying termination at any other time, Ms. Wegner will be entitled to the Wegner Severance Benefits and immediate vesting of those outstanding equity awards that would have otherwise vested in the 12 months following her termination.

Each of the Existing Employment Agreements provides that during and after their employment, Mr. Levin and Ms. Wegner are subject to a covenant related to the non-disclosure of trade secrets and confidential

 

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information. For one year following the date of termination for any reason, Mr. Levin and Ms. Wegner are subject to covenants related to the non-solicitation of customers, employees or consultants and a covenant not to compete with Benefitfocus within the United States. The payments due under the Existing Employment Agreements are subject to the execution and non-revocation of a general release of claims.

Section 280G Mitigation Actions

Benefitfocus may take certain actions before the effective time to mitigate the amount of potential “excess parachute payments” for “disqualified individuals” (each as defined in Section 280G of the Code), subject to agreement by Voya. As of the date hereof, Benefitfocus has not yet approved any specific actions to mitigate the expected impact of Section 280G of the Code on Benefitfocus and any disqualified individuals. No executive officer is entitled to receive gross-ups or tax reimbursements from Benefitfocus with respect to any potential excise taxes.

Other Arrangements

Pursuant to the terms of the Merger Agreement, Benefitfocus’s directors and executive officers will be entitled to certain ongoing indemnification, expense advancement and insurance arrangements. For a description of such ongoing arrangements, see the section entitled “The Merger Agreement—Indemnification; Directors’ and Officers’ Insurance” beginning on page 111 of this proxy statement.

Also, prior to the effective time, Voya may, in its discretion, initiate negotiations of agreements, arrangements and understandings with any of Benefitfocus’s officers or directors regarding compensation or benefits and may enter into definitive agreements with such officers or directors regarding the foregoing. To Benefitfocus’s knowledge, as of the date of this proxy statement, Voya has not entered into any such new agreements, arrangements or understandings regarding compensation or benefits with any of Benefitfocus’s officers or directors.

BuildGroup Preferred Stock

As of the date of this proxy statement, BG owns 1,777,778 shares of Preferred Stock convertible into 5,333,334 shares of Common Stock, which represents 100% of the issued and outstanding shares of Preferred Stock. The Preferred Stock held by BG and subject to the BG Support Agreement represents approximately [●]% of the outstanding voting power of Company capital stock as of [●], 202[●]. We expect that a similar figure will be outstanding and entitled to vote at the Special Meeting as of the close of business on the Record Date. BG purchased these shares from Benefitfocus on June 4, 2020, for a price of $45.00 per share of Preferred Stock pursuant to a Preferred Stock Purchase Agreement dated May 22, 2020 by and between Benefitfocus and BG (the “Preferred Stock Purchase Agreement”). Additionally, the Preferred Stock Purchase Agreement provides that Benefitfocus will pay BG Annual Fees in an amount equal to (i) 50 basis points per annum on the amount invested (which equals an amount of approximately $400,000) for the first year and (ii) 25 basis points per annum on the amount invested (which equals an amount of approximately $200,000) annually thereafter, all for so long as BG and its affiliates collectively hold at least 60% of the Preferred Stock (or the Common Stock issuable upon conversion of the Preferred Stock). Pursuant to the Certificate of Designations, for so long as not less than 60% of the shares of Preferred Stock originally issued remain outstanding, the holders of a majority of the then outstanding shares of Preferred Stock, voting as a single class, are entitled to elect two directors of the Board for so long as the size of the Board includes nine or fewer directors (the “Preferred Stock Directors”). The Board has nine directors as of the date of this proxy statement. Mr. Napier and Ms. Young are the Preferred Stock Directors elected by BG, as the holder of a majority of the outstanding shares of Preferred Stock. Pursuant to the BG Support Agreement, BG has agreed to, among other things, vote its shares of Company capital stock in favor of the adoption of the Merger Agreement, not vote its shares of Company capital stock for any alternative proposal or any other transaction, proposal, agreement, or action made in opposition to adoption of the Merger Agreement or in competition or inconsistent with the Merger, not exercise any appraisal rights under Section 262

 

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of the DGCL and not transfer its shares (subject to certain exceptions). The terms of the BG Support Agreement do not prevent, limit or otherwise restrict any director of the Company (including any director affiliated with BG) from taking (or failing to take) any action in his or her capacity as a director of the Company, or in exercising his or her fiduciary duties as a director of the Company. The BG Support Agreement will terminate automatically upon, among other events, a Change of Recommendation (as defined in the section entitled “The Merger Agreement—Non-Solicitation Covenants,” beginning on page 102 of this proxy statement).

If the Merger is completed, BG, as the sole holder of Preferred Stock, will have the right to receive, pursuant to the Certificate of Designations, $47.25 in cash per share of Preferred Stock, or approximately $84 million in cash in the aggregate, at the Effective Time, plus accumulated and unpaid dividends to, but not including, the date the Merger is completed, as more fully described in the section below entitled “The Merger Agreement—Effect of the Merger on Common Stock and Preferred Stock” beginning on page 91 of this proxy statement. The Certificate of Designations provides that each share of Preferred Stock will be automatically redeemed upon the closing of certain change of control transactions (such as the Merger) for an amount of cash equal to the greater of (i) the Convertible Preferred Liquidation Amount, which is defined and further described in the section entitled “The Merger Agreement—Effect of the Merger on Common Stock and Preferred Stock” beginning on page 91 of this proxy statement, and (ii) the amount the holder of such share of Preferred Stock would have received in respect of the number of shares of Common Stock that would be issuable upon conversion of such share of Preferred Stock. BG will receive the Convertible Preferred Liquidation Amount in connection with the consummation of the Merger as it is a greater amount than the amount described in the foregoing clause (ii). The Convertible Preferred Liquidation Amount represents $5.25, or 50%, more per share of Common Stock than the Per Share Common Stock Merger Consideration to be paid to holders of Common Stock (measured as if the shares of Preferred Stock were converted into shares of Common Stock in accordance with the Certificate of Designations, but received the Convertible Preferred Liquidation Amount rather than the Per Share Common Stock Merger Consideration) and approximately $28 million more in cash in the aggregate than if BG voluntarily converted its shares of Preferred Stock into shares of Common Stock, in accordance with the Certificate of Designations prior to the Effective Time, and received the Per Share Common Stock Merger Consideration. Pursuant to the terms and conditions set forth in the Certificate of Designations, BG is not required to convert its shares of Preferred Stock into shares of Common Stock in connection with the Merger and will be entitled to receive the Convertible Preferred Liquidation Amount at the Effective Time without BG taking any additional action. Additionally, the BG Annual Fees will no longer be payable by Benefitfocus to BG following the consummation of the Merger, but BG will have the right to receive the pro rata portion of any BG Annual Fees due and accumulated, but unpaid, to it on the Closing.

Golden Parachute Compensation

In accordance with Item 402(t) of Regulation S-K promulgated by the SEC, the tables below present the estimated amounts of compensation that each named executive officer could receive that are based on or otherwise relate to the Merger. This compensation is referred to as “golden parachute” compensation by the applicable SEC disclosure rules, and in this section, we use such term to describe the Merger-related compensation which will or may become payable to Benefitfocus’s named executive officers. This Merger-related compensation is subject to a non-binding advisory vote of common stockholders, as set forth in Proposal 2 in this proxy statement. For further information, see the section entitled “Advisory Vote on Named Executive Officer Merger-Related Compensation Proposal (Proposal 2),” beginning on page 120 of this proxy statement.

The amounts set forth below have been estimated based on the following assumption: (i) the Merger is consummated on November 30, 2022 (the last practicable date determined in accordance with Item 402(t) of Regulation S-K), (ii) the Company Equity Awards outstanding as of November 30, 2022 (without any new grants, if any), and (iii) each named executive officer experiences a qualifying termination of employment as of the same date, immediately following completion of the Merger and properly executes any required releases and complies with all requirements (including any applicable restrictive covenants) necessary in order to receive the payments and benefits. The amounts indicated below are estimates of amounts that would be payable to the

 

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named executive officers, and the estimates are based on multiple assumptions that may or may not actually occur, including assumptions described in this proxy statement. As a result, the actual amounts, if any, to be received by a named executive officer may differ in material respects from the amounts set forth below. All dollar amounts set forth below have been rounded to the nearest whole number and are reflected on a pre-tax basis.

For purposes of this disclosure, “single trigger” refers to payments and benefits that arise solely as a result of the completion of the Merger and “double trigger” refers to payments and benefits that require two conditions, which are the completion of the Merger and a qualifying termination of employment.

Golden Parachute Compensation

 

Name(1)

   Cash
($)
    Equity
($)(4)
     Other
($)(5)
     Total
($)
 

Matthew Levin

     2,200,000 (2)      12,243,189        10,860        14,454,049  

President, Chief Executive Officer and Director

          

Alpana Wegner

     631,592 (3)      5,044,788        14,898        5,691,278  

Chief Financial Officer

          

 

(1)

Mason R. Holland, Jr., Benefitfocus’s former executive chairman, and Stephen M. Swad, Benefitfocus’s former chief executive officer and director, terminated employment with Benefitfocus effective June 30, 2021 and May 10, 2021, respectively, and are not entitled to receive any compensation in connection with, or as a result of, the Merger.

(2)

Amounts reflect cash severance benefits that would be payable upon an involuntary termination by Voya or Benefitfocus without “cause” or a resignation by Mr. Levin for “good reason” immediately following the consummation of the Merger, pursuant to the Levin Agreement as described above in the section entitled “—Cash Severance Payments and Other Termination Benefits Under Existing Employment Agreements,” beginning on page 78 of this proxy statement. Payment of cash-severance is “double trigger” and, as described above, is payable only upon a qualifying termination in connection with the Merger. The cash severance benefits consist of a cash payment equal to the sum of two times Mr. Levin’s base salary in effect as of the date of termination plus two times the target bonus for the year in which the date of termination occurs. These amounts are subject to the execution of a release of claims in favor of Benefitfocus or Voya, as applicable. In addition, Mr. Levin is required to comply with non-competition and non-solicitation restrictive covenants.

(3)

Amounts reflect cash severance benefits that would be payable upon an involuntary termination by Voya or Benefitfocus without “cause” or a resignation by Ms. Wegner for “good reason” immediately following the consummation of the Merger, pursuant to the Wegner Agreement as described above in the section entitled “—Cash Severance Payments and Other Termination Benefits Under Existing Employment Agreements,” beginning on page 78 of this proxy statement. Payment of cash severance is “double trigger” and, as described, above, is payable only upon a qualifying termination in connection with the Merger. The cash severance benefits consist of salary continuation at a rate equal to Ms. Wegner’s base salary in effect as of the date of termination for a period of 12 months and a pro rata bonus that would have been earned for the year of termination (assuming a target bonus would have been earned for purposes of this disclosure). These amounts are subject to the execution of a release of claims in favor of Benefitfocus or Voya, as applicable. In addition, Ms. Wegner is required to comply with non-competition and non-solicitation restrictive covenants.

(4)

For the avoidance of doubt, none of the outstanding Company Equity Awards held by Mr. Levin would single-trigger vest in connection with the Closing. Pursuant to their terms, half of the Company Retention RSUs will vest upon the Closing Date and the other half will vest on the date that is six months after the Closing, subject to continued service, as set forth in the section entitled “—Retention Awards,” beginning on page 78 of this proxy statement. As such, amounts reported above for any awards held by Mr. Levin

 

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  reflect the value of each unvested Company Equity Award or Voya RSU that would become vested if Mr. Levin experiences a qualifying termination by Benefitfocus within the 60 days prior to the Effective Time or by Voya within 180 days following the Closing Date, with any applicable performance metrics deemed achieved at target. Amounts reported above for any awards held by Ms. Wegner reflect both the vesting of Specified Awards, which are “single trigger,” and the vesting of other awards that are not Specified Awards, which are “double trigger” and would only vest if Ms. Wegner experiences a qualifying termination by Benefitfocus within the 60 days prior to the effective time or by Voya within 180 days following the Closing Date, with any applicable performance metrics for awards with an ongoing performance period as of her qualifying termination deemed achieved at target. Set forth below are the separate values of each type of unvested equity-based award held by each of the Benefitfocus’s named executive officers in accordance with the above assumptions.

 

Executive Officers

   Unvested
Options ($)
     Unvested
PRSUs ($)
     Unvested
RSUs ($)
     Specified
Awards ($)
     Total ($)  

Matthew Levin

     —          2,995,272        9,247,917        —          12,243,189  

Alpana Wegner

     —          801,224        4,089,330        154,235        5,044,788  

 

(5)

Pursuant to the Existing Employment Agreements, amounts reflect the value of (i) for Mr. Levin, the payment of the same percentage of the premium Benefitfocus was paying prior to the date of termination during the first 12 months of continued coverage under COBRA, if Mr. Levin is eligible for and elected COBRA coverage and (ii) for Ms. Wegner, the payment of an insurance premium in an amount equal to that which was paid on her behalf prior to her termination of employment, paid during the same period in which she receives salary continuation.

Financing of the Merger

The Merger Agreement is not conditioned upon receipt of financing by Voya. We anticipate that the total amount of funds necessary to consummate the Merger and the related transactions to be paid at Closing, not including fees and expenses, will be approximately $570 million, including the estimated funds needed to, among other things, (i) pay our stockholders the Merger consideration due to them under the Merger Agreement, (ii) make payments in respect of outstanding equity awards of Benefitfocus that are due to the recipients thereof pursuant to the Merger Agreement, and (iii) repay indebtedness and other amounts payable in connection with the consummation of the Merger pursuant to the credit agreement, dated as of August 17, 2022, among the Company, certain affiliates of the Company party thereto, the lenders from time to time party thereto, and JPMorgan Chase Bank, N.A., as administrative agent thereunder (the “Credit Agreement”).

We understand that Voya expects to fund amounts needed for the acquisition of Benefitfocus under the Merger Agreement through the use of cash on hand.

Regulatory Approvals

HSR Approval

Under the HSR Act, the parties to the Merger Agreement cannot complete the Merger until they have given notification of and furnished information to the U.S. Department of Justice (the “DOJ”) and the U.S. Federal Trade Commission (the “FTC”) regarding the Merger, and until the applicable waiting period (and any extension thereof) has expired or has been terminated. On November 14, 2022, the parties to the Merger Agreement filed a Notification and Report Form under the HSR Act. The waiting period under the HSR Act will expire on December 14, 2022 at 11:59 p.m. Eastern time, unless earlier terminated or extended by a request for additional information and documentary material from the DOJ or FTC. At any time before or after consummation of the Merger, the DOJ or FTC, or any state, could take such action under antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the completion of the Merger or seeking divestiture of substantial assets of Benefitfocus or Voya or their respective subsidiaries. Private parties may also seek to take legal action under antitrust laws against to prevent the Merger under certain circumstances.

 

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Texas Department of Insurance

Pursuant to Texas Insurance Code Section 4001.253, the parties have filed certain required information with the Texas Department of Insurance on November 14, 2022 and November 18, 2022. The Texas Department of Insurance has completed its review of those submissions and has issued no objection determinations, thereby satisfying Section 4001.253’s requirements.

General

Each of Benefitfocus and Voya must use its reasonable best efforts to take all actions necessary or advisable on its part under the Merger Agreement and applicable law to consummate the transactions contemplated by the Merger Agreement as promptly as practicable after the date of the Merger Agreement and prior to 5:00 p.m. (New York time) on April 30, 2023 (the “Outside Date”), including making all required filings with governmental entities and seeking all required consents from third parties. In addition to such general efforts, each of Benefitfocus and Voya must cooperate with each other and use its reasonable best efforts to take all actions necessary or advisable on its part under the Merger Agreement and applicable law to consummate the transactions contemplated by the Merger Agreement as promptly as practicable after the date of the Merger Agreement and prior to the Outside Date, including preparing and submitting documentation to (i) effect the expirations of all waiting periods under applicable antitrust law, including under the HSR Act, and, if applicable, any contractual waiting periods under any timing agreements with a governmental entity applicable to the consummation of the transactions contemplated by the Merger Agreement, as promptly as practicable after the date of the Merger Agreement or the entry into any such timing agreements, respectively, and (ii) make and obtain as promptly as practicable after the date of the Merger Agreement from any governmental entity, as applicable, all filings and consents necessary or advisable in order to consummate the transactions contemplated by the Merger Agreement, including the other approvals of Benefitfocus and Voya.

While we have no reason to believe it will not be possible to obtain regulatory approvals in a timely manner, there is no certainty that these approvals will be obtained within the period of time contemplated by the Merger Agreement, if at all.

The approval of any regulatory application or completion of regulatory review merely implies the satisfaction of certain regulatory criteria, which do not include review of the Merger from the standpoint of the adequacy of the consideration to be received by Benefitfocus stockholders. Further, regulatory approvals or reviews do not constitute an endorsement or recommendation of the Merger.

Material U.S. Federal Income Tax Consequences of the Merger

The exchange of Common Stock or Preferred Stock for cash pursuant to the Merger generally will be a taxable transaction to U.S. holders (as defined in the section entitled “Material U.S. Federal Income Tax Consequences of the Merger,” beginning on page 124 of this proxy statement) for U.S. federal income tax purposes and may also be taxable under state, local or other tax laws. The tax consequences of the Merger to such holders will depend on their particular circumstances. U.S. holders should consult their tax advisors regarding the U.S. federal, state, local and non-U.S. tax consequences of the Merger to such holders in light of their particular circumstances.

In general, a U.S. holder whose shares are converted into the right to receive cash in the Merger will recognize capital gain or loss for U.S. federal income tax purposes in an amount equal to the difference, if any, between the amount of cash received with respect to such shares and the U.S. holder’s adjusted tax basis in such shares at the time of the exchange. Gain or loss will be determined separately for each block of shares (i.e., shares acquired at the same cost in a single transaction). The determination of the actual tax consequences of the Merger to a holder will depend on the holder’s specific situation.

 

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Delisting and Deregistration of Common Stock

Prior to the Closing Date, Benefitfocus will cooperate with Voya and use reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, necessary, proper or advisable on its part under applicable law, including, the rules and policies of NASDAQ, to enable the delisting by the Surviving Corporation of the shares of Common Stock from NASDAQ and the deregistration of the shares of Common Stock under the Exchange Act as promptly as practicable after the Effective Time. In connection therewith, Voya will (a) assist in enabling Benefitfocus or NASDAQ to be in a position to promptly file and cause the Surviving Corporation or NASDAQ to file with the SEC a Form 25 on the Closing Date and (b) cause the Surviving Corporation to file a Form 15 on the first business day that is at least ten days after the date the Form 25 is filed.

Appraisal Rights

If the Merger is consummated, holders of Common Stock or Preferred Stock issued and outstanding immediately prior to the Effective Time who do not vote in favor of the adoption of the Merger Agreement, who validly demanded appraisal pursuant to Section 262 of DGCL (“Section 262”) and have not effectively withdrawn their demand or otherwise waived or lost their rights to appraisal are entitled to seek appraisal of their shares in connection with the Merger under Section 262.

This section summarizes Delaware law pertaining to appraisal rights in connection with the Merger. The following discussion is not a complete statement of the law pertaining to appraisal rights under Delaware law and is qualified in its entirety by the full text of Section 262, which may be accessed without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262 and incorporated by reference herein. The following summary does not constitute any legal or other advice and does not constitute a recommendation that you exercise your appraisal rights under Section 262.

Any person contemplating the exercise of such appraisal rights should carefully review the provisions of Section 262, which is accessible at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262, particularly the procedural steps required to properly demand and perfect such rights. Failure to follow the steps required by Section 262 for demanding and perfecting appraisal rights may result in the loss of such rights. All references in Section 262 and in this summary to a (i) “stockholder” are to the record holder of shares of Common Stock or Preferred Stock, (ii) “beneficial owner” are to a person who is the beneficial owner of shares of Common Stock or Preferred Stock held either in voting trust or by a nominee on behalf of such person, and (iii) “person” are to an individual, corporation, partnership, unincorporated association or other entity.

Under Section 262, stockholders desiring to exercise their right to appraisal must:

 

  1.

properly submit a written demand for an appraisal of their shares of Common Stock or Preferred Stock to Benefitfocus prior to the stockholder vote on the approval and adoption of the Merger Agreement;

 

  2.

not submit a proxy or otherwise vote in favor of the approval and adoption of the Merger Agreement;

 

  3.

hold shares of the Common Stock or Preferred Stock upon the making of a demand under clause one and continue to hold their shares of Common Stock or Preferred Stock through the Effective Time;

 

  4.

not thereafter withdraw their demand for appraisal of their shares or otherwise lose their appraisal rights, in each case in accordance with the DGCL; and

 

  5.

otherwise meet the criteria and follow the procedures set forth in Section 262.

A beneficial owner may, in such person’s name, demand in writing an appraisal of such beneficial owner’s shares in accordance with the procedures of subsection (d)(1) of Section 262 summarized above, provided that (i) such beneficial owner continuously owns such shares through the Effective Time of the Merger and otherwise satisfies the requirements applicable to a stockholder under the first sentence of subsection (a) of Section 262 and

 

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(ii) the demand made by such beneficial owner reasonably identifies the holder of record of the shares for which the demand is made, is accompanied by documentary evidence of such beneficial owner’s beneficial ownership of stock and a statement that such documentary evidence is a true and correct copy of what it purports to be, and provides an address at which such beneficial owner consents to receive notices given by Benefitfocus under Section 262 and to be set forth on the Verified List (defined below). The shares of Common Stock are currently listed on a national securities exchange, and, assuming such shares remain listed on a national securities exchange immediately prior to the Merger (which we expect to be the case), after an appraisal petition has been filed, the Delaware Court of Chancery will dismiss appraisal proceedings as to all holders of Common Stock who are otherwise entitled to appraisal rights unless (x) the total number of shares of Common Stock entitled to appraisal exceeds 1% of the outstanding shares of the Common Stock eligible for appraisal or (y) the value of the aggregate consideration offered pursuant to the Merger Agreement in respect of such total number of shares exceeds $1.0 million. We refer to these conditions as the “Minimum Conditions.”

Pursuant to the Support Agreements entered into by Indaba and BG, each of BG and Indaba has agreed to, among other things, vote its shares of Company capital stock in favor of the adoption of the Merger Agreement and not exercise any appraisal rights under Section 262. As such, no appraisal rights will be available to such shares of Common Stock or Preferred Stock subject to the Support Agreements.

Unless the Delaware Court of Chancery, in its discretion, determines otherwise for good cause shown, interest from the Effective Time of the Merger through the date of payment of the judgment will be compounded quarterly and will accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the Effective Time of the Merger and the date of payment of the judgment; provided, however, that at any time before the Delaware Court of Chancery enters judgment in the appraisal proceeding, the Surviving Corporation may pay to each person entitled to appraisal an amount in cash, in which case any such interest will accrue after the time of such payment only on the amount that equals the sum of (i) the difference, if any, between the amount so paid and the “fair value” of the shares as determined by the Delaware Court of Chancery and (ii) any interest accrued prior to the time of such voluntary payment, unless paid at such time. The Surviving Corporation is under no obligation to make such voluntary cash payment prior to such entry of judgment. Persons considering seeking appraisal should be aware that the fair value of their shares as determined pursuant to Section 262 could be more than, the same as or less than the merger consideration offered pursuant to the Merger Agreement if they did not seek appraisal of their shares.

Under Section 262, where a merger agreement is to be submitted for approval and adoption at a meeting of stockholders, the corporation, not less than 20 days prior to the meeting, must notify each of our stockholders who held shares of Common Stock or Preferred Stock on the Record Date for notice of such meeting with respect to shares for which appraisal rights are available that appraisal rights are available and include in the notice a copy of Section 262 or information directing the stockholders to a publicly available electronic resource at which Section 262 may be accessed without subscription or cost. This proxy statement constitutes such notice that appraisal rights are available in connection with the Merger, and the full text of Section 262 may be accessed without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262. In connection with the Merger, any person who wishes to exercise appraisal rights or who wishes to preserve such person’s right to do so should review Section 262. Failure to comply with the requirements of Section 262 in a timely and proper manner may result in the loss of appraisal rights under the DGCL. A person who loses his, her or its appraisal rights will be entitled to receive the consideration offered pursuant to the Merger Agreement. Moreover, because of the complexity of the procedures for exercising the right to seek appraisal, we believe that if a person considers exercising such rights, that person should seek the advice of legal counsel.

Stockholders and beneficial owners wishing to exercise the right to seek an appraisal of their shares of Common Stock or Preferred Stock must strictly comply with Section 262. In addition, a stockholder of record, a beneficial owner or the Surviving Corporation must file a petition in the Delaware Court of Chancery requesting a determination of the fair value of the shares within 120 days after the Effective Time. The Surviving Corporation is under no obligation to file any petition and has no intention of doing so.

 

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Because a proxy that does not contain voting instructions will, unless timely revoked, be voted in favor of the approval and adoption of the Merger Agreement, a stockholder who votes by proxy and who wishes to exercise appraisal rights should not return a blank proxy, but rather must vote against the approval and adoption of the Merger Agreement, abstain or not vote his, her or its shares. Beneficial owners should consult with their bank, broker or other nominee regarding methods of voting.

Filing Written Demand

Any stockholder or beneficial owner wishing to exercise appraisal rights must deliver to us, before the vote on the approval and adoption of the Merger Agreement at the Special Meeting, a written demand for the appraisal of such person’s shares. Neither voting against the approval and adoption of the Merger Agreement nor abstaining from voting or failing to vote on the proposal to adopt the Merger Agreement will, in and of itself, constitute a written demand for appraisal satisfying the requirements of Section 262. The written demand for appraisal must be in addition to and separate from any proxy or vote on the approval and adoption of the Merger Agreement. A stockholder’s or beneficial owner’s failure to make the written demand prior to the taking of the vote on the approval and adoption of the Merger Agreement at the Special Meeting may constitute a waiver of appraisal rights.

Record Holders

A demand for appraisal by a holder of record must be executed by or on behalf of the holder of record and must reasonably inform us of the identity of the stockholder and state that the person intends thereby to demand appraisal of the stockholder’s shares in connection with the Merger. If a holder of record is submitting a demand with respect to shares owned of record in a fiduciary or representative capacity, such as by a trustee, guardian or custodian, such demand must be executed by or on behalf of the record owner in such capacity, and if the shares are owned of record by more than one person, as in a joint tenancy and tenancy in common, the demand should be executed by or on behalf of all joint owners. An authorized agent, including an authorized agent for two or more joint owners, may execute a demand for appraisal on behalf of a holder of record; however, the agent must identify the record owner or owners and expressly disclose that, in executing the demand, the agent is acting as agent for the record owner or owners. A holder of record, such as a brokerage firm, bank, trust or other nominee, who holds shares of Common Stock as nominee or intermediary for one or more beneficial owners may exercise appraisal rights with respect to shares of Common Stock held for one or more beneficial owners while not exercising appraisal rights for other beneficial owners. In that case, the written demand should state the number of shares of Common Stock as to which appraisal is sought. Where no number of shares of Common Stock is expressly mentioned, the demand will be presumed to cover all shares of Common Stock held in the name of the holder of record.

Beneficial Owners

A beneficial owner may, in such person’s name, demand in writing an appraisal of such beneficial owner’s shares in accordance with the procedures of subsection (d)(1) of Section 262 summarized above, provided that (i) such beneficial owner continuously owns such shares through the Effective Time and otherwise satisfies the requirements applicable to a stockholder under the first sentence of subsection (a) of Section 262 and (ii) the demand made by such beneficial owner reasonably identifies the holder of record of the shares for which the demand is made, is accompanied by documentary evidence of such beneficial owner’s beneficial ownership of stock and a statement that such documentary evidence is a true and correct copy of what it purports to be, and provides an address at which such beneficial owner consents to receive notices given by Benefitfocus under Section 262 and to be set forth on the Verified List (defined below). Although not expressly required by Section 262, Benefitfocus reserves the right to take the position that it may require the submission of all information required of a beneficial owner under subsection (d)(3) of Section 262 with respect to any person sharing beneficial ownership of the shares for which such demand is submitted.

 

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All written demands for appraisal pursuant to Section 262 should be mailed or delivered to: Benefitfocus, Inc., Attn: Corporate Secretary, 100 Benefitfocus Way, Charleston, South Carolina 29492. Demands for appraisal may not be submitted by electronic transmission.

Actions After Completion of the Merger

If the Merger is completed, within 10 days after the Effective Time of the Merger, the Surviving Corporation will notify each holder of Common Stock and Preferred Stock who has made a written demand for appraisal pursuant to Section 262 and who has not voted in favor of the approval and adoption of the Merger Agreement, and any beneficial owner who has properly demanded appraisal pursuant to Section 262.

At any time within 60 days after the Effective Time, any person entitled to appraisal rights who has not commenced an appraisal proceeding or joined that proceeding as a named party may withdraw such person’s demand for appraisal and accept the consideration offered pursuant to the Merger Agreement by delivering to us a written withdrawal of the demand for appraisal. Within 120 days after the effective date of the Merger, the Surviving Corporation or any person who has complied with Section 262 and is entitled to appraisal rights under Section 262, may commence an appraisal proceeding by filing a petition in the Delaware Court of Chancery, with a copy served on the Surviving Corporation in the case of a petition filed by a stockholder of record or beneficial owner, demanding a determination of the fair value of the shares held by all our stockholders entitled to appraisal. The Surviving Corporation is under no obligation, and has no present intention, to file a petition, and no person should assume that the Surviving Corporation will file a petition or initiate any negotiations with respect to the fair value of the shares of the Common Stock or Preferred Stock. Accordingly, any stockholders or beneficial owners who desire to have their shares appraised should initiate all necessary action to perfect their appraisal rights in respect of their shares of Common Stock or Preferred Stock within the time and in the manner prescribed in Section 262. The failure of a record holder or beneficial owner of shares of Common Stock or Preferred Stock to file such a petition within the period specified in Section 262 could result in the loss of appraisal rights.

Within 120 days after the Effective Time of the Merger, any person who has complied with the requirements for exercise of appraisal rights will be entitled, upon written request, to receive from the Surviving Corporation a statement setting forth the aggregate number of shares not voted in favor of the approval and adoption of the Merger Agreement and with respect to which we have received demands for appraisal, and the aggregate number of stockholders or beneficial owners holding or owning such shares (provided that, where a beneficial owner makes a demand on his, her or its own behalf, the record holder of such shares will not be considered a separate stockholder holding such shares for purposes of such aggregate number). The Surviving Corporation must give this statement to the requesting stockholder or beneficial owner within 10 days after receipt of the written request for such a statement or within 10 days after the expiration of the period for delivery of demands for appraisal, whichever is later.

If a petition for an appraisal is duly filed by a record holder of shares of Common Stock or Preferred Stock or a beneficial owner and a copy thereof is served upon the Surviving Corporation, the Surviving Corporation will then be obligated within 20 days after such service to file with the Delaware Register in Chancery a duly verified list (which we refer to as the “Verified List”) containing the names and addresses of all persons who have demanded appraisal for their shares and with whom agreements as to the value of their shares have not been reached. Upon the filing of any such petition, the Delaware Court of Chancery may order that notice of the time and place fixed for the hearing on the petition be mailed to the Surviving Corporation and all of the stockholders shown on the Verified List at the addresses stated therein. The forms of the notices by mail and by publication will be approved by the Delaware Court of Chancery, and the costs of these notices will be borne by the Surviving Corporation.

After providing notice to the stockholders as required by the court, the Delaware Court of Chancery is empowered to conduct a hearing on the petition to determine those persons who have complied with Section 262

 

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and who have become entitled to appraisal rights thereunder. The Delaware Court of Chancery may require the persons who demanded appraisal of their shares to submit their stock certificates to the Delaware Register in Chancery for notation thereon of the pendency of the appraisal proceedings, and if any person fails to comply with that direction, the Delaware Court of Chancery may dismiss the proceedings as to such person.

In addition, assuming the Common Stock remained listed on a national securities exchange immediately prior to the Effective Time of the Merger, the Delaware Court of Chancery will dismiss the appraisal proceedings as to all our stockholders who assert appraisal rights unless one of the Minimum Conditions is met.

Determination of Fair Value

After determining the persons entitled to appraisal, the Delaware Court of Chancery will determine the “fair value” of the shares of the Common Stock and Preferred Stock subject to appraisal, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid upon the amount determined to be the fair value (subject, in the case of interest payments, to any voluntary cash payments made by the Surviving Corporation pursuant to subsection (h) of Section 262 that have the effect of limiting the sum on which interest accrues as described above).

In determining fair value, the Delaware Court of Chancery will take into account all relevant factors. In Weinberger v. UOP, Inc., the Supreme Court of Delaware discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that “proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court” should be considered, and that “[f]air price obviously requires consideration of all relevant factors involving the value of a company.” The Delaware Supreme Court stated that, in making this determination of fair value, the court must consider market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts that could be ascertained as of the date of the merger that throw any light on future prospects of the merged corporation. Section 262 provides that fair value is to be “exclusive of any element of value arising from the accomplishment or expectation of the merger.” In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court stated that such exclusion is a “narrow exclusion [that] does not encompass known elements of value,” but which rather applies only to the speculative elements of value arising from such accomplishment or expectation. In Weinberger, the Supreme Court of Delaware also stated that “elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the merger and not the product of speculation, may be considered.”

Persons considering seeking appraisal should be aware that the fair value of their shares of Common Stock or Preferred Stock as so determined by the Delaware Court of Chancery could be more than, the same as or less than the merger consideration they would receive pursuant to the Merger if they did not seek appraisal of their shares of Common Stock or Preferred Stock and that an opinion of an investment banking firm as to the fairness from a financial point of view of the consideration offered pursuant to the Merger Agreement is not an opinion as to, and might not in any manner address, “fair value” under Section 262. Although we believe that the consideration offered pursuant to the Merger Agreement is fair, no representation is made as to the outcome of the appraisal of fair value as determined by the Delaware Court of Chancery, and persons considering exercising appraisal rights should recognize that such an appraisal could result in a determination of a value higher or lower than, or the same as, the consideration offered pursuant to the Merger Agreement. Neither Benefitfocus nor Voya anticipates offering more than the consideration offered pursuant to the Merger Agreement to any holder of shares of Common Stock or Preferred Stock exercising appraisal rights, and Benefitfocus and Voya each reserve the right to make a voluntary cash payment pursuant to subsection (h) of Section 262 and to assert, in any appraisal proceeding, that for purposes of Section 262, the “fair value” of a share of Common Stock or Preferred Stock is less than the merger consideration offered pursuant to the Merger Agreement. If a demand for appraisal is duly withdrawn, a petition for appraisal is not timely filed, neither of the Minimum Conditions is met (assuming our Common Stock remained listed on a national securities exchange immediately prior to the Effective Time of the Merger) or other requirements imposed by Section 262 to perfect and seek appraisal are not satisfied, then the right to an appraisal will cease.

 

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Upon application by the Surviving Corporation or by any person entitled to participate in the appraisal proceeding, the Delaware Court of Chancery may, in its discretion, proceed to trial upon the appraisal prior to the final determination of the persons entitled to an appraisal. Any person whose name appears on the Verified List may participate fully in all proceedings until it is finally determined that such person is not entitled to appraisal rights under Section 262.

The Delaware Court of Chancery will direct the payment of the fair value of the shares, together with interest, if any, by the Surviving Corporation to the persons entitled thereto. Payment will be made to each such person upon such terms and conditions as the Delaware Court of Chancery may order. The Delaware Court of Chancery’s decree may be enforced as other decrees in such court may be enforced.

The costs of the appraisal proceedings (which do not include attorneys’ fees or the fees and expenses of experts) may be determined by the Delaware Court of Chancery and taxed upon the parties as the Delaware Court of Chancery deems equitable under the circumstances. Upon application of a person whose name appears on the Verified List who participated in the proceeding and incurred expenses in connection therewith, the Delaware Court of Chancery may also order that all or a portion of such expenses, including, without limitation, reasonable attorneys’ fees and the fees and expenses of experts, be charged pro rata against the value of all the shares entitled to appraisal not dismissed pursuant to subsection (k) of Section 262 or subject to such an award pursuant to a reservation of jurisdiction under Subsection (k) of Section 262. In the absence of such an order, each party bears its own expenses.

If any person who demands appraisal of his, her or its shares of Common Stock or Preferred Stock under Section 262 fails to perfect, or loses or successfully withdraws, such person’s right to appraisal, such person’s shares of Common Stock or Preferred Stock will be deemed to have been converted at the Effective Time of the Merger into the right to receive the consideration offered pursuant to the Merger Agreement, without interest. A person will fail to perfect, or effectively lose or withdraw, such person’s right to appraisal if no petition for appraisal is filed within 120 days after the Effective Time, neither of the Minimum Conditions is met (assuming our Common Stock remained listed on a national securities exchange immediately prior to the Effective Time) or if the person delivers to the Surviving Corporation a written withdrawal of the person’s demand for appraisal in accordance with Section 262.

From and after the Effective Time, no person who has demanded appraisal rights with respect to some or all of such person’s shares of Common Stock or Preferred Stock will be entitled to vote such shares for any purpose or to receive payment of dividends or other distributions on such shares, except dividends or other distributions payable to stockholders of record as of a time prior to the Effective Time. If no petition for an appraisal is filed, if neither of the Minimum Conditions is met (assuming our Common Stock remained listed on a national securities exchange immediately prior to the Effective Time), or if the person who has made a demand for appraisal delivers to the Surviving Corporation a written withdrawal of the demand for an appraisal in respect of some or all of such person’s shares within 60 days after the Effective Time in accordance with Section 262, then the right of such person to an appraisal of such shares will cease. Once a petition for appraisal is filed with the Delaware Court of Chancery, however, no appraisal proceeding will be dismissed as to any person without the approval of the Delaware Court of Chancery and such approval may be conditioned upon such terms as the Delaware Court of Chancery deems just, including without limitation, a reservation of jurisdiction for any application to the Delaware Court of Chancery made under subsection (j) of Section 262, provided that this sentence does not affect the right of any person who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such person’s demand for appraisal and to accept the terms offered upon the Merger within 60 days after the Effective Time.

Failure to comply with all of the procedures set forth in Section 262 may result in the loss of a stockholder’s or beneficial owner’s statutory appraisal rights. Consequently, any stockholder or beneficial owner wishing to exercise appraisal rights is encouraged to consult legal counsel before attempting to exercise those rights.

 

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THE MERGER AGREEMENT

The following discussion sets forth the material provisions of the Merger Agreement, a copy of which is attached as Annex A to this proxy statement and is incorporated by reference herein. The rights and obligations of the parties to the Merger Agreement are governed by the express terms and conditions of the Merger Agreement and not by this discussion, which is summary by nature. This discussion is qualified in its entirety by reference to the complete text of the Merger Agreement. You are encouraged to read the Merger Agreement carefully and in its entirety, as well as this proxy statement and any documents incorporated by reference herein, before making any decisions regarding the Merger. Additional information can be found elsewhere in this proxy statement and in the public filings we make with the SEC, as described in the section entitled “Where You Can Find More Information,” beginning on page 130 of this proxy statement.

The representations, warranties, covenants and agreements described below and included in the Merger Agreement (i) were made or agreed upon only as of the date of the Merger Agreement or such other date or dates as may be specified in the Merger Agreement; (ii) were made solely for the benefit of the parties to the Merger Agreement; (iii) are not intended to be treated as categorical statements of fact, but rather as a way of allocating contractual risk among the parties to the Merger Agreement; (iv) are subject to important qualifications, limitations and supplemental information agreed to by Benefitfocus, Voya and Merger Sub in connection with negotiating the terms of the Merger Agreement, including (A) information in confidential disclosure schedules delivered to (x) Voya by Benefitfocus concurrently with the execution and delivery of the Merger Agreement (the “Benefitfocus Disclosure Schedule”) and (y) Benefitfocus by Voya concurrently with the execution and delivery of the Merger Agreement (the “Voya Disclosure Schedule”), which each contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the Merger Agreement, and (B) information contained in Benefitfocus’s publicly filed SEC reports filed or furnished on or after December 31, 2019 and prior to the date of the Merger Agreement and Voya’s publicly filed SEC reports filed or furnished on or after December 31, 2019 and prior to the date of the Merger Agreement (but excluding, in each case, disclosures set forth or referenced under the captions “Risk Factors,” “Forward-Looking Statements” or any similar section); and (v) may be subject to a contractual standard of materiality different from those generally applicable to reports and documents filed with the SEC. In addition, the representations and warranties may have been included in the Merger Agreement for the purpose of allocating contractual risk between Benefitfocus, on the one hand, and Voya and Merger Sub, on the other hand, rather than to establish matters as facts, and may be subject to standards of materiality applicable to such parties that differ from those applicable to stockholders. Further, the representations and warranties were negotiated with the principal purpose of establishing the circumstances in which a party to the Merger Agreement may have the right not to consummate the Merger if the representations and warranties of the other party prove to be untrue due to a change in circumstance or otherwise (subject to materiality thresholds). Our stockholders are not generally third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties, covenants and agreements or any descriptions thereof as characterizations of the actual state of facts or condition of Benefitfocus, Voya or Merger Sub or any of their respective affiliates or businesses. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement. None of the representations and warranties will survive the Closing, and, therefore, they will have no legal effect under the Merger Agreement after the Effective Time. In addition, you should not rely on the covenants in the Merger Agreement as actual limitations on the respective businesses of Benefitfocus, Voya and Merger Sub because the parties may take certain actions that are either expressly permitted in the Benefitfocus Disclosure Schedule or Voya Disclosure Schedule or as otherwise consented to by the appropriate party, which consent may be given without notice to the public. The Merger Agreement is described below, and attached as Annex A to this proxy statement, only to provide you with information regarding its terms and conditions, and not to provide you with any other factual information regarding Benefitfocus, Voya, Merger Sub or their respective businesses. Accordingly, the representations, warranties, covenants and other agreements in the Merger Agreement should not be read alone, and you should read the information provided elsewhere in this proxy statement and any documents incorporated by reference herein. Additional information can be found in

 

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our public filings with the SEC, as described in the section entitled “Where You Can Find More Information,” beginning on page 130 of this proxy statement.

The Merger

Subject to the terms and conditions of the Merger Agreement and in accordance with the DGCL, at the Effective Time, Merger Sub will merge with and into Benefitfocus, the separate corporate existence of Merger Sub will cease, Benefitfocus will continue as the Surviving Corporation and a wholly owned subsidiary of Voya, and the separate corporate existence of Benefitfocus will continue unaffected by the Merger. The Merger will have all other applicable effects as set forth in the Merger Agreement and the relevant provisions of the DGCL.

Following the completion of the Merger, our Common Stock will be delisted from the NASDAQ, deregistered under the Exchange Act and cease to be publicly traded, as further discussed below in the section entitled “—Delisting and Deregistration,” beginning on page 112 of this proxy statement.

Closing and Effectiveness of the Merger

The Closing will take place at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004, at 8:00 a.m. (New York time), or by electronic exchange of deliverables and release of signatures, on the second business day following the satisfaction or, to the extent permitted by applicable law, waiver of the conditions to Closing described below under “—Closing Conditions” (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by law, waiver of those conditions) or at such other date, time and place (or by means of remote communication) as Benefitfocus, Voya and Merger Sub may agree in writing.

As promptly as practicable following the Closing, but on the Closing Date, Benefitfocus, Voya and Merger Sub will (i) cause a certificate of merger relating to the Merger to be duly executed and filed with the Secretary of State of the State of Delaware as provided in Section 251 of the DGCL and (ii) make all other filings or recordings required under the DGCL in connection with the filing of the certificate of merger and the Merger. The Merger will become effective at the time the certificate of merger with respect to the Merger is executed and filed with the Secretary of State of the State of Delaware or at such later date and time as Benefitfocus, Voya and Merger Sub agree in writing and specify in the certificate of merger relating to the Merger so executed and filed.

Effect of the Merger on Common Stock and Preferred Stock

Subject to the terms and conditions of the Merger Agreement, at the Effective Time, each share of Common Stock issued and outstanding immediately prior to the Effective Time (other than Excluded Shares, such shares the “Eligible Common Shares”) will be automatically converted into the right to receive the Per Share Common Stock Merger Consideration and will cease to be outstanding, will automatically be cancelled and will cease to exist, and each holder of such Eligible Common Shares will cease to have any rights with respect to such Eligible Common Shares, except the right to receive the Per Share Common Stock Merger Consideration.

Subject to the terms and conditions of the Merger Agreement, at the Effective Time, each share of Preferred Stock issued and outstanding immediately prior to the Effective Time (other than Excluded Shares, such shares the “Eligible Preferred Shares”), will be automatically converted into the right to receive the Per Share Preferred Stock Merger Consideration and will cease to be outstanding, will automatically be cancelled and will cease to exist, and each holder of Eligible Preferred Shares will cease to have any rights with respect to such Eligible Preferred Shares, except the right to receive the Per Share Preferred Stock Merger Consideration.

The Per Share Preferred Stock Merger Consideration is calculated as the amount of cash without interest, equal to the Convertible Preferred Liquidation Amount. The “Convertible Preferred Liquidation Amount” means, as calculated pursuant to Section 6(h) (Redemption of Convertible Preferred Stock upon a Change of Control) of

 

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the Certificate of Designations, an amount equal to the greater of (x) the sum of (1) 105% of $45.00 (the “Initial Stated Value”) of each Eligible Preferred Share at 5:00 p.m., Charleston, South Carolina time on the date fixed, pursuant to the Certificate of Designations, for the redemption of any Eligible Preferred Share by Benefitfocus pursuant to Section 6(h) (Redemption of Convertible Preferred Stock upon a Change of Control) of the Certificate of Designations (the “Change of Control Redemption Date”), in respect of the Merger plus (2) the difference between the Stated Value (as defined below) then in effect with respect to such Eligible Preferred Share and the Initial Stated Value, if any, plus (3) accumulated and unpaid Regular Dividends (as defined below) on such Eligible Preferred Share from the immediately preceding quarterly dividend payment date to, but excluding, such Change of Control Redemption Date (to the extent such accumulated and unpaid Regular Dividends are not included in the Stated Value set forth in subclause (2) above) and (y) the amount the holder of such Eligible Preferred Share would have received in respect of the number of shares of Common Stock that would be issuable upon conversion of such Eligible Preferred Shares (determined in accordance with Section 8 (Conversion) of the Certificate of Designations but without regard to Section 8(d)(ii) (Payment of Cash in Lieu of any Fractional Share of Common Stock) and Section 8(f) (Restriction on Conversions) therein), assuming such conversion occurs on the date of such payment.

“Stated Value” means an amount initially equal to $45.00 per share of Preferred Stock, as adjusted for any stock splits, stock dividends, recapitalizations or similar transactions with respect to the Preferred Stock as set forth in the Certificate of Designations and, if applicable, as adjusted pursuant thereto.

“Regular Dividends” means dividends accrued quarterly in arrears at a rate of eight percent (8.0%) per annum on the Stated Value with respect to such share deemed to be in effect commencing on the day immediately following the most recent Regular Dividend payment date, regardless of whether or not declared or funds are legally available for their payment.

Exchange Procedures

As promptly as practicable after the Effective Time, but on the Closing Date, Voya will deposit, or cause to be deposited, with a paying agent an amount in cash in immediately available funds sufficient in the aggregate to provide all funds necessary for the paying agent to make payments in respect of the Eligible Common Shares and the outstanding Company Equity Awards (the “Company Equity Payments”) (such cash, the “Exchange Fund”). Pursuant to a paying agent agreement to be entered into prior to the Closing, the paying agent will, among other things, act as the paying agent for the payment and delivery of the Per Share Common Stock Merger Consideration and the Company Equity Payments and invest the Exchange Fund, if and as directed by Voya.

At the Closing, Voya will pay to the holders of Eligible Preferred Shares to the account or accounts designated by or on behalf of such holders no later than three business days prior to the Closing Date by wire transfer of immediately available funds an amount equal to the Per Share Preferred Stock Merger Consideration.

As promptly as practicable after the Effective Time (but in no event later than three business days thereafter), Voya will cause the paying agent to mail or otherwise provide each holder of record of Eligible Common Shares that are (i) represented by a certificate or (ii) book-entry shares not held, directly or indirectly, through DTC, notice advising such holders of the effectiveness of the Merger, which notice will include (A) appropriate transmittal materials (including a customary letter of transmittal) specifying that delivery will be effected, and risk of loss and title to the certificates or such book-entry shares will pass only upon delivery of the certificates (or affidavits of loss in lieu of the certificates) or the surrender of such book-entry shares to the paying agent (which will be deemed to have been effected upon the delivery of a customary “agent’s message” with respect to such book-entry shares or such other reasonable evidence, if any, of such surrender as the paying agent may reasonably request pursuant to the terms and conditions of the paying agent agreement), as applicable (such materials to be in such form and have such other provisions as Voya and Benefitfocus may reasonably agree), and (B) instructions for effecting the surrender of the certificates (or affidavits of loss in lieu of the certificates) or such book-entry shares to the paying agent in exchange for the Per Share Common Stock Merger Consideration that such holder is entitled to receive as a result of the Merger.

 

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With respect to book-entry shares held, directly or indirectly, through DTC, Benefitfocus and Voya will cooperate to establish procedures with the paying agent, DTC, DTC’s nominees and such other necessary or desirable third-party intermediaries to ensure that the paying agent will transmit to DTC or its nominees as promptly as practicable after the Effective Time, upon surrender of Eligible Common Shares held of record by DTC or its nominees in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Benefitfocus and Voya, the paying agent, DTC, DTC’s nominees and such other necessary or desirable third-party intermediaries, the Per Share Common Stock Merger Consideration which the beneficial owners thereof are entitled to receive as a result of the Merger.

Upon surrender to the paying agent of Eligible Common Shares that (i) are represented by a certificate, by physical surrender of such certificate (or affidavits of loss in lieu of the certificate) together with the letter of transmittal, duly completed and executed, and such other documents as may be reasonably required by the paying agent, (ii) are book-entry shares not held through DTC, by book-receipt of an “agent’s message” by the paying agent in connection with the surrender of book-entry shares (or such other reasonable evidence, if any, of surrender with respect to such book-entry shares, as the paying agent may reasonably request pursuant to the terms and conditions of the paying agent agreement), in each case of the foregoing clauses (i) and (ii), pursuant to such materials and instructions as contemplated by the third paragraph of this section entitled “Exchange Procedures,” and (iii) are book-entry shares held, directly or indirectly, through DTC, in accordance with DTC’s customary surrender procedures and such other procedures as agreed by Benefitfocus, Voya, the paying agent, DTC, DTC’s nominees and such other necessary or desirable third-party intermediaries, the holder of the Eligible Common Shares represented by such certificate or book-entry shares will be entitled to receive in exchange therefor, and Voya will cause the paying agent to pay and deliver, out of the Exchange Fund, as promptly as practicable to such holders, an amount in cash in immediately available funds (after giving effect to any required tax withholdings) equal to the product obtained by multiplying (A) the number of Eligible Common Shares represented by such certificates (or affidavits of loss in lieu of the certificates) or such book-entry shares by (B) the Per Share Common Stock Merger Consideration, and each certificate so surrendered will forthwith be cancelled.

In the event of a transfer of ownership of any Eligible Common Shares represented by a certificate that is not registered in the stock transfer books or ledger of Benefitfocus or if the consideration payable is to be paid in a name other than that in which the certificate or certificates surrendered or transferred in exchange therefor are registered in Benefitfocus’s stock transfer books or ledger, a check for any cash to be exchanged upon due surrender of any such certificate or certificates may be issued by the paying agent to such a transferee if the certificate or certificates is or are (as applicable) properly endorsed and otherwise in proper form for surrender and presented to the paying agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable transfer taxes have been paid or are not applicable, in each case, in form and substance, reasonably satisfactory to Voya and the paying agent. Payment of the Per Share Common Stock Merger Consideration with respect to book-entry shares will only be made to the person or entity in whose name such book-entry shares are registered in the stock transfer books or ledger of Benefitfocus.

No interest will be paid or accrued for the benefit of any holder of Eligible Common Shares on any amount payable upon the surrender of any Eligible Common Shares.

From and after the Effective Time, Benefitfocus’s stock transfer books or ledger will be closed, and thereafter there will be no transfers of shares on the stock transfer books or ledger of Benefitfocus. The Per Share Merger Consideration paid in accordance with the terms of the Merger Agreement will be deemed to have been paid in full satisfaction of all rights pertaining to any Eligible Common Shares and Eligible Preferred Shares. If, after the Effective Time, any certificate or acceptable evidence of a book-entry share formerly representing an Eligible Common Share or Eligible Preferred Share is presented to the Surviving Corporation, Voya or the paying agent for transfer, it will be cancelled and exchanged for the cash amount in immediately available funds to which the holder thereof is entitled to receive as a result of the Merger.

 

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Any portion of the Exchange Fund (including any interest and other income resulting from any investments of the Exchange Fund (if any)) that remains unclaimed by the holders of Eligible Common Shares 360 days after the Closing Date will be delivered to Voya or the Surviving Corporation, as determined by Voya. After such time, any holder of Eligible Common Shares who has not complied with the procedures, materials and instructions contemplated by the Merger Agreement and any holder of Company Equity Awards who has not received the applicable Company Equity Payment to be paid by the paying agent pursuant to the terms of the Merger Agreement may look only to the Surviving Corporation as a general creditor for such payments (after giving effect to any required tax withholdings) in respect of their Eligible Common Shares and/or Company Equity Payments. None of the Surviving Corporation, Voya, the paying agent or any other person or entity will be liable to any former holder of shares of Common Stock or Company Equity Awards for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar laws.

In the event any certificate has been lost, stolen or destroyed, upon the making of an affidavit, in a form and substance reasonably acceptable to the paying agent, of that fact by the person or entity claiming such certificate to be lost, stolen or destroyed and, if required by Voya and/or the paying agent pursuant to the paying agent agreement or otherwise, the posting by such person or entity of a bond in customary amount and upon such terms as may be required by Voya and/or the paying agent pursuant to the paying agent agreement or otherwise as indemnity against any claim that may be made against it or the Surviving Corporation with respect to such certificate, the paying agent will, in exchange for such certificate, issue a check in the amount (after giving effect to any required tax withholdings) equal to the product obtained by multiplying (i) the number of Eligible Common Shares represented by such lost, stolen or destroyed certificate by (ii) the Per Share Common Stock Merger Consideration.

Subject to the last sentence of this paragraph, no holders of Dissenting Shares will be entitled to receive the applicable Per Share Merger Consideration with respect to the Dissenting Shares owned by such stockholder, but instead, each holder of Dissenting Shares will be entitled to receive only the payment provided by Section 262 with respect to the Dissenting Shares owned by such stockholder and at the Effective Time, such Dissenting Shares will no longer be outstanding, will automatically be cancelled and will cease to exist, and such holder of Dissenting Shares will cease to have any other rights with respect to such Dissenting Shares. Benefitfocus must give Voya (i) reasonably prompt written notice of, and copies of, any written demands for appraisal received by Benefitfocus (or written threats regarding the same), any withdrawals of such demands for appraisal and any other documents and instruments served pursuant to the DGCL and received by Benefitfocus in respect of any demand for appraisal under the DGCL and (ii) a reasonable opportunity to participate in and direct all negotiations and proceedings with respect to any demand for appraisal under the DGCL. Benefitfocus must not, except with the prior written consent of Voya, voluntarily make any payment or deposit with respect to any demands for appraisals, offer to settle or settle any such demands or approve any withdrawal of any such demands for appraisal, or agree, authorize or commit to do any of the foregoing. If any holder of Dissenting Shares waives or loses his, her or its right under Section 262 with respect to any Dissenting Shares, such Dissenting Shares will be deemed to have been converted into, and to have become exchangeable for, as of the Effective Time, the right to receive, without interest or duplication, the applicable Per Share Merger Consideration with respect to such shares of Common Stock or Preferred Stock, as applicable.

Each of Voya, the Surviving Corporation and the paying agent (and any of their respective affiliates) will be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Merger Agreement to any person or entity such amounts as it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”) or any other applicable tax law. To the extent that amounts are so withheld, such withheld amounts (i) will be timely remitted to the applicable governmental entity, and (ii) will be treated for all purposes of the Merger Agreement as having been paid to the person or entity in respect of which such deduction and withholding was made. Voya or the paying agent, as the case may be, will use commercially reasonable efforts to provide written notice to Benefitfocus of any anticipated deduction or withholding (excluding any withholding in respect of any amounts treated as compensation for tax purposes) prior to making such deduction or withholding. Benefitfocus, Voya and Merger

 

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Sub have agreed to take commercially reasonable efforts to cooperate to eliminate or reduce any such deduction or withholding.

Treatment of Company Equity Awards

At the Effective Time, Company Equity Awards outstanding immediately prior to the Effective Time will generally be subject to the following treatment:

 

   

each Company Option to purchase shares of Common Stock granted under the Plan that is outstanding and vested as of immediately prior to the Effective Time will be cancelled, and each holder of such Company Options will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company Option immediately prior to the Effective Time, multiplied by (ii) the excess, if any, of (A) the Per Share Common Stock Merger Consideration, over (B) the exercise price per share of Common Stock of such Company Option, less applicable taxes required to be withheld with respect to such payment, provided that any Company Option which has an exercise price equal to or greater than the Per Share Common Stock Merger Consideration will be cancelled at the Effective Time for no consideration;

 

   

each Specified Award that is unvested and outstanding as of immediately prior to the Effective Time will be cancelled, and each holder of such Specified Award will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Specified Award immediately prior to the Effective Time, multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment, provided that with respect to a Specified Award that is a Company Time-Vesting PRSU, the number of shares of Common Stock subject to such Specified Award will be the number of shares of Common Stock earned for the applicable performance period pursuant to the terms of such Company Time-Vesting PRSU;

 

   

each (A) Company RSU that is not a Specified Award (including for the avoidance of doubt, any Company Retention RSUs) and (B) Company Time-Vesting PRSU, in each of (A) and (B), that is outstanding as of immediately prior to the Effective Time will be assumed by Voya and converted into a Voya RSU covering a number of shares of Voya Common Stock (rounded down to the nearest whole number) equal to the product of (i) the number of shares of Common Stock subject to such Company RSUs immediately prior to the Effective Time, multiplied by (ii) the Equity Award Exchange Ratio. Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company RSUs immediately prior to the Effective Time;

 

   

each Company PRSU that is outstanding as of immediately prior to the Effective Time will be assumed by Voya and converted into a Voya RSU covering a number of shares of Voya Common Stock (rounded down to the nearest whole number) equal to the product of (i) the number of shares of Common Stock subject to such Company PRSUs immediately prior to the Effective Time based on target performance, multiplied by (ii) the Equity Award Exchange Ratio. Each Voya RSU will continue to be governed by the same terms and conditions as were applicable to the Company PRSUs immediately prior to the Effective Time; and

 

   

each Company RSU and Company PRSU that is outstanding as of immediately prior to the Effective Time and held by a non-employee director or consultant of the Company or by any employee who is not a Continuing Employee will be cancelled, and each holder of such Company Equity Award will be entitled to receive, as promptly as reasonably practicable after the Effective Time, an amount in cash, without interest, equal to the product of (i) the number of shares of Common Stock subject to such Company Equity Award immediately prior to the Effective Time, (with respect to each Company PRSU based on target performance) multiplied by (ii) the Per Share Common Stock Merger Consideration, less applicable taxes required to be withheld with respect to such payment.

 

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As promptly as practicable following the date of the Merger Agreement, but in any event prior to the Effective Time, the Company will take all actions necessary or required under the ESPP and applicable laws to ensure that (i) except for the Final Offering, no offering period will be authorized or commenced on or after the date of the Merger Agreement, (ii) the Final Offering will end on the Closing Date, (iii) each ESPP participant’s accumulated contributions under the ESPP will be returned to the participant through the payroll system of the Surviving Corporation, as soon as practicable following the Closing, and (iv) the ESPP will terminate in its entirety at the Effective Time and no further rights will be granted or exercised under the ESPP thereafter.

Representations and Warranties

Representations and Warranties of Benefitfocus

Benefitfocus’s representations and warranties relate to, among other things:

 

   

Due organization, valid existence and good standing; corporate or similar power and authority to own, lease or operate its properties and assets and conduct business; qualification to conduct business; organizational documents;

 

   

Capitalization; absence of voting debt securities; equity awards; ownership of subsidiaries; validity of capital stock issued; absence of preemptive, antidilutive and similar rights; absence of voting agreements and other agreements providing for registration rights;

 

   

Corporate power and authority to enter into the Merger Agreement and consummate the Merger; due execution of the Merger Agreement; enforceability of the Merger Agreement;

 

   

Approval of the Merger Agreement and the Support Agreements by the Board; making of the Board Recommendation by the Board;

 

   

Receipt by the Board of the opinion of Benefitfocus’s financial advisor;

 

   

Absence of required governmental filings, notices, reports, consents, registrations, approvals, permits and authorizations;

 

   

Absence of conflicts with organizational documents, applicable laws and material contracts with third parties, and the creation of encumbrances (other than certain permitted encumbrances);

 

   

Compliance with applicable laws and absence of governmental investigations; validity of licenses; absence of violations of anti-corruption, anti-bribery, sanctions, export and similar laws;

 

   

Compliance with insurance laws; validity of licenses with respect to insurance laws; insurance regulatory matters;

 

   

Timeliness and accuracy of SEC reports, including financial statements included therein, and compliance with Securities Act, Exchange Act and Sarbanes-Oxley Act;

 

   

Disclosure controls and procedures and internal control over financial reporting;

 

   

Financial statements, absence of undisclosed liabilities and absence of off-balance sheet arrangements;

 

   

Absence of litigation and governmental orders;

 

   

Absence of certain changes, including absence of a Material Adverse Effect (as defined below), since December 31, 2021, and conduct of the business in the ordinary course;

 

   

Material contracts;

 

   

Employee benefits;

 

   

Labor matters;

 

   

Environmental matters;

 

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Tax matters;

 

   

Real property;

 

   

Intellectual property, information technology and data security;

 

   

Insurance policies;

 

   

Related-party transactions;

 

   

Inapplicability of any “fair price,” “moratorium,” “control share acquisition” or other similar anti-takeover statute or regulation (“Takeover Statute”), agreement or plan;

 

   

Absence of brokers or finders; and

 

   

Absence of other representations and warranties.

Certain of Benefitfocus’s representations and warranties are qualified as to “materiality” or “Material Adverse Effect.” “Material Adverse Effect” means any event, change, development, circumstance, fact or effect (each, a “Change”) that, individually or in the aggregate, (i) has had, or would reasonably be expected to have, a material adverse effect on the condition (financial or otherwise), business, assets or results of operations of Benefitfocus and its subsidiaries (taken as a whole) or (ii) would, or would reasonably be expected to, prevent the ability of Benefitfocus to consummate the Merger by the Outside Date; provided, however, that none of the following, either individually or in the aggregate, will be taken into account in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur:

 

  (a)

Changes that are the result of factors generally affecting the economy, credit, capital, securities or financial markets or political, regulatory or business conditions in the geographic markets in which Benefitfocus or any of its subsidiaries operate or their products or services are sold;

 

  (b)

Changes that are the result of factors generally affecting the industries in which Benefitfocus or any of its subsidiaries operate or in the geographic markets in which they operate or where their products and services are sold;

 

  (c)

Changes arising out of or resulting from the execution, announcement or performance of the Merger Agreement or the transactions contemplated hereby (including the impact thereof on the relationships, contractual or otherwise, of Benefitfocus or any of its subsidiaries with employees, customers and suppliers) or arising out of or result from the identity of Voya or any of its subsidiaries (provided that the exception in this clause (c) will not apply to the representations or warranties relating to (x) absence of governmental filings, notices, reports, consents, registrations, approvals, permits and authorizations and (y) absence of conflicts with organizational documents, applicable laws and material contracts with third parties, and the creation of encumbrances (other than certain permitted encumbrances));

 

  (d)

Changes in GAAP or in any applicable law or changes to the interpretation thereof;

 

  (e)

any failure by Benefitfocus to meet any internal or public projections or forecasts or estimates of revenues or earnings; provided that any Change (not otherwise excluded under this definition) underlying such failure may be taken into account in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur;

 

  (f)

any Change resulting from acts of war (whether or not declared), civil disobedience, sabotage, terrorism, military or para-military actions, or the escalation of any of the foregoing (including cyberattacks), any weather event or natural disaster, or any epidemic, pandemic, outbreak of illness (including COVID-19) or other public health event, any law providing for business closures, “sheltering-in-place,” curfews or other restrictions that relate to or arise out of an epidemic, pandemic, outbreak of illness (including COVID-19) or any material worsening of such conditions;

 

  (g)

any actions taken or omitted to be taken (i) by Benefitfocus or any of its subsidiaries as required by the Merger Agreement (excluding any such actions required to be taken in the ordinary course of business,

 

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  to maintain all existing relationships and goodwill with key customers, suppliers and other persons having material business relationships with Benefitfocus and its subsidiaries or to keep available the services of the officers and key employees of Benefitfocus and its subsidiaries) or (ii) by Benefitfocus or any of its subsidiaries or its or their respective representatives at Voya’s written request or with Voya’s written consent; provided that such consent is given after the date of the Merger Agreement;

 

  (h)

any stockholder litigation related to the Merger Agreement or the transactions contemplated by the Merger Agreement that is brought, or, to the knowledge of Benefitfocus, threatened, against Benefitfocus or any Indemnified Party (as defined below) (other than any proceeding relating to a demand for litigation in connection with, arising out of or otherwise related to a demand for appraisal under Section 262 ) (“Transaction Litigation”); and

 

  (i)

a decline in and of itself in the market price or trading volume of the Common Stock on the NASDAQ; provided that any Change (not otherwise excluded under this definition) underlying such decline in market price or trading volume may be taken into account in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur.

Notwithstanding the foregoing, with respect to clauses (a), (b), (d) and (f) above, any such Changes will be taken into account in determining whether a “Material Adverse Effect” has occurred or would reasonably be expected to but only if and to the extent, that such Changes disproportionately affect Benefitfocus and its subsidiaries (taken as a whole) relative to other companies of similar size operating in the geographic markets in which Benefitfocus or any of its subsidiaries operate or their products and services are sold (in which case only the incremental disproportionate impact may be taken into account and then only to the extent otherwise permitted by this definition).

Representations and Warranties of Voya and Merger Sub

Voya’s and Merger Sub’s representations and warranties relate to, among other things:

 

   

Due organization, valid existence and good standing; corporate power and authority to own, lease and operate its properties and assets and conduct business; qualification to conduct business; organizational documents;

 

   

Capitalization and business of Merger Sub;

 

   

Corporate power and authority to enter into the Merger Agreement and consummate the Merger; due execution of the Merger Agreement; enforceability of the Merger Agreement;

 

   

Absence of governmental filings, notices reports, consents, registrations, approvals, permits and authorizations;

 

   

Absence of conflicts with organizational documents, applicable laws and contracts with third parties and the creation of encumbrances (other than Permitted Encumbrances, as defined in the Merger Agreement);

 

   

Absence of litigation and governmental orders;

 

   

Ownership of our Common Stock or Preferred Stock;

 

   

Sufficiency of funds;

 

   

Solvency;

 

   

Absence of brokers or finders; and

 

   

Absence of other representations and warranties.

Certain of Voya’s and Merger Sub’s representations and warranties are qualified as to “materiality” or by exceptions which would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of Voya or Merger Sub to consummate the transactions contemplated by the Merger Agreement.

 

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The representations and warranties of the parties in the Merger Agreement will not survive the Closing or any termination of the Merger Agreement, as applicable; provided that, the foregoing will not relieve any party to the Merger Agreement of any liability or damages resulting from its actual fraud or knowing and intentional breach of the Merger Agreement. As used in the Merger Agreement, the phrase “knowing and intentional” means, with respect to any act or omission, the taking of a deliberate act, or omission, which act constitutes in and of itself a material breach, with the actual knowledge that the taking of, or failure to take, such act would cause or constitute or would reasonably be expected to cause or constitute a breach of the Merger Agreement.

Conduct of Business Pending the Merger

The Merger Agreement provides for certain restrictions on the conduct of Benefitfocus’s and its subsidiaries’ respective businesses during the Interim Period.

During the Interim Period (except (x) if Voya otherwise consents in writing (such consent not to be unreasonably withheld, delayed or conditioned), (y) if otherwise required, contemplated or permitted by the Merger Agreement, or if required by a governmental entity or applicable law, or (z) if set forth in the Benefitfocus Disclosure Schedule), Benefitfocus and its subsidiaries must use commercially reasonable efforts to conduct their respective businesses in the ordinary course of business in all material respects and use commercially reasonable efforts to maintain all existing relationships and goodwill with key customers, suppliers and other persons having material business relationships with Benefitfocus and its subsidiaries and keep available the services of the officers and key employees of Benefitfocus and its subsidiaries.

Without limiting the foregoing, during the Interim Period (except (x) if Voya otherwise consents in writing (such consent not to be unreasonably withheld, delayed or conditioned), (y) if otherwise required, contemplated or permitted by the Merger Agreement, or if required by a governmental entity or applicable law, or (z) if set forth in the Benefitfocus Disclosure Schedule), Benefitfocus may not, and must cause its subsidiaries not to:

 

   

adopt or propose any change in its organizational documents;

 

   

merge or consolidate Benefitfocus or any of its subsidiaries with any other entity, except for any such transactions solely among wholly owned subsidiaries of Benefitfocus;

 

   

adopt or enter into a plan of restructuring, reorganizing, dissolving, recapitalizing, complete or partial liquidation or similar transaction;

 

   

enter into any agreements or arrangements imposing material changes or restrictions on its properties, assets, operations or businesses;

 

   

acquire or agree to acquire by merger, consolidation, acquisition of stock, equity or assets or otherwise, any business, third party, division, properties or assets from any other third party, other than purchase or acquisitions of assets in the ordinary course of business with a fair market value or purchase price not in excess of $1.0 million in any individual transaction or $2.0 million in the aggregate;

 

   

transfer, sell, lease, sublease, license, pledge, mortgage, assign, divest, cancel or otherwise dispose of, or incur, permit or suffer to exist the creation of any encumbrance (other than any permitted encumbrance) upon any properties or assets (excluding intellectual property rights) material to Benefitfocus, except in connection with (A) sales of obsolete assets or (B) sales, leases, licenses or other dispositions of assets, in each case with a fair market value (as reasonably determined by Benefitfocus) not in excess of $500,000 in any individual transaction or $1.0 million in the aggregate;

 

   

issue, deliver, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber or otherwise enter into any contract or understanding with respect to the voting of or transfer any shares of capital stock of Benefitfocus or capital stock or other equity or equity-based interests of any of its subsidiaries, securities convertible or exchangeable into or exercisable for any such shares of capital stock or other equity interests, or any options, warrants or other rights of any kind to acquire any such shares of

 

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capital stock, other equity interests or such convertible or exchangeable securities (other than (A) the delivery of any shares of Common Stock upon (1) the conversion of either shares of Preferred Stock (including in respect of dividends accumulated on the shares of Preferred Stock) in accordance with the terms of the Preferred Stock or (2) the conversion of the 1.25% Convertible Senior Notes due 2023 of Benefitfocus (the “Company Notes”) in accordance with the indenture, dated as of December 27, 2018, between the Company and U.S. Bank National Association, as trustee (the “Indenture”) and the exercise of the capped call transactions in accordance with the capped call confirmations (as further discussed below in the section entitled “—Treatment of Company Notes and Capped Call Transactions,” beginning on page 112 of this proxy statement), (B) the issuance of shares of Preferred Stock in connection with the payment of dividends on the Preferred Stock in accordance with the terms of the Preferred Stock or (C) the issuance of shares of such capital stock, other equity securities or convertible or exchangeable securities (1) by a wholly owned subsidiary of Benefitfocus to Benefitfocus or another wholly owned subsidiary of Benefitfocus, (2) in respect of company equity awards outstanding as of the date of the Merger Agreement in accordance with their terms and, as applicable, the stock plans in effect as of 5:00 p.m. (New York time) on October 31, 2022 (the “Capitalization Time”), or (3) pursuant to the ESPP in accordance with its terms and subject to the terms of the Merger Agreement);

 

   

make any loans, advances, guarantees or capital contributions to or investments in any third party in excess of $200,000 in the aggregate (other than between Benefitfocus and any of its wholly owned subsidiaries in the ordinary course of business);

 

   

declare, set aside, establish a Record Date for accrue, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise with respect to any of its capital stock or other equity interests (excluding the Company Notes) of Benefitfocus or its subsidiaries, except for (A) dividends paid by any wholly owned subsidiary to Benefitfocus or to any other wholly owned subsidiary of Benefitfocus or (B) dividends payable to the holders of shares of Preferred Stock, payable in cash or shares of Preferred Stock, in accordance with the terms of the shares of Preferred Stock;

 

   

reclassify, split, combine, subdivide or redeem, purchase or otherwise acquire (or offer to do any of the foregoing), directly or indirectly, any of its capital stock, other equity interests or securities convertible or exchangeable into or exercisable for any shares of its capital stock or other equity interests, other than (A) the withholding of shares of Common Stock to satisfy the payment of the exercise price on the exercise of a Company Option or withholding tax obligations upon the exercise, vesting or settlement of Company Equity Awards outstanding as of the date of the Merger Agreement, in each case, in accordance with their terms and, as applicable, the stock plans as in effect as of the Capitalization Time and (B) pursuant to an exercise of the capped call transactions in accordance with their terms;

 

   

incur or assume any indebtedness for borrowed money, guarantee any indebtedness for borrowed money or enter into a “keep well” or similar arrangement in respect of indebtedness for borrowed money except for any such indebtedness not to exceed $2.5 million individually or $5.0 million in the aggregate;

 

   

incur, make or authorize any payment of, or accrual or commitment for, capital expenditures, or any obligations or liabilities in connection therewith except as contemplated by or reasonably related to, and which will not exceed 107.5% of the aggregate amounts set forth in, Benefitfocus’s capital budget as set forth in the Benefitfocus Disclosure Schedule;

 

   

enter into, terminate or materially amend any contract pursuant to which Benefitfocus or any of its subsidiaries purchase from a third party service provider software (“Third Party IT Contracts”) (other than in the ordinary course of business with respect to any such contract that involve aggregate annual payments of less than $300,000);

 

   

enter into, terminate or materially amend, modify, supplement or waive any material right to enforce, relinquish, release, transfer or assign any material rights or claims under any material contract or any

 

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contract that would have been a material contract had it been entered into prior to the Merger Agreement, other than (A) in the ordinary course of business (except for any Third Party IT Contracts) or (B) in respect of indebtedness or capital contributions;

 

   

amend any license contemplated by the terms of the Merger Agreement in any material respect, or allow any such license to lapse, expire or terminate (except where the lapse, expiration or termination of any such license is with respect to a license that has become obsolete, redundant or no longer required by applicable law);

 

   

other than with respect to Transaction Litigation, any proceeding in connection with appraisal rights or any tax claim, audit, assessment or dispute, or any proceeding in connection with, arising out of or otherwise related to a dispute among the parties in connection with the Merger Agreement, settle or compromise any proceeding (or agree to settle or compromise) for an amount in excess of $1.0 million individually or $2.0 million in the aggregate after the date of the Merger Agreement during any calendar year, net of any amount covered by insurance, indemnification or existing reserves established in accordance with GAAP, or on a basis that would result in the imposition of any order that would materially restrict the future activity or conduct of Benefitfocus or any of its subsidiaries or a finding or admission of a material violation of law or material violation of the rights of any person;

 

   

make any changes with respect to accounting policies or procedures in any material respect, except as required by changes in GAAP;

 

   

other than in the ordinary course of business, (A) change or revoke any tax election that is material to Benefitfocus and its subsidiaries, taken as a whole, on any tax return filed on or after the date of the Merger Agreement, except (i) as a result of, or in response to, any change in U.S. federal tax laws or regulations or administrative guidance promulgated or issued thereunder or (ii) with consent by Voya (not to be unreasonably withheld, conditioned or delayed), (B) change an annual tax accounting period, which change is material to Benefitfocus and its subsidiaries, taken as a whole, (C) file any amended tax return with respect to an amount of taxes that is material to Benefitfocus and its subsidiaries, taken as a whole, (D) consent to any extension or waiver of the statute of limitations period applicable to any taxes, tax returns or claims for taxes that are, in each case, material to Benefitfocus and its subsidiaries, taken as a whole, or (E) enter into any closing agreements with respect to an amount of taxes that is material to Benefitfocus and its subsidiaries, taken as a whole;

 

   

sell, grant any encumbrance on (other than any permitted encumbrance), license, transfer or otherwise dispose of, cancel, abandon or otherwise allow to lapse or expire any material intellectual property, except for non-exclusive licenses or other rights or immunities granted in the ordinary course of business;

 

   

except as required pursuant to the terms of any company benefit plan in effect as of the date of the Merger Agreement or as otherwise required by applicable law, (A) increase the compensation or benefits payable to any company employee, (B) become a party to, establish, adopt, materially amend or otherwise modify or commence participation in any company benefit plan or any arrangement that would have been a company benefit plan had it been entered into prior to the Merger Agreement, (C) grant or commit to grant or increase the amount of, any new long-term incentive or equity-based awards, any severance or termination pay or retention or change in control bonuses, or amend or otherwise modify the terms of any such outstanding awards, entitlements or bonuses to any company employee, (D) take any action to accelerate the vesting or lapsing of restrictions or payment, or fund or in any other way secure the payment, of compensation or benefits under any company benefit plan, (E) hire any natural person who if employed as of the date hereof would be a company employee or (F) terminate the employment of any company employee other than terminations for “cause”; provided that notwithstanding the foregoing if the Closing has not occurred by April 1, 2023, Benefitfocus may make merit-based base salary and wage increases in the ordinary course of business and may establish incentive plans and grant equity-based awards for the 2023 fiscal year in the ordinary course of business with respect to timing and, for equity awards, grant date fair value;

 

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become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, labor organization, works council or similar organization;

 

   

adopt or implement any stockholder rights plan, “poison pill,” anti-takeover plan or other similar agreement or plan;

 

   

form any subsidiary of Benefitfocus or any of its subsidiaries;

 

   

enter into a new line of business or abandon or discontinue any existing line of business; or

 

   

agree, authorize or commit to do any of the foregoing.

During the Interim Period, Voya may not, and must cause its subsidiaries not to, acquire or agree to acquire by merger, consolidation, tender offer, joint venture, share exchange, license, acquisition of stock, equity or assets or any other similar transaction (or series of related transactions) with seven specified competitors of Benefitfocus, or any business, division, properties or assets of any of those seven entities.

Non-Solicitation Covenants

The Merger Agreement provides that, during the Interim Period, subject to certain exceptions, Benefitfocus may not, and must cause its subsidiaries and its and their respective directors, executive officers or controlled affiliates not to, and must instruct any other representatives and other employees of Benefitfocus or any of its subsidiaries not to, directly or indirectly:

 

   

initiate, solicit, cause, propose or knowingly encourage, assist or facilitate any inquiry, proposal or offer with respect to, or the making, submission or announcement of, any Acquisition Proposal (as defined below) or any inquiry, proposal or request for information that would reasonably be expected to lead to or result in, an Acquisition Proposal;

 

   

engage in, conduct, continue, knowingly facilitate, respond to or otherwise participate in any discussions or negotiations with respect to any Acquisition Proposal or any inquiry, proposal, offer or request for information that would reasonably be expected to lead to, or result in, an Acquisition Proposal (subject to certain exceptions, other than to request certain clarification of the terms of the Acquisition Proposal to the extent reasonably necessary or to give notice of the existence of the non-solicitation covenants contained in the Merger Agreement);

 

   

provide or make available any non-public information or data concerning Benefitfocus or its subsidiaries to any third party or afford to any third party access to the business, properties, assets, books, records or other non-public information, or to any personnel, of Benefitfocus or any of its subsidiaries (other than Voya, Merger Sub or any of their respective designees), in any such case in connection with any Acquisition Proposal or any inquiry, proposal, offer or request for information that would reasonably be expected to lead to, or result in, an Acquisition Proposal;

 

   

recommend, authorize, approve, adopt, endorse, declare advisable (or make any public statement recommending, authorizing, approving, adopting, endorsing, declaring advisable) or enter into any Alternative Acquisition Agreement (as defined below);

 

   

approve any transaction, or any third party becoming an “interested stockholder,” under Section 203 of the DGCL or approve any related transaction (other than with respect to the Merger Agreement, the transactions contemplated under the Merger Agreement or Voya or its affiliates);

 

   

grant any waiver, amendment or release under any standstill agreement or Takeover Statute (other than with respect to the Merger Agreement, the transactions contemplated under the Merger Agreement or Voya or its affiliates); or

 

   

resolve, agree authorize or commit to do any of the actions listed in the preceding six bullet points.

 

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“Acquisition Proposal” means any proposal, offer, inquiry or indication of interest relating to or providing for (a) a merger, joint venture, partnership, license, consolidation, dissolution, liquidation, tender offer, share exchange, recapitalization, reorganization, spin-off, plan of arrangement, asset purchase, business combination, acquisition or any other similar transaction (or series of related transactions) involving Benefitfocus or any of its subsidiaries by any third party, (b) any sale, exchange, transfer or other disposition of any assets or businesses of the Benefitfocus or any of its subsidiaries by any third party, (c) any other transaction involving Benefitfocus having a similar effect to those described in clauses (a) or (b), or (d) any proposal, offer, inquiry or indication of interest with respect to any such direct or indirect acquisition contemplated by the foregoing clauses (a), (b) or (c) of this definition that in the case of each of the foregoing clauses (a), (b), (c) and (d), if consummated, would result in any third party, directly or indirectly, becoming the beneficial owner of 15% or more of the: (1) total voting power or any class of equity securities of Benefitfocus or any of its subsidiaries; or (2) consolidated net revenues, net income or total assets of Benefitfocus, in each case of the foregoing clauses (1) and (2) of this definition, as of the date of such proposal, offer, inquiry or indication of interest, or acquisition, in each case other than any proposal, offer, inquiry or indication of interest made by or on behalf of Voya or any of its subsidiaries. Any material revisions to any Acquisition Proposal or Alternative Acquisition Agreement will be deemed to be a new Acquisition Proposal or Alternative Acquisition Agreement, respectively.

However, prior to the time the Requisite Company Vote is obtained, in response to an unsolicited, bona fide written Acquisition Proposal that is made after the date of the Merger Agreement did not result from a breach of the non-solicitation covenants contained in the Merger Agreement (other than a breach that is both immaterial and unintentional), Benefitfocus may:

(i) Provide non-public and other information and data concerning Benefitfocus and its subsidiaries and access to Benefitfocus and its subsidiaries’ properties, books and records in response to a request to the third party who made such an Acquisition Proposal. As promptly as practicable (but in any event within 24 hours) Benefitfocus must make available to Voya such non-public information or data concerning Benefitfocus or its subsidiaries or access that Benefitfocus provides to any such third party that was not previously made available to Voya. Prior to providing any such information or data, Benefitfocus and the third party making such Acquisition Proposal must have entered into a Permitted Confidentiality Agreement. If the third party making such Acquisition Proposal is a competitor of Benefitfocus or any of its subsidiaries, Benefitfocus must not provide any competitively sensitive non-public information to such third party in connection with any actions permitted by the non-solicitation covenants contained in the Merger Agreement. However, Benefitfocus may provide such competitively sensitive non-public information in accordance with “clean team” or other similar procedures reasonably designed to limit any material adverse effect on Benefitfocus or any of its subsidiaries of the sharing of such information; and

(ii) Engage or otherwise participate in any discussions or negotiations with any third party regarding an Acquisition Proposal.

Prior to taking any action described in clause (i) or clause (ii) above, the Board must have determined in good faith, after consultation with outside legal counsel, that, based on the information then available, (A) and after consultation with its financial advisor, that such Acquisition Proposal either constitutes a Superior Proposal (as defined below) or is reasonably likely to result in a Superior Proposal and (B) the failure to take such action as described in clause (i) or clause (ii) above would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable law. Prior to engaging or otherwise participating in any such discussions or negotiations or furnishing any information to such third party, Benefitfocus must promptly provide Voya with written notice in accordance with the terms of the Merger Agreement.

Notice of Acquisition Proposals

Benefitfocus must promptly (but, in any event, within 24 hours) give written notice to Voya if:

 

   

any inquiries, proposals or offers with respect to an Acquisition Proposal or which would reasonably be expected to lead to an Acquisition Proposal are received by Benefitfocus;

 

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any non-public information or data concerning Benefitfocus or its subsidiaries is requested in connection with any Acquisition Proposal; or

 

   

any discussions or negotiations relating to an Acquisition Proposal are sought to be engaged in or continued, by, from or with Benefitfocus, its subsidiaries or any of Benefitfocus’s or its subsidiaries’ officers, directors and financial advisors.

Such notice must include certain specified information, including the identity of the third party making the Acquisition Proposal, a summary of the proposals or requests, and copies of the Acquisition Proposal, if in writing. Benefitfocus must keep Voya informed on a prompt basis of the status and material terms and conditions of any such proposal and any amendments, modifications, or supplements of the proposal.

No Change of Recommendation or Alternative Acquisition Agreement

Except as permitted by the Merger Agreement, the Board may not:

 

   

fail to include the Board Recommendation in this proxy statement;

 

   

withhold or withdraw the Board Recommendation, or change, qualify, amend or modify the Board Recommendation in a manner adverse to Voya or Merger Sub, or publicly propose or resolve to do any of the foregoing;

 

   

approve, recommend, declare advisable or propose to approve, recommend or declare advisable any Acquisition Proposal, proposal reasonably expected to lead to an Acquisition Proposal or any Alternative Acquisition Agreement or publicly propose to do any of the foregoing;

 

   

fail to publicly reaffirm the Board Recommendation within ten business days following a written request (or if such written request is made at least five business days prior to the Special Meeting, then by the date that is at least three business days prior to the Special Meeting) by Voya following the date of any Acquisition Proposal or any material modification of such Acquisition Proposal is first published or sent, given or communicated to the shareholders of Benefitfocus;

 

   

fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 within ten business days after the commencement of such Acquisition Proposal; or

 

   

agree, authorize or commit to do any of the foregoing (together with any of the actions set forth in the foregoing five bullet points, a “Change of Recommendation”).

In addition, except as permitted by the non-solicitation covenants contained in the Merger Agreement, and after compliance with the non-solicitation covenants (except for failures to comply which are both immaterial and unintentional) and the termination provisions contained in the Merger Agreement, the Board must not cause or permit Benefitfocus or any of its subsidiaries to enter into an Alternative Acquisition Agreement or agree, authorize or commit to do so.

Notwithstanding anything to the contrary in the Merger Agreement, prior to the time the Requisite Company Vote is obtained, if Benefitfocus has complied with the non-solicitation covenants contained in the Merger Agreement (except for failures to comply which are both immaterial and unintentional), the Board may

 

   

effect a Change of Recommendation if:

 

   

(1) (i)(a) an unsolicited, bona fide written Acquisition Proposal is received by Benefitfocus after the date of the Merger Agreement that was made in compliance with the terms of the non-solicitation covenants contained in the Merger Agreement (except for failures to comply which are both immaterial and unintentional), (b) the Board determines in good faith (after consultation with outside legal counsel) that such Acquisition Proposal is bona fide and (c) such Acquisition Proposal is not withdrawn prior to the Change of Recommendation or (ii) an Intervening Event (as defined below) has occurred; and

 

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(2) the Board determines in good faith, after consultation with outside legal counsel, that based on the information then available and after consultation with its financial advisor, (x) a failure to effect a Change of Recommendation would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable law and (y) in the case of an Acquisition Proposal, such Acquisition Proposal constitutes a Superior Proposal; and/or

 

   

take action to terminate the Merger Agreement pursuant to, and in accordance with, the termination provisions contained in the Merger Agreement, to cause or permit Benefitfocus or any of the Benefitfocus’s subsidiaries to enter into an Alternative Acquisition Agreement with respect to an Acquisition Proposal that the Board determines in good faith is bona fide and constitutes a Superior Proposal.

However, no Change of Recommendation or action to terminate the Merger Agreement pursuant to the termination provisions contained in the Merger Agreement in order to enter into an Alternative Acquisition Agreement may be taken unless and until:

 

   

Benefitfocus has given Voya written notice at least four business days in advance (the “Notice Period”). The notice must set forth in writing the following:

 

   

that the Board intends to effect a Change of Recommendation or terminate the Merger Agreement and provide the basis therefor.

 

   

in the case of an Acquisition Proposal, the information required by the non-solicitation covenants contained in the Merger Agreement, specifying the identity of the third party making such Superior Proposal, the material terms and conditions of such Superior Proposal and attaching the most current version of such agreement, and

 

   

in the case of an Intervening Event, a reasonable description of such Intervening Event (as defined below).

 

   

During the Notice Period, Benefitfocus must, and must instruct its legal and financial advisors to, negotiate in good faith with Voya and its representatives throughout the Notice Period (to the extent Voya wishes to negotiate) to revise the Merger Agreement such that the failure of the Board to effect a Change of Recommendation or to take such action to terminate the Merger Agreement pursuant to the termination provisions contained in the Merger Agreement to enter into an Alternative Acquisition Agreement, as applicable, would no longer be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable law; and

 

   

At the end of the Notice Period, prior to taking any action to effect a Change of Recommendation or to terminate the Merger Agreement pursuant to the termination provisions contained in the Merger Agreement to enter into an Alternative Acquisition Agreement, the Board must:

 

   

take into account any revisions to the Merger Agreement committed to by Voya in writing and any other information offered by Voya in writing during the Notice Period and

 

   

have determined in good faith, after consultation with outside legal counsel, that, based on the information then available, and after consultation with its financial advisor, a failure to effect a Change of Recommendation continues to be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable law, or that such Alternative Acquisition Agreement continues to be an Alternative Acquisition Agreement with respect to a Superior Proposal.

 

   

If any material revisions to any Acquisition Proposal are made, then such revisions will be deemed to be a new Acquisition Proposal for purposes of the non-solicitation covenants contained in the Merger Agreement, including for purposes of the Notice Period, except that, after the initial Notice Period of four business days, the Notice Period will be reduced to two business days.

In addition, nothing in the non-solicitation covenants contained in the Merger Agreement will prohibit Benefitfocus from (i) complying with its disclosure obligations under applicable law with regard to an

 

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Acquisition Proposal, including making any disclosure the Board has reasonably determined in good faith after consultation with outside legal counsel, that the failure to do so could be inconsistent with its fiduciary duties under applicable law, or (ii) making any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act; however, in no event may Benefitfocus effect a Change of Recommendation except in compliance with the terms of the Merger Agreement.

In addition, Benefitfocus must have, and must have caused its subsidiaries and Benefitfocus’s directors, executive officers, or controlled affiliates, and must have instructed its other representatives to:

 

   

immediately cease any activities, solicitations, discussions and negotiations with any third party conducted prior to the execution and delivery of the Merger Agreement with respect to an Acquisition Proposal or proposal that would reasonably be expected to lead to an Acquisition Proposal,

 

   

promptly terminate access to any physical or electronic data room relating to Benefitfocus with respect to any Acquisition Proposal or proposal that would reasonably be expected to lead to an Acquisition Proposal, and

 

   

promptly request the prompt return or destruction of any confidential information provided to any third party in connection with an Acquisition Proposal made in the six months prior to the date of the Merger Agreement (other than in respect of Voya and Merger Sub and the Merger Agreement).

Benefitfocus has also agreed that any violation of the non-solicitation covenants contained in the Merger Agreement by any subsidiary of Benefitfocus or any of Benefitfocus’s or its subsidiaries’ respective representatives will be deemed a breach of such covenants by Benefitfocus.

Under the Merger Agreement:

 

   

“Alternative Acquisition Agreement” means, other than a Permitted Confidentiality Agreement, any agreement, letter of intent, memorandum of understanding, agreement in principle, term sheet, acquisition agreement, merger agreement, share purchase agreement or any other similar agreement, contract or document relating to or providing for, in a single transaction or series of transactions, any Acquisition Proposal.

 

   

“Intervening Event” means any Change with respect to Benefitfocus and its subsidiaries that is material to Benefitfocus and its subsidiaries, taken as a whole, that (a) was not known or reasonably foreseeable (or if reasonably foreseeable, the effects of which were not reasonably foreseeable) by the Board as of the execution and delivery of the Merger Agreement and (b) first becomes known to the Board after the execution and delivery of the Merger Agreement and any time prior to the time the Requisite Company Vote is obtained; provided that none of the following changes will constitute an Intervening Event: (i) an Acquisition Proposal, (ii) any changes, in and of itself, in the Common Stock price, trading volume of Benefitfocus, the market price or trading volume of Voya or the major stock indexes in the U.S. market, (iii) any changes, in and of itself, in Benefitfocus’s credit ratings, (iv) Benefitfocus meeting, failing to meet or exceeding any internal or public projections or forecasts, or (v) any breach by Benefitfocus of the Merger Agreement; provided that the underlying causes of any of the foregoing in clauses (ii), (iii) or (iv) may be considered and taken into account in determining whether an Intervening Event has occurred or would reasonably be expected to occur.

 

   

“Superior Proposal” means an unsolicited and bona fide written proposal, offer, inquiry or indication of interest contemplated by the definition of “Acquisition Proposal” that if the transactions or series of related transactions contemplated thereby were consummated would result in a third party, other than Voya or any of its subsidiaries, becoming the beneficial owner of, directly or indirectly, more than 75% of the: (a) total voting power of the equity securities of Benefitfocus and its subsidiaries (or of the surviving entity in a merger involving Benefitfocus or the resulting, direct or indirect, parent of Benefitfocus or such surviving entity); or (b) consolidated net revenues, net income or total assets of Benefitfocus, in each case of the foregoing clauses (a) and (b) of this definition, as of the date of such

 

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Acquisition Proposal that, in either case, the Board has determined in good faith, after consultation with outside legal counsel and its financial advisor, that if consummated, (1) would result in a transaction more favorable to Benefitfocus’s stockholders (solely in their capacity as such) from a financial point of view than the transactions contemplated by the Merger Agreement, after taking into account any revisions to the terms and conditions of the Merger Agreement made or proposed by Voya pursuant to its “matching rights” in the non-solicitation covenants contained in the Merger Agreement and (2) would reasonably be likely to be consummated in accordance with the terms of such Acquisition Proposal, in each case taking into account the identity of the person making the proposal, the legal, financial (including the financing terms and logistics), conditionality (including any due diligence or consent-related condition), regulatory, timing (time expected to be required to consummate such Acquisition Proposal) and other aspects of such Acquisition Proposal.

Special Meeting

Under the Merger Agreement, Benefitfocus is obligated to take actions necessary to:

 

   

duly call, give notice of, convene and hold the Special Meeting as promptly as practicable (and not later than 35 days after the date the SEC staff confirms that the SEC does not intend to review the preliminary proxy statement or advises that it has no further comments thereon or that the Company may commence mailing the definitive proxy statement), and

 

   

cause a vote upon the adoption of the Merger Agreement to be taken at the Special Meeting.

Benefitfocus may not postpone, recess or adjourn the Special Meeting without Voya’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). However, Benefitfocus may postpone, recess or adjourn the Special Meeting without such consent, subject to certain timing limitations, if:

 

   

at the time the Special Meeting is originally scheduled there are insufficient shares of Common Stock and Preferred Stock represented to constitute a quorum necessary to conduct the business of the Special Meeting or to obtain the Requisite Company Vote at the Special Meeting, or

 

   

it is necessary (after consultation with outside legal counsel) under applicable law to comply with the requirements made by the SEC or other applicable law with respect to this proxy statement.

Benefitfocus will also, at the instruction of Voya, postpone or adjourn the Special Meeting if there are not sufficient votes in person or by proxy to secure the Requisite Company Vote to allow reasonable time (but not more than 20 days) for the solicitation of proxies for the purpose of obtaining the Requisite Company Vote.

Benefitfocus will also establish a Record Date for the Special Meeting as promptly as reasonably practicable following the date the SEC staff confirms that the SEC does not intend to review the preliminary proxy statement or advises that it has no further comments thereon or that the Company may commence mailing the definitive proxy statement, subject to compliance with applicable rules and law. The Record Date cannot be changed without Voya’s written consent (not to be unreasonably withheld, conditioned or delayed) unless required by applicable law.

The Company has agreed that the Board will recommend and continue to recommend adoption of the Merger Agreement to the Company’s stockholders, subject to the Board’s rights to effect a Change of Recommendation as discussed above under the section entitled “—Non-Solicitation Covenants—No Change of Recommendation or Alternative Acquisition Agreement,” and will use reasonable best efforts to solicit from its stockholders proxies and votes in favor of approval of the Merger Agreement, and use commercially reasonable efforts to take all other actions necessary or advisable to secure the Requisite Company Vote.

 

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Efforts to Complete the Merger

Cooperation of the Parties

Under the Merger Agreement, Voya and Benefitfocus have agreed to cooperate with each other and use (and cause their respective subsidiaries to use) their respective reasonable best efforts to take or cause to be taken all actions necessary or advisable on its part under the Merger Agreement and applicable law to consummate the transactions contemplated by the Merger Agreement as promptly as practicable after the date of the Merger Agreement and prior to the Outside Date, including preparing and delivering or submitting documentation, in consultation with the other, to:

 

   

effect the expirations of all statutory waiting periods under applicable antitrust law, including under the HSR Act, and, if applicable, any contractual waiting periods under any timing agreements with a governmental entity applicable to the consummation of the transactions contemplated by the Merger Agreement, as promptly as practicable after the date of the Merger Agreement or the entry into any such timing agreements, respectively, and

 

   

make with and obtain as promptly as practicable after the date of the Merger Agreement from, any governmental entity, as applicable, all filings, notices, reports, consents, registrations, approvals, permits and authorizations, in each case, necessary or advisable in order to consummate the transactions contemplated by the Merger Agreement, including the other Benefitfocus approvals and the other Voya approvals required under the Merger Agreement.

In furtherance of the foregoing, the Merger Agreement requires the parties to take specific actions in order to obtain antitrust approval. On November 14, 2022, each of Benefitfocus and Voya filed a Notification and Report Form under the HSR Act.

Information Sharing and Discussions with Governmental Entities

The Merger Agreement further requires each of the parties to, as promptly as practicable following any such request and subject to certain limitations, provide to governmental entities information and documents reasonably requested by such governmental entities or that are necessary or advisable to permit consummation of the transactions contemplated by the Merger Agreement, and each party must provide each other with copies of any such information and documents.

The Merger Agreement provides that Benefitfocus and Voya and their representatives will not participate in any discussions or meetings with any governmental entity in connection with certain matters relating to obtaining regulatory approval unless it consults with the other in advance and, to the extent permitted by the governmental entity, give the other the opportunity to attend and participate in those discussions or meetings.

Undertakings of the Parties

The Merger Agreement also requires that Voya will and will cause its subsidiaries to take all necessary or advisable steps to avoid the entry of, and resist, vacate, limit, reverse, suspend or prevent any actual, anticipated or threatened permanent, preliminary or temporary order, in each case, as applicable, that becomes reasonably foreseeable to be entered, issued, made or rendered or is entered, issued, made or rendered, in each case, that could reasonably be expected to prevent, materially delay or materially impair the consummation of the transactions contemplated by the Merger Agreement, including to:

 

   

defend through litigation on the merits of any proceeding seeking to prevent, delay or impair the consummation of the transactions contemplated by the Merger Agreement (and, if applicable, the appeal thereof and the posting of a bond in connection therewith);

 

   

proffer or agree to sell, lease, license, transfer, dispose of, divest or otherwise encumber, or hold separate pending such disposition, and promptly to effect the sale, lease, license, transfer, disposal,

 

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divestiture or other encumbrance, and holding separate of, assets, operations, rights, product lines, licenses, businesses or interests of Benefitfocus or its subsidiaries (a “Company Divestiture Remedy”) or Voya or its subsidiaries (a “Voya Divestiture Remedy”); and

 

   

limit or restrain the freedom of action with respect to the ability to retain or make changes in the assets, operations, rights, product lines, licenses, businesses or interests of Benefitfocus and its subsidiaries (a “Company Behavioral Remedy”) or Voya and its subsidiaries (a “Voya Behavioral Remedy”) and, in each case, enter into agreements with, and submission to orders of, the relevant governmental entity giving effect to such Company Behavioral Remedy or Voya Behavioral Remedy prior to the Outside Date (however, these actions will not be required unless the effectiveness of such action is contingent upon the occurrence of the Effective Time).

However, Voya and its subsidiaries will not be required to agree to:

 

   

any Voya Divestiture Remedy if such Voya Divestiture Remedy, individually or taken together with all other Voya Divestiture Remedies and Company Divestiture Remedies undertaken or proposed to be undertaken by Voya and its subsidiaries or Benefitfocus and its subsidiaries, respectively, would reasonably be likely to be material to the businesses of Voya and its subsidiaries, taken as a whole;

 

   

any Company Divestiture Remedy if such Company Divestiture Remedy, individually or taken together with all other Company Divestiture Remedies undertaken or proposed to be undertaken by Benefitfocus and its subsidiaries, would reasonably be likely to be material to the business of the Benefitfocus and its subsidiaries, taken as a whole;

 

   

any Company Behavioral Remedy, if such Company Behavioral Remedy, individually or taken together with all other Company Behavioral Remedies and Voya Behavioral Remedies undertaken or proposed to be undertaken by the Benefitfocus and its subsidiaries or Voya and its subsidiaries, respectively, would reasonably be likely to result in a material adverse effect on the Benefitfocus and its subsidiaries, taken as a whole; or

 

   

any Voya Behavioral Remedy, if such Voya Behavioral Remedy, individually or taken together with all other Voya Behavioral Remedies and Company Behavioral Remedies undertaken or proposed to be undertaken by Voya and its subsidiaries, or Benefitfocus and its subsidiaries, respectively would reasonably be likely to result in a material adverse effect on Voya and its subsidiaries (but, with respect to this clause, measured on a scale relative to the size of the Benefitfocus and its subsidiaries, taken as a whole).

Benefitfocus must not, and must cause its subsidiaries not to, take any action contemplated in the preceding seven bullet points without the prior written consent of Voya.

Voya and Benefitfocus will jointly direct all matters with any governmental entity, but in the event of any disagreement between Voya and Benefitfocus regarding any matter with a governmental entity, Voya will have the right to decide and direct the matter that is the cause of disagreement after consulting with Benefitfocus and considering its views in good faith.

Voya and Benefitfocus will have the right to review in advance and will consult with the other on and consider in good faith the views of the other in connection with, all the information relating to Voya and Benefitfocus, as the case may be, any of their respective subsidiaries and any of its or their respective representatives, that appears in any filing made with, or written materials delivered or submitted to, any governmental entity in connection with the transactions contemplated by the Merger Agreement.

Employee Benefits

Voya has agreed that the employees of Benefitfocus and its subsidiaries at the Effective Time who continue to remain employed with the Company or any of its subsidiaries (“Continuing Employees”) will, during the

 

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period commencing at the Effective Time and ending on the one-year anniversary of the Effective Time, be provided with (i) base salary or base wage that is no less favorable than the base salary or base wage than that provided to the Continuing Employees immediately prior to the Effective Time, (ii) target annual cash bonus opportunities and target annual long-term incentive opportunities that are no less favorable, in the aggregate, than those opportunities provided, in the aggregate, to the Continuing Employees immediately prior to the Effective Time, (iii) pension and welfare benefits, that are no less favorable in the aggregate than those provided to the Continuing Employees immediately prior to the Effective Time, and (iv) solely to the extent provided under the terms of each Continuing Employee’s existing employment agreement, offer letter or other written agreement with Benefitfocus as of immediately prior to the Effective Time, severance benefits that are no less favorable than those provided to each such Continuing Employee immediately prior to the Effective Time.

Voya will use commercially reasonable efforts to (i) cause any pre-existing conditions or limitations and eligibility waiting periods under any group health plans of Voya or its affiliates to be waived with respect to the Continuing Employees and their eligible dependents, (ii) give each Continuing Employee credit for the plan year in which the Effective Time occurs towards applicable deductibles and annual out-of-pocket limits for medical expenses incurred prior to the Effective Time for which payment has been made, and (iii) give each Continuing Employee service credit for such Continuing Employee’s employment with Benefitfocus for purposes of vesting, benefit accrual and eligibility to participate under each applicable Voya benefit plan, as if such service had been performed with Voya, except for benefit accrual under defined benefit pension plans, for purposes of qualifying for subsidized early retirement benefits or to the extent it would result in a duplication of benefits.

Prior to the Effective Time, if requested by Voya in writing, to the extent permitted by applicable law and the terms of the applicable plan or arrangement, Benefitfocus will cause the Benefitfocus 401(k) Profit Sharing Plan (the “Benefitfocus 401(k) Plan”) to be terminated effective immediately prior to the Effective Time. In the event that Voya requests that the Benefitfocus 401(k) Plan be terminated, Benefitfocus will provide Voya with evidence that such plan has been terminated (the form and substance of which will be subject to approval by Voya) not later than the day immediately preceding the Effective Time.

Prior to the Effective Time and thereafter (as applicable), Voya and Benefitfocus will take all actions as may be required, including amendments to the Benefitfocus 401(k) Plan and/or the tax-qualified defined contribution retirement plan designated by Voya (the “Voya 401(k) Plan”) to (i) permit each Continuing Employee to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code including of loans) in the form of cash, Voya Common Stock, notes (in the case of loans) or a combination thereof, in an amount equal to the full account balance distributed or distributable to such Continuing Employee from the Benefitfocus 401(k) Plan to the Voya 401(k) Plan and (ii) have each Continuing Employee become a participant in the Voya 401(k) Plan on the Closing Date. Voya and Benefitfocus agree that there will be no gap in participation in a tax-qualified defined contribution plan.

Voya will not communicate with any director or employee of Benefitfocus relating to the Merger Agreement and the transactions contemplated thereby, excluding communications (or portions thereof) that relate solely to compensation or benefits matters, including integration matters, that relate to compensation or benefit arrangements to be implemented by Voya or its affiliates for the period following the Effective Time, without providing Benefitfocus a copy of the intended communication and obtaining prior written consent of Benefitfocus.

Nothing set forth in the Merger Agreement is intended to (i) be treated as an amendment of any particular Benefitfocus benefit plan, (ii) prevent Voya, the Surviving Corporation or any of their affiliates from amending or terminating any of their benefit plans or, after the Effective Time, any Benefitfocus benefit plan in accordance with their terms, (iii) prevent Voya, the Surviving Corporation or any of their affiliates, after the Effective Time, from terminating the employment of any Continuing Employee, or (iv) create any third-party beneficiary rights in any employee of Benefitfocus or any of its subsidiaries, any beneficiary or dependent thereof, or any collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment or

 

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benefits that may be provided to any Continuing Employee by Voya, the Surviving Corporation or any of their affiliates or under any benefit plan which Voya, the Surviving Corporation or any of their affiliates may maintain.

Indemnification; Directors’ and Officers’ Insurance

From and after the Effective Time, to the fullest extent permitted under applicable law and Benefitfocus’s organizational documents in effect as of the date of the Merger Agreement, Voya must cause (including by providing all necessary funding) the Surviving Corporation to (i) indemnify, defend and hold harmless the Indemnified Parties (as defined below) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with, arising out of or otherwise related to any actual or alleged legal proceeding in connection with, arising out of or otherwise related to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, based in whole or in part, or arising in whole or in part out of the fact that he or she is or was a director or officer of Benefitfocus or any of its subsidiaries, including in connection with (a) the transactions contemplated by the Merger Agreement and (b) actions to enforce the indemnification provisions contained in the Merger Agreement or any other indemnification or advancement right of any Indemnified Party, and (ii) advance reasonable documented out-of-pocket expenses as incurred in connection therewith (upon receipt from such Indemnified Party of a request therefor, accompanied by invoices or other relevant documentation), subject to certain repayment obligations if it is ultimately determined in accordance with the Merger Agreement that such person or entity is not entitled to such advanced expenses. Any determination required to be made with respect to whether an Indemnified Party’s conduct complies with the standards set forth under applicable law and the Company’s organizational documents in effect as of the date of the Merger Agreement will be made by independent legal counsel selected by the Surviving Corporation and acceptable to the Indemnified Party (not to be unreasonably conditioned, withheld or delayed).

“Indemnified Parties” means, collectively, each present and former (determined as of the Effective Time for purposes of the indemnification covenants contained in the Merger Agreement) director or officer of Benefitfocus or any of its subsidiaries (or other individuals performing similar functions), when serving in such capacity or in serving as a director, officer, member, trustee or fiduciary of another entity or enterprise, including a company benefit plan, at the request or benefit of Benefitfocus or any of its subsidiaries, together with such individual’s respective heirs, executors, trustees, fiduciaries or administrators, in each case when acting in such capacity.

Prior to the Effective Time, Benefitfocus will, and if Benefitfocus is unable to, Voya will cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for “tail” coverage for the extension of Benefitfocus’s existing directors’ and officers’ liability insurance policies and fiduciary liability insurance policies in each case for a claims reporting or discovery period of six years from the Effective Time (the “Tail Period”), subject to certain requirements set forth in the Merger Agreement relating to the applicable carrier, the terms of coverage and the costs of such tail coverage. The Company will give Voya a reasonable opportunity to participate in the selection of “tail” insurance policies and Benefitfocus will give reasonable and good faith consideration to any comments made by Voya.

If Benefitfocus for any reason fails to obtain or Voya for any reason fails to cause to be obtained such “tail” insurance policies as of the Effective Time, the Surviving Corporation must, and Voya must cause the Surviving Corporation to, continue to maintain in effect for the Tail Period the directors’ and officers’ liability insurance policies and fiduciary liability insurance policies, or Voya must cause the Surviving Corporation to purchase comparable policies for the same period with terms, conditions, retentions and limits of liability that are at least as favorable as provided in Benefitfocus’s existing policies as of the date of the Merger Agreement, subject to certain requirements set forth in the Merger Agreement relating to the applicable carrier, the terms of coverage and the costs of such coverage.

 

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During the Tail Period, without the prior written consent of the Indemnified Party, all rights to indemnification and exculpation from liabilities for acts or omissions occurring prior to the Effective Time and rights to advancement of expenses relating thereto now existing in favor of any Indemnified Party as provided in the Benefitfocus’s and its subsidiaries’ organizational documents or any indemnification agreement between such Indemnified Party and Benefitfocus or any of its subsidiaries, in each case, as in effect on the date of the Merger Agreement, must not be amended, restated, amended and restated, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such Indemnified Party.

If Voya or the Surviving Corporation or any of their respective successors or assigns consolidate with or merge into any other third party and is not the continuing or surviving entity of such consolidation or merger or transfer all or substantially all of its properties and assets to any third party, then, and in each such case, proper provisions will be made so that the successors and assigns of Voya or the Surviving Corporation assume all the obligations set forth in the indemnification covenants contained in the Merger Agreement.

The foregoing provisions are intended to be for the benefit of, and from and after the Effective Time will be enforceable by, each of the Indemnified Parties, who will be third-party beneficiaries of such provisions.

Delisting and Deregistration

Prior to the Closing Date, Benefitfocus will cooperate with Voya and use reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, necessary, proper or advisable on its part under applicable law, including the rules and policies of NASDAQ, to enable the delisting by the Surviving Corporation of the shares of Common Stock from NASDAQ and the deregistration of the shares of Common Stock under the Exchange Act as promptly as practicable after the Effective Time. In connection therewith, Voya will (a) assist in enabling Benefitfocus or NASDAQ to be in a position to promptly file and cause the Surviving Corporation or NASDAQ to file with the SEC a Form 25 on the Closing Date and (b) cause the Surviving Corporation to file a Form 15 on the first business day that is at least ten days after the date the Form 25 is filed. If the Merger is completed, our Common Stock will no longer be traded on the NASDAQ and will be deregistered under the Exchange Act. We will no longer be required to file periodic reports, current reports and proxy and information statements with the SEC on account of our Common Stock.

Treatment of Company Notes and Capped Call Transactions

Benefitfocus will use its reasonable best efforts to take actions reasonably requested by Voya in connection with the conversion of the Company Notes in accordance with the Indenture. Benefitfocus will not be required to execute or deliver any document, certificate or instrument in connection with the conversion of the Company Notes that is not conditioned upon the occurrence of the Effective Time.

Prior to the Effective Time, Benefitfocus will use commercially reasonable efforts to cooperate with Voya with respect to its efforts to settle or terminate certain capped call transactions entered into in connection with the Company Notes, issued pursuant the Indenture.

Other Covenants

The Merger Agreement contains other customary covenants, including those:

 

   

Relating to the preparation, clearance and dissemination of this proxy statement;

 

   

Requiring Merger Sub’s sole stockholder to adopt the Merger Agreement (which was obtained on November 1, 2022);

 

   

Requiring Benefitfocus and Voya to keep each other apprised of the status of matters relating to the completion of the transactions contemplated by the Merger Agreement;

 

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Requiring Benefitfocus, following the written request of Voya, to use commercially reasonable efforts to give or obtain notices, acknowledgements, waivers or consents from third parties to material contracts to which Benefitfocus or its subsidiaries is bound or required to obtain as a result of the transactions contemplated by the Merger Agreement;

 

   

Requiring Benefitfocus to provide Voya and its representatives with information and reasonable access to Benefitfocus’s employees, properties, offices and other facilities solely for the purpose of effecting the Closing;

 

   

Relating to public announcements and other communications with respect to the Merger Agreement and the Merger;

 

   

Relating to the payoff of any outstanding indebtedness under Benefitfocus’s Credit Agreement;

 

   

Requiring Benefitfocus and Voya to take actions to eliminate or minimize the effects of any Takeover Statutes that become applicable to the Merger and the transactions contemplated by the Merger Agreement;

 

   

Relating to coordination between Benefitfocus and Voya regarding Transaction Litigation; and

 

   

Relating to Section 16 matters.

Closing Conditions

Mutual Conditions

The obligations of each of Benefitfocus, Voya and Merger Sub to effect the Merger is subject to the satisfaction or, to the extent permitted by applicable law, waiver at or prior to the Effective Time of the following conditions:

 

   

The Requisite Company Vote will have been obtained;

 

   

The statutory waiting period (and any extensions thereof) applicable to the consummation of the transactions contemplated by the Merger Agreement under the HSR Act and, if applicable, any contractual waiting periods under any timing agreements in connection therewith, will have expired or been earlier terminated (the “HSR Condition”); and

 

   

No governmental entity will have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and prevents the consummation of the transactions contemplated by the Merger Agreement.

Conditions to Voya’s and Merger Sub’s Obligations to Effect the Closing

The obligations of Voya and Merger Sub to effect the Closing are also subject to the satisfaction or, to the extent permitted by applicable law, waiver by Voya at or prior to the Effective Time of the following additional conditions:

 

   

Each of Benefitfocus’s representations and warranties relating to (i) organization, good standing and qualification, (ii) corporate authority and approval of the Merger Agreement, (iii) the inapplicability of Takeover Statutes, and (iv) the absence of brokers and finders that (a) is not qualified by the words “Material Adverse Effect” or “materiality” will be true and correct in all material respects as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty must be so true and correct in all material respects as of such earlier date) and (b) is qualified by the words “Material Adverse Effect” or “material” will be true and correct in all respects as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty must be so true and correct in all respects as of such earlier date);

 

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Each of Benefitfocus’s representations and warranties related to capital structure must have been true and correct in all respects as of the Capitalization Time, except for any de minimis inaccuracies (it being understood that any inaccuracies resulting in fewer than 200,000 additional shares of Common Stock (calculated on an as-converted and as exercised basis) will be deemed de minimis);

 

   

Benefitfocus’s representation and warranty related to the absence of a Material Adverse Effect must be true and correct in all respects as of the Closing;

 

   

Each of Benefitfocus’s other representations and warranties, without giving effect to any “materiality” or “Material Adverse Effect” qualifiers or qualifiers of similar import set forth therein, must be true and correct as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty must be so true and correct as of such particular date or period of time), except for any failure of any such representation and warranty to be so true and correct that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;

 

   

Benefitfocus must have performed in all material respects all of the obligations required to be performed by it under the Merger Agreement at or prior to the Closing;

 

   

Since the date of the Merger Agreement, there must not have occurred any Material Adverse Effect (or if such Material Adverse Effect would, or would reasonably be expected to, prevent the ability of the Company to consummate the Merger by the Outside Date, it will not be continuing); and

 

   

Voya must have received a certificate duly executed on behalf of Benefitfocus by a duly authorized officer of Benefitfocus certifying that the conditions described in the six immediately preceding bullet points have been satisfied.

Conditions to Benefitfocus’s Obligation to Effect the Closing

The obligation of Benefitfocus to effect the Closing is also subject to the satisfaction or, to the extent permitted by applicable law, waiver by Benefitfocus at or prior to the Effective Time of the following conditions:

 

   

Each of Voya’s and Merger Sub’s representations and warranties, without giving effect to any “materiality” qualifiers or qualifiers of similar import set forth therein, must be true and correct as of the Closing as though made as of the Closing (except to the extent that any such representation and warranty expressly speaks as of a particular date or period of time, in which case such representation and warranty must be true and correct as of such particular date or period of time), except for any failure of any such representations and warranties to be so true and correct that would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of Voya or Merger Sub to consummate the transactions contemplated by the Merger Agreement;

 

   

Each of Voya and Merger Sub must have performed in the material respects all obligations required to be performed by it under the Merger Agreement at or prior to the Closing; and

 

   

Benefitfocus must have received a certificate duly executed on behalf of Voya and Merger Sub by a duly authorized officer of Voya and Merger Sub certifying that the conditions described in the two immediately preceding bullet points have been satisfied.

Termination

The Merger Agreement may be terminated and the transactions contemplated thereby abandoned at any time before the Effective Time, whether before or after the Requisite Company Vote has been obtained (except as otherwise noted below), as follows:

 

   

By mutual written consent of Benefitfocus, Voya and Merger Sub;

 

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By either Benefitfocus or Voya if:

 

   

the transactions contemplated by the Merger Agreement have not been consummated by the Outside Date; provided, however, that if the HSR Condition has not been satisfied or waived on or prior to the Outside Date but all other conditions to Closing have been satisfied or, to the extent permitted by applicable law, waived (except for those conditions that by their nature are to be satisfied at the Closing), the Outside Date may be extended by Benefitfocus or Voya to a time and date not beyond 5:00 p.m. (New York time) on June 30, 2023 by providing a written notice of a request to extend the Outside Date to Voya, in the case of an extension by Benefitfocus, or to Benefitfocus, in the case of an extension by Voya, in each case prior to the original Outside Date and such time and date, as so extended, will be the “Outside Date,” provided that this termination right will not be available to Benefitfocus or Voya if it has breached in any material respect any covenant or agreement set forth in the Merger Agreement and such breach has proximately caused, or primarily resulted in, the failure of Closing to occur on or prior to the Outside Date (including by resulting in a failure of any conditions to the Closing to not be satisfied) (such termination event, the “Outside Date Termination Event”); provided, further, that the Outside Date will automatically be extended to the 20th business day following the resolution of a proceeding for specific performance, or such other time period established by the court presiding over such proceeding for specific performance, as more fully described below in the section entitled “The Merger Agreement—Specific Performance”;

 

   

the Requisite Company Vote has not been obtained at the Special Meeting or at any postponement, recess or adjournment thereof taken in accordance with the Merger Agreement (such termination event, the “Stockholder No Vote Termination Event”); or

 

   

if any governmental entity has enacted, issued, promulgated, enforced or entered any law or order after the date of the Merger Agreement that is in effect and prevents the consummation of the transactions contemplated by the Merger Agreement and such law or order has become final and non-appealable, whether before or after the Requisite Company Vote has been obtained; provided that this termination right will not be available to Benefitfocus or Voya if it has materially breached any covenant or agreement set forth in the Merger Agreement and such breach has proximately caused the enactment, issuance, promulgation, enforcement or entry of any such law or order or the failure to have such law or order lifted, terminated or no longer in effect.

 

   

By Benefitfocus:

 

   

if there has been a breach of any representation, warranty, covenant or agreement made by Voya or Merger Sub set forth in the Merger Agreement, or if any representation or warranty of Voya or Merger Sub has become untrue or incorrect following the date of the Merger Agreement, in either case such that the conditions described in the first or second bullet points under “—Closing Conditions—Conditions to Benefitfocus’s Obligation to Effect the Closing” above would not be satisfied (and such breach or failure to be true and correct is not curable prior to the Outside Date, or, if curable prior to the Outside Date, has not been cured within the earlier of (i) 30 days after the giving of written notice of such breach or failure by Benefitfocus to Voya and Merger Sub describing such breach or failure in reasonable detail and (ii) three business days prior to the Outside Date), whether before or after the Requisite Company Vote has been obtained; provided that this termination right will not be available to Benefitfocus if it has breached in any material respect any representation, warranty, covenant or agreement set forth in the Merger Agreement and such breach has proximately caused the failure of the conditions described in the first five bullet points under “—Closing Conditions—Conditions to Voya’s and Merger Sub’s Obligation to Effect the Closing” above to occur; or

 

   

at any time prior to the time the Requisite Company Vote is obtained, subject to Benefitfocus’s compliance in all material respects with the non-solicitation covenants contained in the Merger Agreement, in order for the (i) Board to cause or permit Benefitfocus or any of its subsidiaries to

 

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enter into an Alternative Acquisition Agreement with respect to a Superior Proposal and/or (ii) Benefitfocus to enter into, or cause one of its subsidiaries to enter into, an Alternative Acquisition Agreement with respect to a Superior Proposal, in each case so long as prior to entry into such agreement or substantially concurrently with the entry into such agreement Benefitfocus pays or causes to be paid to Voya by wire transfer of immediately available funds the Termination Fee (as defined below) required to be paid pursuant to and in accordance with the terms of the Merger Agreement (it being understood that any purported termination of the Merger Agreement pursuant to this termination right will be null and void if Benefitfocus has not paid the Termination Fee (as defined below) in accordance with the terms of the Merger Agreement prior to or substantially concurrently with such termination) (such termination event, the “Superior Proposal Termination Event”);

 

   

By Voya:

 

   

if there has been a breach of any representation, warranty, covenant or agreement made by Benefitfocus set forth in the Merger Agreement, or if any representation or warranty of Benefitfocus will have become untrue or incorrect following the date of the Merger Agreement, in either case such that the conditions in the first five bullet points under “—Closing Conditions—Conditions to Voya’s and Merger Sub’s Obligations to Effect the Closing” above would not be satisfied (and such breach or failure to be true and correct is not curable prior to the Outside Date, or if curable prior to the Outside Date, has not been cured within the earlier of (i) 30 days after the giving of written notice of such breach or failure by Voya to Benefitfocus describing such breach or failure in reasonable detail and (ii) three business days prior to the Outside Date); provided that this termination right will not be available to Voya if either Voya or Merger Sub has breached in any material respect any representation, warranty, covenant or agreement set forth in the Merger Agreement and such breach has proximately caused the failure of the conditions in the first or second bullet points under “—Closing Conditions—Conditions to Benefitfocus’s Obligation to Effect the Closing” above (such termination event, the “Benefitfocus Breach Termination Event”); or

 

   

at any time prior to the time the Requisite Company Vote is obtained, if (i) the Board has effected a Change of Recommendation (such termination event, the “Change of Recommendation Breach Termination Event”) or (ii) Benefitfocus or any of its representatives have knowingly and intentionally breached the non-solicitation covenants contained in the Merger Agreement.

Except to the extent described under “—Termination Fee” below, in the event the Merger Agreement is terminated in the manner described above, the Merger Agreement will become void and of no effect with no liability to any person on the part of any party (or any of its affiliates or its or their respective representatives); provided, however, that no such termination will relieve any party of any liability or damages to any other party resulting from any actual fraud or knowing and intentional breach of the Merger Agreement, or as contemplated by the notice of termination and effect of termination and abandonment provisions contained in the Merger Agreement.

Termination Fee

In the event the Merger Agreement is terminated:

 

   

by (1) either Benefitfocus or Voya pursuant to the Outside Date Termination Event (but only if at such time of termination each of the conditions set forth in “—Closing Conditions—Mutual Conditions” is satisfied other than the condition that the Requisite Company Vote has been obtained) or pursuant to the Stockholder No Vote Termination Event or (2) by Voya pursuant to the Benefitfocus Breach Termination Event and, in each case:

 

   

a third party has made an Acquisition Proposal to Benefitfocus or its stockholders generally after the date of the Merger Agreement, which becomes publicly known or announced (and not publicly withdrawn);

 

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within 12 months after such termination, Benefitfocus enters into any Alternative Acquisition Agreement with respect to any Acquisition Proposal or consummates any Acquisition Proposal (provided, that for purposes of this bullet point, the term “Acquisition Proposal” will have the meaning set forth above under “—Non-Solicitation Covenants,” except that the reference to 15% in such definition will be replaced with a reference to 50% in each instance in such definition);

 

   

then Benefitfocus must pay or cause to be paid to Voya an amount equal to $14.0 million (the “Termination Fee”) by wire transfer of immediately available funds concurrently with the consummation of any Acquisition Proposal;

 

   

by Voya pursuant to the Change of Recommendation Breach Termination Event then Benefitfocus must pay or cause to be paid to Voya, within two business days following the date of such termination by Voya, the Termination Fee by wire transfer of immediately available funds; or

 

   

by Benefitfocus pursuant to a Superior Proposal Termination Event, then Benefitfocus must pay or cause to be paid to Voya immediately prior to or concurrently with such termination by Benefitfocus, the Termination Fee by wire transfer of immediately available funds.

The Merger Agreement provides that (i) in no event will Benefitfocus be required to pay the Termination Fee on more than one occasion, (ii) the agreements described above are an integral part of the transactions contemplated by the Merger Agreement and that, without those agreements, Voya and Merger Sub would not enter into the Merger Agreement, and (iii) other than in the case of actual fraud or knowing and intentional breach of the Merger Agreement by Benefitfocus and subject to the specific performance provisions contained in the Merger Agreement, in the event that the Termination Fee becomes payable by and is paid or caused to be paid by, Benefitfocus, such Termination Fee will be Voya’s sole and exclusive remedy for monetary damages or other relief pursuant to the Merger Agreement. If Benefitfocus fails to promptly pay an amount due pursuant to this paragraph, and, in order to obtain such payment, Voya commences a suit that results in a judgment against Benefitfocus for the Termination Fee, or any portion of such fees, Benefitfocus must pay to Voya its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented non-contingent attorneys’ fees) in connection with such suit, together with interest on the amount due pursuant to this paragraph from the date such payment was required to be made until the date of payment at the annual rate of two percent plus the prime lending rate published in The Wall Street Journal in effect on the date such payment was required to be made through the date of payment (or such lesser rate as is the maximum permitted by applicable law).

Expenses

Whether or not the transactions contemplated by the Merger Agreement are consummated, all costs, fees and expenses incurred in connection with the Merger Agreement and the transactions contemplated by the Merger Agreement, including all costs, fees and expenses of its representatives, will be paid by the party incurring such cost, fee or expense, except (i) as otherwise expressly provided in the Merger Agreement and (ii) that Voya will pay all filing fees and similar fees incurred with respect to the HSR Act and the Texas Department of Insurance under Texas Insurance Code Section 4001.253 and the other Voya approvals will be borne exclusively by Voya.

Amendments and Waivers

Subject to the provisions of applicable law and the terms of the Merger Agreement, at any time prior to the Effective Time, the Merger Agreement may be amended or otherwise modified only by a written instrument duly executed and delivered by Benefitfocus, Voya and Merger Sub. The conditions to each of the respective parties’ obligations to consummate the transactions contemplated by the Merger Agreement are for the sole benefit of such party and may be waived by such party. Subject to the provisions of applicable law and the terms of the Merger Agreement, any party may waive in writing any provision of the Merger Agreement in whole or in part (including by extending the time for the performance of any of the obligations or other acts of the parties).

 

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Governing Law and Venue

The Merger Agreement and all legal proceedings against any other party in connection with, arising out of or otherwise relating to the Merger Agreement will be interpreted, construed and governed by, and enforced in accordance with the laws of the State of Delaware. Each of the parties to the Merger Agreement has also agreed that any legal proceeding in connection with the Merger Agreement or the transactions contemplated by the Merger Agreement will be brought in the Court of Chancery of the State of Delaware or, if such court finds it lacks subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division), or if subject matter jurisdiction over the proceeding is vested exclusively in the U.S. federal courts, such proceeding will be heard in the U.S. District Court for the District of Delaware in accordance with the terms of the Merger Agreement (the “Chosen Courts”).

Specific Performance

Each of the parties has acknowledged and agreed that the rights of each party to consummate the transactions contemplated by the Merger Agreement are special, unique and of extraordinary character and that if for any reason any of the provisions of the Merger Agreement are not performed in accordance with their specific terms or are otherwise breached, immediate and irreparable harm or damage would be caused for which money damages would not be an adequate remedy. Accordingly, each party has agreed that, except to the extent provided otherwise in the Merger Agreement, in addition to any other available remedies a party may have in equity or at law, each party will be entitled to enforce specifically the terms and provisions of the Merger Agreement and to obtain an injunction restraining any breach or violation or threatened breach or violation of the provisions of the Merger Agreement in the Chosen Courts without necessity of posting a bond or other form of security.

To the extent any party brings a proceeding to enforce specifically the performance of the terms and provisions of the Merger Agreement (other than a proceeding to specifically enforce any provision that expressly survives termination of the Merger Agreement) when expressly available to such party pursuant to the terms and conditions of the Merger Agreement, the Outside Date will automatically be extended to the 20th business day following the resolution of such proceeding, or such other time period established by the court presiding over such proceeding.

Support Agreements

This section describes the material terms of the Support Agreements, copies of which are attached as Annex B and Annex C to this proxy statement and are incorporated by reference herein. The rights and obligations of the parties to the Support Agreements are governed by the express terms and conditions of the Support Agreements and not by this discussion, which is summary by nature. This discussion is qualified in its entirety by reference to the complete text of the Support Agreements. You are encouraged to read the Support Agreements carefully and in their entirety, as well as this proxy statement and any documents incorporated by reference herein, before making any decisions regarding the Merger. Additional information can be found elsewhere in this proxy statement and in the public filings we make with the SEC, as described in the section entitled “Where You Can Find More Information,” beginning on page 130 of this proxy statement.

Summary

On November 1, 2022, concurrently with the execution of the Merger Agreement, each of BG and Indaba, in their respective capacities as stockholders of Benefitfocus, entered into a Support Agreement with Benefitfocus, Voya and Merger Sub, pursuant to which each of BG and Indaba has agreed to, among other things, vote its shares of Common Stock or Preferred Stock, as applicable, in favor of the adoption of the Merger Agreement, not vote its shares of Common Stock or Preferred Stock, as applicable, for any alternative proposal or any other transaction, proposal, agreement, or action made in opposition to the adoption of the Merger Agreement or in competition or inconsistent with the Merger, not exercise any appraisal rights under Section 262 and not transfer its Common Stock or Preferred Stock, as applicable (subject to certain exceptions) to third parties. As of [●], 202[●], there were [●] shares of Common Stock and [●] share of Preferred Stock

 

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